A Leaking Settling Pond Is Not A Point Source

On Wednesday, the 4th Circuit Court of Appeals reversed a District Court ruling and rejected the Sierra Club’s citizen suit against Virginia Electric Power alleging that releases of arsenic from a coal ash landfill and settling ponds at its Chesapeake Energy Center power plant violated the Clean Water Act and the plant’s NPDES permit.  Notably, the issue that most concerned me at the time of the District Court opinion, whether discharges to groundwater are subject to the CWA, it is now settled law in the 4th Circuit and the Court did not revisit it.  Discharges to groundwater with a direct hydrological connection to surface water are subject to the CWA in the 4th Circuit.

Instead, the 4th Circuit reversed on the ground that the landfill and settling ponds are not “point sources” under the CWA.  The Court concluded that neither a landfill nor a settling pond would constitute a:

discernable, confined and discrete conveyance.…  “Conveyance” is a well-understood term; it requires a channel or medium — i.e., a facility — for the movement of something from one place to another.…  [T]he landfill and ponds were not created to convey anything and did not function in that manner; they certainly were not discrete conveyances, such as would be a pipe or channel, for example. Indeed, the actual means of conveyance of the arsenic was the rainwater and groundwater flowing diffusely through the soil.

This all makes a certain amount of sense.  However, as the court itself noted:

The definition includes, “but [is] 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.” (My emphasis.)

I haven’t reviewed the briefs and I don’t know if it was argued, but if I were the Sierra Club attorney in this case, I would certainly have noted that a concentrated animal feeding operation, included by statute in the definition of a point source, would not constitute a point source under the 4th Circuit’s approach of focusing on a traditional understanding of the meaning of the word “conveyance.”

This case is not likely to be a one-off and I’ll be interested to see if other courts take a similarly narrow view of the “conveyance” language in the statute.

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