Uncontainable Threat: the Nation's Coal Ash Ponds

• Jurisdiction: United States,Federal
• Publication year: 2019
• Citation: Vol. 69 No. 1

Uncontainable Threat: The Nation's Coal Ash Ponds

Keaston Hall

UNCONTAINABLE THREAT: THE NATION'S COAL ASH PONDS

ABSTRACT

Coal ash ponds pose a significant threat to the environment and human health. Coal ash is a byproduct of the electricity production process, and it contains carcinogens like boron, arsenic, lithium, and mercury. Typically, utility companies store coal ash in ponds located near rivers and lakes. If coal ash is stored in ponds that lack an adequate liner, the coal ash can seep into the groundwater and travel to nearby surface waters, which may serve as a drinking water source for neighboring communities. The EPA has admitted that the majority of America's coal ash ponds are unlined and prone to leaks. Moreover, there have been several instances where coal ash ponds have failed and discharged millions of gallons of coal ash into surrounding surface waters. In an effort to protect citizens' health and the environment, plaintiffs have utilized the Clean Water Act to hold utilities liable when they discharge coal ash pollutants to surface waters via hydrologically connected groundwater. Nevertheless, the Fourth Circuit in Sierra Club v. Virginia Electric and Power Co. determined that coal ash ponds were not point sources under the CWA, and this decision will likely prevent future plaintiffs from bringing claims against utilities under the Act.

The holding in Sierra Club will also limit future plaintiffs' ability to hold polluters liable for unpermitted discharges from other types of "containers," which will increase the possibility of an environmental disaster. As a result, the Supreme Court must step in and reverse the Fourth Circuit's decision. More specifically, the Supreme Court must hold that coal ash ponds are point sources under the CWA. To reach this decision, the Supreme Court must first look to the purpose of the CWA, which was designed "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." Then, the Supreme Court must look to the language of the Act, specifically the CWA's definition of the term "point source." Lastly, the Supreme Court must look to other cases involving "containers" as they indicate that "natural processes" may be part of a point source discharge if the polluter "initially collected" the pollutants.

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INTRODUCTION ............................................................................................. 165

I. COAL ASH STORAGE AND THE CWA: BACKGROUND ....................... 170

A. Coal Ash Storage and Disasters ............................................... 171
B. The Act ...................................................................................... 175

1. The CWA's Citizen Suit Provision and NPDES Permit System ................................................................................. 176
2. Purpose and Language of the CWA ................................... 178

II. COAL ASH CASES AND "CONTAINERS" ............................................. 180

A. Tennessee Clean Water Network v. Tennessee Valley Authority .................................................................................. 180
B. Sierra Club v. Virginia Electric & Power Company ................ 184

III. COAL ASH PONDS UNDER THE CWA: ANALYSIS .............................. 189

A. Coal Ash Ponds Are Point Sources Under the CWA ................ 190

1. The Language and Purpose of the CWA Support the Claim that Coal Ash Ponds Are Point Sources ............................. 190
2. Other Cases Involving "Containers" Support the Claim that Coal Ash Ponds Are Point Sources Under the CWA .......... 194

B. The Conduit Theory and Coal Ash Ponds ................................ 200

IV. THE COURT'S DECISION IN SIERRA CLUB: IMPLICATIONS ................ 204

A. THE COURT'S DECISION IN SIERRA CLUB WILL HAVE AN IMPACT ON OTHER CASES INVOLVING "CONTAINERS" ....................................... 204

[UP]CONCLUSION................................................................................................. 207

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INTRODUCTION

The Fourth Circuit has determined that coal ash piles are nonpoint sources under the Clean Water Act (CWA),¹ and this decision poses a significant threat to the environment and human health. Coal ash piles are constructed by coal-fired power plants to store the waste that is generated during the electricity production process, and they pose a great danger to human health and the environment as the coal ash contains "carcinogens and a myriad of neurotoxins."² Coal ash piles are usually located in the ground next to power plants, and when they are unlined, pollutants can leach into the groundwater.³ The contaminants can travel through the groundwater to navigable surface waters, and as a result, drinking water sources may be contaminated with arsenic and other pollutants.⁴ Despite the significant threat posed by coal ash piles, the Fourth Circuit in Sierra Club v. Virginia Electric and Power Co. reasoned that a coal ash pile, or any other type of "container," is not a point source under the CWA unless the coal ash pile itself served as a "conveyance of the pollutant into navigable waters."⁵

The Fourth Circuit's decision in Sierra Club rested upon its analysis of the CWA.⁶ Congress passed the CWA in 1972 "to restore and maintain the

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chemical, physical, and biological integrity of the Nation's waters."⁷ Instead of preserving the standards of liability under the 1948 Federal Water Pollution Control Act and the Water Quality Act of 1965, Congress fashioned the CWA to deliver a new standard of liability for polluters based on effluent limitations.⁸ The CWA serves as the primary "legislative source of the [Environmental Protection Agency's (EPA)] authority—and responsibility—to abate and control water pollution."⁹ Additionally, the CWA makes "the discharge of any pollutant by any person" illegal.¹⁰ According to the CWA, the term "discharge of a pollutant" includes "any addition of any pollutant to navigable waters from any point source."¹¹ However, the CWA provides for "exceptions to this general prohibition in the form of permits issued in accordance with the National Pollutant Discharge Elimination System (NPDES), which allows limited discharges."¹² Thus, the CWA provides a "default regime of strict liability" as any unpermitted discharge of a pollutant from a "point source" to the "navigable waters" of the United States is prohibited, unless the polluter holds a permit.¹³

Generally, five requirements must be satisfied before a defendant will be held liable under the CWA: "(1) a pollutant must be (2) added (3) to navigable waters (4) from (5) a point source."¹⁴ According to the CWA, the term navigable waters refers to the "waters of the United States,"¹⁵ and in Rapanos v. United States, the Supreme Court determined that a broad interpretation of the term is appropriate.¹⁶ Thus, rather than reading the term conservatively to include only

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"waters that are navigable-in-fact," like rivers and lakes, the Court determined that navigable waters include "wetlands and related hydrological environments."¹⁷ Courts, however, have disagreed over whether the CWA regulates the discharge of pollutants to navigable waters through hydrologically connected groundwater.¹⁸ Most of the courts that have rejected arguments asserting the CWA encompasses a discharge of pollutants to navigable waters through groundwater have done so based on the belief that groundwater itself is not considered to be "a water of the United States."¹⁹ On the other hand, at least one court believes the issue should not be viewed "as whether the CWA regulates the discharge of pollutants into groundwater itself," but instead as "whether the CWA regulates the discharge of pollutants to navigable waters via groundwater."²⁰ When the question is constructed in this manner, some courts have utilized the conduit theory when analyzing cases concerning the discharge of pollutants to navigable waters via hydrologically connected groundwater.²¹

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Under this approach, groundwater is treated merely as a conduit through which pollutants move from the point source to nearby navigable surface waters.²² More specifically, this approach emphasizes that gravity flow, which moves groundwater through pollutants to nearby navigable waters, can "be part of a point source discharge if" a party "at least initially collected or channeled the water and other materials."²³

Sources of water pollution can be divided into two categories under the CWA: "point sources" and "nonpoint sources."²⁴ The statutory language of the CWA states that a "point source" is "any discernible, confined, and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged."²⁵ Nonpoint source discharges are the result of several dispersed discharges over a sizeable space, and it is difficult to regulate nonpoint source discharges because they are diffuse and cannot be linked to a single discrete source.²⁶ While point source pollution is subject to federal regulation under the CWA, nonpoint source pollution falls outside the scope of the CWA.²⁷ Ultimately, when a court looks to ascertain whether a discharge originated from a point source or a nonpoint source, "[t]he ultimate question is whether pollutants were discharged from 'discernible, confined, and discrete conveyance(s)' either by gravitational or nongravitational means."²⁸

Considering the broad implications of the Fourth Circuit's decision in Sierra Club, the Supreme Court must reverse the Fourth Circuit's decision and hold that coal ash piles are point sources under the CWA. In Sierra Club, the Fourth Circuit erroneously concluded that a "container," which the CWA lists as an

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example of a point source,²⁹...