The U.S. EPA’s National Pollutant Discharge Elimination System (“NPDES”) program is the cornerstone of Congressional efforts to reduce water pollution from point source discharges. This year marks the 44th anniversary of the 1972 Clean Water Act Amendments, which first established the NPDES program, but after all these years the scope of the program is still a source of constant litigation. One of the most recent and significant lawsuits to address the scope of the NPDES program is Sierra Club v. Virginia Electric and Power Company [d/b/a Dominion Virginia Power], No. 2:15-cv-00112, which is currently pending in federal court in the Eastern District of Virginia. This case and a series of similar recent lawsuits throughout the country have the potential to greatly expand the NPDES program and the type of discharges that must be permitted.

The Dominion court held a four-day bench trial in June of this year, and the court could issue a decision any day now. Although the court’s decision would not apply in other jurisdictions, the outcome will be important to watch for several reasons:

  1. This is not an isolated lawsuit. There have been several other citizen suits in just the last few years alleging that discharges to groundwater have violated the Clean Water Act. It is entirely conceivable that there will be more citizen suits addressing this issue in the near future.
  2. The 4th Circuit has not yet addressed whether the NPDES program governs groundwater seeps. And if the court’s ultimate decision in Dominion is appealed to the 4th Circuit, the 4th Circuit could create a split with the other Courts of Appeals that only the U.S. Supreme Court could resolve.
  3. Although the Dominion lawsuit involves disposal facilities for CCR, the principles at issue could easily be applied to other types of landfills, lagoons and surface impoundments that many industrial operations utilize.

I recently published an article with more background and detail on Sierra Club v. Dominion.