A federal appeals court sided with Dominion Energy over environmental groups Wednesday, reversing a lower court’s decision that arsenic seeping into the Elizabeth River from the company’s coal ash ponds in Chesapeake is a violation of the Clean Water Act.
The Chesapeake Energy Center operated from 1953 to 2014, creating about 3.4 million tons of ash, a by-product of coal combustion, that it stored on site in a landfill and in settling ponds. In 2002, Dominion discovered arsenic in the groundwater, and set up a corrective plan with Virginia’s Department of Environmental Quality.
The Sierra Club filed the lawsuit in the U.S. District Court Court for Eastern District of Virginia in 2015, hoping to force Dominion to excavate the ash to a lined landfill that would prevent pollutants from leaking into the groundwater.
In the first ruling on the case last year, U.S. District Judge John Gibney Jr. agreed with claims that Dominion was in violation of the Clean Water Act, saying in his opinion that the ponds and landfill convey arsenic directly into the groundwater.
But the judges on the U.S. Court of Appeals for 4th Circuit disagreed, ruling that Dominion was not in violation of the Clean Water Act.
The court held that the landfill and ponds cannot be considered a “point source,” as defined by the Clean Water Act, that conveys the pollutants directly into the groundwater. They are, instead, “static recipients of the precipitation and groundwater that flowed through them,” which does not constitute a violation of the act.
The Southern Environmental Law Center, which is representing the Sierra Club in the case, said the judges erred.
“I think the court mistakenly had in its mind that you had to have an actual pipe sticking into the river for the Clean Water Act to apply, but the Clean Water Act expressly includes as point sources wells, containers and animal feed lots that do not themselves stick into the river,” said Frank Holleman, an SELC senior attorney.
“These three judges have just totally misread the plain language of the statute and have overlooked the reality of the situation.”
He said the Southern Environmental Law Center plans to consult with the Sierra Club to decide the next steps. It has 14 days in which to seek a re-hearing from the 4th Circuit.
A Dominion spokesperson did not respond to requests for comment.
The company’s controversial plans to close its ash ponds at four sites around the state by capping them with a synthetic liner were put on hold again this year after the General Assembly directed the utility to pursue a request-for-proposals process to explore options for recycling the ash into concrete.
All of the ponds, environmental groups contend, are leaking contaminants into groundwater.