by James A. Bacon
The Sierra Club has filed a lawsuit charging that coal ash stored at Dominion Virginia Power’s shuttered coal plant in Chesapeake is leaking arsenic into the Elizabeth River. The environmental organization wants the U.S. courts to compel Dominion to scrap plans for burying the coal ash in place at four power stations around the state and to truck the material to lined landfills instead.
Earlier today, attorneys for the environmental group began presenting their case in the Richmond courtroom of U.S. District Court Judge John A. Gibney, advancing the argument that unsafe levels of arsenic found in sediment samples originated from underground water that migrated through the coal ash pits.
“These discharges of arsenic will continue indefinitely with no end in sight,” said Deborah Murray, the attorney representing the Sierra Club. “The only way to stop the pollution is to remove the ash to a lined landfill.”
Dominion countered that the Sierra Club’s arguments are totally unproven. The organization cherry picked “snippets” from the voluminous testing data filed with Virginia’s Department of Environmental Quality (DEQ), wore “blinders” to the mountain of evidence showing that water quality complies with the law, and offered a “tortured interpretation” of how the arsenic got from the coal ash to the surrounding waters, argued Dabney Carr for Dominion.
DEQ has consistently found Dominion to be in compliance over four decades, said Carr. “The goal of this suit is to overturn DEQ’s decision,” he added, addressing the judge. “The Sierra Club is asking you to substitute your judgment for the DEQ’s judgment.”
Dominion has been accumulating coal ash, the mineral residue from coal combustion, at the Chesapeake Energy Center for decades. Like other utilities, the company mixed it with water to keep the dust down and stored the material in lagoons. After years of study, the Environmental Protection Agency issued new standards last year for cleaning up coal ash. The first step is to de-water the ash, treat the water, and discharge it into rivers and streams. For the most part, Dominion has reached agreement with DEQ and environmental groups on how to do that.
The second step is to store the coal ash in a place where it will not continue to contaminate water supplies. Dominion proposes to consolidate the residue and cap it with an impermeable lining to prevent the infiltration of rain water. DEQ is studying those permits now.
Contending that a cap does nothing to stop the infiltration of groundwater, environmental groups have pushed Dominion to truck the material to lined landfills — a project that Dominion estimates would cost $3 billion. While some environmental groups focus their efforts on DEQ, the Sierra Club is going the federal route. The organization believes the lawsuit against Dominion is the first challenge of its kind to the Clean Water Act. If the group wins the case, it will set a precedent not only for all four of Dominion’s coal ash sites but for power companies across the country.
While the implications are national, the facts of the case are highly localized. And, as was clear from Murray’s presentation, Sierra Club’s case is circumstantial.
The Chesapeake facility sits upon land comprised of loose and sandy soils that allow water to travel through easily. The coal ash ranges from 15 to 30 feet thick, and the bottom of the pile varies in elevation from 16 feet above sea level to six feet below. A liner was placed between the disposal site and the ground but it is leaking, Murray said.
However, when asked by Judge Gibney how she knew the liner was leaking, she had no persuasive response.
The key evidence presented for the accumulation of arsenic came from a 2010 report commissioned by Dominion that analyzed sediment “cores” — cylindrical-shaped samples of creek and river bottom — to determine if there was “natural attenuation” of arsenic. (Natural attenuation is when nature takes care of the problem, in this case by binding the arsenic with iron to form a harmless substance.) Five of the samples at a depth of zero to three inches contained arsenic in excess of the permitted level of 36 micrograms per liter.
The Sierra Club cherry picked these data points from mountains of data collected from samples taken twice a year over decades, countered Carr. All tests of surface water, as opposed to sediment, have indicated arsenic levels at concentrations well below drinking water standards. Every water sample — 73 taken over the past thirteen years — were well below Virginia and EPA water quality standards for arsenic. Said Carr: “There is no evidence of arsenic in the surface waters.”
Where did the arsenic in the sediment come from if not from the nearby coal ash pits? Dozens of other industries release discharges in the Elizabeth River, said Carr, and some are known to release arsenic. The Sierra Club has offered no proof that the arsenic levels in found in the sediment differs from those elsewhere in the river. The group has conducted none of its own research and offers no additional evidence. It relied entirely upon data that DEQ used to find Dominion in compliance with the Clean Water Act — “the very same data and information DEQ has relied upon to conclude that Dominion is in compliance with its permit at CEC (the Chesapeake Energy Center).”