My initial reaction to Judge John A. Gibney Jr.’s ruling in Virginia’s first coal ash-related federal court case was to call it a draw. As I blogged yesterday, both the Sierra Club and Dominion Virginia Power found aspects of the judge’s order that supported their positions. But as I sort through the implications for the ongoing debate over coal ash in Virginia, I’m thinking that Dominion was the real winner in the long run.
True enough, the Sierra Club and its attorneys with the Southern Environmental Law Center (SELC) did win one important tactical victory: Gibney found that arsenic-tainted groundwater passing through the coal ash ponds at Dominion’s former Chesapeake Energy Center (CEC), did, in fact, reach the Elizabeth River in violation of the Clean Water Act.
Here’s how Seth Heald, chair of the Sierra Club’s Virginia chapter, framed that finding in a press release:
A federal court has found Dominion responsible for breaking the law and polluting the Elizabeth River. That is important for all Virginians who seek to hold the utility responsible for its mishandling of toxic coal ash. Now we must push Dominion to do the right thing and get this toxic ash out of the groundwater and away from the river, which is highly susceptible to disastrous flooding from sea-level rise and other climate-change effects.
But the judge also found that Dominion had been a “good corporate citizen,” had cooperated with Virginia’s Department of Environmental Quality (DEQ) “every step of the way,” and “should not suffer penalties for doing things that it, and the Commonwealth, thought complied with state and federal law.”
More importantly, Gibney applied what is, in effect, a cost-benefit test to any proposed remedy. While it is true that a tiny volume of leachate reaches the Elizabeth River, arsenic concentrations have been rendered harmless by dilution in the massive volume of river water. No threat to aquatic life and human health has been detectable so far. Unless evidence emerges that arsenic levels are reaching dangerous levels, he saw no justification to spend upwards of $600 million to excavate and remove the coal ash.
Gibney also found Dominion’s remedy of “monitored natural attenuation” — in effect, letting nature run its course — to be inadequate as well. He ordered Dominion to conduct more extensive monitoring of sediment, water and wildlife in and around the Chesapeake cite, and to report the results to the Sierra Club’s counsel and the DEQ. “In the event of a significant change in the amount of arsenic in the water or sediments,” Gibney wrote, “either party may move the Court for further relief.”
But Gibney’s cost-benefit test favors Dominion as the coal-ash controversy unfolds. Riverkeeper groups have opposed Dominion’s requests for solid-waste permits at its Bremo and Possum Point power stations. They argued, as the Sierra Club did in the CEC case, that evidence of contaminated groundwater migrating into nearby water bodies is grounds for removing the coal ash to lined landfills away from the water regardless of expense. But the application of Gibney’s logic to future cases would mean that demonstrating the leakage of small volumes of contamination into surface waters is not sufficient to seek a massively expensive remedy. The leakage must be on a scale to affect aquatic health and human safety.
Over a half century of burning coal at the Chesapeake power plant, Dominion accumulated 3.4 million tons of combustion residue and disposed of it in coal ponds. The ash contained high levels of arsenic — an estimated 150 tons. In 2014, samples of groundwater from ten wells around the ash landfill showed arsenic concentrations higher than 10 micrograms per liter, the groundwater protection standard set by DEQ. At one location, the judge noted, the arsenic concentration reached 1,287 micrograms per liter.
Gibney accepted the Sierra Club’s arguments that groundwater migrates from the coal ash to the surface waters of the Elizabeth River and its tributaries. In so doing, he rejected Dominion’s contentions that the groundwater was unconnected to the surrounding water bodies, and that arsenic traces found in the Elizabeth River originated from other industrial sources. Wrote the judge:
Dominion argues that because sediments move upstream and downstream with the tides, it is impossible to tell where the sediments used for the poor water samples originally came from. Although some tidal action may move sediments around, it defies logic to argue that an enormous amount of arsenic does not contribute to the arsenic in soil and water right next to it, especially given the evidence of groundwater movement from the mound outward.
While the evidence shows that Dominion does discharge some arsenic into nearby surface waters, Gibney reasoned, “it does not show how much.”
The Court cannot determine how much groundwater reaches the surface waters, or how much arsenic goes from the CEC to the surrounding waters. .. What the Court does know, however, is that the discharge poses no threat to health or the environment. All tests of the surface waters surrounding the CEC have been well below the water quality criteria for arsenic….. The CEC is surrounded by an enormous body of water, and even a large arsenic discharge would amount to a drop in the bucket.
Dominion’s expert witness testified that he had reviewed surface water, sediment, pore water, and fish tissue data and found no human health or environmental concerns around the CEC facility. The Sierra Club offered no evidence to dispute his testimony. Wrote Gibney: “No evidence shows that any injury, much less an irreparable harm, has occurred to health or the environment.”
By contrast, the judge argued, the hardships of the proposed injunction would be “enormous.”
The [Sierra Club’s] proposed injunction will entail years of effort costing hundreds of millions of dollars for very little return. The public interest will not be served.
… The plaintiff has offered no credible evidence of the cost of this removal. It has offered no credible evidence of how long it would take to move the ash. It has offered no credible evidence of how the ash will safely travel across Tidewater Virginia.
When one digs a hole, some of the dirt slops over and does not go where it is supposed to wind up. How much spillage will occur when someone moves three million tons of ash? How many truck wrecks will occur with resulting coal ash dropped on the roads, and perhaps on the motorists? The Sierra Club does not consider, much less address, these questions.
The Sierra Club’s desperation to provide some evidence to support its requested relief causes it to speculate. It says that Dominion might be able to cart the coal ash around Virginia on train cars. But again, this speculation leads to nothing but unanswered questions. How many train cars would it take? Do tracks still run where the ash needs to go? Where are the loading and unloading facilities? Will the ash blow out of the cars as the big train keeps on rolling?
The plaintiff has the burden of proving entitlement to its proposed remedy — a burden the Sierra Club has not carried.
Gibney ordered Dominion and the Sierra Club to submit within 30 days “an agreed detailed remedial plan specifying the locations and schedule of monitoring,” along with the timing for Dominion’s application for a revised solid waste permit. If they cannot agree on a remedial plan, the parties may submit dueling proposals to the court.
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