Chesapeake fly ash suit against Dominion refiled

CHESAPEAKE

Lawyers representing nearly 400 people living near the Battlefield Golf Club at Centerville refiled a lawsuit Tuesday, asking for damages related to toxic fly ash on which the course was built.

Plaintiffs' attorney Ted Yoakam filed the suit against Dominion Virginia Power, MJM Golf LLC - the golf club's owners - and two other parties involved in building the golf course. The lawsuit asks for $2 billion in damages.

A previous suit with more than 453 plaintiffs had asked for more than $1 billion. That suit was dropped last summer after the judge dismissed substantial portions of the case. The judge ruled that the plaintiffs had not provided enough evidence that they had suffered damages from well contaminations.

New evidence filed Tuesday with the complaint shows residential well-water testing with elevated levels of toxic substances. Previous reports presented by the U.S. Environmental Protection Agency and the city claimed no evidence of contaminants off-site, despite test results, now in the court records, showing water contamination.

Chet Wade, a Dominion spokesman, said Tuesday that the company did not have any comment on the suit.

From 2002 to 2007, the golf course was sculpted from 1.5 million tons of fly ash from a Dominion Virginia Power generation plant. Fly ash is a byproduct of burning coal; it contains heavy metals that can endanger health.

The previous suit did not specify individual cases of personal injury from the fly ash and instead sought damages for potential health problems that residents near the course might experience. In the complaint filed Tuesday, 10 individuals - nine of them children - are claiming injury. It asks for $2 million for each.

EPA testings of residential wells along Murray Drive show instances of elevated metals in the water - including lead, vanadium, manganese, cobalt, nickel, cadmium and zinc - according to evidence filed with the complaint.

At one residential property, the EPA tested lead levels at more than three times national standard maximum contaminant level, according to the court records. Childhood lead poisoning can cause learning and behavioral problems, and, at very high levels, seizures, coma and death, according to the Centers for Disease Control and Prevention.

The complaint contends that arsenic found in the fly ash on one property was 700 times the accepted level. It also says that radioactive elements - radium, thorium and uranium - included in ash on the plaintiffs' property are twice the normal level.

On the toxicity of the different metals, the complaint reads: "These metals are known to be toxic and cause cancers, particularly kidney cancer, liver damage, neurological damages and a host of other health problems due to skin exposure and/or inhalation or ingestion."

Most of those residents now are connected to the city's water system, according to the city. Past groundwater studies, including one contracted by the city in 2009 in which results were presented last year, concluded the metals present in fly ash had not leached onto residential properties.

Earlier this month, a contractor who helped build the course filed a $10 million lawsuit in Chesapeake Circuit Court against Dominion and the company that transported the fly ash, alleging that the material used in shaping the course caused his kidney cancer.

According to that suit, the plaintiff, Neil Wallace, inhaled fly ash particles while working at the site regularly over a five-year period and developed a cancerous kidney that was removed in 2010.

In 2001, Dominion and related parties told the public and the Chesapeake City Council at public meetings that fly ash was inert and safe as dirt. Evidence submitted as part of the new suit attempts to show that Dominion officials had concern even then about the danger of fly ash.

The plaintiffs' attorney included as evidence in the complaint handwritten notes from Dominion meetings.

A March 5, 2001, meeting lists Jud White as an attendee and describes him as being with Dominion, according to court records. In it, according to the notes, White comments, "If public thinks ash is benign, what happens if/when citizens find out what may be different. Cronic (sic) problem of possible groundwater problems long-term."

An unattributed quote from the same meeting reads, "Have to assume that information already given to VDEQ will become public, and how to manage that information."

According to the meeting notes entered with the suit, officials then planned practice questions they anticipated facing at a public meeting and how to answer them.

A typed draft titled "Ash Structural Fill Questions/Answers" from March 25, 2001, was included in the court filing.

Practice question No. 4 from that document reads: "I am on a well - is the ash a danger to the groundwater?"

Handwritten notes beneath the typed answer read: "Do not mention hazardous vs. drinking water. Just say 'completely non-hazardous.' "

Marjon Rostami, 757-222-5207, marjon.rostami@pilotonline.com