ELR Citation: ELR 21575
No(s). 97-2059 (4th Cir. Aug 4, 1998)

The court upholds a U.S. Environmental Protection Agency (EPA) emergency order requiring a company to test groundwater within a three-quarter-mile radius of its property and to provide bottled water to anyone in this area whose groundwater fails to meet federal standards. The court first holds that the Safe Drinking Water Act (SDWA) does not provide an innocent landowner exemption. SDWA §1431(a) simply limits the actions of the EPA Administrator in one instance. The court then holds that sufficient evidence exists for EPA to rationally conclude that the company's polluting activities "contributed to" the water supply contamination, and, thus, EPA did not act arbitrarily and capriciously when it ordered the company to provide alternative water supplies. The company has been cited for numerous instances of improper waste handling and dumping of hazardous materials. Also, the company's neighbors complained to EPA on several occasions regarding the company's poor waste handling practices.

The court next rejects the company's argument that the emergency order impermissibly displaces the state's authority under the SDWA to control groundwater contamination. Under the SDWA, EPA retains the authority to act when it has a rational basis for concluding that a state's efforts at abating a potentially hazardous situation are not effective. And review of the record unquestionably demonstrates that sufficient evidence supports EPA's determination that the state's efforts were inadequate. The court then holds that the SDWA does not require EPA to produce evidence that individuals are actually drinking contaminated water. EPA must only demonstrate the imminent likelihood that the public may consume contaminated water unless prompt action is taken to prevent a potential hazard from occurring. The court then holds that the order's requirement that the company offer reasonable sums of money to local property owners to gain access to their wells for sampling does not subject the company to extortion. This contention amounts to no more than gross speculation. Last, the court holds that the requirement that the company identify all potential users of the contaminated wells is not a limitless or unduly burdensome task.

Counsel for Petitioner
Christopher G. Browning Jr.
Hunton & Williams
One Hannover Sq., 14th Fl., Raleigh NC 27602
(919) 899-3000

Counsel for Respondent
Yvette M. Wilkerson-Barron
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Widener and Howard, JJ.