Environmental non-profit Tennessee Riverkeeper has filed a Clean Water Act (CWA) citizen suit against the City of Lebanon alleging unlawful discharges of multiple per- and polyfluoroalkyl substances (PFAS) from the City’s inactive municipal landfill. Riverkeeper acknowledges that the landfill has a valid NPDES permit that authorizes the discharge of treated leachate, but it nevertheless alleges that the discharges constitute a CWA violation because none of the PFAS are specifically listed as authorized “pollutants” in the facility’s permit.

Section 301(a) of the CWA generally prohibits the discharge of “any pollutant” from a point source into a water of the united states, except pursuant to a permit or in compliance with certain listed section of the CWA. “Pollutant” is defined expansively as “dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water.” 33 U.S.C.A. § 1362. Thus, potential liability is broad. But it is certainly not unlimited. In cases like this, where the defendant has a permit and is not alleged to be in violation of any specific discharge limit, a citizen suit claim could face a number of potential hurdles.

For one, the CWA contains a permit shield provision, 33 U.S.C. § 1342(k), which is not necessarily limited to the specific constituents listed in the NPDES permit. Rather, the permit shield is typically viewed as extending to all “pollutants” that were “adequately disclosed” by the applicant and within the “reasonable contemplation” of the permitting authority when it issued the permit. See Piney Run Pres. Ass’n v. Cnty. Comm’rs of Carroll Cnty., MD, 268 F.3d 255, 26 (4th Cir. 2001). Given the ubiquity of PFAS in the environment, it will likely be argued that they might reasonably be anticipated to be found in a variety of effluent streams and therefore fall within the permit shield for many permits which, on their face, do not appear to cover them.

Another element of Riverkeepers’ claim that may be disputed is its standing to challenge the alleged PFAS discharges. Many CWA citizen suits fail because the plaintiff is not able to demonstrate standing, such that it has: “(1) suffered an injury in fact; (2) that is fairly traceable to the challenged conduct of the defendant; and (3) that is likely to be redressed by a favorable judicial decision.” Prairie Rivers Network v. Dynegy Midwest Generation, LLC, 2 F.4th 1002, 1007 (7th Cir. 2021). Here, Riverkeeper asserts standing through two of its members, but neither individual claims to use the receiving water as source of drinking water. Instead, they assert interests in the “environmental, aesthetic, and recreational values in the Cumberland River and its tributaries” that are allegedly being impacted. One Riverkeeper member, for example, claims that she used to take her dogs to play in the river but is worried about continuing to do so, and the other is concerned about swimming in the river himself and the effect of the discharges on aquatic life. Whether these allegations are sufficient for standing may prove to be an topic of intense debate.

Whatever the outcome of this particular case, it highlights a number of considerations for facilities with permitted direct point source discharges that may contain PFAS. First, having and complying with an NPDES permit does not guaranty the facility will not face a potential CWA claim (although a number of defenses may be available). Second, the best protection from such a claim is a CWA permit that explicitly covers all constituents, including any PFAS, that may reasonably be discharged in the effluent, or at least disclosure of those constituents during the permitting process. But be careful. In some circumstances, disclosing PFAS discharges can lead to other issues, including potential tort claims. So it is also important to thoughtfully consider each permit application and assess the pros and cons of listing any PFAS in the proposed discharge.