Court Ruling:  Dominion’s Coal Ash Illegally Pollutes Elizabeth River

But judge declines to order cleanup; communities left to press for excavation

Richmond, VA – 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.

Judge Gibney ruled:

  • 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,” she 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.

“A federal court has found Dominion responsible for breaking the law and polluting the Elizabeth River,” said Seth Heald, chair of the Sierra Club’s Virginia chapter. “That is important for all Virginians who seek to hold the utility responsible for its mishandling of toxic coal ash. Now we must push Dominion to do the right thing and get this toxic ash out of the groundwater and away from the river, which is highly susceptible to disastrous flooding from sea-level rise and other climate-change effects.”

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 other 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.

SELC attorneys who represented the Sierra Club were Deborah Murray, Brad McLane, Chris Bowers, Jonathan Gendzier, Greg Buppert, Will Cleveland, Frank Holleman, and Nate Benforado. They were supported by a team of other SELC attorneys and legal assistants.

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About the Southern Environmental Law Center:

The Southern Environmental Law Center is a regional nonprofit using the power of the law to protect the health and environment of the Southeast (Virginia, Tennessee, North and South Carolina, Georgia, and Alabama). Founded in 1986, SELC's team of more than 60 legal and policy experts represent more than 100 partner groups on issues of climate change and energy, air and water quality, forests, the coast and wetlands, transportation, and land use. www.SouthernEnvironment.org

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