Before he filed it last month, Maryland Attorney General Brian Frosh invited other states' attorneys general to sign on to an amicus brief urging a federal appeals court to uphold a ruling that coal ash pollution moving from unlined pits at a Tennessee power plant into the Cumberland River violates the federal Clean Water Act.
"This is a straightforward Clean Water Act case in which pollutants from a point source - here, unlined impoundments used for the disposal of coal ash - are discharged into an adjacent navigable waterway via a 'direct, traceable connection,'" Frosh's brief says.
Virginia's Democratic attorney general, Mark Herring, passed on the chance to add his name to the brief, which was joined by three other states: California, Massachusetts and Washington.
"The position in that brief was inconsistent with the way DEQ (the Virginia Department of Environmental Quality) and other states regulate groundwater contamination," said Michael Kelly, Herring's spokesman.
Herring's decision comes as a nearly identical federal court case, in which a judge ruled last year that arsenic seeping out of Dominion Energy's Chesapeake ash ponds and into the Elizabeth River is a violation of the Clean Water Act, has been appealed by Dominion and is pending a decision by the 4th U.S. Circuit Court of Appeals.
And next week, a public hearing in Arlington will take public comment on a proposal by the federal Environmental Protection Agency to amend 2015 regulations governing coal ash ponds it says will give states more flexibility and save electric utilities up to $100 million a year in compliance costs. Opponents see it as another attempt to roll back environmental protections under controversial EPA Administrator Scott Pruitt.
How Dominion will close the unlined pits at four sites across Virginia that contain some 30 million tons of coal ash - the heavy-metal laden residuals from burning coal - has been among the most heavily contested environmental issues in the state.
Environmental groups, some state lawmakers and local officials have been battling the politically influential utility's plans to consolidate the ash in big ponds on site and cover them with a synthetic top. The risk is that ponds, which testing by environmental groups and Duke University has shown are leaking, could continue to leach heavy metals such as arsenic, lead, mercury, chromium, vanadium and others, for decades, they contend.
"It's an issue that's being heavily litigated around the country. The case law is developing, albeit very rapidly," Kelly said. "We're waiting on guidance from the 4th Circuit. I think we're going to have an answer pretty soon to the question."
Herring has not been afraid to stake out a position on a swath of issues, particularly if they involve President Donald Trump or other hot-button national topics, such as gun control, abortion access or other progressive causes. Among them: whether the 2020 federal census should be able to inquire about citizenship, an issue that prompted Herring to join a multistate group of attorneys general suing to block the action, according to a strongly worded news release his office issued April 3.
"It's disappointing that Attorney General Herring didn't sign on to this amicus brief because in other ways he's shown he's a champion for the environment," said Kate Addleson, director of the Virginia chapter of the Sierra Club, which brought the lawsuit over the arsenic seeps from the now-closed Chesapeake Energy Center's coal ash.
Addleson said Herring missed a chance to "draw a line in the sand."
"The closer that an issue seems to be to the monopoly utilities in Virginia, the less likely our leaders seem to be to take bold action on them," she said.
And he has also tread lightly on the major utility overhaul Dominion pushed through the General Assembly this year and much-contested battles over the proper water permitting process for the Atlantic Coast and Mountain Valley pipelines. Dominion is the lead partner in the Atlantic Coast Pipeline.
"I think that the attorney general has in many instances over the last four and a half years shown a desire to fight for environmental protections," said Mike Town, executive director of the Virginia League of Conservation Voters, among the environmental groups that has provided major financial support to Herring's campaigns. "And I think this is a case where we may need him to step up and help us do that."
Kelly said Herring's office will monitor the pending coal ash cases closely.
"The goal is shared by a lot of folks: Get these closed in a way that's safe and protects people and water," Kelly said. "And we're going to support the science and the experts as they determine how best to do that."
Last month, Gov. Ralph Northam, also a Democrat, signed a bill that paused, for the second year in a row, Dominion's contentious plans to permanently close the ponds. This time, the General Assembly directed Dominion to pursue a request-for-proposals process intended to prod the utility into taking a closer look at recycling the pond ash into concrete and other products, which is happening at some spots in other states.
In 2017, the legislature ordered a study that was later faulted for failing to seriously consider recycling options as well as for overstating costs and time frames for removing the ash.
Several rounds of testing by environmental groups show metals from Dominion's ash ponds are leaking into adjacent waterways, including the James River, though they have been unable to persuade the DEQ to take action.
During the Chesapeake case, James Golden, DEQ's director of operations, testified that the agency does not consider "diffuse seepage of water from a landfill or something like an impoundment into groundwater" a point source that would trigger enforcement under the federal Clean Water Act. He said the DEQ regulates those kinds of seeps through waste management rules and corrective plans when groundwater tests reveal "exceedances of standards."
However, during his cross-examination, Golden said he was unaware of guidance documents published by the federal EPA in 1991 and 2001, one of which stated that "channeled pollutants conveyed to surface waters via groundwater can constitute a discharge subject to the Clean Water Act."
At Dominion's Possum Point Power Station in Dumfries, the company agreed to hook up nearby residents to public water after monitoring tests revealed groundwater contamination in unexpected locations near neighboring drinking water wells.
But though it is facing lawsuits from some of those Possum Point neighbors, the company says there is no indication that ash contaminants are a problem at any of the sites.
"I know there are folks out there who are trying to get people concerned or whatever. I'm not sure what their motive is, but none of our sampling shows any concern to public health," said Pam Faggert, Dominion's chief environmental officer and a senior vice president. "And we have extensive sampling. ... We have a great deal of data, and none of it has led us to believe there's any concern for anybody's drinking water."
Dominion also denies the contaminants are moving off site, noting that while a judge ruled the arsenic leaking from the Chesapeake ash pits is a Clean Water Act violation, he also determined the discharge "posed no threat to health or the environment." Subsequent court-ordered sampling of fish and crab tissue and other water tests around the Chesapeake site haven't turned up contamination problems, either, Dominion says.
And the company contends that a host of technologies, from slurry walls to pump and treat systems, can fix the groundwater contamination identified at its coal ash sites without the massive costs and years of work it would take to dig up the ash and haul it away.
Closing the ponds just at the Bremo Power Station in Fluvanna County, for example, by removing the ash from the north bank of the James River to an off-site landfill by truck, is estimated to take 13 years and cost $1 billion.
Still, such groups as the Southern Environmental Law Center and the James River Association say Dominion's argument - that while wells on its property may show elevated levels of heavy metals, they're not moving off site - strains credulity.
Dominion released reams of data last month from groundwater tests at its coal ash sites in accordance with the 2015 rules adopted by the EPA for the management of coal ash ponds that showed elevated concentrations of boron, arsenic, radium, lead, cobalt, thallium, beryllium and chromium.
Nate Benforado, an SELC attorney, points to a feature he calls "Red Cove" in the Dutch Gap Conservation Area, which borders the Chesterfield Power Station's ash ponds. Arsenic levels detected in the recreation area - where the mud is stained red from the high iron content from the ash ponds, the group contends - mirror the results from a nearby monitoring well on the edge of the power station property.
"The high levels of arsenic we have found in this public cove is not a coincidence," Benforado said. "Dominion's new groundwater well on the banks of Red Cove shows arsenic concentrations 11 times higher than the allowable limit. It's very clear that Dominion's contaminated groundwater is flowing into Red Cove."
The James River Association and the League of Conservation Voters gave a boat tour of the James River on Friday afternoon, attended by U.S. Rep. Donald McEachin, D-4th, around Dominion's Chesterfield Power Station, the largest coal-fired power plant in Virginia, to highlight the proposed EPA rule changes.
"This is putting polluters like Dominion Power, giving them the ability to decide how they're going to manage their coal waste in the future," said Town, executive director of the Virginia League of Conservation Voters, adding that rollback of the federal rules "is going to put Virginians, our communities and our rivers at risk."
Dominion says the proposed changes to the federal rules won't alter its plans to comply with the 2015 regulations, which have been adopted by Virginia. A change at the federal level wouldn't require Virginia to lower its coal ash standards.
"It is insidious, it is a problem, and it's something that we really need to wrestle with," McEachin said of coal ash. He said he favored a mix of recycling the ash and hauling it away from rivers into a lined landfill.
"I have every confidence in the Northam administration and the Democrats in the General Assembly to push this in the right direction," said McEachin, a former state senator who singled out Sen. Scott Surovell, D-Fairfax, for his work to put the brakes on Dominion's closure plans. Surovell and Sen. Amanda Chase, R-Chesterfield, have led efforts over the past two years to head off Dominion's plans to cap and close the ponds.
"Over the next year, we're going to be working to get rules in place in Virginia through the legislative process and the administrative process that will make sure that we clean up these coal ash ponds once and for all," Town said. "Keeping this waste in place is not an option."
Faggert, the Dominion executive, says the two years of delays over concerns about water contamination haven't altered the utility's plans for capping the ash on-site, but says Dominion will explore all the options as directed by the General Assembly.
"Obviously, we're interested in the best result. If there's a best answer out there, we want to know what it is," Faggert said. "We're looking to learn, not to restrict."
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