On September 12, 2018, the U.S. Court of Appeals for the Fourth Circuit (which covers federal courts in South Carolina, North Carolina, Maryland, Virginia, and West Virginia) issued a decision concluding that the migration of arsenic from coal ash stored in settling ponds and a landfill was not subject to the federal Clean Water Act (CWA) because the ponds and landfill were not “point sources” under the CWA.
In Sierra Club v. Virginia Electric & Power Company, the defendant operated a coal-fired power plant in Chesapeake, Virginia for over 60 years and stored the coal ash waste on site in a landfill and in settling ponds. Groundwater monitoring determined that arsenic seeped from the ponds and landfill, entered the groundwater, and ultimately reached navigable surface waters hydrologically connected to the groundwater. In Sierra Club, the Fourth Circuit followed its recent decision in Upstate Forever v. Kinder Morgan Energy Partners, L.P., 887 F.3d 637 (4th Cir. 2018), and concluded that the CWA applies to discharges of pollutants into navigable waters via hydrologically connected groundwater.
However, the Fourth Circuit in Sierra Club concluded that the defendant’s coal ash ponds and landfill were not a “point source,” which is defined by the CWA as a “discernible, confined and discrete conveyance,” but rather were “static recipients of the precipitation and groundwater that flowed through them” and thus not subject to the CWA. In reaching its conclusion, the Fourth Circuit also relied on (i) the fact that the amount of arsenic seeping from the ponds and landfill was indeterminate and not measurable, and (ii) the storage of coal ash is otherwise subject to regulation under the federal Resource Conservation and Recovery Act (RCRA).
For more information about Clean Water Act issues, please contact Andy Thompson. For a copy of the district court’s decision in Sierra Club, click here.