Judge rules Dominion's coal ash pit polluted Virginia water

RICHMOND — A federal judge ruled Thursday that arsenic is flowing from a coal ash storage site in Chesapeake, polluting ground and surface water in violation of federal law but not at a level that threatens health or the environment.

U.S. District Judge John Gibney Jr. issued the ruling in a lawsuit filed by the Sierra Club against Dominion Virginia Power, the state's biggest utility. Though the judge found that Dominion had violated the Clean Water Act, he did not impose a civil penalty. Nor did he order the ash at the former power station to be removed to a synthetically lined landfill, as the Sierra Club wanted.

Instead, he said Dominion must do more tests and the two sides must submit a remediation plan.

"Dominion is pleased that the court has confirmed there has been no threat to health or the environment resulting from the coal ash stored at its former Chesapeake Energy Center," the company said in a statement. "As we have maintained consistently, the safety of the public, the water, and the environment is our top priority."

Deborah Murray, an attorney from the Southern Environmental Law Center who represented the Sierra Club, said she is pleased the court agreed that Dominion is breaking the law with its pollution. "But we are disappointed the court did not order a full cleanup," she said.

Dominion burned coal for decades at the Chesapeake Energy Center, which sits on a peninsula with the Elizabeth River on one side and a creek on another. It stored ash, a heavy metal-laden byproduct, in ponds and a landfill at the site.

"The ponds and landfill convey arsenic directly into the groundwater and, from there, directly into the surface water," Gibney wrote. He added that it was not possible to determine how much arsenic is going into the surrounding waters but that "the discharge poses no threat to health or the environment."

His ruling came after a four-day trial in July, where attorneys for the Sierra Club argued that the site should be fully excavated and the ash removed to a lined landfill, something Dominion said would be unnecessary and extraordinarily expensive.

Gibney called the Sierra Club's request "draconian" and said it would not serve the public's interest.

"Dominion receives income through rates charged to its customers; those rates would likely rise to pay for the Sierra Club's proposal. Moreover, the Sierra Club has not even attempted to itemize the collateral environmental effects of moving this much coal ash," he wrote, pointing to questions about how the ash would be safely transported.

In deciding not to impose a penalty, he wrote that Dominion had cooperated with state environmental regulators "every step of the way" in operating the Chesapeake Energy Center. "Dominion has been a good corporate citizen, not a chronic violator of water laws," Gibney wrote.

Still, Seth Heald, chair of the Sierra Club's Virginia chapter, said the ruling 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."