Dominion on Hook for Arsenic in Coal Ash

Federal judge finds arsenic from Dominion coal ash violated Clean Water Act

A federal judge has ruled that arsenic seeping into the Elizabeth River from ash ponds at Dominion Virginia Power’s now-shuttered Chesapeake Energy Center violates the federal Clean Water Act, but he opted not to impose penalties or dictate how the violation should be addressed.

“The finding of a violation, however, does not end the inquiry, for the court must fashion a remedy in this case,” U.S. District Judge John A. Gibney Jr. wrote in his order dated Thursday. Gibney directed the parties “to suggest a remedial plan consistent with the court’s opinion.”

The suit, brought by the Sierra Club and the subject of a bench trial that ended in June, sought to force the utility to excavate the ash and haul it away to a lined landfill.

According to the Southern Environmental Law Center, which represented the Sierra Club, Gibney’s order is the first time a “federal judge has ruled after a full trial that a utility broke the law because of the way it stores coal ash.”

“We’re pleased the court agreed Dominion is breaking the law because its coal ash is polluting the Elizabeth River, but we are disappointed the court did not order a full cleanup,” said Deborah Murray, an SELC attorney. “The law is clear. When someone violates the Clean Water Act, the polluter must stop the violation. Here, that means getting the ash out of the groundwater. It is not a viable option to leave the pollution source in place and allow the pollution to continue.”

Dominion spokesman David Botkins said the company “is pleased that the court has confirmed there has been no threat to health or the environment resulting from the coal ash,” adding that “the safety of the public, the water and the environment is our top priority.”

Botkins also noted Gibney’s determination that the removing the ash would cost hundreds of millions of dollars “for very little return.”

Monitoring wells on the site showed high concentrations of arsenic in groundwater, and evidence during the trial showed that the groundwater at the site was “hydrologically connected” to surface water sources such as Deep Creek and the Elizabeth River, where samples showed “extremely high” arsenic concentrations, the SELC said.

Having some expertise in arsenic chemistry and toxicology, I would like to know what the "extremely high" arsenic concentrations are. However, the article only provides this help:

However, the opinion notes that the judge could not determine how much arsenic goes from the ash site to surrounding waters.

“What the court does know, however, is that the discharge posed no threat to health or the environment,” Gibney wrote, adding that tests around the facility “have been well below the water quality criteria for arsenic.”

Even a large arsenic discharge would “amount to a drop in the bucket,” given the volume of water surrounding the ash ponds.

“This fact does demonstrate the absence of significant environmental harm,” the judge wrote.

I would suppose the relevant water quality standard would the the drinking water standard, on the thought that drinking water wells might be affects. That standard would be 10 ppb, a number routinely exceeded in well waters in many parts of the country from natural causes, although I can't think of one in the Elizabeth River region.

So we have the judge finding that the ash ponds probably leaked water containing arsenic at levels less than the drinking water standard into the region around the ash ponds, and the Sierra Club wants the utility subject to hundreds of millions of dollars in abatement costs for no particular gain.

It's not that they love people or the environment, it's just that they hate industry.