Dominion Energy must test water, fish tissue and sediment in the Elizabeth River for the next two years, a federal judge ruled in a lawsuit that claimed contamination from the utility’s coal ash ponds in Chesapeake has been seeping into the river for years. The judge also is requiring Dominion to apply for new permits from the Virginia Department of Environmental Quality that will dictate how the ash will be handled moving forward.
“This application shall include corrective measures for the discharge of groundwater and shall not include a plan to cap the coal ash in place,” says the order, issued Thursday by U.S. District Judge John A. Gibney Jr.
What exactly that means remains unclear.
“The court was clear in its March ruling that it was not ordering removal of the ash,” Dominion spokesman Robert Richardson said, adding that the court did say it requires more than Dominion initially proposed, a “cap-in-place” plan. “Dominion has stated its plan to propose additional corrective measures to address groundwater impacts at the site. Dominion has stated unequivocally that the final remedy will not be solely capping the ash in place.”
Gibney ruled in March that arsenic seeping out of the ash impoundments at the closed Chesapeake Energy Center into the Elizabeth River constituted a violation of the federal Clean Water Act, though he ordered Dominion and the plaintiffs in the case, the Sierra Club, represented by the Southern Environmental Law Center, to develop and submit dueling remediation plans.
“It’s not exactly what we wanted,” said Deborah Murray, an attorney with SELC, which argued Dominion should be required to excavate the ash and haul it to a lined landfill. “But I think it’s important that the judge recognized that ultimately it’s up to the court to ensure there’s an appropriate remedy.”
Murray said the judge’s order includes a mix of testing procedures and requirements favored by Dominion and the environmental group.
A win for the Sierra Club was a requirement that samples be taken at the “pores,” where groundwater contaminated with heavy metals from contact with ash connects with surface water sources, such as the Elizabeth River.
“One of the things Dominion definitely opposed was the pore water sampling,” Murray said. The judge’s final order also included specific species of marine life that the Sierra Club wanted to ensure were tested.
Dominion will be required to check tissues of blue crabs, minnow-like fish called mummichogs, dwarf surf clams, softshell clams and two species of mussels.
Dominion spokesman Robert Richardson said the company will comply with the order as it pursues an appeal.
“With the court’s final order, Dominion Energy is one step closer to a final solution at Chesapeake Energy Center and we remain committed to doing what is right,” Richardson said. “The court’s rulings recognize Dominion Energy’s compliance with its permits, the absence of harm to the environment, and the DEQ’s future solid waste permitting process.”
Richardson said the company is preparing to start the monitoring and plans to submit a new solid waste application for the site next year “that will include additional measures to further address groundwater impacts at the site.”
Shortly after Gibney’s ruling that the utility company had violated the Clean Water Act, Gov. Terry McAuliffe put the teeth back into a piece of legislation that required additional assessments of contamination at Dominion’s ash ponds at four sites across the state, including Chesapeake.
The bill by Sens. Scott A. Surovell, D-Fairfax, and Amanda F. Chase, R-Chesterfield, also required study of alternatives to the company’s preferred plans to mostly cap the unlined ponds with a synthetic liner and cover them with a layer of turf before the state issues permits for the closures. After fighting the bill during the session and succeeding in removing provisions that prevented it from getting permits before the assessments were complete, Dominion relented when the governor put those provisions back in and said it would abide the delay in closing the ponds.
The General Assembly approved McAuliffe’s amendment in a turn of events that was a significant reversal for Dominion and a victory for environmental groups and some local governments, who contended that leaving the ash in unlined pits would ensure seeps of heavy metals into ground and surface waters for years to come.
Richardson said Friday that Dominion has hired a consultant to perform the assessments, though he would not name the firm.
“We’re still negotiating all the pieces and parts and putting that whole thing together,” he said, though he added that the company would meet the Dec. 1 deadline for the assessments.