RICHMOND, Va. (CN) – Dominion Power went before the Fourth Circuit Wednesday to challenge a lower court ruling that found wastewater seeping from Dominion’s coal ash ponds into local groundwater counted as a Clean Water Act violation.
At issue was the leak of arsenic from coal ash pits from a decommissioned coal-fired plant on the Chesapeake Bay’s Elizabeth river.
Environmentalists sued Dominion in 2015 saying the leak of toxins violated the Clean Water Act as well as the state permits Dominion had which limited how they could dispose of waste.
Other federal courts, including those in North Carolina and Hawaii, have issued similar rulings, and the Ninth Circuit has found that groundwater acts as a conduit for pollution and such pollution counts as a Clean Water Act violation.
“If you define coal ash as a point source pollutant, you get an exemption under RCRA,” argued Jeffrey Lamkin, the lawyer for Dominion Energy.
He suggested the Clean Water Act is specific about dumping pollution from point sources into, as the law states, “navigable waters.” “Congress was very clear and said they wouldn’t cover groundwater,” Lamkin said.
“It says ‘discharge of pollutants,’” said Sierra Club attorney, Frank Holleman III.
“Any discharge into navigable waters.” “Is groundwater a point source?” she fired back.
“Congress defined conveyance [the method by which the pollution is discharged] as including ‘any container’ from which pollutants may be discharged,” he said.
“If that’s true, any polluter could put their pollution back from the water and say it’s not a conveyance,” he said, suggesting further proximity from the pit would reduce the chances of groundwater contamination in nearby “navigable waters.” Thacker also asked Sierra Club why Dominion’s groundwater contamination wouldn’t be exempt because of RCRA.