Suit against Dominion over closed Chesapeake power plant can proceed, judge says

A federal judge has rejected Dominion Virginia Power’s request to dismiss a lawsuit against it over water contamination at the Chesapeake Energy Center.

U.S. District Judge Raymond Jackson said in an order Friday that the Sierra Club’s lawsuit against Dominion may proceed.

The environmental group sued Dominion in March, claiming that the state’s largest electric utility has been violating the federal Clean Water Act. The Sierra Club said arsenic and other harmful pollutants are migrating from coal ash stored at the site of the former power plant into groundwater and, from there, into the Southern Branch of the Elizabeth River.

The ash was the residue of 61 years of burning coal for electricity at the site. Dominion last operated the power plant in December 2014 and is seeking approval from the Virginia Department of Environmental Quality to permanently keep the ash there.

The Sierra Club claims that the utility has already violated the terms of a state permit covering the ash, putting Dominion in violation of the federal law. It wants Dominion to remove the nearly 975,000 cubic yards of coal ash estimated to be stored there and dispose of it at a dry, lined landfill elsewhere.

Dominion asked for a dismissal of the suit on several grounds. It argued that the Sierra Club was improperly using the suit as a back-door way to challenge the very issuing of the state permit for storing ash up to this time. It said the Clean Water Act doesn’t apply to pollutant discharges into groundwater. And it claimed the Sierra Club hadn’t proved harm to its members.

In his written order, Jackson rejected all three claims. He found that the Sierra Club is “alleging a violation of a valid permit,” not the permit itself. He said federal courts have been divided over whether pollution that starts in the groundwater before migrating into navigable waters is covered under the Clean Water Act, but pointed out that a court recently decided in a similar case involving Duke Power in North Carolina that it does apply. The judge also pointed out that the Sierra Club produced declarations from two of its members that the pollution of Deep Creek and the river has lessened their enjoyment of the waterways for fishing and boating.

Deborah Murray, an attorney with the Southern Environmental Law Center who is representing the Sierra Club, said Monday, “We are very pleased with the court’s decision, which allows Sierra Club the right to proceed.”

Dominion spokesman Dan Genest said in a statement Monday that the judge’s decision "is not a ruling on the merits of our case or the plaintiff's. It simply means that the case will move forward and we remain confident in the merits of our position."

No trial date has been set yet in the federal case.

The court is one of several venues in which the closed power plant is an active issue.

The utility request to permanently store the ash at the Chesapeake site is still awaiting a decision from the state Department of Environmental Quality.

Dominion also recently sought a ruling from the city of Chesapeake’s zoning administrator on whether it needs a conditional use permit from the city for the continued storage of ash there. Zoning administrator John T. King III said in an Oct. 30 letter to a lawyer representing Dominion that what the utility has in mind “constitutes an enlargement of the storage and disposal area and triggers the need” for such a permit. The permit would give city officials some ongoing oversight of Dominion’s activities at the location.

Dominion can appeal to the city’s Board of Zoning Appeals, which next meets Dec. 10.

In addition, there still is active litigation in Chesapeake Circuit Court over the use of fly ash from the power plant to help build the Battlefield Golf Club at Centerville.

Posted to: Chesapeake Environment News

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