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Sierra Club v. Virginia Electric and Power Co.

ELR Citation: 47 ELR 20047
Nos. 2:15-CV-112, (E.D. Va., 03/23/2017) (Gibney, Jr., J.)

A district court ruled that a Virginia power plant is not liable for CWA penalties associated with its release of coal ash into nearby waters. The case concerns coal ash piles that leached arsenic and other heavy metals into groundwater that contaminated the Elizabeth River and Deep Creek. An environmental group sued the facility for violations of the CWA and its state discharge permit. The defendant contended that it did not violate its discharge permit, as its permit does not cover groundwater, and that it did not violate the CWA because it is not a point source and the CWA similarly does not regulate groundwater. The court agreed with the facility that it did not violate its state discharge permit, giving deference to the state agency's contention that the permits do not consider groundwater. The court found, however, that the facility was in violation of the CWA, but because it was in compliance with its discharge permit, civil penalties should not be assessed.