In Richmond, Virginia, the Sierra Club filed a lawsuit against Dominion Virginia Power, asking the court to order Dominion to remove the 3 million tons of coal ash that are piled along the Elizabeth River.

Sierra Club Lawsuits Alleges Dominion in Violation of Clean Water Act

The Sierra Club alleges that Dominion is violating the federal Clean Water Act because arsenic and other substances are leaching from the ash, to the groundwater and into the Elizabeth River. The ash is the byproduct of coal-fired power generation.

Dominion has argued that the Sierra Club’s claims that the pollutants from the ash are leaking into the river are unfounded. It says that a corrective action plan has resulted in “generally stable or declining” arsenic levels in groundwater. Dominion spokesperson, Bonita Harris, has stated, “We want to make sure that people understand that we monitor groundwater and surface water at the site regularly.”

The Sierra Club and its lawyers have countered that they cannot think of an effective alternative other than removal. The Sierra Club contends that Dominion’s “natural attenuation” strategy of letting nature take its course is ineffective.

The case was filed in U.S. District Court for the Eastern District of Virginia. Dominion filed a motion to dismiss, arguing that Sierra Club did not have standing to bring the suit and that the environmental group’s lawsuit constituted a collateral attack on the permits issued by the Virginia Department of Environmental Quality. The motion to dismiss was denied and the case proceeded to trial before U.S. District Judge John A. Gibney Jr.

Dept of Environmental Quality Director James Golden Testifies

At trial, Dominion called several witnesses to support its position. One of Dominion’s witnesses is James Golden, the operations director of the Virginia Department of Environmental Quality, which administers the Clean Water Act in the state. Golden testified that Dominion is abiding by its state-issued permits at the site. He further testified that the Department does not consider the migration of polluted groundwater into a river to constitute a “point source discharge.” A pollution point source is required to be identified for an enforcement action under the Clean Water Act.

Attorney for the Sierra Club, Greg Buppert, questioned Golden on cross-examination. Buppert showed Golden documents from the U.S. Environmental Protection Agency indicating that groundwater-to-surface water pollution does fall under the law. He also elicited Golden’s admission that the Department of Environmental Quality has not taken the threat of sea-level rise into account when assessing Dominion’s ash-storage closure plan.

Judge Gibney has said that an order calling for the removal of the ash seems too expensive. The cost of removal has been estimated at $221 million by a Sierra Club expert and $477 million by an excavation contractor that works with Dominion.

On its website, Dominion states that, “As Dominion shifts to cleaner, less carbon-intensive technologies, we have closed or converted several coal power stations. Coal ash ponds have been used for decades to store coal ash – a byproduct of producing electricity at coal power stations. In accordance with new EPA rules, Dominion and all energy producers nationwide must close coal ash ponds on these sites. Dominion is moving to quickly and safely close these ponds while meeting or exceeding all federal, state, and local regulations.”