The Southern Environmental Law Center said in separate legal notices filed in late 2014 that coal ash pits at two separate Dominion Virginia

Power plants are leaking toxic substances into groundwater and nearby surface waters.

The pits are located at the Possum Point Power Plant, which sits on Quantico Creek, a tributary of the Potomac River 30 miles south of Washington, DC, and at Chesapeake Energy Center alongside the Elizabeth River in Chesapeake.

SELC has submitted notices of intent to sue Dominion for violations of the Clean Water Act, including unpermitted discharges and pollution of groundwater by arsenic and other toxins that exceed water quality standards designed to protect human health and the environment.

Sixty-day notice letters from SELC have been filed on behalf of the Potomac Riverkeeper and the Virginia Chapter of the Sierra Club, a requirement under the Clean Water Act for citizen suits. The notice letter regarding Possum Point was sent Sept. 17. The notice letter for Chesapeake Energy Center was sent Dec. 18.

The SELC letters state the intent to sue, “unless Dominion enters into a binding agreement to cease and promptly remediate all such violations.”

No suit has been filed in either case. It is not unusual for such notices to result in binding agreements (consent decrees), which are sometimes preferred by citizen groups because they avoid protracted — and expensive — legal wrangling.

Coal ash commonly contains toxic and deadly substances, including arsenic, lead, mercury, cadmium, chromium and selenium.

Power plants — and their waste-handling facilities — are usually located adjacent to water bodies for ease of access to the vast volumes of water required to run the steam-

powered turbines. “Historically, the easiest thing to do was to sluice the coal ash to a nearby pit, and many of those pits were constructed in wetlands close to the river,” said Gregory Buppert, senior attorney with SELC.

And until very recently, coal-fired plants stored wastes in open, unlined landfills or lagoons. The EPA has documented more than 65 cases of coal ash pits leaking and contaminating groundwater.

Physicians for Social Responsibility report that toxic metals from coal ash ponds and landfills contaminate surface waters and underground aquifers, where they can cause cancer and neurological harm in humans as well as poison fish and damage aquatic ecosystems. The EPA has also found that living near coal ash storage facilities can increase one’s likelihood of contracting cancer or other health issues from toxic metals such as cadmium and lead.

“It’s really shameful that Dominion has been slow to clean up these messes,” said Glen Besa, Virginia director of the Sierra Club. “The first thing we learn as children is to clean up our messes, and obviously Dominion never learned those lessons.”

According to SELC, three of the five coal ash ponds at Possum Point Power Plant, abandoned nearly 50 years ago and overgrown by vegetation, are leaking water contaminated by arsenic, barium, nickel, selenium and other metals. Two additional ponds that are in active use are leaching barium, cadmium, manganese and other metals into groundwater, frequently exceeding state groundwater standards.

The Chesapeake Energy Center’s coal ash disposal facilities include old, unlined coal ash lagoons, which SELC notes “are sitting in the water table.” The lagoons are leaching high levels of arsenic, cobalt, sulfide and other dangerous pollutants into the groundwater and the nearby Elizabeth River. Dominion has reported to the state concentrations of arsenic, a known carcinogen, at 30 times the protective standard. Since 2002, Dominion has been operating under a state-approved corrective action plan that does not require any cleanup, but instead allows Dominion to simply monitor pollution and allow the contaminants to dissipate through natural absorption.

The SELC’s threat of a suit comes in the wake of increased attention to the storage and disposal of coal ash after the 2014 Duke Energy Dan River Power Station spill near Eden, NC. There, a stormwater pipe under a coal ash containment pond failed and spilled 40–50 tons of coal ash and 24 million gallons of wastewater into the Dan River, affecting wildlife and drinking water supplies in North Carolina and downriver in Virginia.

The Dan River spill prompted a major review by Dominion of all of its active and inactive ash facilities for the possibility of similar failures and structural issues, according to Dominion representative Dan Genest. In addition to the ponds at Possum Point and Chesapeake, there are three ash ponds at the Bremo Power station and a wet-sluice pond at the Chesterfield station, both on the James River.

“We also wanted to make sure they were all in excellent condition,” Genest said.

But the review also prompted Dominion to report to state regulators the existence of the three inactive ash ponds at Possum Point. Though Dominion had known about the ponds — closed long before regulations were in place to guide ash storage – Dominion says it was unclear whether the rules covered these facilities. “After the Dan River episode, we decided to go ahead and register those [with the state] just to be on the safe side,” Genest said.

Since the Dan River spill, the Virginia Department of Environmental Quality, which regulates coal ash storage and disposal, has been reviewing its programs and response requirements in order to “adequately and quickly address release situations such as the Dan River incident,” according to Justin L. Williams, director of waste permitting and compliance at the DEQ.

Coal ash in Virginia is covered by two kinds of regulations overseen by the DEQ: solid waste regulations for dry storage pits and water pollution discharge regulations for surface water impoundments. The Department of Conservation and Recreation oversees the structural integrity of impoundments.

“DEQ has been very engaged on this [coal ash] issue and engaged with facilities managing coal ash to oversee and ensure proper management in accordance with applicable regulations,” Williams said. “DEQ is working with those who manage coal ash to ensure that it is properly managed in a manner protective of human health and the environment.”

While Virginia has strict regulations for landfills that, among other things, locate them away from water bodies and floodplains and require them to be lined, these regulations were not in place when the facilities at Possum Point and Chesapeake were constructed. Guidelines for closing landfills allow for “cap in place,” a method that environmentalists refer to as “pollute in place.”

“These facilities pose a long-term pollution problem, and unless the solution gets the coal ash out of direct contact with groundwater, contamination will continue,” Buppert said.

This is exactly what’s happening in South Carolina — but it has taken years of citizen outcry and legal action before power companies there agreed to remediate and relocate wet coal ash lagoons.

Frank Holleman, senior attorney in SELC’s Asheville, NC, office, has led SELC’s effort to address old and leaking coal ash pits in the southeast since 2011. The effort started to gain traction when legal action by SELC and others brought the issue to the public’s attention, Holleman said. Now, the three major power companies in South Carolina — SCE&G, Santee Cooper and Duke Energy — have committed to remove coal ash at their facilities to dry, lined storage away from the river.

“This is the first instance that I know of where enforcement action has required the removal of coal ash from every waterside facility to safe, dry and lined storage,” Holleman said.

Legal pressure in North Carolina has resulted in a commitment by Duke Energy to begin the same kind of cleanup in 2015, although environmentalists recognize the need to continue a close watch.

But Holleman said that watching what’s happening in Virginia is “like we turned the clock back years” and have to start all over again.

State-by-state campaigns spearheaded by organizations like EarthJustice, the Environmental Integrity Project and SELC are necessary because before December 2014, there were no federal regulations governing coal ash handling.

Environmental groups urged the EPA to characterize coal ash as a hazardous waste, which would allow explicit federal oversight of state regulations. Instead, new EPA rules — which will go into effect in the fall 2015 -— label coal ash as a solid waste, which leaves oversight in the hands of state agencies.

“Ultimately, the rules allow the industry to continue to police itself,” said Lisa Evans, senior administrative counsel to EarthJustice. Evans has worked on the development of the federal coal ash rule-making for a decade.

But there are provisions that will provide more transparency and a greater degree of industry accountability. Companies generating and managing coal ash will be required to post on special websites the location and other information for each coal ash storage facility.

Companies will also be required to show detailed plans for how each site will be managed to protect health and the environment.

This puts communities in a better position than they were without this EPA rule, said Evans, but the burden to watchdog coal ash storage still remains on citizens unless the states strengthen their oversight beyond the minimum required by the EPA.

The DEQ welcomes the clarity that the new rules provide. “We’ve been waiting for these regulations for a long time,” Williams said. “We now have some certainty with respect to coal ash management.” The DEQ is reviewing the rule and “evaluating the necessity of any changes to existing regulations and procedures in light of the new requirements.”

But while many environmental groups have acknowledged the new regulations as “a first step,” the rules only apply to plants currently generating power from coal, which leaves untouched — and unregulated — hundreds of “legacy” ponds, many of which have never been accounted for.

Which begs the question: Does anyone really know where all these legacy ponds are? Evans said that the EPA doesn’t know, but it does have the authority to find out where all these legacy ponds are whether they are addressed by the rule or not. “We’ve asked the EPA to find them and to assess the threats to the local communities,” Evans said.

Holleman said that the results in South Carolina show that, once identified, these problems can be fixed. “There’s no question that Dominion has the capability to clean these up. They have tremendous resources and engineering capabilities.”