A three-judge panel found that Dominion’s coal ash landfill and settling ponds didn’t qualify as a "point source" under the Clean Water Act because the arsenic flowed from sites through groundwater before reaching the Elizabeth River and Deep Creek.
Circuit courts have taken divergent approaches to questions of groundwater discharges and point sources in recent years.
Circuit Court of Appeals found earlier this year that Maui had violated the Clean Water Act when wastewater injected in underground wells reached the Pacific Ocean.
The court held that the groundwater served as a conduit, moving pollutants to a body of water under federal jurisdiction.
The 4th Circuit itself held earlier this year that pollution that moves into U.S. waters via groundwater can violate the Clean Water Act if plaintiffs show "a direct hydrological connection between ground water and navigable waters."
The panel distinguished today’s case by noting the diffuse way in which arsenic moved from Dominion’s landfill and ponds into groundwater.
The Sierra Club, represented by the Southern Environmental Law Center, brought the case against Dominion.
But the group noted that the 4th Circuit did not question the lower court’s finding that the arsenic contamination was tied to Dominion’s facility.
Nachy Kanfer, acting Eastern regional director for the Sierra Club, noted that the ruling has no bearing on other courts’ decisions finding that coal ash sites do trigger Clean Water Act jurisdiction.
Circuit Court of Appeals.