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The 4th U.S. Circuit Court of Appeals has ruled discharge of arsenic from a coal ash storage site through groundwater into surrounding waters does not violate the U.S. Clean Water Act and does not require a NPDES permit. Sierra Club v. Virginia Electric & Power Co., No. 17-1895 (4th Cir., September 12, 2018). A three-judge panel reversed a lower court's finding that Dominion Virginia Power could be liable for leaks from coal ash dumps at Chesapeake Energy Center, which closed in 2014. The Court held Dominion's coal ash landfill and settling ponds did not qualify as a "point source" under the Clean Water Act because the arsenic flowed from sites through groundwater before reaching the Elizabeth River and Deep Creek.
The Clean Water Act provision addressing discharges defines them as the "addition of any pollutant to navigable waters from any point source." The 4th Circuit panel found that Dominion's coal ash waste sites do not qualify as a point source because they do not match the law's definition of a "discernible, confined and discrete conveyance."
Earlier this year, the 4th Circuit held that the addition of pollution into navigable waters by way of groundwater can violate the Clean Water Act if plaintiffs show "a direct hydrological connection between ground water and navigable waters." Upstate Forever v. Kinder Morgan Energy Partners, L.P., 887 F.3d 637 (4th Cir. 2018). The panel distinguished the coal ash case by noting the diffuse way in which arsenic moved from Dominion's landfill and ponds into groundwater.
The Court stated, "… the landfill and settling ponds could not be characterized as discrete 'points,' nor did they function as conveyances…[r]ather, they were, like the rest of the soil at the site, static recipients of the precipitation and groundwater that flowed through them. Accordingly, we conclude that the court erred in finding that the landfill and ponds were point sources as defined in the Clean Water Act."
"Here, the arsenic was found to have leached from static accumulations of coal ash on the initiative of rainwater or groundwater, thereby polluting the groundwater and ultimately navigable waters," the Court stated. "In this context, the landfill and ponds were not created to convey anything and did not function in that manner; they certainly were not discrete conveyances, such as would be a pipe or channel, for example."The decision adds to a growing body of divergent case law on pollution via groundwater discharges which could soon be decided by the United States Supreme Court. Petitions for writ of certiorari are pending in the Upstate Forever case and a 9th Circuit case decided against the County of Maui earlier this year. Hawaii Wildlife Fund v. County of Maui, 886 F.3d 737 (9th Cir. 2018). Cases pending in the Second and Sixth Circuits may also require these courts to weigh in on this issue. 26 Crown Street Assocs. v. Greater New Haven Water Pollution Control Authority, No. 17-2426 (2d Cir.); Tenn. Clean Waters Network v. TVA, No. 17-6155 (6th Cir.).