Sierra Club v. Virginia Electric & Power Co.
247 F. Supp. 3d 753
E.D. Va.2017Background
- Dominion operated the Chesapeake Energy Center (CEC) coal-fired plant (1953–2014) and stored ~2.83 million cubic yards of coal ash in on-site ponds/landfill; ash contains ~150 tons of arsenic.
- Some ash facilities (Historic Pond, Bottom Ash Pond, Sedimentation Pond) lack liners; an Ash Landfill was constructed in 1984 with a 20 mil geosynthetic liner.
- Groundwater monitoring (Dominion reports) showed arsenic above Virginia groundwater protection standards in multiple wells; groundwater hydraulically flows radially from the ash toward adjacent surface waters (Southern Branch of the Elizabeth River, Deep Creek, CWDC).
- Sierra Club sued under the Clean Water Act (CWA) alleging (1) unlawful discharge of arsenic to navigable waters via hydrologically connected groundwater from the coal ash (no permit) and (2) violations of Dominion’s VPDES permits.
- After bench trial the court found Dominion liable under Count I (CWA discharge via groundwater from point sources) but deferred to the Virginia DEQ and found no VPDES permit violations (Counts II–III); the court imposed no civil penalties and fashioned limited injunctive monitoring relief (not full ash removal).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the CWA cover discharges to groundwater that are hydrologically connected to navigable surface waters? | CWA reaches discharges to groundwater when there is a direct hydrological connection to surface waters; such discharges are effectively to "waters of the U.S." | CWA does not regulate groundwater; discharges to groundwater fall outside federal jurisdiction | Court: CWA covers discharges to groundwater that flow to surface waters via a direct hydrological connection; adopt line of cases/EPA position supporting coverage |
| Do the coal ash piles/ponds qualify as "point sources" under the CWA? | Coal ash piles/ponds are discrete, human-made conveyances that channel pollutants into groundwater and therefore are point sources | Dominion argued against that characterization (relied on older authority limiting scope) | Court: Coal ash piles/ponds are point sources (discernible, confined, discrete conveyances) and thus require permits; Dominion violated CWA by lacking a permit for those discharges |
| Do Dominion’s VPDES permits cover the groundwater discharges (i.e., did Dominion violate state-issued permits)? | Sierra Club: Virginia law defines "state waters" to include groundwater; VPDES permits thus regulate groundwater discharges and were violated | Dominion/DEQ: DEQ interprets Dominion’s VPDES permits as not applying to the groundwater discharges; DEQ found no permit violations | Court: Defers to DEQ’s interpretation and administrative findings; no liability on Counts II–III for permit violations |
| Appropriate remedy: civil penalties and injunctive relief (removal vs. monitoring)? | Sierra Club: Mandatory injunction requiring removal/transport of all coal ash off-site to lined landfill (costly, permanent fix) | Dominion: MNA (monitored natural attenuation) and limited monitoring; moving ash is unnecessary and burdensome | Court: No civil penalties (cooperation with DEQ, lack of bad faith). Denies full removal injunction as speculative/overbroad; orders enhanced, court-supervised monitoring (sediment/water/biota sampling) and reopening of solid waste permit process; either party may seek further relief upon material change |
Key Cases Cited
- Gwaltney of Smithfield v. Chesapeake Bay Found., 484 U.S. 49 (1987) (citizen-suit framework and courts' discretion on civil penalties in CWA suits)
- Sierra Club v. Abston Const. Co., 620 F.2d 41 (5th Cir. 1980) (human-made collection/channeling of runoff can create a point source)
- United States v. Earth Sci., Inc., 599 F.2d 368 (10th Cir. 1979) (broad interpretation of "point source" under the CWA)
- Yadkin Riverkeeper, Inc. v. Duke Energy Carolinas, LLC, 141 F. Supp. 3d 428 (M.D.N.C. 2015) (coal ash dump characterized as a CWA point source)
- Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) (agency deference framework)
- Auer v. Robbins, 519 U.S. 452 (1997) (deference to agency interpretations of their own regulations)
- Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139 (2010) (mandatory injunctions are extraordinary; standards for permanent injunctive relief)
- Friends of the Earth v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167 (2000) (CWA citizen suit standing principles)
- Friends of the Earth v. Gaston Copper Recycling Corp., 204 F.3d 149 (4th Cir. 2000) (citizen suits may seek injunctive relief and civil penalties under CWA)