Fly-ash defendant says it was victim, too

Sep 22 - McClatchy-Tribune Regional News - Matthew Bowers The Virginian-Pilot, Norfolk, Va.

One of the defendants in a lawsuit over toxic fly ash used to build a Fentress golf course -- the course's developer -- has turned around and joined neighboring residents in suing the ash's provider, Dominion Virginia Power, and other defendants.

Combustion Products Management, or CPM, has filed a cross-claim. It maintains that it, too, was misled by Dominion that the 1.5 million tons of ash was safe to use to sculpt the Battlefield Golf Club at Centerville, and was treated to pose no environmental threat.

Fly or coal ash is a byproduct of burning coal for energy. It contains heavy metals, such as arsenic, lead and mercury, that can endanger health through water and air.

Fear of that danger led hundreds of neighbors of the golf course in March 2009 to sue Dominion and others involved in building the course, including CPM, for $1 billion and a clean up of the site and groundwater. That suit remains pending in Circuit Court.

CPM claims that since the golf-course issues arose, its customers have "disappeared " and its "business has been destroyed."

It seeks to be indemnified -- protected or insured against -- any claims that might be won against it by the residents. The suit also seeks $15.35 million in actual and punitive damages, and asks the court to order Dominion to remove the ash and clean the aquifer.

Clay Chick, CPM's Norfolk attorney, declined to comment on the lawsuit.

Dominion stood its ground.

"The EPA has recently confirmed that the course poses no threat to the public," Jim Norvelle, a Dominion spokesman, wrote in an e-mail. "Dominion denies that any claim by the developer has merit and will vigorously defend against any such claims."

The Environmental Protection Agency in the spring concluded that contaminants found in the water beneath the course posed no health risk to golfers, nearby residents or the environment, although Dominion will continue to sample the groundwater.

MJM Golf, which bought the course from CPM in 2007, filed its own cross-claim against CPM in May 2009. It asked the court to hold CPM accountable for most claims against MJM, which said it similarly relied on assurances that the site was safe.

Matthew Bowers, (757) 222-5221, matthew.bowers@pilotonline.com