The Clean Water Act (CWA) authorizes citizen suits to enforce the provisions of the law which requires a permit to discharge a pollutant from a point source into navigable waters. Earlier this year, the U.S. Court of Appeals for the Fourth Circuit, in Upstate Forever v. Kinder Morgan Energy Partners, held that discharges into groundwater, not surface water, could also trigger the regulatory authority of the CWA if there was a hydrological connection between the groundwater and the navigable, surface, waters. In its a closely-watched case, Sierra Club v. Virginia Electric & Power Company (“VEPCO”), which also involved discharges into groundwater, the Fourth Circuit was bound by this this new and controversial precedent (a Supreme Court review is very likely), but the plaintiffs in the VEPCO case could not establish that the landfill and the settling ponds used by VEPCO were “point sources”—another important element that must be established.
Unless this decision is reversed by an en banc Fourth Circuit ruling or the Supreme Court, VEPCO will avoid millions of dollars in cleanup costs, and this is also a restatement of the limiting conditions placed on CWA citizen suits.
On September 12, 2018, Fourth Circuit issued its VEPCO decision, reversing the lower court’s determination that the landfill and settling ponds VEPCO used for many years to store coal ash produced by its electrical power generation operations were “point sources” that triggered liability under the CWA when arsenic that was produced by rainfall falling on and percolating through the coal ash waste seeped into groundwater that was ultimately discharged into adjacent bodies of navigable water.
The landfill and settling ponds have been closed by VEPCO in accordance with a corrective action plan approved by state environmental regulators, which have issued to VEPCO Virginia Clean Water Act and solid waste permits. Shortly after this closure, the Sierra Club filed a CWA citizen suit alleging that VEPCO was guilty of continuing violations of the CWA and its state environmental permits.
The Fourth Circuit held that, “in this context,” the landfill and settling ponds were not created to convey anything and were certainly not discrete conveyances like a pipe or channel, and therefore were not point sources. Consequently, unless the discharge emanated from a “point source” as required by the CWA, there could be not a violation of the Act.
A few months ago, the Fourth Circuit ruled, in Upstate Forever v. Kinder Morgan Energy Partners, that the discharge of gasoline from a breached gasoline pipeline into adjacent groundwater that was “hydrologically connected” with navigable waters, can be subject to the jurisdiction of the CWA. While VEPCO argued generally that the CWA only regulates discharges directly into navigable waters, and not to discharges to groundwater that is connected to navigable waters, the Upstate Forever decision, rendered after this case was filed, is now the law of the Fourth Circuit, and in any case, VEPCO did not challenge the lower court’s factual findings that there was a direct hydrological connection between the groundwater and the surface water.
Nevertheless, the fact that the landfill and the settling ponds were not point sources was dispositive of the Sierra Club’s primary CWA argument. The Court of Appeals also agreed with the Virginia Department of Environmental Quality that VEPCO was not in violation of its state water and solid waste permits.