Day of the Marauders

Todd Andrews, the protagonist of John Barth's first novel, The Floating Opera, worked as a small-town attorney. As he describes it, he often liked to turn the law on its head with odd arguments and to make the law do bizarre things at his biding, not because he was trying to prove anything, but just because it amused him to do so.

Before retirement, I was not an attorney but I often had to apply environmental law to certain situations on behalf of clients. I'm not clever enough by half to deliberately make the laws do absurd things, but I am observant enough to take small delight when they do happen. 

I've been thinking about Dublin, Georgia since yesterday's post about James Joyce (or whatever yesterday's post was about). I don't think I've ever seen environmental law turned on its head quite as much as it did in a case I worked on in that fine, South Georgia town. Some specifics about the case have to be omitted for legal liability reasons and, um, who knows?, maybe I'm just making this whole thing up (please don't sue me).

Production of cotton using slave labor boomed in the South in the 19th Century, giving rise to a thriving textile business here.  Much of the cotton, of course, was shipped up North to the mechanized and industrialized mills in New England, as was some of the fabric that was manufactured down here from the raw cotton. 

At least one such mill was located in Dublin.  In the 20th Century, an ambitious owner of one of those mills imported some of that Yankee ingenuity down to the South, and started a mill along the Oconee River that not only wove cotton into fabric, but cut, sewn, and assembled that fabric into ready-to-wear clothing.   

Part of the process included dying the fabric, and to prepare the fabric for dying it first had to be dry cleaned. The mill installed a huge, industrial-grade dry cleaning operation as part of its process, including bulk storage of the dry-cleaning solvent perchloroethylene (or PCE) and a landfill for disposing of used cleaning-machine filters, spent PCE solvent, and other waste products associated with the process. 

As every student of environmental science and engineering knows, all landfills eventually leak, especially 20th Century ones constructed and operated under limited oversight.  Eventually, the subsurface and groundwater beneath the landfill became saturated with PCE solvents, and the contamination migrated toward the Oconee, where it seeped into the river.

Not that you could ever detect PCE in the river water.  The rate of seepage into the river was on the order of a few gallons per day (if that), and the flow of the Oconee River is on the order of thousands of gallons per minute. It's like an eyedropper added to the flow from a fire hose, and the PCE was instantly diluted to far below the detection level of even the most sensitive mass spectrometer.

But while the mantra of environmental engineers is "dilution is the solution to pollution," regulators like the EPA argue that dilution is NOT an acceptable remedy to pollution. The State of Georgia regulatory authority, the EPD, learned about the situation through historical records and ordered the mill to cut off the groundwater seepage to the river.

Enter yours truly, hired by the mill to develop a remedy.

At first, I made the argument to the State that no engineered remedy was necessary, as natural processes were already limiting the discharge of PCE into the river to levels that met every environmental goal. We sampled the river upstream of the mill, downstream of the mill, and right at the mill itself, and none of the samples detected PCE in the water. No further remedy was needed, I argued, because the rate of discharge into the river was too small by far to cause any measurable pollution.

The state didn't buy that argument. Any discharge of PCE to the river was unacceptable, they maintained, and hit the mill with a legally enforceable Administrative Order to develop a workplan to stop the discharge and once the workplan was reviewed and approved, to implement it. 

Enter the lawyers. They argued that the Administrative Order was unnecessary, "regulatory overreach" as they put it, as no one was harmed by the discharge, not even the  most sensitive of ecological receptors. Besides, they argued, the current owners of the mill, to whom the Order was addressed, weren't even the ones who built and operated the leaky landfill, but it was prior owners who sold the business to the current owners, who were responsible. The case was headed toward years of litigation - between the current and the former owners, and between the EPD and both sets of owners.

But once one of the more enterprising attorneys discovered that the former owner had an insurance policy for environmental claims, everything changed. The policy was still in effect, it was discovered, and it required the insurance company to pay for actions mandated by law or at the legal direction of an agency. Since the workplan and its implementation were part of the legally enforceable Administrative Order, the insurer was required to pay the costs. The lawsuits and countersuits were all dropped.

After a little more legal action established that the burden of costs would indeed go to the insurance company and not the owners, all objections to the Administrative Order, including the argument that there was no harm and therefore no remedy was needed, were also immediately dropped. Yours truly was instructed to develop and implement a workplan to cut off "all groundwater flow" from the landfill to the Oconee River as required by the Order.

That's a pretty straightforward assignment. Groundwater flow is effectively cut off my installing a line of pumping wells between the source (the landfill) and the receptor (the river).  The PCE in the pumped water is then removed in a treatment plant, usually by aeration, and the clean water is then discharged to the river. I set about designing the groundwater recovery system, the spacing between wells and the volume pumped from each well calculated considering the porosity and hydraulic conductivity of the aquifer. 

Designing the treatment plant for the groundwater had to consider the concentration of PCE that would be allowed in the discharge water, in other words, how "clean" the water would be required to be. We took our calculations of the anticipated volume of water to be discharged and the concentrations of  PCE present in the contaminated groundwater to the state authority for regulating such discharges. To our surprise - to everyone's surprise - the permitting agency said that the groundwater already met the permissible discharge limits at the anticipated pumping rates, and that no treatment of the water would be necessary.

We took  that information back to the EPD and said that since there was no requirement to treat the water, there was no need to pump the water - it's already seeping into the river untreated, so why spend hundreds of thousands of dollars to intervene? But the EPD was undeterred and insisted that the Administrative Order be fully executed, and if we made any more noise about discharge limits, they'd slap an amendment on the order to require treatment regardless of concentration.  That'll shut us up.

It did. As a result, we installed the groundwater pumping wells and all the piping and electrical infrastructure to maintain the groundwater recovery system. After it was built and installed, the system effectively intercepted the flow of groundwater from the landfill to the river. But since treatment was not required, the pumped groundwater was simply discharged directly to the Oconee River, where it would have wound up anyway. 

And there's the irony that Todd Andrews would have loved - the absurd result the law wound up requiring: in order to "protect" the Oconee River from seepage of a few gallons per day of contaminated groundwater to the river. we were pumping many more gallons per minute of that same groundwater directly to the river. But the EPD was satisfied that the Administrative Order had been exacuted, the insurance company was able to mark the claim as settled, and the former and current owners of the mill were off the hook. And I got paid for all my effort, even though the current owner went bankrupt shortly afterwards.

Large rivers like the Oconee, which flow at tens of millions of gallons per year, can assimilate small discharges of pollutants. Again, think of the eyedropper and the fire hose. Regulating low concentrations of small volumes of pollution is the basis for almost all industrial wastewater discharges under the National Pollution Discharge and Elimination System (NPDES). While some environmentalists oppose all NPDES permits on the basis of being "permits to pollute," the goals of the permits are to keep concentrations below human-health and ecological limits, and the program has been successfully run under the Clean Water Act since the 1970s.  So while there are now more pounds per day of PCE going into the Oconee River because of the required groundwater recovery system than were seeping into the river from the uncontrolled landfill, there is still no harm. The mighty Oconee River can take it.