Court rules Dominion’s coal ash illegally pollutes Virginia’s Elizabeth River More »
A federal judge today ruled that Dominion Virginia Power is violating the Clean Water Act because coal ash is contaminating groundwater flowing from the site of a former coal-burning power plant into the nearby Elizabeth River.
The judge agreed with the Sierra Club’s experts, and rejected the testimony of Dominion experts who said arsenic does not reach the Elizabeth River or Deep Creek.
- The utility’s claim that arsenic-contaminated groundwater does not reach the river is not correct.
- That the coal ash ponds and piles are “point sources” under the Clean Water Act, rejecting Dominion’s argument that the facility was too large to be considered a single source of contamination. The judge explained, “Dominion created those piles specifically for coal ash and they channeled the pollutants away from the old power plant and directly into the groundwater.”
- That the process of “natural attenuation,” or “letting nature take its course,” is a “completely ineffective ‘solution’”… that “may never get rid of the arsenic in the groundwater.”
The judge is not requiring Dominion to excavate the unlined, leaking pits at the now closed Chesapeake Energy Center. Instead, the coal ash would remain in place, sitting in direct contact with groundwater in pits below sea level, where it will continue to pollute groundwater and the river.
However, the judge will require Dominion to perform additional testing, and he is asking both sides to submit briefs outlining “a detailed remedial plan.”
“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, one of the SELC attorneys who represented the Sierra Club.
“The law is clear: When someone violates the Clean Water Act, the polluter must stop the violation,” Murray said. “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.”
This 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.
Coal ash storage pits in the Southeast—along with the catastrophic spills and long-term pollution that come from them—have become a top public concern, leading several regional utilities to excavate and move their coal ash.
This ruling is one of several recent developments that have focused attention on utilities’ responsibility for coal ash contamination:
- In 2015, Duke Energy companies pleaded guilty 18 times to nine federal Clean Water Act crimes at five sites across North Carolina.
- All South Carolina utilities have agreed either voluntarily or through legal challenges to excavate coal ash pits and safely dispose of the ash.
- Court orders and administrative orders have forced additional excavations. Utilities in the Southeast are moving at least 75 million tons of coal ash from unlined pits to dry, lined landfills away from groundwater, rivers, and lakes.
The Sierra Club proved at trial that more than three million tons of toxic coal ash stored in pits, ponds, and in an ash landfill on top of the older pits is the source of the groundwater contamination, and that the arsenic-tainted groundwater flows into Deep Creek and the Elizabeth River.
Protecting Our Water and Health from Coal Ash
Nearly every major river in the Southeast has one or more unlined, leaking pits on its banks filled with water and holding coal ash from power plants. Containing millions of tons of toxin-laden waste, these pits are unlined and have leaked arsenic, mercury, thallium, selenium, and other contaminants into the rivers and the underlying groundwater for decades.
Putting a Stop to Years of Pollution
SELC is in federal and state courts to force utilities to clean up their unlined, leaking coal ash waste sites and protect our clean water and people's health. When state and federal governments did not act following a devastating 2008 spill in Kingston, TN, we began enforcing the law ourselves on behalf of local citizen groups.
In North Carolina, our lawsuits have produced cleanup commitments at eight Duke Energy sites, and SELC continues to represent a number of citizen groups to require the clean up or recycling of coal ash at all 14 of Duke Energy’s leaking, unlined coal ash sites across the state.
In South Carolina, a combination of legal action and public pressure from SELC prompted all three of the state’s major utilities to clean up all of their leaking, unlined coal ash pits on South Carolina’s rivers - a historic accomplishment for clean water in South Carolina.
In Virginia, we uncovered decades of coal ash pollution leaking from three different Dominion Virginia Power sites: the Bremo site on the James River, the Possum Point Power Plant along the Potomac River, and the Chesapeake Energy Center along the Elizabeth River. SELC is working to make sure Dominion is held responsible for cleaning up its dangerous coal ash storage sites on these waterways.
In Tennessee, we filed a lawsuit against Tennessee Valley Authority (TVA) for coal ash at the Gallatin Plant polluting the Cumberland River, which provides drinking water for 1.2 million residents downstream.
Advocating Tougher Standards
Despite the dangers revealed by the catastrophic Kingston spill in 2008 and the 2014 Dan River spill in NC, only in 2015 did the EPA put its coal ash rule into effect. This rule establishes only minimum protections, so we will continue to enforce stronger U.S. and state clean water and anti-pollution laws to protect rivers and communities from the dangers of coal ash.
Is There a Coal Ash Waste Site Near You?
To help communities find out more about risks to their communities, SELC and its partners launched SoutheastCoalAsh.org, a website that provides an interactive map and database of 100 coal ash impoundments.
This Case Affects
Attorneys on Case
Court Ruling: Dominion’s Coal Ash Illegally Pollutes Elizabeth River
Governor McAuliffe Fights to Protect Virginia Waters
Duke Energy Coal Ash Pollution into Hyco Lake and Dan River and Roanoke River Basins Violates Clean Water Act
Proposed Permits Allow Duke Energy to Discharge Unlimited Amounts of Pollutants into North Carolina Rivers and Lakes
Gallatin Coal Ash Trial Concludes
Chesapeake Coal Ash Site “Highly Vulnerable” to Coastal Hazards
TVA Refuses to Disclose Water Quality Data From Leaking Gallatin Coal Ash Site
Gallatin Coal Ash Leaks are a Hidden Environmental Disaster
Conservation Groups Reach Settlement with Duke Energy on Sutton Coal Ash
SELC Statement on Approval of EPD’s Georgia Coal Ash Storage and Disposal Rules
Cape Fear Riverwatch
Catawba Riverkeeper Foundation
Dan River Basin Association
Neuse Riverkeeper Foundation
Potomac Riverkeeper, Inc.
Roanoke River Basin Foundation
Southern Alliance for Clean Energy
Tennessee Clean Water Network
Tennessee Scenic Rivers Association
Winyah Rivers Foundation
Dan River Basin Association
Coastal Conservation League
Save Our Saluda