Court rejects Dominion’s motion to dismiss coal ash lawsuit

Leaking coal ash storage at this power plant in Chesapeake, Virginia is the central issue in a case before federal court. (© Stephen Katz/Virginian-Pilot)

Friday the U.S. District Court for the Eastern District of Virginia denied Dominion Virginia Power’s motion to dismiss the lawsuit filed by SELC, on behalf of Sierra Club, over the illegal contamination of the Southern Branch of the Elizabeth River with harmful coal ash waste from Dominion’s Chesapeake Energy Center.

The court rejected all of Dominion’s arguments for dismissing the lawsuit, including the claim that the federal Clean Water Act does not cover pollution discharges that enter surface waters through groundwater. The court cited a recent case SELC litigated in which a federal district court in North Carolina likewise found that the Clean Water Act applies to the discharge of pollutants where there is a hydrological connection between groundwater and surface waters.

The court also upheld Sierra Club’s right to sue Dominion to enforce the Clean Water Act based on the fact that Sierra Club members have been fishing, boating, and birding in the water near the power plant for many years.

“The court’s ruling upholds the right of citizens to seek to enforce the Clean Water Act, said Deborah Murray, Senior Attorney at SELC. “We will continue our efforts in court to end the ongoing contamination of waters from Dominion’s coal ash waste.”

SELC filed the lawsuit against Dominion last March after the Chesapeake power plant permanently closed its coal-burning units. The facility now stores over sixty years of coal ash waste onsite in unlined leaking pits and a landfill built on top of the old pits. For well over a decade, the nearly one million cubic yards of coal ash stored at the Chesapeake site has been illegally leaking high levels of arsenic, cobalt, sulfide, and other harmful pollutants into the groundwater and two waterways popular for recreational activities—the Southern Branch of the Elizabeth River and Deep Creek.

Dominion plans to “close” the coal ash ponds at four Virginia power stations, including Chesapeake Energy Center.  Dominion’s proposal would not stop the known leaking of harmful pollutants out of the unlined coal ash pits into the adjacent waterways at the Chesapeake site. Meanwhile, utilities in North and South Carolina have begun making commitments to responsibly move coal ash waste to dry, lined storage away from waterways.


Read coverage of the ruling in The Virginian-Pilot.


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