Water pollution from a coal ash landfill and settling ponds at a closed power plant in Chesapeake is not a violation of the federal Clean Water Act or the conditions of a state permit to enforce the law, a federal appeals court panel ruled Wednesday.
The ruling by a three-judge panel of the 4th U.S. Circuit Court of Appeals reverses a high-profile decision by a lower court judge who found last year that arsenic pollution from the Chesapeake Energy Center, owned by Dominion Energy Virginia, violated the Clean Water Act.
“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,” the panel said in a 24-page decision written by Judge Paul V. Niemeyer.
Dominion welcomed the ruling and promised to “continue to work toward a permanent closing of the facility that ensures protection of the environment and is in the best interest of the community and our customers.”
The Southern Environmental Law Center, which argued the case for the Sierra Club, expressed disappointment, warning that flooding and storm surges expected from approaching Hurricane Florence “show just how dangerous and irresponsible it is to leave coal ash in unlined pits where it is vulnerable to hurricanes and extreme weather.”
Dominion spokesman Robert Richardson responded that Dominion is working with state agencies to protect the Chesapeake site or other coal ash facilities that could be affected by the hurricane projected to reach the North Carolina coast early Friday.
“We will be closely watching the facilities during and after the storm,” he said.
The 4th Circuit panel’s decision hinges less on whether the coal ash disposal sites are polluting the adjoining Elizabeth River and Deep Creek than the appropriate federal law to address the problem.
Rather than the Clean Water Act, the panel said the appropriate law is the Resource Conservation and Recovery Act, which Virginia uses to regulate pollution from solid or hazardous wastes, such as material stored in landfills.
“In this case, the district court blurred two distinct forms of discharge that are separately regulated by Congress — diffuse discharges from solid waste and discharges from a point source — and concluded that any discharge from an identifiable source of coal ash, even that resulting from precipitation and groundwater seepage, is regulated by the Clean Water Act,” Niemeyer wrote in a ruling joined by Judges Stephanie D. Thacker and William B. Traxler Jr.
U.S. District Court Judge John A. Gibney Jr. had ruled more than a year ago that landfill and settling ponds on the Chesapeake site represented a point source of pollution, but the panel rejected his conclusion and ruled instead that the arsenic was not directly conveyed to navigable waters to qualify as a discharge under the Clean Water Act.
The Virginia Department of Environmental Quality regulates pollution at the Chesapeake site by a solid waste permit issued under the RCRA and state solid waste management law. The permit allows Dominion to store coal ash generated by the power plant from 1953 until its closure in 2014, but requires the company to monitor groundwater at the site.
The utility first detected arsenic in groundwater on the site in 2002 and the state subsequently developed a corrective action plan for the site “in the context of the solid-waste permit under the RCRA,” the court said.
“As we’ve said all along, the Sierra Club’s claim was an attempt to circumvent the regulatory program designed to address coal ash and groundwater impacts,” Richardson said for Dominion.
“That process will continue at the direction of the Virginia Department of Environmental Quality to ensure there continues to be no harm to health or the environment as the original court findings confirmed,” he said.
Gibney determined that the arsenic had seeped into navigable waters from the landfill and ponds, but not at levels that threatened human health or the environment. He also declined to find that the discharge violated Dominion’s Clean Water Act permit or impose civil penalties, actions affirmed by the appeals court panel.
The Southern Environmental Law Center said the panel’s ruling, “while disappointing, does not affect the lower court’s factual determination that arsenic is leaking from coal ash pits at Dominion’s Chesapeake facility and flowing directly into the Southern Branch of the Elizabeth River.”
The Charlottesville-based center said it would consult with its clients — the Sierra Club and 17 organizations, including the city of Chesapeake, that had filed briefs in support — regarding next steps.
The ruling does not settle the public debate over the proper way to deal with the coal ash at Chesapeake and other Dominion power plants that burned coal for electricity. The decision does not “alter the lower court’s determination that simply capping the ash in place is not an acceptable solution to this problem,” the law center said.
An estimated 3.4 million tons of coal ash is stored at the site, including 2.1 million tons of coal ash in unlined lagoons.
“Any closure proposal for this facility should ensure that arsenic is no longer dumped in the river, and take into account the vulnerability of the site to storm surges, hurricanes and daily tidal erosion in order to protect the citizens of Chesapeake,” the center said.