Court says coal ash ponds not regulated under Clean Water Act

Coal ash ponds aren’t “point sources” of pollution under the Clean Water Act, even when pollutants leach from them into nearby waterways, according to a federal appeals court.

At issue is a suit by the Sierra Club arguing that Dominion Energy Virginia violated the Clean Water Act when arsenic seeped into navigable waterways from a landfill and settling ponds next to a power plant in Chesapeake, Virginia.

The U.S. Court of Appeals for the Fourth Circuit on Sept. 12 overturned a lower court’s ruling that Dominion violated the Clean Water Act, which, in part, regulates discharges from point sources into navigable waterbodies.

Starting in 2002, Dominion started detecting arsenic in groundwater near the plant that exceeded state water quality standards. Virginia regulators in 2008 approved a utility plan to address the leaks and Dominion shuttered the plant six years later.

In its suit, the Sierra Club argued the landfill and settling ponds were point sources leaking arsenic into groundwater near the power plant that ultimately flowed into the nearby Elizabeth River and Deep Creek.

The appeals court, however, found the lower court erred by agreeing the landfill and ponds were point sources.

“We conclude that while arsenic from the coal ash stored on Dominion’s site was found to have reached navigable waters — having been leached from the coal ash by rainwater and groundwater and ultimately carried by groundwater into navigable waters — that simple causal link does not fulfill the Clean Water Act’s requirement that the discharge be from a point source,” the court said.

The ruling hinged on the Clean Water Act’s definition of a point source: “any discernible, confined and discrete conveyance.”

The court said a conveyance requires a channel or medium to move something from one point to another.

The landfill and ponds were not created to convey anything and did not function in that way, the court said.

“The actual means of conveyance of the arsenic was the rainwater and groundwater flowing diffusely through the soil,” the court said. “The landfill and settling ponds could not be characterized as discrete ‘points,’ nor did they function as conveyances.” 

The landfill and ponds were, like all the soil at the site, “static recipients of the precipitation and groundwater that flowed through them,” the court said.

In regulating point source discharges, Congress intended to target the measurable discharge of pollutants, the court said.

The court noted that coal ash ponds are regulated under the Resource Conservation and Recovery Act.

“Groundwater pollution from solid waste falls squarely within the regulatory scope of the RCRA,” the court said. “By contrast, the coal ash piles and ponds, from which arsenic diffusely seeped, can hardly be construed as discernible, confined, or discrete conveyances, as required by the Clean Water Act.”

The court rejected the Sierra Club’s argument the ash ponds were “containers,” part of the Clean Water Act’s point source definition.

“Regardless of whether a source is a pond or some other type of container, the source must still be functioning as a conveyance of the pollutant into navigable waters to qualify as a point source,” the court said.

The Southern Environmental Law Center, which led the litigation, said it was reviewing the decision and would consider possible next steps with the Sierra Club.

Each year U.S. power plants produce about 110 million tons of coal ash and there are about 1,025 coal ash landfills and surface impoundments in the United States, according to the Sierra Club.