RICHMOND, Va. (CN) – Dominion Power went before the Fourth Circuit Wednesday to challenge a lower court ruling that found wastewater seeping from Dominion’s coal ash ponds into local groundwater counted as a Clean Water Act violation.
At issue was the leak of arsenic from coal ash pits from a decommissioned coal-fired plant on the Chesapeake Bay’s Elizabeth river.
Dominion discovered the leak and decided the best way to address it was to rely iron oxides to slowly absorb the arsenic.
Environmentalists sued Dominion in 2015 saying the leak of toxins violated the Clean Water Act as well as the state permits Dominion had which limited how they could dispose of waste.
A federal judge in Richmond agreed and found the power company guilty of the violations.
Other federal courts, including those in North Carolina and Hawaii, have issued similar rulings, and the Ninth Circuit has found that groundwater acts as a conduit for pollution and such pollution counts as a Clean Water Act violation.
But Dominion argued Wednesday that such interpretations go far beyond what Congress intended when it crafted the 1972 law.
According to the utility, groundwater issues are the purview of states, and a different federal law, the Resource Conservation and Recovery Act, deals with the treatment, storage and disposal of solid waste.
“If you define coal ash as a point source pollutant, you get an exemption under RCRA,” argued Jeffrey Lamkin, the lawyer for Dominion Energy. He suggested the Clean Water Act is specific about dumping pollution from point sources into, as the law states, “navigable waters.”
“Congress was very clear and said they wouldn’t cover groundwater,” Lamkin said. “If you cover groundwater [under the law] then you take land use power from the states.”
When it was time for the Sierra Club, the other party in the litigation, to rebut Dominion’s claims, U.S. Circuit Judge Stephanie Thacker, an Obama appointee, pressed the organization on the semantics of the law.
“Where in the statute does it say it applies to groundwater?” she asked.
“It says ‘discharge of pollutants,’” said Sierra Club attorney, Frank Holleman III. “Any discharge into navigable waters.”
“Is groundwater a point source?” she fired back.
“No,” Holleman said. “It’s’ the unlined pit, the pond; it’s discharging into the ground.”
Holleman asked the three-judge panel to affirm the lower court’s decision because it was in line with recent precedent. He also pointed to the intent of the law — avoiding the free pollution of river – to explain why groundwater contamination leading to rivers should qualify as a violation.
“Congress defined conveyance [the method by which the pollution is discharged] as including ‘any container’ from which pollutants may be discharged,” he said.
But U.S. Circuit Judge Paul Niemeyer, a Reagan appointee, pushed back on that theory.
“If that’s true, any polluter could put their pollution back from the water and say it’s not a conveyance,” he said, suggesting further proximity from the pit would reduce the chances of groundwater contamination in nearby “navigable waters.”
Thacker also asked Sierra Club why Dominion’s groundwater contamination wouldn’t be exempt because of RCRA. Holleman said the problem lies in the pollution ending up in waterways.
“The Clean Water Act forbids Dominion to discharge into any surface or groundwater,” he said. “This [operation] is permitted as a wastewater facility,” he said. “They can store and maintain waste, but it’s not supposed to leak out.”