Virginia requirements for the disposal of ash produced by coal-burning power plants could soon be more stringent than rules set by the federal government.

The General Assembly approved a bill at the end of session last week that requires companies with coal ash pits in the Chesapeake Bay watershed to take another step toward recycling their contents, though the measure stopped short of requiring recycling. The bill forces companies such as Dominion Energy, which maintains nearly a dozen coal ash pits in the state, to seek proposals from contractors to recycle coal ash into concrete or other construction materials and to compile the costs into a report for lawmakers to consider by the end of the year.

“The idea is to hopefully get a more refined estimate as to what coal ash recycling would cost,” said Sen. Scott Surovell (D-Fairfax), who proposed the bill and has been an advocate for recycling ash over the last two years. “Because the ultimate cost of this is very likely to be transmitted to ratepayers, we wanted to make sure we have the most accurate information.”

The measure also extends until July 1, 2019, a prohibition on new state permits that would allow facilities to close coal ash pits by permanently storing their contents in place. Pits whose contents have already been removed can, however, complete the closure process under the regulation.

Dominion officials say they support the measure and will work with legislators to further investigate the possibility of recycling long-stored coal ash from the sites. But the company submitted its own report at the end of 2017 that indicated recycling coal ash would be too expensive at most of the sites in the Bay watershed. Dominion still favored an option, opposed by environmentalists, to store millions of tons of coal ash in mostly unlined pits, many of them located next to the Potomac and James rivers.

Dominion already has committed to excavating and recycling the ash from the smallest pit at Chesapeake Energy Center in Chesapeake, VA. That pit covers just five acres, compared with an ash pit at another plant in Chesterfield that spans more than 200 acres.

The closure of coal ash impoundments was originally required by a federal rule from the U.S. Environmental Protection Agency. Most of the man-made lagoons were created decades ago to store the ash that washed into them as coal was burned for power. After a catastrophic spill from one of those lagoons in Tennessee in 2008, the EPA ordered utilities to begin dismantling them. The Trump administration announced early this month plans to amend that regulation, which was already held up by legal challenges, to “save the utility sector up to $100 million per year in compliance costs.”

The amendment, which will receive public comments and could take months to receive final approval, includes more than a dozen changes intended to give utilities more flexibility in responding to the requirements set forth in the 2015 rule.

Frank Holleman, senior attorney at the Southern Environmental Law Center, said the proposed federal changes would weaken rules that protect groundwater and extend the use of “leaking coal ash pits next to our waterways.”

Dominion spokesman Rob Richardson said the company was still working through the proposed changes to understand how they could impact its work to close ash pits in Virginia. If Virginia lawmakers continue down a path to require recycling in the state, as legislators have in North Carolina, Dominion would have to comply with the stricter state requirement.

“What doesn’t change is our commitment to following the law and all federal and state regulations,” Richardson wrote in an email. “We’re moving forward as quickly as we can, and we’re committed to getting this right.”

A team of SELC attorneys spent last week combing through data collected from groundwater monitoring wells near coal ash pits at three Dominion plants in the state, which the utility was required to release to the public on March 2. Pollutants such as arsenic, beryllium, lead and radium — a radioactive element commonly associated with nuclear waste — were present in the groundwater near these pits, the data show.

“The reports really show ongoing contamination,” said SELC attorney Nate Benforado.

Benforado argues that those reports strengthen the case for state legislators to require Dominion to excavate ash from pits near state waterways.

Mandy Tornabene, Dominion Energy’s vice president of environmental services, says in a video on the company’s website that the groundwater results do not indicate threats to drinking water or to public safety but that the company “will take the proper corrective actions to address any impacts.”

What will be required of the company could be decided by state lawmakers or by the courts. In a lawsuit brought by the SELC and the Sierra Club, a federal judge ruled in March that arsenic from four coal ash impoundments at Chesapeake Energy Center has contaminated groundwater and seeped into the Elizabeth River. 

Dominion has appealed the decision, questioning whether the Clean Water Act applies to pollution that travels by groundwater. A judge is scheduled to hear additional arguments on March 21.

Related articles from the Bay Journal:

Dominion’s review of coal ash ‘alternatives’ still favors on-site storage

Court rules that Dominion’s coal ash polluted Elizabeth River

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