In Coal Ash Dispute, Two Groups Settle with Dominion, Two Continue Legal Challenges, and a Virginia Town Calls for an EPA Investigation

Two groups that had challenged Dominion Virginia Power’s state-permitted plans to drain coal ash lagoons into Chesapeake Bay tributaries have withdrawn their legal appeals after the utility pledged to upgrade its treatment of the wastewater at two of its plants. But the state of Maryland and one environmental group that also had sued vowed to press their objections in court – at least for now.

Meanwhile the town of Dumfries, VA, has asked the Environmental Protection Agency to investigate whether both Dominion and the Virginia Department of Environmental Quality (DEQ) violated the law last year by allowing discharges of some 34 million gallons of waste water from a coal ash lagoon into Quantico Creek. Dumfries straddles Quantico Creek about three miles upstream from Dominion’s power plant at Possum Point, where the creek flows into the Potomac River.

Dropping their legal appeals of the DEQ permit that allows Dominion to release treated coal ash water into Bay tributaries were the Board of Supervisors of Virginia’s Prince William County and the James River Association. The latter is concerned primarily with coal ash discharge from Dominion’s Bremo power plant about 40 miles upstream of Richmond.

The Prince William County board says it has reached a settlement with Dominion and will no longer contest the utility’s state-issued permit to drain coal ash ponds at Possum Point power plant. These “impoundment” ponds or lagoons were used for decades to store the byproducts of burning coal–though none of the power plants in question burn coal any longer. They are powered by natural gas. Still, the coal “legacy” remains: An estimated 137 million gallons of treated coal-ash-contaminated water are to be emptied from the Possum Point lagoons alone.

Environmental groups, the state of Maryland and, until now, the Prince William board had complained that the permit issued in January by the Virginia Department of Environmental Quality did not impose strict enough treatment standards to protect local water quality from ash constituents in the planned discharges. Though not considered a hazardous waste, coal ash can contain toxic chemicals and metals such as arsenic, lead and mercury, which pose health risks for people, as well as fish and wildlife.

The James River Association also announced that it would drop its appeal of a similar permit allowing Dominion to drain impoundments at its Bremo power plant into the James River. But the Southern Environmental Law Center, which represents the James River group, said Wednesday that it will continue to appeal Dominion’s discharge permit for Possum Point on behalf of another client, the Potomac Riverkeeper Network.

And Maryland Secretary of the Environment Ben Grumbles says the state has not withdrawn its objections to the Possum Point permit. The Potomac River belongs to Maryland, and that state’s environmental agencies have complained that the treatment being required of Dominion is not protective enough of fish or water quality.

Grumbles said Maryland continues to review the treatment plans and is “looking beyond for opportunities with Virginia to ensure wastewater and waste pits at Possum Point are managed for effective, long-term protection of the Potomac.”

Both settlements come after Dominion disclosed last month that it plans to voluntarily treat the wastewater discharged from coal ash lagoons at its Bremo plant to a higher degree than is required by the Virginia permits. The company has submitted similar plans for how it will treat wastewater from the Possum Point site but they have not yet been approved by the DEQ, said Dan Genest, a spokesman for the company.

Dominion’s agreements with Prince William County and the James River group spell out the company’s plans to remove more heavy metals from the wastewater and to test it more frequently than the DEQ permit requires. The utility also agreed to reimburse the county up to $50,000 for a consultant it hired to review the Possum Point permit.

“After extensive dialogue, we as a board are comfortable that the dewatering of the ponds will be done in a way that provides an additional level of protection, and that addresses concerns raised by our residents,” said Corey Stewart, chairman of the Prince William board, in a statement.

The board’s agreement with Dominion specifies that the company will amend the treatment plans submitted to the DEQ to include “enhanced treatment triggers” for six heavy metals, including arsenic, selenium and lead. Those metals are of particular concern for Quantico Creek because its water quality is already impaired.

Frank Principi, Woodbridge supervisor on the board, said the discharge limits Dominion is pledging to meet for those metals are 50 to 80 percent stricter than what’s required by the state permit. The limit of 100 micrograms per liter of arsenic in water to be released into Quantico Creek is 77 percent lower than is mandated by the permit, for example.

If some of the wastewater is flagged as having too much of one of these metals, it will be sent through an additional treatment process that distills the water to remove more contaminants, Dominion’s Genest said. The process is similar to one that’s been laid out in the treatment plans for the Bremo site, where holding tanks have become part of a plan to ensure no contaminated water reaches the James River, Genest said.

As part of its settlement with the James River group, Dominion has pledged to enhance treatment of the wastewater and will check the tissue of fish caught downriver of the discharge for indications that they may be picking up contaminants found in coal ash, according to a joint press release.

Groups pursuing their appeals said the company’s plans provide many of the environmental protections 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.

As a DEQ official explained for a recent Bay Journal article on the subject, 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 last month. “The method and amount of treatment [beyond what is required] are up to Dominion.”

Greg Buppert, a senior attorney with the SELC, explained that the Possum Point discharge is still being appealed because “the facts and circumstances are different” than at the Bremo plant. The center also maintains that Dominion’s voluntary treatment plans are no substitute for the state requiring more.

“I think what these settlements show us is that the permitting process needs to be improved,” Buppert said. “Citizens and local governments have negotiated increased protections for their waterways. Why weren’t those protections part of the permit?”

But Prince William’s Principi said he thinks the two settlements go as far as any appeal could to ensure that Dominion’s treatment process protects local water quality. The Possum Point agreement will give county staff “a seat at the table,” he added, as Dominion continues to dismantle its coal ash legacy there.

Next, the company will need DEQ approval to cap the remaining coal ash once the lagoons have been drained, a process that will trigger another opportunity for public review and comment.

“This agreement has us squarely at the table for the next round,” Principi said.

Regarding the Dumfries Town Council request for an investigation, Dominion spokesman Dan Genest did not respond to a request for comment. When asked earlier about last year’s discharge, he said that the contaminant levels met permit limits in place at that time, which controlled factors like acidity of the water. At the time, the DEQ concurred with the company that the discharge was not in violation of the company’s permit.

By Whitney Pipkin, Bay Journal News Service