A federal appeals court on Wednesday ruled that Dominion Energy did not violate the Clean Water Act (CWA) when arsenic from one of its Virginia coal ash disposal facilities found its way into rivers, reversing a lower court decision.
Dominion's Chesapeake Energy Center, a coal plant closed in 2014, does not qualify as a "point source" of pollution under the CWA because arsenic from its ash facility leached diffusely through groundwater before it entered navigable waterways, the 4th Circuit Court of Appeals ruled.
Green groups like the Southern Environmental Law Center criticized the ruling, but stressed it "does not affect the lower court's factual determination that arsenic is leaking from coal ash pits" at the Dominion plant. Both groundwater discharges and current coal ash regulations are the subject of multiple pending court cases.
Ongoing litigation on coal ash disposal could help shape how utilities around the country dispose of the toxic byproduct of electricity generation, which contains heavy metals and other substances known to be harmful to humans.
The Dominion case began in 2015, when the Sierra Club sued the utility under the CWA, which prohibits the unauthorized discharge from any "point source" of pollution into navigable waters.
The group argued that coal ash ponds at Chesapeake qualified as the point source, since arsenic leached into groundwater from there, eventually entering the navigable waters of Elizabeth River and Deep Creek.
A U.S. district court in Virginia agreed with the Sierra Club, finding Dominion liable for CWA breaches. But on Wednesday, the 4th Circuit reversed that decision, saying that the "simple causal link" between the groundwater pollution and arsenic found in navigable waters "does not fulfill the Clean Water Act's requirement that the discharge be from a point source."
The 4th Circuit ruled earlier this year that groundwater pollution can fall under CWA protections if there is a "direct hydrological connection" with pollution in navigable waters. In the Dominion case, judges said that connection does not exist because arsenic seeped into groundwater diffusely, and that pollution was a "generalized, site-wide condition that allowed rainwater to distribute the leached arsenic widely into the groundwater of the entire peninsula."
"Thus, the landfill and settling ponds could not be characterized as discrete 'points,' nor did they function as conveyances," the court wrote. "Rather, 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."
Instead of the CWA, the court said this type of groundwater pollution "falls squarely within the regulatory scope" of the Resource Conservation and Recovery Act (RCRA). That law is the foundation of the nation's first federal regulations on coal ash, finalized during the Obama administration, but it is also the subject of legal uncertainty.
In July, the Environmental Protection Agency announced it would roll back the rule following a court challenge from utility companies, giving states the authority to set disposal standards. But then, in a different case decided in August, the D.C. Circuit Court ruled that the original, Obama-era rule was not protective enough. The decision is likely to be used by environmental groups as fodder for their legal challenges against the regulatory rollback.