Court rejects Dominion bid to get coal ash lawsuit dismissed at early stage

The Southern Environmental Law Center said in a Nov. 9 statement that the U.S. District Court for the Eastern District of Virginia has denied Dominion Virginia Power’s motion to dismiss a lawsuit filed by the center, on behalf of the Sierra Club, over the alleged contamination of the Southern Branch of the Elizabeth River with coal ash waste from the Chesapeake Energy Center.

The court on Nov. 6 rejected all of Dominion’s arguments for dismissing the lawsuit, including the claim that the federal Clean Water Act does not cover pollution discharges that enter surface waters through groundwater. The court cited a recent case, Yadkin Riverkeeper, Inc. v. Duke Energy Carolinas LLC, in which a federal district court in North Carolina likewise found that the Clean Water Act reaches the discharge of pollutants where there is a hydrological connection between groundwater and surface waters. SELC is also representing the plaintiffs in that North Carolina case.

The court upheld Sierra Club’s right to sue this Dominion Resources (NYSE: D) subsidiary to enforce the Clean Water Act based on the fact that Sierra Club members have been birding, fishing, and boating in the water near the power plant for many years. It also rejected Dominion’s other arguments, thus allowing the case to move forward on all claims.

“The court’s ruling upholds the right of citizens to seek to enforce the Clean Water Act, said Deborah Murray, Senior Attorney at SELC.  “We will continue our efforts in court to end the ongoing contamination of waters from Dominion’s coal ash waste.”

SELC filed the lawsuit against Dominion this past March after the Chesapeake plant permanently closed its coal-burning units. The facility now stores over sixty years of coal ash waste onsite in unlined leaking pits and a landfill built on top of the old pits, said the center. For well over a decade, the nearly one million cubic yards of coal ash stored at the Chesapeake site has been leaking high levels of arsenic, cobalt, sulfide, and other dangerous pollutants into the groundwater and two waterways popular for recreational activities, the center added.

Dominion has announced plans to “close” the coal ash ponds at four Virginia power stations, including Chesapeake Energy Center. “Dominion’s proposal will do nothing to halt the ongoing leaking of harmful pollutants out of the unlined coal ash pits into the surrounding waterways,” said Glen Besa, Director of the Sierra Club’s Virginia Chapter.

The coal-fired Chesapeake Units 1-4 were officially deactivated in December 2014. Chesapeake Unit 1 and 2 are each 111 MW in size, while Unit 3 is 147 MW and Unit 4 is 207 MW.

Said the Nov. 6 decision from Judge Raymond A. Jackson out of the U.S. District Court for the Eastern District of Virginia: “After a thorough and exhaustive review of the Complaint, the Motion and briefs on the Motion, and the accompanying attachments, the Court concludes that the Complaint contains sufficient factual matter, accepted as true, which states a claim to relief that is plausible on its face.”

Jackson was ruling on an April 9 motion to dismiss that said: “Defendant Virginia Electric and Power Company d/b/a Dominion Virginia Power (‘Dominion’), by counsel, moves to dismiss the Complaint filed by Plaintiff Sierra Club pursuant to [federal court rules] on the grounds that (1) Plaintiff’s claims are an improper collateral attack on the Industrial Landfill Solid Waste Facility Permit No. 440 (the ‘Waste Permit’) issued by the Virginia Department of Environmental Quality (‘DEQ’) for the facility at issue; (2) Plaintiff alleges only discharges to groundwater which are outside the scope of the Clean Water Act; and (3) Plaintiff lacks standing.”

SELC said that it and its clients continue efforts throughout the Southeast to protect clean water from coal ash contamination leaking every day into rivers, lakes and groundwater across the region. As a result of this work, utilities in South Carolina have commitments to responsibly move their coal ash waste to dry, lined storage away from waterways, the center noted.

About Barry Cassell 20414 Articles
Barry Cassell is Chief Analyst for GenerationHub covering coal and emission controls issues, projects and policy. He has covered the coal and power generation industry for more than 24 years, beginning in November 2011 at GenerationHub and prior to that as editor of SNL Energy’s Coal Report. He was formerly with Coal Outlook for 15 years as the publication’s editor and contributing writer, and prior to that he was editor of Coal & Synfuels Technology and associate editor of The Energy Report. He has a bachelor’s degree from Central Michigan University.