Chesapeake Coal Ash Ruling — Advantage Dominion

Judge John A. Gibney Jr.

My initial reaction to Judge John A. Gibney Jr.’s ruling in Virginia’s first coal ash-related federal court case was to call it a draw. As I blogged yesterday, both the Sierra Club and Dominion Virginia Power found aspects of the judge’s order that supported their positions. But as I sort through the implications for the ongoing debate over coal ash in Virginia, I’m thinking that Dominion was the real winner in the long run.

True enough, the Sierra Club and its attorneys with the Southern Environmental Law Center (SELC) did win one important tactical victory: Gibney found that arsenic-tainted groundwater passing through the coal ash ponds at Dominion’s former Chesapeake Energy Center (CEC), did, in fact, reach the Elizabeth River in violation of the Clean Water Act.

Here’s how Seth Heald, chair of the Sierra Club’s Virginia chapter, framed that finding in a press release:

A federal court has found Dominion responsible for breaking the law and polluting the Elizabeth River. 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.

But the judge also found that Dominion had been a “good corporate citizen,” had cooperated with Virginia’s Department of Environmental Quality (DEQ) “every step of the way,” and “should not suffer penalties for doing things that it, and the Commonwealth, thought complied with state and federal law.”

More importantly, Gibney applied what is, in effect, a cost-benefit test to any proposed remedy. While it is true that a tiny volume of leachate reaches the Elizabeth River, arsenic concentrations have been rendered harmless by dilution in the massive volume of river water. No threat to aquatic life and human health has been detectable so far. Unless evidence emerges that arsenic levels are reaching dangerous levels, he saw no justification to spend upwards of $600 million to excavate and remove the coal ash.

Gibney also found Dominion’s remedy of “monitored natural attenuation” — in effect, letting nature run its course — to be inadequate as well. He ordered Dominion to conduct more extensive monitoring of sediment, water and wildlife in and around the Chesapeake cite, and to report the results to the Sierra Club’s counsel and the DEQ. “In the event of a significant change in the amount of arsenic in the water or sediments,” Gibney wrote, “either party may move the Court for further relief.”

But Gibney’s cost-benefit test favors Dominion as the coal-ash controversy unfolds. Riverkeeper groups have opposed Dominion’s requests for solid-waste permits at its Bremo and Possum Point power stations. They argued, as the Sierra Club did in the CEC case, that evidence of contaminated groundwater migrating into nearby water bodies is grounds for removing the coal ash to lined landfills away from the water regardless of expense. But the application of Gibney’s logic to future cases would mean that demonstrating the leakage of small volumes of contamination into surface waters is not sufficient to seek a massively expensive remedy. The leakage must be on a scale to affect aquatic health and human safety.

Over a half century of burning coal at the Chesapeake power plant, Dominion accumulated 3.4 million tons of combustion residue and disposed of it in coal ponds. The ash contained high levels of arsenic — an estimated 150 tons. In 2014, samples of groundwater from ten wells around the ash landfill showed arsenic concentrations higher than 10 micrograms per liter, the groundwater protection standard set by DEQ. At one location, the judge noted, the arsenic concentration reached 1,287 micrograms per liter.

Gibney accepted the Sierra Club’s arguments that groundwater migrates from the coal ash to the surface waters of the Elizabeth River and its tributaries. In so doing, he rejected Dominion’s contentions that the groundwater was unconnected to the surrounding water bodies, and that arsenic traces found in the Elizabeth River originated from other industrial sources. Wrote the judge:

Dominion argues that because sediments move upstream and downstream with the tides, it is impossible to tell where the sediments used for the poor water samples originally came from. Although some tidal action may move sediments around, it defies logic to argue that an enormous amount of arsenic does not contribute to the arsenic in soil and water right next to it, especially given the evidence of groundwater movement from the mound outward.

While the evidence shows that Dominion does discharge some arsenic into nearby surface waters, Gibney reasoned, “it does not show how much.”

The Court cannot determine how much groundwater reaches the surface waters, or how much arsenic goes from the CEC to the surrounding waters. .. What the Court does know, however, is that the discharge poses no threat to health or the environment. All tests of the surface waters surrounding the CEC have been well below the water quality criteria for arsenic….. The CEC is surrounded by an enormous body of water, and even a large arsenic discharge would amount to a drop in the bucket.

Dominion’s expert witness testified that he had reviewed surface water, sediment, pore water, and fish tissue data and found no human health or environmental concerns around the CEC facility. The Sierra Club offered no evidence to dispute his testimony. Wrote Gibney: “No evidence shows that any injury, much less an irreparable harm, has occurred to health or the environment.”

By contrast, the judge argued, the hardships of the proposed injunction would be “enormous.”

 The [Sierra Club’s] proposed injunction will entail years of effort costing hundreds of millions of dollars for very little return. The public interest will not be served.

… The plaintiff has offered no credible evidence of the cost of this removal. It has offered no credible evidence of how long it would take to move the ash. It has offered no credible evidence of how the ash will safely travel across Tidewater Virginia.

When one digs a hole, some of the dirt slops over and does not go where it is supposed to wind up. How much spillage will occur when someone moves three million tons of ash? How many truck wrecks will occur with resulting coal ash dropped on the roads, and perhaps on the motorists? The Sierra Club does not consider, much less address, these questions.

The Sierra Club’s desperation to provide some evidence to support its requested relief causes it to speculate. It says that Dominion might be able to cart the coal ash around Virginia on train cars. But again, this speculation leads to nothing but unanswered questions. How many train cars would it take? Do tracks still run where the ash needs to go? Where are the loading and unloading facilities? Will the ash blow out of the cars as the big train keeps on rolling?

The plaintiff has the burden of proving entitlement to its proposed remedy — a burden the Sierra Club has not carried.

Gibney ordered Dominion and the Sierra Club to submit within 30 days “an agreed detailed remedial plan specifying the locations and schedule of monitoring,” along with the timing for Dominion’s application for a revised solid waste permit. If they cannot agree on a remedial plan, the parties may submit dueling proposals to the court.

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28 responses to “Chesapeake Coal Ash Ruling — Advantage Dominion

  1. Boy, you sure wouldn’t know this from the hysterical press reports and dissimulation from the left.

  2. “While it is true that a tiny volume of leachate reaches the Elizabeth River, arsenic concentrations have been rendered harmless by dilution in the massive volume of river water. No threat to aquatic life and human health has been detectable so far.”

    So if a dogowner goes on a walk , they’re pretty far from home, and the dog leaves a mess in your yard – it’s OK to just leave the pile?

    Hey, it would be a burden to pick up the mess and move it back home and that mess is not going to kill you. So the dog’s owner can just leave it in your yard and has no responsibility to clean up that pile?

    Would it make a difference if the mess was not on your private land, but on “the commons” such as in the street?

    At what point do we start to apply the concept that polluters are responsible for cleaning up the mess that they directly cause? Does it have to be on your porch, or in the street right next to the door of your car, before we think the dog’s owner should get out a little bag and pick up the pile?

    • Nothing is easy.
      I’ve been arguing (for decades) that coal ash should be considered a potentially harmful waste, but the Congress and EPA (until recently) have held that it is harmless, non-hazardous with no regulations needed to control it’s use and disposal. The EPA, under pressure from accidents and pollution incidents (eg; see 60 Minutes story about the VA golf course built with coal ash), finally decided they had to control coal ash disposal. All along Dominion is simply following the (changing) EPA rules, which now allows cap-in-place remediation. The hub-bub is basically because some do not agree with EPA’s new rule.

      • One former EPA official I interviewed speculated that coal ash pits could be valuable some day. Recall Judge Gibney’s observation that the Chesapeake coal ash ponds include some 150 tons of arsenic. Well, it probably has hundreds of tons of other heavy metals. One day, the price of those commodities could go high enough to justify mining the coal ash pits to recover the metals.

        For what it’s worth…

        • Jim I do not foresee Virginia’s waste coal ash pits becoming valuable for reclamation of metals values. That would be a case of wishful thinking. We need to think of these pits as what they are, waste sites, “brown fields” in reference to a site that is contaminated below ground from decades of less than stellar industrial eco-stewardship. Removing the coal ash is costly and we still probably have a brown fields site.

    • “At what point do we start to apply the concept that polluters are responsible for cleaning up the mess that they directly cause?”

      Charlie, we have to answer an even more fundamental question. At what point does “pollution” become pollution?

      Take arsenic, for example. The human body is capable of processing and excreting minute quantities of the metal. According to the CDC, “Inorganic arsenic is converted in the body into the breakdown product (metabolite) called dimethylarsinic acid (DMA).”

      Therefore, exposure to minute quantities is not harmful. The human body can handle it. There is no need to get to zero. Indeed, arsenic occurs naturally in the environment and is commonly found in well water. That’s why the EPA has established a permissible level of the metal. As long as a naturally occurring metal appears in the water in levels too low to hurt anyone, can we even call it “pollution”? No, it becomes pollution only when it achieves dangerous concentrations.

      So, yes, “polluters” should be responsible for cleaning up their “pollution,” but that’s not the same as saying that they should emit zero amount of heavy metals which, in large enough concentrations, can legitimately be called pollution.

      • It’s worth remembering where coal ash comes from. It’s the concentrated residue from coal, most of which was carbon and has been burned. The coal was a metamorphosed concentrate of organic residue from a swamp or coastal marsh that lived and died millions of years ago. There is nothing unnatural in coal ash; no “man made” contaminants.

        What’s unnatural is the concentration of these residues, the mining process by which the coal was extracted, how the coal was stored, and the ash disposal process itself.

  3. there some obvious problems here… what happens if 40 years from now the ash comes lose in storm and gets in the waterway and DOES impact it?

    who is responsible for the cleanup then?

    this would be similar to what has happened on a couple of other state rivers where the ponds with coal ash collapsed in a storm and the ash flushed into the river… AND had to be cleaned up…

    it seems to me that the judge, DEQ and Dominion are all fine taking that risk.

    and it’s not like it could not happen.. it already has in other places.

    • When you go to court you need to offer probative, admissible evidence and demonstrate the law supports your position. At least that’s what is supposed to be done in both state and federal court. And speculation is not evidence.

      It looks to be as if Dominion’s lawyers did a better job of trying their case than did the lawyers for the Sierra Club. Or maybe the latter just had bad facts and weak legal arguments. Sometimes, even good lawyers cannot win a bad case.

      • TMT – the Judge AGREED that Dominion had violated the Clean Water Act – the question is what to do about it – both now – and 20, 50, 100 years from now.

        When the judge says that Dominion DID violate the law but that he (the judge) thinks it’s not so bad .. and he doesn’t know if it will be worse in the future – it is the Judge who is speculating… and he’s doing it AFTER he already agreed that the evidence was conclusive that Dominion was in violation of the Clean Water Act.

        what more would you think has to be “proven”?

        do we do nothing until or unless sea level rises and/or a storm surge breaches the coal ash pile and spreads it throughout the river and then what?

        • Larry, a litigant must also prove the remedy sought is justified under the facts and the law. Quite often that involves the weighing of evidence of costs, benefits, risks. And a remedy must be proportional.

          Many years ago (in the 1980s), I tried a case where a customer’s telephone service was shut off improperly. The plaintiff asked for a million dollars in punitive damages because the defendant was a big company. The jury was so offended by the overreach that it came back with a defendant’s verdict. The remedy was not justified on the facts or the law.

          Here the Sierra Club failed to provide its requested remedy was appropriate under the law and the facts. It’s similar to a resident of Alexandria spilling oil or letting pet waste into the storm sewer and the prosecutor requesting the resident bear the cost of separating the City’s sanitary and storm water sewer systems.

          I stand by my comment that the Sierra Club lawyers had a bad case or they didn’t do as good of a job as the Dominion lawyers.

          • re: the “remedy”.

            Is it acceptable to say essentially that “as long as it stays in place, it’s too expensive to move”… and then later on when a storm surge breaches the pile and spreads it throughout the river that it could not have been predicted?

            what “remedy” do you specify to deal with what happens that you did not foresee when you knew there was potential for it to happen?

            Isn’t this why – after several breaches of coal ash pits in NC that got into rivers -they decided that the risk was too high to leave the other piles – because they too could be breached?

            Isn’t this essentially why we have two dozen or more superfund sites in Va – that have done lasting damage to the rivers AND are now the financial responsibility of taxpayers and not the original polluters?

          • TooManyTaxes

            “Is it acceptable to say essentially that ‘as long as it stays in place, it’s too expensive to move’… and then later on when a storm surge breaches the pile and spreads it throughout the river that it could not have been predicted?”

            Depending on the facts in evidence and the law, that may or may not be a valid result. What are the odds that a particular storm of a particular size will cause the alleged damage at the particular location? It’s quite possible that the odds are just too remote and speculative to reach the result that a defendant must move the storage site(s) in question.

            And it is possible parties may negotiate a result different from what would result in a court case. Every party to every court case needs to explore settlement. I don’t know the facts in N.C. and won’t speculate here.

            There’s a big difference in debating public policy solutions and litigating a case.

  4. Too Many: You’re exactly right on every score. At least the courts still reject speculation, even if LarryG doesn’t.

  5. No speculation. The question is who is responsible if the coal ash does not stay in place?

    re: “better job”.. maybe.. the Judge DID RULE the law was broken… normally in those cases – the “remedy” is not up to the judge.. and it was the judge who was speculating … in Dominions favor by presuming that as long as it was okay right now – no one could say what might happen later – he’s right on that – the question is – is Dominion responsible for “later” or did the Judge give them a get out of jail free card?

    If this case is going to set precedent for other cases like Possum Point… i.e. Dom will use this case to justify doing nothing as PP… and all other sites.. we might see further legal wrangling..

  6. “In 2014, samples of groundwater from ten wells around the ash landfill showed arsenic concentrations higher than 10 micrograms per liter, the groundwater protection standard set by DEQ. At one location, the judge noted, the arsenic concentration reached 1,287 micrograms per liter.”

    So, it’s definitely polluting the groundwater.

    I guess my question is simple … dominion is still burning coal at these sites. So, they are still making coal ash. Where will the newly created coal ash go?

    • they’re using lined pits now… the ones under debate are old unlined ones that are no longer being used.

    • Dominion is no longer burning coal at Bremo, Possum Point or Chesapeake. It is burning coal at Chesterfield.

      Dominion is recycling some of its coal ash. I would guess (subject to confirmation) that the recycled ash consists of “fly” ash (direct from the boilers) originating from Chesterfield.

      Recycling slurried coal ash is a different proposition.

      • It would be informative to know what kinds of ash can be recycled and what kind cannot and whether Dominion stored it separately or not – and if it
        all was co-mingers then put in water… if that is the real problem.

        I’m coming to the view that Dominion is not going to really cooperate on helping to find the best resolution.. they’ve got their story and they’re sticking to it.. and the time has come for the State to contract with an independent 3r party to review the coal ash issue and provide recommendations and options for how to proceed.

        If they say pretty much what Dominion has been saying then fine but at this point – it hard to tell what the truth is as Dominion is clearly not of a mind to fully disclose the facts nor the options.

        If someone can pay enough for ash to ship it thousands of miles to be recycled and still make a profit … then it’s inexplicable that we can’t ship it a hundred or two miles to the same recycling.. and if someone is actually paying for the coal ash -that helps to pay for digging it up and shipping it.

        But all we have right now is a dearth of information on the subject from Dominion other than the fact that their ONLY preference seems to be to bury it in place .. and litigate against other options.

        That tells me that Dominion is not really interested in doing what is best for Virginia – just what is best for their own perceived interests.

        That’s fine for a free-market corporation – it’ s NOT for a state-regulated monopoly and I seriously question the roles of the SCC and DEQ in this issue. Their job is to assert the interests of taxpayers and ratepayers and yet those interests are subordinate to Dominions at this point.

        Most Virginians do not want coal ash left in the ground to, at some point in the future, come back as a much worse problem that has to be dealt with. You can call that a potential unfunded liability..

        In the bigger scheme of things -Dominion’s first job is to itself and it’s investors even if it is a regulated monopoly but that does NOT mean that this issue is solely their purview and Virginia is basically shirking it’s own responsibilities in letting Dominion essentially decide the issue – in court.

        One storm – like Sandy or Katrina hitting Cheapeake could do to that coal ash pile what other storms have done to coal ash piles in other states – i.e. breach them and release the contents into the waterway.

        Anyone who wants to pretend that such a potential is “speculation” is not playing with a full deck of cards… it is EXACTLY such “potentials” that actually do happen .. despite our best predictions that those potentials are “remote”…

        So, it’s time for the state to perform it’s own responsibilities and to recognize that Dominion does not have nor will do that responsibility.

  7. re: ” What are the odds that a particular storm of a particular size will cause the alleged damage at the particular location? It’s quite possible that the odds are just too remote and speculative to reach the result that a defendant must move the storage site(s) in question.”

    does anyone of any background know the odds and even if they did – is the excuse for not holding the person responsible for the damage – that we could not predict the future that something they did – that DID break the law – ended up doing great harm?

    I’m OKAY with leaving it in place as long as Dominion is responsible – if the pile is breached – no matter how “remote” that possibility is.

    I do not think you absolve them of responsibility because the prospect of future damage was .. in the subjective opinion of anyone – “remote”.

    The cleanup of the rivers in NC was the responsibility of the folks that owned the coal ash pits.. and they were in agreement about moving the other piles instead of being responsible for more cleanups in the future.

    The “legalities” in Va should not absolve Dominion of responsibility.

    The “risk” of leaving in place versus removal – should be THEIR risk – not taxpayers.

    If that is the decision – then my bets are that Dominion would have a much tougher decision to make.

    It’s irresponsible for anyone – a judge or DEQ to absolve Dominion of responsibility – for any reason and least of all because “no one can predict the future” – that’s just a bogus excuse in my view.

  8. Seriously, folks, what troubles me about this piece is its shameless apologia.

    Dominion’s violated the Clean Water Act? Hey, it’s totally OK because the judge said they’re a good company and arsenic in a tidal estuary never really hurts anybody anyway. And it’s not fair to hold Dominion responsible for a law that was enacted long after they started operating their coal-burning power plants.

    Well, gang. The first clean water act was voted in 1948. The current law was approved in 1972 or 45 years ago.

    • I made no value judgment whatsoever about whether the judge’s ruling was OK, not OK, good, bad, justified or unjustified. I was analyzing the judge’s logic and how it might apply in future litigation. If you want to accuse the judge of issuing an apologia, go ahead. But don’t accuse me.

      If you can point to examples of bias in my analysis, please point them out. Otherwise, please stop tossing around unfounded accusations.

      • Somebody has to explain to me what is the supposed technical violation of the Clean Water Act. Until recently, this type of waste was considered non-hazardous by the EPA meaning no regulatory controls on disposal anywhere. That non-hazardous classification was obviously a mistake. but that’s the nature of the politics of coal (favoritism towards coal in the past).

        • The CWA violation is the discharge of pollutants to surface waters via groundwater without a permit.
          Though coal ash was and is considered non-hazardous by EPA, thanks in large part to Congressional directive, that does not mean no federal regulatory controls applied. EPA adopted nationwide regs for disposal of non-hazardous solid wastes, such as coal ash, decades ago. But in passing RCRA in 1976, Congress prohibited EPA from enforcing those regulations, deferring to state adoption and enforcement of solid waste regs at least as strong as EPA’s. I believe EPA recently adopted rules specifically for the disposal or management of coal ash, still as non-hazardous solid wastes, but it still lacks enforcement authority over those rules.

          • Thank you…when you say “But in passing RCRA in 1976, Congress prohibited EPA from enforcing those regulations” are you saying this action was specifically for coal wastes, as it seems RCRA was enforced for other wastes.

          • Sorry about confusion. Coal ash that is disposed of, as opposed to recycled in concrete or otherwise, is and has always been considered non-hazardous solid waste under federal law (RCRA). In the ’80s, this was due partly to an amendment that declared Congressional intent to prohibit treating coal mining wastes and coal burning wastes as hazardous. So, disposal of coal ash was regulated by generic EPA regs governing nonhazardous solid wastes. But in the original RCRA (1976). Congress also prohibited EPA from enforcing those generic solid waste disposal rules, leaving that up to state and local governments, and citizens through the citizen suit provision of RCRA. The new EPA regs that govern coal ash waste disposal are the first specific regs for that purpose, but ash has been subject to generic solid waste regs since 1980 or so. State solid waste regulatory programs must meet those federal requirements and are subject to state (and sometimes local) enforcement. Sorry for arcane details.

  9. need to separate things here a bit. “Hazardous Waste” has a precise definition and so does “pollutant”.

    Arsenic IS a pollutant and if it is discharged in a pipe it requires an National Pollutant Discharge Elimination System (NPDES) permit which will specify how much can be legally discharged.

    If Dominion does not have a permit – there they have violated the CWA – and that’s what the Judge, did, in fact, confirm in his ruling.

    You can find the specific EPA definition of Hazardous Waste here:

    ” EPA Will Not Declare Coal Ash A Hazardous Waste. The U.S. Environmental Protection Agency on Friday issued its first-ever regulations on coal ash, a toxic byproduct of burning coal for power. But to environmentalists’ chagrin, the agency declined to designate the substance as a hazardous waste.Dec 19, 2014″

    that means it does not require a higher level of handling but it does NOT mean that a pile of coal ash can legally leech into a waterway or aquifer.

    What the Judge did was declare that Dominion WAS in violation of the CWA but he did not levy sanctions – and he went one step further and asked Dominion and SELC for a “remedy” which is different than a fine or a cease and desist order.. If the judge in this case was a guy named Robert R. Merhige (now dead) – the result might have been different –

    ” The Virginia Environmental Endowment (VEE) was established in 1977 as a nongovernmental, nonprofit corporation designed to improve the quality of Virginia’s environment. Initial funding came from a voluntary contribution by Allied Chemical Corporation (now Honeywell) as partial settlement of the Kepone federal pollution litigation. Subsequent federal court settlements have added to the endowment’s funds and have allowed its grant-making to extend to West Virginia, Kentucky, and Ohio.”

    same guy:

    ” Early in his long judicial career, Merhige ordered dozens of Virginia’s public school systems to desegregate, and for a time was considered the most hated man in Richmond—under 24-hour protection by the U.S. Marshals Service”

    and this guy: ” In 1970 Judge Merhige ordered the University of Virginia to admit women.”

    and this guy: ” presided over the complex litigation concerning Allied Chemical’s discharges of kepone and other chemicals into the James River, approving the creation of an environmental trust fund.”

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