When Virginians got wind in December that water from coal ash impoundments was going to be drained into the Potomac and James rivers, the usually lackluster meetings where such decisions are made suddenly became hotbeds of public engagement.

More than 1,000 public comments poured in over a pair of permit changes sought by the utility company, Dominion Virginia Power. The vast majority of them opposed — many vehemently — the Virginia Department of Environmental Quality’s recommendation that a state board approve permit changes for power stations near Quantico and Charlottesville. The changes would allow Dominion to collectively drain more than 200 million gallons of wastewater from long-standing coal ash ponds into Chesapeake Bay tributaries.

But approve the board did, voting 5-1 on each case at a hearing on Jan. 14.

After attending the final hearing, Martin Gary, executive secretary of the Potomac River Fisheries Commission, wrote in the first of many comments on social media that he found the decision to be “in diametric opposition to [the opinions of] every informed person on this issue.”

“I’m still trying to find someone, anyone who thinks this is the best way forward,” he wrote on Facebook.

Since then, a series of appeals filed by environmental groups, a Virginia county board and the state of Maryland have questioned whether the permits go far enough to protect water quality, human health and aquatic life.

The Southern Environmental Law Center is representing the Potomac Riverkeeper Network and the James River Association in separate appeals over the permits. Virginia’s Prince William County Board of Supervisors has also appealed the permit for the station in its jurisdiction, located where Quantico Creek meets the Potomac River.

If left unchanged by legal challenges, the permits will set a precedent for how the state will dismantle an 85-year legacy of coal ash storage. As experience has shown in other states, old ash impoundments can be catastrophes waiting to happen.


The EPA rule

It was a catastrophic dam failure that led the Environmental Protection Agency and utilities to begin rethinking how to handle the ash that is a byproduct of burning coal for power. Though not considered a hazardous waste, it can contain toxic chemicals and metals such as arsenic, lead and mercury, which pose health risks for people, as well as fish and wildlife.

Coal ash is one of the nation’s biggest industrial wastes, with more than 100 million tons of it produced in 2012, according to the EPA. For decades, power plants have routinely dumped their ash in landfills and impoundments, where rainwater has collected for years on top of the water initially used to carry ash to the ponds — until an impoundment holding 5.4 million cubic yards of it breached in 2008, spilling black sludge over 300 acres and into the Emory and Clinch rivers in Kingston, TN.

The spill prompted the EPA to review its regulation of coal ash storage facilities across the country and the environmental and economic risks they pose. The agency was still pondering new rules when another calamity occurred. Two years ago, a drainage pipe beneath an impoundment in North Carolina released nearly 40,000 tons of coal ash into the Dan River along the Virginia border.

“The spill in the Dan River put an exclamation point on everything,” said Dan Genest, a spokesman for Dominion in Virginia.

Dominion’s eight power stations generated about 3.8 million tons of coal ash in 2013, according to a company report. Most of that was flushed into onsite water impoundments or trucked to offsite landfills. About 30 percent got “beneficially reused” by incorporating it into other materials, such as concrete.

In April 2015, the EPA finalized its new coal ash rule, which requires new safeguards against impoundment failures, such as putting impermeable liners in the bottom of new ponds to prevent groundwater seepage and locating them farther from rivers. The rule also allows states to impose stricter conditions.

For existing impoundments, the agency offered utilities an incentive to quickly deal with any old ones that are no longer in use. Regulators considered them significant risks because of their age and proximity to rivers and neighborhoods.

If old impoundments can be drained and capped by the spring of 2018, utilities “can have lesser close out requirements than if this stuff drags on,” explained Mark Smith, an environmental scientist with the EPA’s Region 3 Water Protection Division. Impoundments closed by then can be capped in place with synthetic liners and soil, and the agency doesn’t require long-term groundwater monitoring — though states can still mandate that if they choose.

“It’s a huge incentive,” said Lisa Evans, senior administrative counsel for Earthjustice, a national environmental group, which has appealed the EPA rule. “Certainly they saw a great hazard in these lagoons and want to avoid catastrophe, but providing an incentive for industry to quickly empty them could do more harm than good.”

Nationwide, utilities have publicly disclosed plans to close nearly 100 old impoundments at more than 50 plants by 2018, according to Earthjustice.

Coal ash storage facilities closed after 2018, in comparison, would be subject to decades of groundwater monitoring, leaving companies on the hook for any long-term contamination.

In light of the new rules, Dominion’s Genest said, “The best thing for us would be to close these ash ponds as quickly as possible and get that behind us. We see that as a step to protect the environment and reduce any threat of a spill.”


“Best available technology”

Since 2003, Dominion has converted eight of its coal power plants to natural gas, ending the need for ash impoundments at four: Possum Point on the Potomac River, Chesapeake Energy Center on the Elizabeth River and Chesterfield and Bremo on the James River.

The process for closing coal ash impoundments was new to both Dominion and the DEQ. Both have since been accused of not going far enough to protect local water quality under the permits approved in January, which allow low but measurable levels of heavy metals to be discharged with wastewater from the lagoons.

Now, though, based on plans Dominion has submitted to state regulators, it appears the company intends to remove more of the contaminants from the Bremo pond discharge than the permit requires and to discharge the water at a slower rate.

Environmental groups say the plan the company has submitted would do what they’ve wanted all along. But they’d still like to see those treatment limits required by the DEQ, instead of leaving it up to Dominion.

That’s because, as a DEQ official explained, Dominion can’t be required to abide by its plan to treat the ash wastewater more thoroughly than the state permit requires.

“What is enforceable is the permit…” DEQ spokesman Bill Hayden wrote in an e-mail. “The method and amount of treatment are up to Dominion.”

Critics contend the DEQ is going easy on Dominion, that it ought to be requiring the company to use “best available technology” in treating its ash pond discharges to protect local water quality.

The DEQ instead used existing state standards for how much pollution the river can receive and quickly dissipate while still safeguarding human, aquatic and environmental health.

As SELC senior attorney Greg Buppert put it, “DEQ is banking on dilution…The state is willing to issue this permit because it thinks any pollution will be diluted by the flow of the creek.”

In their appeals, the environmental groups contend that the federal Clean Water Act requires more. They argue that the state permits should require the company to use the best treatment methods available to remove the most contaminants possible from the impoundment water before releasing it into the rivers.

The DEQ, on the other hand, has interpreted the newest EPA rules regarding limits for so-called “legacy coal ash ponds” as not giving them the authority to dictate what treatment methods the company uses, let alone obligating them to apply top-of-the-line technology.

A couple-hundred protesters marched in the streets of Richmond on Feb. 20 to demonstrate their disdain for the permits that will allow a nearby station to begin draining water from its coal ash lagoon as soon as March. Eight were arrested after not following police orders, according to the Richmond Times-Dispatch.


How we got here

Aerial photos taken by local riverkeepers of some of these so-called ponds can barely do their scale justice. The largest ash-laden lagoon at Possum Point covers 120 acres. Dominion estimated in August that it held 137 million gallons of water, the equivalent of more than 200 Olympic-sized swimming pools.

Genest, Dominion’s spokesman, said removing that water and containing the existing coal ash onsite, a step that also requires state approval, “made the most environmental and logistical sense.” Hauling the ash away to an offsite landfill, for example, would take a decade or longer to complete, he said, and involve “about 1.6 million trips with dump trucks on a very narrow road.”

Dominion has not provided an estimate for draining the lagoons at the Bremo and Possum Point plants. But the price tag for cleaning up the breached coal ash site in North Carolina and taking its contents to a landfill in Central Virginia is already more than $1 billion and growing, according to news reports.

The plant’s neighbors and those who fish the Potomac nearby clearly did not agree that draining the impoundments made sense. At a public hearing, they expressed dismay that the state would allow any discharge with even traces of the heavy metals that are present in coal ash.

Commercial and recreational fishermen alike questioned the impact of those contaminants on local populations of striped bass, which are known to spawn in that stretch of the river. And state and local elected officials formally requested that the regulatory agency give them more time to consider a proposal they’d learned of just days before.

Those requests were not granted, despite the many public comments and opposition from 20 organizations, as well as public officials.

Members of the water control board said that none of their meetings had received this much attention in recent memory, nor had anyone cared so much about the governor-appointed board’s decisions.

But while public sentiment was overwhelmingly against the discharges, officials said the water control board can’t make a facility do more than what the state’s laws and regulations require.

“With the permitting and environmental regulations and all the other laws that surround the operation of these facilities… the dischargers just don’t seek to do the ultimate treatment the best they can; they seek to do what they can legally do,” said Mark Smith, an EPA Region 3 official who gave the permits his approval.

One lawyer who usually represents industry in such cases suggested Dominion might now be proposing to treat its discharges more than the state is requiring so it can stem the public furor and avoid more legal trouble.

“I think they are going to go above and beyond to ensure that they don’t end up, at the end of the day, with more people upset about the discharge and potential citizen suits,” said Channing Martin, with the Richmond firm of Williams Mullen.

Dominion’s Genest said that similar technology would be applied to treat discharges from the Possum Point facility, but the DEQ has not yet approved the plans submitted for that site.

The Bremo discharge plan proposes to limit the rate of discharge to 2.16 million gallons a day — one-fifth what the state permit allows. The company said that based on preliminary tests, it expects to reduce arsenic in the discharge to non-detectable levels, which a third-party engineer hired by the SELC deemed safe enough for humans and fish.

SELC lawyer Brad McLane, who has appealed the Bremo discharge permit, said he was thrilled with Dominion’s treatment plans there, which would reduce contaminants enough to meet the environmental groups’ concerns.

But even so, SELC is pursuing its appeal, insisting that the state require Dominion — and others that seek permits to drain coal impoundments — to meet the limits the company now says it plans to achieve.

If the company is choosing to perform that level of treatment, McLane argued, then it is economically achievable and should be required in all ash impoundment discharges.


‘Not in a position to trust’

Potomac Riverkeeper Dean Naujoks says he has a hard time trusting Dominion to go beyond what the permit requires.

The riverkeeper and the Sierra Club formally warned Dominion last year that they intended to sue over groundwater contamination at Possum Point, where they say records showed cadmium, zinc and other contaminants have been seeping from an unlined impoundment for decades.

Naujoks also pointed out that even before asking the DEQ for permission to discharge water from its ash ponds, the company had released almost 30 million gallons without any treatment last spring from one of its impoundments at Possum Point.

The company spokesman said contaminant levels in the water discharged then were so low that they met the permit limits at the time — though the board imposed more stringent limits in the new permit approved in January.

The DEQ concurred with the company that the discharge was not in violation of the company’s permit at the time.

But the Potomac group’s lawyer said he has asked the EPA to look into the discharge — and the Virginia attorney general to revoke Dominion’s latest permit — because the company never let on during public hearings for its plans to drain the ash ponds that it had already discharged some of the water without any treatment. Naujoks discovered an internal report of the release from one of the company’s contractors in December.

Genest said he understands why the public would view news of the earlier, undisclosed discharge with suspicion, “but we have laid out this process as openly as we could so that people can understand it. This was a legal discharge of water allowed under our permit.”

It didn’t help Dominion’s case with the public that, the same week the discharge came to light, the company’s Crystal City electric substation was identified as the source of an oil sheen on the Potomac River that killed 21 birds in early February. After initially denying any connection, company spokesman Rob Richardson acknowledged responsibility for contaminating local waters with a mineral oil spill that had occurred a few days before. He pledged Dominion would “move with all due haste to… ensure the remaining cleanup work is done.”

The Prince William County Board of Supervisors pointed to those instances in appealing Dominion’s permits, contending they cast additional doubt on the company’s ability to monitor itself and comply with regulations as it prepares to drain the largest impoundment at its Possum Point facility.

“Given the accelerated timetable to make this happen, we are just not in a position to trust Dominion,” said Frank Principi, Woodbridge supervisor on the board. “Simply because Dominion is complying with state or federal guidelines doesn’t mean that it’s not going to contaminate our river system.”

Several environmental groups also argue that Virginia should follow the example of North Carolina, which tightened its requirements for draining ash impoundments after the Dan River spill. That state’s legislature passed a Coal Ash Management Act with a suite of new restrictions that go beyond the EPA’s rules. The state requires additional oversight, monitoring and more stringent toxic limits on disposal of coal ash and any associated wastewater.

In the case of one impoundment to be drained, North Carolina imposed limits for arsenic that were 30 times lower than those required by a similar permit in Virginia. The DEQ permits, while not as stringent in some respects as those in North Carolina, do limit other contaminants.

None of the other facilities in the Bay watershed appear to be decommissioning coal ash impoundments at this time, according to Earthjustice.

Maryland, though, has entered into the fray, claiming the pond draining in Northern Virginia could impact the Potomac River, which is actually in Maryland.

Maryland’s Department of the Environment joined its Department of Natural Resources in an appeal in February, repeating concerns that DNR officials had raised in an eight-page letter to the Virginia DEQ. Maryland has formally notified Virginia of its intent to ask the Richmond Circuit Court to review the draining decision.

In its letter, the Maryland DNR said the permit requirements for draining the ponds at Possum Point are “not in keeping with the spirit or intent” of EPA’s regulations and could “cause significant harm to human and aquatic life.”

A Wake Forest University professor who looked at the Possum Point permit said the discharge levels allowed were “ecologically unacceptable” because of their potential impact on fish and wildlife.

Dennis Lemly, a fish biologist, said the concentration of copper permitted would be enough to kill 20–50 percent of a wide variety of aquatic organisms, including fish, if directly exposed.

Quantico Creek, into which the Possum Point wastewater will be discharged, is located at the head of the striped bass spawning and nursery area, according to Maryland DNR’s letter.

Gary, the Potomac River Fisheries commission director, raised similar concerns.

“How can assurance be given as to the health of striped bass eggs, larvae and juveniles from either the direct or synergistic interaction of coal ash contaminants, when they have no data to support that claim?” he asked.


What’s next?

Barring new legal challenges, there’s nothing to keep Dominion from starting to drain its impoundments in the coming weeks.

Dominion’s Genest said the company plans to begin with Bremo in March or April and start at Possum Point after that. The process will take six to 10 months at each, he said.

In the coming months, Dominion will need to get DEQ approval of plans to deal with the coal ash left behind once the ponds have been drained.

At Possum Point, water and ash have already been shifted from four impoundments to a fifth, the only one with a clay liner. The company will remove the remaining ash from the four empty impoundments, likely to a landfill, and plant vegetation in them.

The company plans to leave ash in the bottom of the fifth impoundment. Once it has been drained, the bed will be covered with multiple synthetic barrier layers and vegetation to keep water from seeping through the ash into the ground or from running off.

Similar plans have been filed for the Bremo station.

Sometime before 2018, Dominion also plans to close other inactive ponds at its Chesterfield Power Station and Chesapeake Energy Center. Genest said the company will seek permits for the Chesterfield site located 15 miles south of Richmond on the James River next.

One impoundment at Dominion’s Chesapeake Energy Center on the Elizabeth River is also scheduled for closure onsite. A landfill for the facility where dry ash has been stored since 1985 already is the subject of a lawsuit by SELC, which alleges that the pits have been leaching arsenic and other contaminants into groundwater for years.

In Maryland, coal ash that Constellation Energy piled into an unlined landfill in Anne Arundel County seeped into groundwater and contaminated wells in a nearby residential community. The incident prompted the county to ban the landfill disposal of coal ash, and the company reached a multimillion-dollar settlement with impacted neighbors in 2008.

SELC lawyers have said they do not support plans that leave the coal ash onsite, where it can continue to leach contaminants into groundwater, which the group said that some impoundments have done for decades. They also contend that liners on some impoundments have failed.

Virginia Sen. Scott Surovell introduced a bill in January that would have required the coal ash residue left after pond draining be disposed of in landfills rather than capped in place. The measure died in committee after Dominion and Appalachian Power, the two utilities with such facilities in the state, said removing the ash would double their cost to clean it up and went beyond what was required by the EPA.