U.S. Fourth Circuit - The FindLaw 4th Circuit Court of Appeals Opinion Summaries Blog

Court: Coal Ash Pollution Doesn't Violate Clean Water Act

To the Sierra Club, Hurricane Florence is even more dangerous than has been reported.

That's because the environmentalists are watching coal ash ponds along Elizabeth River and Deep Creek in Virginia. In Sierra Club v. Virginia Electric & Power Company, they argue arsenic is leaching from the ponds into the rivers and groundwater.

The U.S. Fourth Circuit Court of Appeals said that may be true, but it is not a violation of the Clean Water Act. Attorneys for the club say the hurricane will show just how "dangerous and irresponsible" it is.

"Dangerous and Irresponsible"

Chesapeake Energy Center discharged coal ash into a landfill and settling ponds before it closed in 2014. Arsenic from the ponds flowed from the sites into the local waters.

A trial judge said the utility, owned by Dominion Energy Virginia, violated the Clean Water Act. The Fourth Circuit reversed, however, saying the waste sites are not "point sources" under the law.

"We conclude that while arsenic from the coal ash stored on Dominion's site was found to have reached navigable waters -- having 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," Judge Paul V. Niemeyer wrote for the court.

The Southern Environmental Law Center, representing the Sierra Club, warned that flooding from Hurricane Florence will make things worse. It will show how "dangerous and irresponsible it is to leave coal ash in unlined pits where it is vulnerable to hurricanes and extreme weather."

Arsenic Pollution

The Fourth Circuit acknowledged that arsenic had polluted the groundwater and navigable waters. But the landfill and ponds did not fit the definition of a point source under the law.

"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 appeals panel said.

Dominion Energy spokesman Robert Richardson said the company did nothing wrong. He said the company is working to ensure "protection of the environment" in the "best interest of the community and our customers."

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