A federal judge has ruled that arsenic seeping into the Elizabeth River from ash ponds at Dominion Virginia Power’s now-shuttered Chesapeake Energy Center violates the federal Clean Water Act, but he opted not to impose penalties or dictate how the violation should be addressed.
“The finding of a violation, however, does not end the inquiry, for the court must fashion a remedy in this case,” U.S. District Judge John A. Gibney Jr. wrote in his order dated Thursday. Gibney directed the parties “to suggest a remedial plan consistent with the court’s opinion.”
The suit, brought by the Sierra Club and the subject of a bench trial that ended in June, sought to force the utility to excavate the ash and haul it away to a lined landfill.
According to the Southern Environmental Law Center, which represented the Sierra Club, Gibney’s order is the first time a “federal judge has ruled after a full trial that a utility broke the law because of the way it stores coal ash.”
“We’re pleased the court agreed Dominion is breaking the law because its coal ash is polluting the Elizabeth River, but we are disappointed the court did not order a full cleanup,” said Deborah Murray, an SELC attorney. “The law is clear. When someone violates the Clean Water Act, the polluter must stop the violation. Here, that means getting the ash out of the groundwater. It is not a viable option to leave the pollution source in place and allow the pollution to continue.”
Dominion spokesman David Botkins said the company “is pleased that the court has confirmed there has been no threat to health or the environment resulting from the coal ash,” adding that “the safety of the public, the water and the environment is our top priority.”
Botkins also noted Gibney’s determination that the removing the ash would cost hundreds of millions of dollars “for very little return.”
“While we are still reviewing the order and considering further actions, Dominion remains committed to protecting the people, environment and waterways of the commonwealth,” he said.
In a later statement, the utility said it is “evaluating additional groundwater treatment options for the site, including technologies that would treat any impacted groundwater at the property boundary, for DEQ’s consideration as part of the closure process.”
The Chesapeake Energy Center generated power in Hampton Roads from 1953 to 2014, creating about 3.4 million tons of ash that it stored in unlined pits until 1984, when it built a lined landfill on top of part of one the ponds.
Monitoring wells on the site showed high concentrations of arsenic in groundwater, and evidence during the trial showed that the groundwater at the site was “hydrologically connected” to surface water sources such as Deep Creek and the Elizabeth River, where samples showed “extremely high” arsenic concentrations, the SELC said.
“Dominion itself has agreed that that groundwater moves laterally into the surrounding surface water,” the judge’s opinion said. “But now that Dominion finds itself in a lawsuit about its discharge of arsenic, it changes its tune.”
The company had argued that the groundwater did not connect directly with surface water, “because the aquifer confines the groundwater and impedes it from reaching the surface water,” the judge wrote.
“The court rejects this argument,” Gibney wrote. “It runs counter to the geography of the region and to Dominion’s more candid statements made before the pressure of litigation. ... The ponds and landfill convey arsenic directly into the groundwater and, from there, directly into the surface water.”
The judge also rejected Dominion’s claim that the arsenic found in surface waters around the Chesapeake site comes from other industrial sources.
“It defies logic to argue that an enormous mound of arsenic does not contribute to the arsenic in the soil and water right next to it, especially given the evidence of groundwater movement from the mound outward,” Gibney wrote.
However, the opinion notes that the judge could not determine how much arsenic goes from the ash site to surrounding waters.
“What the court does know, however, is that the discharge posed no threat to health or the environment,” Gibney wrote, adding that tests around the facility “have been well below the water quality criteria for arsenic.”
Even a large arsenic discharge would “amount to a drop in the bucket,” given the volume of water surrounding the ash ponds.
“This fact does demonstrate the absence of significant environmental harm,” the judge wrote.
The opinion appears to convey the judge’s frustrations with the remedies suggested by the Sierra Club — digging up the ash and moving it to a lined landfill, which Dominion said would cost more than $600 million and the judge called “draconian” — and by Dominion, whose preferred “monitored natural attention” method he called “a scientific or regulatory term that means ‘do nothing.’”
Another issue in the case was whether Dominion was in compliance with its existing permits issued by the state Department of Environmental Quality. The DEQ does not believe that its Virginia Pollutant Discharge Elimination System permits, which govern discharges to “state waters,” a term that includes groundwater, applies to groundwater, the order said.
“In this instance the court defers to DEQ’s determination that the VPDES permits do not regulate pollutants seeping into the groundwater at the CEC site,” Gibney wrote. “As the court observed at trial, Dominion has been a good corporate citizen, not a chronic violator of water laws at the CEC. ... Dominion should not suffer penalties for doing things that it, and the commonwealth, thought complied with state and federal law.”
Gibney said his order constitutes a “middle course” that requires Dominion to conduct more monitoring of the site, including sediment sampling on site and in surrounding waters, and to reopen its solid waste application with DEQ to close the site.
“If the parties cannot agree on a remedial plan they may submit dueling proposals to the court,” he wrote.