Water Laws

Are unpermitted discharges to groundwater that reach surface waters a point source under the CWA?

Maui v. Hawaii Wildlife Fund et al., case 18-260 (U.S. April 23, 2020)

The U.S. Supreme Court held in a 6-3 decision that a discharge of a pollutant from a point source to groundwater that ultimately reaches navigable waters may fall under the permit requirements of the Clean Water Act. The decision outlines limited application of the National Pollutant Discharge Elimination System (NPDES) permitting requirements of the Clean Water Act to pollutants that reach a navigable water via groundwater. The NPDES requirements apply when the discharge of a pollutant from a point source into groundwater that reaches a navigable water is the "functional equivalent" of discharging that pollutant from a point source directly into navigable waters. An NPDES permit is required for the addition of a pollutant from any point source into navigable waters. 33 U.S.C. §§ 1311(a), 1362(12)(A), 1342.

The Court's decision addressed a wastewater reclamation facility operated by the County of Maui that pumps partially treated wastewater into underground wells. The partially treated wastewater then enters and travels a half mile through groundwater to the Pacific Ocean. In determining that the County of Maui's wastewater facility discharge constitutes an illicit discharge for which an NPDES permit is required, the Court specified examples of what types of discharges would and would not trigger the permitting requirements. For example, a pollutant discharged from a pipe located a few feet from a navigable water that travels a short distance through groundwater to navigable waters would be subject to NPDES permitting requirements. On the other hand, a pollutant discharged from a pipe ending many miles from navigable waters that travels through groundwater for "many years" before reaching the navigable water likely would not require an NPDES permit.

In addition to the factors of time and distance, the Court enumerated other aspects of point source pollutant travel through groundwater that are relevant in determining whether the ultimate discharge to navigable waters is subject to the CWA.These include: the type of material the pollutant travels through; whether, and how much, the pollutant is diluted or changed by travel; how much of the pollutant reaches and enters the navigable water, compared to the amount of the pollutant that leaves the point source; where and through what means the pollutant enters a navigable water; and what is retained of the pollutant's identity at the time it reaches the navigable water. The Supreme Court further stated that the CWA statutory language underlying the NPDES permitting requirements and future EPA administrative guidance are among the tools that regulated parties may rely on to determine whether a discharge constitutes the "functional equivalent of a direct discharge."

Must the EPA develop and issue a TMDL when a state fails to submit a TMDL?

Columbia Riverkeeper v. Wheeler, 944 F.3d 1204 (9th Cir. 2019)

Columbia Riverkeeper and other environmental organizations filed a citizen suit under the CWA to compel the EPA to develop and issue a temperature Total Maximum Daily Load (TMDL) for the Columbia and Snake Rivers. These rivers are home to salmon species and steelhead trout, both vulnerable to warm water conditions. Columbia Riverkeeper argued that Washington and Oregon’s failure to issue the temperature TMDL amounted to “constructive submission" of no TMDL. The EPA argued that the constructive submission doctrine does not apply to individual TMDLs. The district court ordered the EPA to approve or disapprove the constructive submission, and the EPA appealed.

The Ninth Circuit found that § 303(d)(2) is silent as to EPA’s duties when a state fails to submit a TMDL. The Ninth Circuit previously adopted the constructive submission doctrine to fill this gap. In San Francisco Baykeeer v. Whitman, the Ninth Circuit acknowledged that, where a state has “clearly and unambiguously” decided that it will not submit TMDLs for the entire state, that decision will be “construed as a constructive submission of no TMDLs, which in turn triggers the EPA's nondiscretionary duty to act.” In this case, the court expanded the constructive submission doctrine to the situation where a state has failed to develop and issue a particular TMDL, rather than a statewide failure to submit any TMDLs. The Ninth Circuit held that because “Washington and Oregon have clearly and unambiguously indicated that they will not produce a TMDL” for the Columbia and Snake Rivers, the EPA is obligated to act under §303(d)(2) and must develop and issue a TMDL within 30 days. The Ninth Circuit affirmed the judgment of the district court.

Must state TMDLs establish daily maximum discharge limits?

Anacostia Riverkeeper, Inc. v. Wheeler, 404 F.Supp. 3d 160 (D.D.C. 2019)

Anacostia Riverkeeper brought this action against the EPA, alleging that EPA violated the CWA by approving total maximum daily loads (TMDLs) that did not establish daily maximum discharge limits for rivers flowing through the District of Columbia.

The United States District Court for the District of Columbia found that EPA violated the plain text of the CWA § 303(d)(1)(c) when it approved a “total maximum daily load” that did not establish daily maximum discharge limits. The court followed Friends of the Earth, Inc., v. EPA, finding that the word “daily” in the “total maximum daily load” was not ambiguous, and NRDC v. EPA, finds that the words “maximum” and “load” each have an unambiguous meaning. The court found that each word in the term “total maximum daily load” has its ordinary, unambiguous meaning and concluded that the phrase is unambiguous. The court found “total maximum daily load” represents “the greatest amount of a pollutant that can be discharged into a water body on any given day without causing a violation of the water quality standards.”

Upstate Forever v. Kinder Morgan Energy Partners, LP, 887 F.3d 637 (4th Cir. 2018)

Conservation groups brought a CWA citizen suit against the owner of an underground gasoline pipeline, alleging that the owner was in violation of CWA by polluting navigable waters without a permit after a gasoline pipeline ruptured and polluted navigable waters by seeping into a river through a direct hydrological connection with groundwater. In this case, the Plaintiffs alleged that, although the pipeline had been repaired and was no longer releasing the pollutant, the pollutant was still passing a short distance through the earth via a groundwater connection and being discharged into jurisdictional surface waters.
The 4th Circuit first held that the conservation groups had sufficiently alleged an ongoing violation of the CWA and that the CWA’s citizen-suit provision does not require that a point source continue to release a pollutant for there to be an ongoing violation, only that there be an ongoing addition of pollutants to navigable waters. Second, the court followed the 9th Circuit’s holding in Hawai’i Wildlife Fund v. Cty of Maui and held that the CWA does not require a discharge directly from a point source into a navigable water in order for the discharge to violate the CWA, and that the statute only checks whether pollutants continue to be added to navigable waters. However, the 4th Circuit limited its holding, finding that plaintiffs must allege a direct hydrological connection between ground water and navigable waters in order to state a claim under the CWA, and that here the Plaintiffs had sufficiently alleged a direct hydrological connect between ground water and navigable waters.

Sierra Club v. Virginia Electric and Power Co. , 903 F.3d 403 (4th Cir. 2018)

In a case following Upstate Forever, the Sierra Club brought a citizen suit against the Virginia Electric, the operator of a coal power plant, alleging violations of the CWA and state permits based on the discharge of arsenic from coal ash piles—stored on site in a landfill and settling ponds—into surrounding surface waters through groundwater. Sierra Club alleged that the landfill and settling ponds were point sources from which arsenic seeped and polluted groundwater and, ultimately, navigable surface waters. The district court below found that the coal ash piles were point sources, as rainwater and groundwater were leaching arsenic from the piles, polluting groundwater and, ultimately, navigable waters.

The 4th Circuit clarified its holding in Upstate Forever, holding that landfill and settling ponds were not point sources within the meaning of the CWA because they simply allow precipitation to percolate through them and into groundwater, which then in turn carries contaminants to navigable waters. Here, arsenic was found to have leached from static accumulations of coal ash; the landfill ponds were not created to convey anything and did not function in that way, and the actual means of conveyance of the arsenic at issue was the rainwater and groundwater flowing diffusely through the soil. In this way, the “simple causal link does not fulfill the Clean Water Act’s requirement that the discharge be from a point source,” even if the groundwater itself did convey a pollutant.

Is the DNR exempt from obtaining a NPDES permit by the federal water transfer rule?

West McDonald Lake Ass'n v. Minnesota Dep't of Nat. Res., 899 N.W.2d 832 (Minn. Ct. App. 2017), review denied (Sept. 19, 2017)

Relator property owners on Hoffman Lake, adjacent to West McDonald Lake, sought review of decision by the Minnesota DNR to issue itself a public works permit to lower runout elevation on outflow from West McDonald to Hoffman. Plaintiffs argued that DNR failed to (1) satisfy criteria for granting the public works permit, (2) granted the permit solely for private interests, and (3) violated both the Clean Water Act and state regulations by failing to obtain a NPDES permit for a water transfer in violation of the water-transfer rule. The court of appeals held that:

1. DNR did not violate the rule prohibiting the construction or reconstruction of water level control facilities solely to satisfy private interests by issuing the permit, as it supported its permit application by addressing Hoffman Lake’s water level and runout elevation;
2. DNR's determination that lowering the runout elevation involved a minimum of encroachment, change, or damage to environment was unsupported by substantial evidence, nor was its determination that lowering the runout elevation would not adversely affect the physical or biological character of the two lakes. DNR’s reliance on a comment from the Minnesota Pollution Control Agency was improper, as the comment was based upon a cursory review of the issue;
3. As a matter of first impression, the federal water-transfer rule did not apply to exempt the DNR from the permit requirement under Minnesota's NPDES program, and in doing so the DNR violated state regulations under Minnesota's NPDES program by failing to obtain NPDES permit.

Is it arbitrary and capricious, sufficient to constitute a contested case hearing, for MPCA to interpret CWA regulations and state statutes as not requiring MPCA to separately determine the load allocation for nonpoint and natural background sources when “current research is not sufficient to differentiate”? Do CWA regulations conflict with MNDNR authority over water allocation?

In re Little Rock Creek, No. A16-0123, 2016 WL 6923602 (Minn. Ct. App. 2016)

Landowners near little rock creek have standing under writ of certiorari to seek review MPCA submission of final TMDL Study to EPA because state regulations consider it a final agency action. However, on review of MPCA denial of a contested case hearing, court finds plaintiffs not entitled to contested case hearing. Court follows Minn. Envtl. Sci. & Econ. Rev. Bd. v. MPCA, 870 N.W.2d 97 (Minn. Ct. App. 2015) standing analysis for whether potential injuries from a not yet implemented standard can be challenged. That case was declaratory judgment, applies it here under writ. Not arbitrary and capricious for MPCA to interpret CWA regulations and Minn. Statute as not requiring MPCA to determine load allocation from nonpoint versus natural background sources when MPCA asserts “current research is not sufficient to differentiate.” Court finds plain language does not require nonpoint and natural background to be separate allocations. Separate issue allows MPCA to recommend restrictions on water allocations as part of TMDL implementation. Court finds CWA regs do not conflict with MNDNR authority over water allocation.

Must MPCA consider actual or anticipated reductions in nonpoint sources when setting Water Quality-based Effluent Limitations (WQBELs)?

MCEA v. MPCA, No. A15-1622, 2016 WL 3223177 (Minn. Ct. App. June 13, 2016)

Distinguishing CWA regulations on Water Quality-based Effluent Limitations (WQBEL) reasonable potential language, holding that MPCA need not consider actual or anticipated reductions in nonpoint sources when setting WQBEL, only when determining if WQBEL should be included in the NPDES permit. Applies Annandale substantial evidence standard, and pointing to Nutrient Reduction Strategy finds reasonable evidence in the record that “voluntary reductions from nonpoint source have occurred in the past and can be reasonably expected to occur in the future.” at *5. Finds MPCA interpretation of its own rules is not arbitrary or capricious. State can set site-specific standards using a 10 year average, and not each summer.

Does a discharge of phosphorus from a new municipal wastewater treatment plant contribute to the impairment of listed impaired waters in violation of Clean Water Act regulations when the phosphorus increase from that discharge is offset by reduction from other sources?

In the Matter of the Cities of Annandale and Maple Lake NPDES/SDS Permit Issuance, A04-2033 (Minn. Ct. App. 2005)

The Cities of Annandale and Maple Lake currently discharge approximately 1,400 pounds of phosphorus to the North Fork of the Crow River, which drains to the Mississippi River and Lake Pepin. Lake Pepin is listed as an Impaired Water and a Total Daily Maximum Load plan is not expected until 2009. The cities applied for an NPDES permit for a new joint wastewater treatment plan that would discharge approximately 3,600 pounds per year of phosphorus -- an amount which the Minnesota Pollution Control Agency (MPCA) conceded would affect the Lake Pepin watershed. The MPCA granted the permit, noting that the increase in phosphorus discharge would be offset by a decrease of 53,500 pounds in phosphorus discharge to the North Fork through a new wastewater plant in Litchfield. The Minnesota Center for Environmental Advocacy challenged the permit, and the Minnesota Court of Appeals decided that the permit was wrongly issued. The Court held that a reduced discharge from other sources does not rectify a violation of water quality standards under 40 C.F.R. § 122.4(i). The dissent argued for more deference to the MPCA and speculated that the majority's approach will effectively preclude issuance of a permit for discharge to an impaired water prior to completion of a TMDL.

Did the Minnesota Pollution Control Agency act lawfully in defining a “reservoir” on the basis of water residence time?

Minnesota Center for Environmental Advocacy v. Minnesota Pollution Control Agency, A04-1323 (Minn. Ct. App. 2005)

MPCA rules require a phosphorus limitation of one milligram per liter in an effluent that “discharge[s] … directly to or affects a lake or reservoir.” MCEA challenged the MPCA’s failure to include the phosphorus limit in a permit reissuance for the City of St. Cloud wastewater treatment plant, asserting that the plant’s discharge to the Mississippi River would affect the Coon Rapids Dam Pool more than 50 miles downstream. The Court of Appeals ruled that MPCA policy defining “reservoir” in terms of a water residence time of at least 14 days is not arbitrary, and that under this criterion the Pool is not a reservoir. The Court further found that MCEA did not carry its burden on showing that the discharge would “affect” the Pool adversely.

Can decentralized treatment be a “prudent and feasible alternative” to a wastewater treatment plant expansion in order to prohibit an expanded discharge to an Outstanding Resource Value Water?

Minnesota Center for Environmental Advocacy v. Minnesota Pollution Control Agency, A04-1324 (Minn. Ct. App. 2005)

MPCA rules prohibit a new or expanded sewage discharge to an “Outstanding Resource Value Water” unless there is no “prudent and feasible alternative.” Further, if permitted, the discharge must be restricted to the extent necessary to preserve the characteristics for which the water qualifies as an ORVW. The Court of Appeals reversed MPCA’s grant of a permit for an expanded discharge to the Rum River from the City of Princeton wastewater treatment plant. Despite the deference due the agency, it found the MPCA’s decision to lack “substantial evidence” to support it because of inadequate consideration of an option combining a smaller expansion with decentralized wastewater treatment. The Court also found that while high water quality is one basis for the Rum River’s ORVW designation, the MPCA had not made findings that the permit would preserve water quality. Finally, the Court agreed with MCEA that before the MPCA can find that a proposed permit will preserve the “existing high water quality” of an ORVW, it first must define that “existing high quality” in terms of the levels of specific pollutants or other means it finds in its technical judgment to be appropriate.

May a single Total Maximum Daily Load be set for a basin encompassing a number of impaired reaches if it does not provide for attainment of water quality standards on each reach?

Minnesota Center for Environmental Advocacy v. U.S. Environmental Protection Agency, Civ. No. 03-5450 (D. Minn. 2005) (memorandum and order)

The EPA approved a Total Maximum Daily Load determination by the Minnesota Pollution Control Agency for fecal coliform bacteria in the Lower Mississippi River Basin. The U.S. District Court agreed with the MCEA that while a TMDL could be set basinwide, it must be adequate to ensure that applicable water quality standards are met in each of the 20 impaired river reaches and cannot be based on aggregated basinwide data. It further agreed with the MCEA that: (a) stream impairment levels on which the TMDL determination is made must be assessed by month and cannot be aggregated; (b) a TMDL must provide for water quality standards to be reached and cannot be denominated as “phased” to avoid that obligation; and (c) straight-pipe septic system discharges must be included in the TMDL allocation as “point sources.”

May a state enforce its water quality standards against a U.S. Army Corps of Engineers impoundment located on an interstate river?

North Dakota v. U.S. Army Corps of Engineers (In re Operation of the Missouri River System Litigation), 320 F. Supp. 2d 873 (D. Minn. 2004) (memorandum and order)

The State of North Dakota sued the United States Army Corps of Engineers for violating North Dakota water quality standards for dissolved oxygen and temperature through maintenance of the Garrison Dam on the Missouri River. United States District Court Judge Paul Magnuson found that the waiver of sovereign immunity in the Clean Water Act (33 U.S.C. §1323(a)) does not extend so far as to permit a state to maintain an enforcement action “that requires absolute compliance by the Corps, in the controlled operation of a major river system that runs through many states.” Judge Magnuson noted the language of 33 U.S.C. §1371 stating that the CWA shall not be construed to “affect[ ] or impair[ ] the authority of the Secretary of the Army to maintain navigation.” He also deemed principles of federal preemption to apply when otherwise each state along the river could seek to enforce its own water quality standards.

Related litigation in which the adequacy of the Corps’ Missouri River management manual was upheld is found at 363 F. Supp. 2d 1145 (D. Minn. 2004).

Do the NPDES permits for Owatonna and Faribault comply with the MPCA’s phosphorus rule?

In the Matter of City of Owatonna’s NPDES/SDS Proposed Permit Reissuance for the Discharge of Treated Wastewater; In the Matter of City of Faribault’s NPDES/SDS Proposed Permit Reissuance for the Discharge of Treated Wastewater, A03-331, A03-333 (Minn. Ct. App. 2004)

NPDES permits for Owatonna and Faribault reversed and remanded to Minnesota Pollution Control Agency for contested case hearing. Minnesota Center for Environmental Advocacy raised issues of fact on MPCA’s application of its phosphorus rule (restricting discharge to 1 mg/liter phosphorus where discharge affects lakes or reservoirs); permits were issued without 1 mg/liter restriction and combined impact of such restriction would decrease phosphorus loading to Lake Bylles by by 25 percent. Questions of fact regarding application of phosphorus rule and MPCA methodology exist, such that presentation to neutral ALJ in contested case would aid the agency in resolving disputed facts and making final decision.

Did the MPCA’s general stormwater permit for small cities meet the requirements of the Clean Water Act?

Minnesota Center for Environmental Advocacy v. MPCA, C6-02-1243 (Minn. Ct. App. 2003)

MPCA’s general permit covering stormwater discharge by small municipalities (NPDES Phase II) reversed and remanded for: failing to provide adequate public notice and opportunity to comment; filing to determine whether general permit would result in espanded discharges; and failing to provide that discharges shall reduce pollutants (rather than simply “minimize” them).

Does the NPDES permit for St. Cloud comply with the MPCA’s phosphorus rule?

City of St. Cloud Wastewater Treatment Facility Request to Adopt Summary Disposition . . . and to Issue the NPDES Permit St. Cloud, Minnesota, C3-03-75 (Minn. Ct. App. 2003)

MPCA’s wastewater permit to City of St. Cloud reversed and remanded for contested case hearing because MPCA failed to properly apply the phosphorus rule. The term “measurable impact” defined in the MPCA’s phosphorus strategy as an “individual contribution,” does not require that there be only one discharge source to the affected lake or reservoir for the 1 mg/liter phosphorus rule restriction to apply. (St. Cloud’s discharge responsible for 15-51 percent of phosphorus entering Coon Rapids Dam Pool.) Remanded to consider whether Coon Rapids Dam Pool is a “reservoir.” City of St. Paul, not City of St. Cloud, is legally responsible under Clean Water Act for any pollution entering the Vadnais Chain of Lakes through St. Paul’s aqueduct.

Does a wetland adjacent to an artificial channel 11 miles upstream of a navigable river fall under Clean Water Act jurisdiction?

United States v. Rapanos, 339 F. 3d 447 (6th Cir. 2003)

The United States Court of Appeals for the Sixth Circuit reinstated the convictions of landowner John Rapanos for unlawfully filling wetlands. Following the decision of the U.S. Supreme Court in Solid Waste Agency of North Cook County v. Army Corps of Engineers, the landowner claimed that his filling did not trigger Clean Water Act jurisdiction because the wetlands, connected to a navigable river at least eleven miles downstream by an artificial channel and a non-navigable creek, did not meet the definition of “waters of the United States.” The Court of Appeals read the SWANCC case as narrowly striking down CWA jurisdiction based solely on a wetland’s use by migratory birds. It ruled that under settled case law, because the wetlands in question were adjacent to the channel and the channel was hydrologically connected to the navigable river, there was “an ample nexus to establish jurisdiction.”

Is a citizen plaintiff's claim to assess civil penalties moot once the defendants obtain an NPDES permit and are reasonably unlikely to commit future violations of the Clean Water Act?

Mississippi River Revival, Inc., West Side River Watch, Inc. and Mississippi Corridor Neighborhood Coalition, Inc. v. the City of Minneapolis; the City of St. Paul, No. 99-1596 DDA/FLN, No. 99-1597 DDA/FLN (D. Minn. 2001)

Yes. U. S. District Judge Donald Alsop dismissed cases brought by Mississippi River Revival, Inc., West Side River Watch, Inc, and Mississippi Corridor Neighborhood Coalition, Inc. against the cities of Minneapolis and St. Paul. The Minnesota Pollution Control Agency delayed action for eight years on the cities' permits under the National Pollution Discharge Elimination System (NPDES) requirements of the Clean Water Act, prompting the plaintiff organizations to sue the cities in October 1999. (The Clean Water Act prohibits discharge of stormwater into the Mississippi River unless the discharger complies with NPDES requirements.) Finally, the MPCA issued the NPDES permits to Minneapolis and St. Paul on December 1, 2000.

Judge Alsop concluded that "deterrence is the sole purpose underlying civil penalties, É [and therefore] a claim to assess civil penalties is moot if civil penalties no longer will deter the defendant from violating the CWA." Slip Op. at 5. Although a number of federal appeals courts have held otherwise, Judge Alsop found that these decisions conflict with the decision of the U. S. Supreme Court in Friends of the Earth, Inc. v. Laidlaw Envt'l Servs. (TOC), Inc., 528 U.S. 167, 186 (2000), which held that civil penalties under the Clean Water Act only provide redress to citizen plaintiffs to the extent that the penalties "encourage defendants to discontinue current violations and deter them from committing future ones."

Thus, although it would appear that it was the plaintiffs' lawsuit that finally prompted the MPCA to issue the NPDES permits to the cities, the court ruled that the lawsuit is moot and therefore the plaintiffs would not be entitled to relief under the Clean Water Act.

When is an oil discharge to a navigable waterway "reasonably forseeable" so as to require a spill prevention control and countermeasures plan under the Clean Water Act?

Pepperell Associates v. U.S. Environmental Protection Agency, 246 F.3d 15 (1st Cir. 2001)

On October 17, 1996, a gasket ruptured on a boiler in a former textile mill in Lewiston, Maine. Over 300 gallons of oil spilled from the boiler room floor, down a stairwell, through a condensate pipe tunnel and into the City sewer. This occurred during a high water period, when the city sewer discharges into Gully Brook, so the oil spilled into the brook and then flowed into the Androscoggin River. Pepperell did not have a Clean Water Act (CWA) Spill Prevention Control and Countermeasures (SPCC) plan for the facility. On July 14, 1997, Pepperell removed all three of its underground oil storage tanks and on October 16, 1997 Pepperell installed a single, above-ground tank. On April 14, 1998, Pepperell submitted an SPCC plan to the EPA.

The EPA filed an administrative complaint against Pepperell alleging that it: (1) discharged oil into a navigable waterway, see 33 U.S.C. § 1321(b)(3); (2) failed to submit an SPCC plan as required by the Clean Water Act, see 33 U.S.C. ¤ 1321(j)(1), during the period the three tanks were in the ground (December 1985 through July 14, 1997); and (3) failed to have a plan after completion of the above-ground tank on October 16, 1997 until it submitted its plan on April 14, 1998. The administrative law judge found Pepperell to be liable in part and imposed a $24,876 penalty. On cross-appeals, the Environmental Appeals Board found Pepperell fully liable and imposed a $43,643 penalty on all three counts.

The First Circuit Court of Appeals held that Pepperell was subject to the CWA SPCC plan requirements when the underground tanks were in operation because due to the mill's location, it was "reasonably foreseeable" that an oil spill into navigable waters might occur. The Court found support for the EAB's conclusion that although the particular path the oil to took to Gully Brook was unforeseeable, other reasonably foreseeable paths existed. The fact that the oil reached navigable waters only because the spill occurred during a high water period did not make the spill unforeseeable because, on the record, PepperellÕs owners were both constructively and actually aware of overflows to Gully Brook during heavy rains.

The Court affirmed that Pepperell was liable specifically for the period from October 31, 1996 to July 14, 1997, even though the underground tanks were disconnected during that time. The Court reasoned that disconnecting without removing the tanks was not sufficient to reduce storage capacity to below the statutory minimum, and that disconnecting the tanks did not make an oil spill less reasonably foreseeable. The Court deferred to the EAB's reading that the "reasonably foreseeable" standard and storage capacity are distinct, so that the likelihood of a spill is not legally a function of the working capacity at a given time.

The court also ruled that Pepperell was liable for SPCC plan failure from July 1997, when it removed its underground tanks, until it finally submitted an SPCC plan in April 1998. Pepperell argued that the new tank constituted a new facility, thus allowing it six months from the October 1997 installation to submit a plan. Conversely, the EAB had held that the new tank was merely a facility modification, requiring that the SPCC be amended as of the date of installation. The Court of Appeals agreed with the EAB, reasoning that the removal of the old tanks and the installation of the new where not unconnected – particularly given the New England setting and the necessity of replacing the oil storage capacity by winter. Finally, the Court ruled that in the context of the 1,320-gallon regulatory threshold for SPCC plan applicability, adding a 20,000-gallon above-ground tank did "materially affect the facility's potential for discharge of oil into or upon the navigable waters of the United States," and thus trigger the SPCC plan amendment requirement.