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Emory Law Journal

Keaston Hall

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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