Easy to overlook, the trickle of water flowed southwest through thick mud to the expansive tidal lagoon, away from the ponds that hold some 15 million tons of coal ash from the Chesterfield Power Station.
What appeared to be an unremarkable dribble to the casual eye looked more like a smoking gun to Jamie Brunkow, lower James riverkeeper for the James River Association, and Nate Benforado, an attorney with the Charlottesville-based Southern Environmental Law Center.
The Chesterfield County map of the 810-acre Dutch Gap Conservation Area, which offers walking trails, picnic shelters, kayaking and canoeing among other amenities, doesn’t show a name for the spot. But Brunkow and Benforado call it “Red Cove” for obvious reasons.
The burnt-orange stained mud here, they say, is the product of iron seeping out of Dominion Virginia Power’s neighboring ash ponds into groundwater and flowing up into the cove. But iron isn’t all that’s there.
Sampling conducted by the James River Association also revealed arsenic at what Benforado called “off-the-charts” concentrations.
“We can see things bubbling up, essentially, and our position is this is leaking from the coal ash. We’ve tested the water and sediment here. We found arsenic at incredibly high levels, 282 parts per million right here, which is higher than many Superfund sites that have really bad pollution problems,” he said.
Several rounds of tests in the past year seem to show leaking from Dominion ash ponds, including prior work by the James River Association and separate sampling by a Duke University-led team. The Duke team found unpermitted leaking from coal ash facilities in five states, including at Dominion’s Chesterfield and Bremo Bluff power stations.
The SELC and other groups are pushing for Dominion to dig up its ash and move it away from rivers as the politically potent utility seeks permission to close the ponds in response to new federal regulations. Environmental groups also want more forceful action from the Virginia Department of Environmental Quality, which is overseeing the permit process.
“We think the evidence is very clear at this point. We’ve gathered a lot of it,” Benforado said. “At a minimum, we are urging Dominion and DEQ to take action and investigate this further on their own.”
DEQ Director David Paylor turned down an interview request from the Richmond Times-Dispatch late last month.
“Dave Paylor prefers not to give any interviews about coal ash,” spokesman Bill Hayden wrote in an email. “He believes DEQ’s actions are clear and there is nothing useful he could add at this time.”
However, at a House committee meeting last month, Paylor told lawmakers the DEQ’s process for evaluating risks at coal ash sites is sound and added that there is no evidence that “harmful concentrations” of heavy metals are leaving the ash sites.
And Dominion officials, including Josh Bennett, regional director for Chesterfield and Bellemeade power stations, called the stream that the environmentalists flagged a tidal flow, not evidence of a groundwater seep. During a visit to the power station Friday, a week after Brunkow and Benforado’s trip, the water flow wasn’t readily apparent. The power station and its ash ponds are in full compliance with its permits, Bennett added.
“I don’t have evidence of leaking right now,” said Bennett, who said the company takes reports of leaks and other environmental issues at the plant very seriously.
The discrepancy between what environmentalists, some local officials and residents contend are the realities and risks at the ash facilities that Dominion is seeking permits to close permanently and the contradictory response of the utility and the DEQ was at the heart of a tense legislative battle at the General Assembly this past session and a debate that continues across the state.
Sens. Scott A. Surovell, D-Fairfax, and Amanda F. Chase, R-Chesterfield, pushed a bill that would have required more study and evaluations of alternative proposals before Dominion is allowed to close 11 ponds at four sites. The utility has proposed to do that largely by draining, treating and discharging the water in the ponds, then covering the ash with a synthetic liner and layer of turf.
Water treatment and discharge has already started at two sites: Possum Point Power Station in Dumfries and Bremo Power Station in Fluvanna County. Only one draft solid waste permit, which allows the ponds to be capped and closed, has been issued: Possum Point.
The pond closures are in response to regulations published in 2015 by the federal Environmental Protection Agency that were developed after high-profile coal ash catastrophes that fouled the Dan River in North Carolina and Tennessee’s Emory River.
Surovell and Chase’s bill made it through the legislature, but not before its teeth were yanked out in a House committee after lobbying from Dominion, Chase said.
The final version requires Dominion to compile information on existing contamination at the sites and evaluate options for closing the ponds by removing the ash to a lined landfill, recycling it for use in concrete and other products, as well as demonstrate the long-term safety of the closed ash ponds.
But Dominion won’t have to do that before the DEQ issues permits allowing the ponds to be closed. A provision was inserted in the House committee that explicitly told the agency not to “suspend, delay or defer the issuance of any permit” pending the completion of the assessments.
Now the senators want Gov. Terry McAuliffe to restore those moratorium provisions.
“The amendment basically gutted the bill. ... I’m looking at this from a public safety standpoint, but I’m also looking at it from a good fiscal approach to this problem,” said Chase, whose district borders the Chesterfield Power Station. “Let’s figure out the best solution and do it once.”
Though by no means in all cases, other utilities in the Southeast, including Georgia, North Carolina and South Carolina, are excavating ash from unlined pits near waterways and taking it to lined landfills and recycling some of it.
Parts of Chesterfield’s ash ponds sit in the old channel of the James River and are saturated with groundwater already, meaning putting a cap over them won’t keep the toxic heavy metals that the ash can contain from leaching out, environmental groups contend. Chase is also concerned about quickly approving a plan that could require an expensive fix later at ratepayer expense.
“There’s too much uncertainty at this point to make an informed decision,” she said.
In Prince William County, where Dominion is seeking to consolidate 5 million tons of ash in a single pond at Possum Point Power Station before covering it, the Board of Supervisors last week joined Surovell and Chase’s call for a halt to the process. After months of insisting that their ash ponds in Dumfries couldn’t be the source of metals such as lead and chromium that have shown up in tests of residents’ drinking water wells, the company agreed in December to hook several dozen up to public water, though only a few have taken Dominion up on the offer thus far.
Last week, after a meeting in which a steady stream of residents and environmentalists implored the supervisors to oppose the pending solid waste permit for the site, the board directed county staff to send McAuliffe a letter requesting amendments restoring the provision of Surovell and Chase’s bill that would delay permitting until after the studies.
And the supervisors also ordered a letter to Dominion requesting that the utility grant DEQ additional time to review the draft solid waste permit and “agree to an objective, third-party alternatives analysis/risk assessment, at Dominion’s expense, to document the alternatives available to Dominion to capping Pond D in place,” according to Jason Grant, a county spokesman. The board also asked Dominion to “support the governor in recommending the board’s requested amendments” to the legislation.
Asked what McAuliffe will do, Brian Coy, a spokesman for the governor, said only that the “bill is under review.”
The public comment period on the draft permit ended Friday, which means DEQ now has 90 days to evaluate it.
Robert Richardson, a Dominion spokesman, said the permitting process “belongs to DEQ.” The company has maintained that its plans are safe and will protect ground and surface water.
“As far as I’m aware, we haven’t had any discussion with DEQ about altering the time frame of the permitting process,” Richardson said last week.
In Chesapeake, where plans to close the ash impoundments at the shuttered Chesapeake Energy Center have been on hold since Dominion withdrew its request for permits in October, the city has been intent on forcing the utility to obtain local conditional-use permits in addition to the state permits to permanently store ash there.
For years, the city has also been grappling with a host of issues connected to a struggling golf course that was sculpted out of Dominion fly ash. And a federal judge in a lawsuit filed by the Sierra Club over arsenic contamination of the Elizabeth River from the Chesapeake Energy Center said last summer that evidence showed that the coal ash ponds were to blame, though a ruling has yet to be issued in that case.
“A conditional-use permit is designed to mitigate adverse impact on surrounding properties and the environment and in this case we believe the fly ash is leaching into the groundwater and also going out in the surface water,” said Chesapeake City Attorney Jan Proctor. “The council has a legitimate interest in making sure that is mitigated to the extent possible.”
The City Council in 2014 passed an ordinance requiring a conditional-use permit for the storage, use or placement of coal-combustion byproducts. And in late 2015, the city’s Board of Zoning Appeals upheld the decision by the zoning administrator that the facility was subject to the conditional-use permit requirement.
Dominion has fought the requirements, though a local judge ruled in January that the city ordinance was valid, said Ryan Samuel, an assistant city attorney.
“They’ve been very aggressive in trying to get out of this,” he said.
Chesterfield’s local government has been less worried about the power station’s ponds. The station, a 1,600-megawatt workhorse for Dominion and the largest fossil-fuel plant in the state, will continue to burn coal into the future but is shifting to dry management of the ash and building a new lined landfill to handle the waste.
“I wouldn’t say that they seem to be overly concerned like I think they probably should be,” Chase said.
In response to questions about the James River Association’s findings and the county’s regulatory stance on the ash ponds, William Dupler, a deputy county administrator, said in an email that the power station “is in compliance with zoning conditions that were updated and approved by the county on March 9, 2016.”
Though Dominion initially intended to proceed with a cap-in-place plan in Chesterfield, the company says it is now looking at other options.
“Originally, we were going to do cap in place,” Bennett said. “We are doing the due diligence to determine whether that’s the right decision.”
The latest round of testing at Chesterfield included boron-isotope analysis, a technique that uses distinctive isotope tracers of boron associated with coal to identify sources of pollution.
In North Carolina, where the state had been embroiled in a controversy over a decision to issue “do-not-drink” letters to several hundred residents near Duke Energy coal ash ponds whose wells had shown elevated levels of metals such as hexavalent chromium, the isotope testing, conducted by the Duke University team, showed coal ash was not the culprit in 90 percent of the cases.
“In Red Cove and a couple of those sites in the tidal lagoon, it very clearly has that coal-ash boron isotope fingerprint,” said Benforado, the SELC attorney.
But rather than test areas closer to potential contamination sources, he said state regulators often sample in waterways where dilution means the measured concentrations of heavy metals don’t raise any red flags. The state Department of Environmental Quality conducted its own sampling last summer in locations around Chesterfield Power Station that were tested by the environmental group but found no water quality violations.
The regulatory framework the agency operates under is complicated, said James Golden, DEQ’s director of operations, in an interview.
“The water samples we take out in the river is where the particular regulations employ standards that can be enforced by us,” he said. “There’s no water quality standard that applies to the places where they’re taking these samples. ... They’re trying to make the case that these units are all leaking. So it’s a different approach. You can’t use the water quality standards to make a case like this.”
Golden noted that the DEQ does inspect for seeps at the ponds and request corrective action when warranted, including at the Chesterfield Power Station last year, when Dominion says it self-reported a wet area on the berm separating the ash ponds from the conservation area that was caused by water used to spray down roads that wind around the ash ponds. Dominion responded by installing 40-foot-deep sheet piling and a layer of riprap to better solidify the area.
The agency is still reviewing the latest report from the James River Association and the SELC.
“We take all of this type of information very seriously and evaluate it very closely,” he said.