Persistence at Chesapeake coal ash site means Dominion must remedy ongoing arsenic pollution

A years-long battle to stop Dominion Virginia Power from polluting the Elizabeth River with arsenic and heavy metals – including the nation’s first federal trial over coal ash storage – has resulted in a court order aimed at stopping the ongoing and illegal toxic leaks at the now-closed Chesapeake Energy Center site.

U.S. District Judge John A. Gibney, Jr., who in March ruled that Dominion was violating the Clean Water Act because of the arsenic leaching into groundwater that then flows to the river, now has ordered the utility to begin a series of monitoring efforts more extensive than any Dominion had ever agreed to do.

Dominion must test “pore water” found in a silty layer under the river where groundwater meets the river water. The utility must also test tissue samples from crabs, fish and shellfish, and must work in good faith to stop the pollution.

Before and during the June, 2016, trial where SELC represented Sierra Club, Dominion repeatedly disputed that contaminated groundwater flowed off the site and into the river. However, Judge Gibney found that the Sierra Club proved the ash is contaminating the river. The court rejected Dominion’s defense that any arsenic in the river must have come from other industrial sources, not the tons of toxic coal ash buried in pits below sea level and piled into a landfill the riverbank.

However, the judge did not order an excavation of the site’s three million tons of coal ash, which is what the Sierra Club sought. Still, according to Senior Attorney Deborah Murray who led the SELC team, the remedy the judge ordered is significant.

Dominion has always insisted no pollution ever reached the river, but a federal judge found that’s not true,” she said. “Because of the Sierra Club’s lawsuit, Dominion must accept it is polluting the river, and must address it.

That fix will have to go further than Dominion’s original plan of “cap in place,” or covering the ash with a liner and dirt, the judge said.

Dominion had told the judge at trial that “letting nature take its course” was an effective solution. Dominion experts testified a process called “natural attenuation” would eventually make the arsenic harmless, but the judge rejected that because it wasn’t working, calling it a “completely ineffective ‘solution.’”

The judge has set another hearing for next summer to consider what further steps might be needed.

Outside the courtroom, the trial has had a significant effect on Virginia policy.

Here’s how reporter Robert Zullo of the Richmond Times-Dispatch reported the fallout:

Shortly after Gibney’s ruling that the utility company had violated the Clean Water Act, Gov. Terry McAuliffe put the teeth back into a piece of legislation that required additional assessments of contamination at Dominion’s ash ponds at four sites across the state, including Chesapeake.

The bill by Sens. Scott A. Surovell, D-Fairfax, and Amanda F. Chase, R-Chesterfield, also required study of alternatives to the company’s preferred plans to mostly cap the unlined ponds with a synthetic liner and cover them with a layer of turf before the state issues permits for the closures. After fighting the bill during the session and succeeding in removing provisions that prevented it from getting permits before the assessments were complete, Dominion relented when the governor put those provisions back in and said it would abide the delay in closing the ponds.

The General Assembly approved McAuliffe’s amendment in a turn of events that was a significant reversal for Dominion and a victory for environmental groups and some local governments, who contended that leaving the ash in unlined pits would ensure seeps of heavy metals into ground and surface waters for years to come.

Dominion has appealed the judge’s decision.