Sierra Club v. Va. Elec. & Power Co.
903 F.3d 403
4th Cir.2018Background
- Dominion operated a coal-fired plant in Chesapeake, VA (1953–2014) and stored coal ash in dry landfill piles and wet settling ponds on a peninsula surrounded by navigable waters (Elizabeth River, Deep Creek, cooling channel).
- Groundwater monitoring (required by VDEQ solid-waste permits) detected arsenic above state standards beginning in 2002; Dominion and VDEQ developed and approved corrective actions and closure plans under RCRA/state solid-waste permits.
- Sierra Club sued under the Clean Water Act (CWA) citizen-suit provision (33 U.S.C. §1365), alleging (1) unauthorized "discharge" of arsenic from point sources into navigable waters (§1311), and (2) violations of two conditions (II.F and II.R) of Dominion’s CWA discharge permit.
- District court found arsenic reached navigable waters via hydrologically connected groundwater and held the landfill/ponds were CWA "point sources," finding Dominion liable under §1311, but deferred to VDEQ on the two permit-condition claims and denied penalties.
- On appeal, the Fourth Circuit affirmed that CWA liability can extend to discharges reaching navigable waters via a direct hydrological groundwater connection (following Upstate Forever), but reversed the §1311 liability because the landfill and ponds were not "discernible, confined and discrete conveyance[s]" (i.e., not point sources). The court affirmed the district court’s rulings on the permit conditions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether CWA regulates discharges to groundwater that reach navigable waters via hydrologically connected groundwater | CWA covers discharges that reach navigable waters through a direct hydrological connection | CWA limits regulation to direct discharges into navigable waters, not groundwater-mediated ones | Affirmed for plaintiff: CWA can cover discharges reaching navigable waters via a direct hydrological connection (following Upstate Forever) |
| Whether coal ash landfill and settling ponds are CWA "point sources" (discernible, confined, discrete conveyances) | Landfill/ponds are point sources because they concentrate contaminants and "channel and convey" arsenic into groundwater that reaches surface waters | Landfill/ponds are static landscape features; seepage is diffuse via precipitation/groundwater, not conveyance; such pollution is regulated under RCRA | Reversed for plaintiff: landfill and ponds are not point sources under the CWA; discharge was diffuse seepage, not from a discrete conveyance |
| Whether permit Condition II.F (prohibiting discharge into state waters) was violated by groundwater contamination | "State waters" includes surface and ground waters under VA statute; therefore groundwater contamination violates II.F | Condition II.F is a CWA-derived permit term governing point-source discharges to surface waters; does not reach isolated groundwater contamination | Affirmed for defendant: II.F not violated; VDEQ and permit context limit it to point-source discharges to surface waters |
| Whether permit Condition II.R (prevent disposal so pollutants do not enter state waters) was violated | II.R's wording is broad and prohibits any pollutant from entering state waters, so groundwater contamination violates it | II.R is boilerplate within a CWA discharge permit and is interpreted to target point-source discharges to surface waters; RCRA/solid-waste permitting governs groundwater from coal ash | Affirmed for defendant: II.R interpreted in context to address point-source discharges to surface waters; VDEQ has enforced groundwater issues under RCRA, not CWA permits |
Key Cases Cited
- Upstate Forever v. Kinder Morgan Energy Partners, L.P., 887 F.3d 637 (4th Cir. 2018) (CWA can cover pollutants entering navigable waters via groundwater with a direct hydrological connection)
- Appalachian Power Co. v. Train, 545 F.2d 1351 (4th Cir. 1976) (Congress distinguished point-source and nonpoint-source discharges under CWA)
- Consol. Coal Co. v. Costle, 604 F.2d 239 (4th Cir. 1979) (discharges that are pumped/siphoned/drained can fall within point-source definition)
- United States v. Earth Sciences, Inc., 599 F.2d 368 (10th Cir. 1979) (failures in a closed circulating contaminated-water collection system constituted point-source discharges)
- Sierra Club v. Abston Constr. Co., 620 F.2d 41 (5th Cir. 1980) (refuse piles may be implicated but the actual transport to waters must be via conveyances like ditches/gullies)
- Ohio Valley Envtl. Coal., Inc. v. Hernshaw Partners, LLC, 984 F. Supp. 2d 589 (S.D. W. Va. 2013) (analysis focused on whether pollutants discharged from discernible, confined, discrete conveyances)