Coal ash lawsuit could hinge on linking Elizabeth River arsenic to closed coal plant

JOHN RAMSEY Richmond Times-Dispatch

A federal lawsuit aimed at stopping Dominion Virginia Power's plans to bury its coal ash in unlined pits could hinge on whether environmentalists can prove that arsenic detected in the Elizabeth River is directly linked to the utility's now-closed coal plant in Chesapeake.

The Southern Environmental Law Center, on behalf of the Sierra Club, argued Tuesday that arsenic and other metals leach into the groundwater and contaminate the nearby river. But lawyers for Dominion said the group has selectively used and misinterpreted some test results while ignoring others.

The lawsuit, to be decided by Judge
John A. Gibney Jr., began Tuesday in Richmond and is scheduled to last eight days.

"The arsenic travels with the groundwater and discharges to the surface water,"
Deborah Murray, an environmental law center lawyer, said in her opening statement. "The only way to stop this pollution is to remove the source of the pollution."

Dominion testing in 2010 of water found in the pores of riverbed sediment revealed levels of arsenic that in some cases far exceed federal safety limits. In the law center's view, that shows the arsenic is traveling with groundwater below the riverbed and up into the river.

But Dominion lawyer
Dabney Carr said if that were true, arsenic levels would be higher in the sediment tested from deeper beneath the river. But the opposite is true, which Dabney said points to another source of contamination in the river other than the groundwater. The river winds through an industrial area that include's Dominion's property and dozens of other facilities.

Carr said Dominion will have an official from the state Department of Environmental Quality testify that the utility has met all of the requirements of its permits and has not polluted the river.

"Sierra Club has brought this suit because it fundamentally disagrees with decisions made by DEQ," Carr said. "This suit is an attempt to usurp the authority of the agency."

He said the Sierra Club has "cherry-picked" chunks of evidence that seem to favor its argument while wearing "blinders to the mountains of other evidence."

Carr said Dominion tested the river water at least 73 times in the past several years, and the arsenic level has never been close to federal limits.

The Sierra Club is asking the judge to require Dominion to excavate the approximately 3 million tons of ash at the abandoned coal-fired power plant site in Chesapeake and move it to a modern, lined landfill. Some utilities are taking that step in the wake of federal regulations that require coal ash ponds to close.

But Dominion has said such an excavation would cost about $3 billion more than its current $500 million plan to drain its 11 ponds and bury the dried ash in place at four sites in Virginia. Its other ash ponds are located at the Chesterfield Power Station on the James River south of Richmond; the Bremo Power Station in Fluvanna County; and the Possum Point Power Station in Prince William County.

Lawsuits and protests have been part of a campaign by environmentalists to ensure that the ash ponds are closed without damaging the rivers on which the plants were built. A bill in the Virginia General Assembly that would have required Dominion to excavate all of its ash died in committee.

Another hurdle that SELC lawyers will have to overcome in the case is establishing that the Clean Water Act applies to a case in which pollution of groundwater then seeps into surface waters.

"The issue to me as to whether this falls under the Clean Water Act is an open one," said
Judge Gibney, who also questioned whether any arsenic found in the river could definitively be tied back to the now-demolished coal plant. "It's a river that flows through an industrial area... How do we know the arsenic comes from (Dominion) as opposed to other sources?"

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