Updated July 2017
On March 19, 2015, the Sierra Club, represented by the Southern Environmental Law Center, filed a federal lawsuit alleging “ongoing contamination of groundwater and surrounding surface waters” [the Southern Branch of the Elizabeth River] from Dominion Energy’s coal-fired Chesapeake Energy Center power plant in Chesapeake, Va.
Filed in the U.S. District Court for the Eastern District of Virginia, located in Norfolk, the suit alleged that the plant’s disposal of coal ash (the solid material remaining after combustion of coal to generate electric power) in storage ponds between the Southern Branch of the Elizabeth River and Deep Creek (Dominion’s practice since 1953, according to the suit), have “for at least two decades” resulted in discharges to groundwater of arsenic and other heavy metals and pollutants at levels above Virginia standards, that the groundwater contaminants also reach surface waters, and that the plant’s Virginia Pollutant Elimination Discharge System (VPDES) permit does not permit such levels of discharge.
On November 6, 2015, U.S. District Judge Raymond Jackson denied Dominion’s motion to dismiss the lawsuit. The trial began in Richmond on June 21, 2016, and ended on June 24, heard by presiding U.S. District Judge John Gibney, Jr. On March 23, 2017, Judge Gibney issued a 21-page opinion, ruling that the plaintiff, the Sierra Club, had proved that arsenic from four impoundments at the Chesapeake Center had in fact contaminated groundwater and reached the Elizabeth River. Gibney’s ruling stated that that pollution violates the federal Clean Water Act, because Dominion did not have a Virginia Pollutant Elimination Discharge Systems permit for such discharges. A key part of the ruling is that the judge considered the groundwater contamination from surface water to be a violation of the federal law.
In July 2017, Judge Gibney ordered Dominion to submit a new plan for managing the coal ash at the Chesapeake Center, including at least two years of testing.
For more information on the legal issues in the lawsuit over the Chesapeake Center, please see this Water Central News Grouper post: Clean Water Act Issues of Chesapeake Energy Center Ruling.
For more information regarding coal ash at four Dominion facilities in Virginia, please see this Water Center News Grouper post:
Closure of Coal Ash Ponds at Dominion and APCO Power Stations in Virginia, 2015-2017.
Information on DEQ’s groundwater-monitoring program for solid-waste facilities (including coal-ash storage) is available online at http://www.deq.virginia.gov/Programs/LandProtectionRevitalization/SolidHazardousWasteRegulatoryPrograms/SolidWaste/GroundwaterMonitoring.aspx.
Dominion sued over Chesapeake power plant, WAVY-TV Norfolk, 3/19/15 (a PDF link to the lawsuit document filed by the SELC on March 19 was available at this site, as of 3/20/15).
Group sues Dominion over Chesapeake coal ash, Virginian-Pilot, 3/20/15.
“Court rejects Dominion’s motion to dismiss coal ash lawsuit,” Southern Environmental Law Center 11/9/15, online at https://www.southernenvironment.org/news-and-press/news-feed/court-rejects-dominions-motion-to-dismiss-coal-ash-lawsuit.
Suit against Dominion over closed Chesapeake power plant can proceed, judge says, Virginian-Pilot, 11/9/15.
Federal coal ash lawsuit begins in Richmond today, Richmond Times-Dispatch, 6/21/16.
Court rules that Dominion’s coal ash polluted Elizabeth River, Bay Journal, 3/23/17.
Federal judge finds arsenic from Dominion coal ash violated Clean Water Act, Richmond Times-Dispatch, 3/23/17.
Dominion Power violated Clean Water Act after arsenic seeped into Elizabeth River, judge says, Virginian-Pilot, 3/23/17.
Virginia Ash Pond Seeps Violate CWA, But Do Not Warrant Civil Penalty, National Law Review, 4/4/17.
Judge orders tests, new plan for leaking coal ash site, Associated Press, as published by Washington Post, 7/17/17.
Dominion required to perform water, soil and fish tissue testing at leaking Chesapeake coal ash ponds, Richmond Times-Dispatch, 7/14/17.