Coal ash trial ends; judge to decide later
The first federal trial focusing on a utility’s toxic coal ash leaks as a violation of the Clean Water Act ended Friday after four days of testimony from experts who explained how arsenic-tainted groundwater travels from ash pits into the Elizabeth River and nearby waters, and what must be done to stop the pollution.
The engineers, scientists and other experts testifying on behalf of the Sierra Club, represented by the Southern Environmental Law Center, told Judge John A. Gibney Jr., that the coal ash stored at Dominion’s now-closed Chesapeake Energy Center (CEC) is the source of high arsenic concentrations found in the bottom waters of the river and Deep Creek. The experts for Sierra Club testified that Dominion is discharging arsenic through groundwater into the Southern Branch of the Elizabeth River and adjacent waters.
The trial was expected to be closely watched by environmentalists and utilities, and it was covered daily by The Richmond Times-Dispatch and The Virginian-Pilot newspapers. While SELC and other organizations are pursuing similar Clean Water Act cases because of contaminated groundwater, this is the first such case to reach a federal judge for a decision.
At the conclusion of testimony and arguments, Judge Gibney directed attorneys for both sides to submit post-trial briefs in July. He said he would rule after reviewing those briefs, but did not indicate when that would be.
The judge heard from several experts testifying on behalf of the Sierra Club. The experts said much of the site’s coal ash is sitting in pits below sea level, is perpetually soaked in groundwater, and that groundwater is laden with arsenic and discharges to the surrounding surface waters.
One expert testified that the 3 million tons of coal ash at the CEC site contains 150 tons of arsenic.
That arsenic-tainted groundwater flows into the river, creek and canal that surround the site on three sides. Bottom water samples revealed high arsenic concentrations.
A Dominion Virginia Power consultant who has studied the site for years conceded in sworn testimony that the groundwater contamination was likely from the coal ash, and that the groundwater flows from the site into the water bordering the former plant.
However, neither he nor any of Dominion’s witnesses conceded arsenic from the site is reaching the river. One expert witness for Dominion testified that the high arsenic concentrations found at and near the CEC site was either naturally occurring or that it flowed there from other industrial sites. Another Dominion witness said the he found no evidence that groundwater flowed into the surrounding surface waters, but he did not know where it went.
Dominion experts told the judge that a process called “natural attenuation” – or “letting nature take its course” – removed any arsenic from the groundwater. However, a Sierra Club expert used Dominion’s own water tests to conclude that Dominion’s natural attenuation strategy is not working and will not work.
That Sierra Club expert and others testified Dominion’s plan to put a cover over the pits, ponds and piles of coal ash would not stop the arsenic pollution. Dominion is proposing that same closure plan at all of its Virginia coal ash sites.
The SELC attorneys who argued on behalf of the Sierra Club were Deborah Murray, Brad McLane, Chris Bowers, Greg Buppert, Will Cleveland, Frank Holleman, and Nate Benforado. They were supported by a team of other attorneys and legal assistants.