Closing a large ash pond is no easy task. Removing the coal combustion residuals (CCR) sounds like a simple answer, but when the pond holds millions of cubic yards of material, it’s easier said than done.

The judge trying the Sierra Club’s current CCR case against Virginia Electric and Power Co., doing business as Dominion Virginia Power[1] had occasion to consider the logistical details. How long would it take? How may trucks would be needed to haul all that ash away? Where would it all go? What are the risks? After the plaintiffs failed to provide specific answers about how the utility could dig up the ash and redispose of it elsewhere, the court declined to order Dominion to do so. Here’s what happened in the case.

Discharge to Groundwater: Can You Make a Federal Case of That?

The court actually ruled for the plaintiffs on liability. Based on evidence presented at trial, the court found as a factual matter that there was a "direct hydrological connection between the groundwater ... and the surface water," and that arsenic was conveyed from the ash storage units to the river by way of groundwater.[2] The legal issue was whether that was enough to invoke jurisdiction under the Clean Water Act, which regulates discharges to surface waters such as streams and wetlands.

The question is likely to be hotly contested in any ash pond case involving CWA allegations. In this instance, the court ruled that the diffuse discharges of arsenic through groundwater to a surface water constituted a “point source,” and the CWA applied.[3] The judge acknowledged, however, that it had adopted "a novel interpretation of the law” and, for that reason, Dominion had not believed it was in violation of the CWA at the time.[4]

So, technically, the plaintiffs won. The next question was what to do about it? The plaintiffs had sought to require Dominion to remove the ash on site as well as civil penalties. That’s where it got interesting.

What’s the Remedy?

The court’s opinion noted that Dominion had acted as a “good corporate citizen.”[5] It had cooperated with the state agency, obtained the necessary permits, and developed extensive information about the site — information that formed the sole basis for the plaintiffs’ allegations. All that to say, the court was not interested in punishing Dominion with civil penalties.[6]

Regarding closure by removal, the court found that, despite the CWA violations, "no evidence shows any injury ... has occurred to health or the environment."[7] By contrast, it was clear that the hardship to Dominion was great in the form of expense and years of effort. For that reason, the court found that the “public interest will not be served" by closure by removal.[8]

The opinion offered several paragraphs criticizing the plaintiffs’ efforts in support of their desired relief, including the following:

The Sierra Club's evidence in support of its proposed remedy is remarkable only for what it does not show. The plaintiff has offered no credible evidence of the cost of this removal. It has offered no credible evidence of how long it would take to move the ash. It has offered no credible evidence of how the ash will safely travel across Tidewater Virginia.

... How much spillage will occur when someone moves three million tons of ash? How many truck wrecks will occur with resulting coal ash dropped on the roads, and perhaps on the motorists? The Sierra Club does not consider, much less address, these questions.

The Sierra Club's desperation to provide some evidence to support its requested relief causes it to speculate. It says that Dominion might be able to cart the coal ash around Virginia on train cars. But again, this speculation leads to nothing but unanswered questions. How many train cars would it take? Do tracks still run where the ash needs to go? Where are the loading and unloading facilities? Will the ash blow out of the cars as the big train keeps on rolling?[9]

The court also rejected Dominion's existing corrective action remedy incorporated into its landfill solid waste permit, which was monitored natural attenuation.[10] Instead, the court impose requirements for increased monitoring and sampling, required Dominion to reopen its solid waste permit application, and requested that the parties file a suggested remedial plan — preferably jointly — in 30 days.[11]

Takeaways

Whether and under what circumstances the CWA covers groundwater has arisen in several recent cases. This court was willing to extend federal jurisdiction to cover a discharge to groundwater, if that groundwater conveyed pollutants to a regulated surface water. It will be important to see whether the circuit courts accept that theory or limit “point source” to conveyances of like kind as those listed in the statutory definition (“pipe, ditch, channel, tunnel,” etc.).[12] Where the broader theory is adopted, that still leaves questions of how much and what kind of evidence is needed to establish the conveyance of a pollutant to a surface water.

While this may be only one of several cases dealing with CWA liability, the Dominion court is on the leading edge of cases considering whether to grant citizen groups’ preferred relief of forcing a utility to close by removal instead of closing and capping in place. The case illustrates three fundamental problems citizen group plaintiffs will face.

First, closing a large ash pond is a daunting task by any method. As the court hinted, with minimal contemplation, the logistics associated with moving millions of tons of material easily become mind-boggling. Even moving the material to configure it within the pond footprint is a huge project. To extract and redispose of it elsewhere adds that much more to the time and cost, and it expands the geographic scope where ash may be present (i.e., potential risk pathways) from the immediate vicinity of the pond to the transportation corridors and disposal locations. Any given judge may be hesitant to impose that “solution” without clear and compelling reasons.

Second, it’s not just big, it’s complicated. It’s a huge, multidisciplinary undertaking that requires extensive planning and mobilization. To close and cap an ash pond in place requires the utility to call on licensed professional engineers and geologists, who must design a stable, environmentally protective cap and closure method, taking into account the properties of the CCR as well as site-specific geology and hydrology. Utilities are busy developing the technical and factual bases to identify the best option in each case. Based on that planning process, a utility will be well prepared to develop and defend a solid evidentiary case for why its preferred method of closure is environmentally sound and legally acceptable.

No Clear Legal Trigger for Closure By Removal

Third and finally, even where the evidence is sufficient to demonstrate an environmental issue and, further, a regulatory violation, the law doesn’t provide any clear pathway from there to mandatory closure by removal. In the Dominion case, the plaintiffs were in the position of requesting injunctive relief. As the court explained, that is extraordinary relief that requires a demonstration of irreparable injury, a balancing of the relative equities of the plaintiff and defendant, and a finding that the relief is in the public interest.[13] Even if a legal violation is conceded, the court had no evidence of localized harm that would compel removal, even as significant questions went unanswered as to both the cost and the environmental risk associated with a large-scale mobilization of material.

As additional requirements of the CCR rule[14] take effect, citizen groups may seek to use utilities’ own findings in areas such as groundwater and location restrictions to bring new claims under the Resource Recovery and Conservation Act, either in place of or alongside CWA claims. However, that strategy offers no more compelling path to force closure by removal. For “existing” ponds (generally, those in operation as of Oct. 15, 2015), the remedy for certain violations is pond closure,[15] but not by a specific method. To the contrary, the CCR rule specifically authorizes cap and closure in place as long as certain performance standards are met.[16] A utility’s demonstration of compliance will, again, draw on extensive technical information and analysis prepared by engineers and geologists. To both disprove the legitimacy of the utility’s compliance demonstration and substantiate a closure by removal proposal will be a tall order. There is no obvious regulatory trigger specifically for closure by removal, and the Dominion case illustrates the difficulties of pursuing a mandatory injunction.

Especially in the case of larger ponds, engineers and geologists around the industry are drawing similar conclusions: There are environmentally protective ways to close ash ponds in place with measures to address any site-specific issues and concerns. Where options along those lines are available, the huge effort and environmental consequences of closure by removal don’t make sense. The Dominion opinion shows some of the difficulties plaintiffs face in making a credible case for an alternative disposal solution that is both environmentally and legally necessary and technically and economically feasible.


[1] Sierra Club v. Virginia Electric and Power Co., No. 2:15-CV-112 (E.D. Va. March 23, 2017) (hereinafter “Dominion”).
[2] Dominion, slip op. at 6, 8.
[3] Dominion, slip op. at 15.
[4] Dominion, slip op. at 17.
[5] Dominion, slip op. at 17.
[6] Dominion, slip op. at 17.
[7] Dominion, slip op. at 18.
[8] Dominion, slip op. at 18.
[9] Dominion, slip op. at 18-19 (footnote omitted).
[10] Dominion, slip op. at 19.
[11] Dominion, slip op. at 20.
[12] 33 U.S.C. § 502(14).
[13] Dominion, slip op. at 17-18.
[14] 40 C.F.R. Part 257, Subpart D.
[15] 40 C.F.R. § 257.101(a), (b). Subsection (a) applies to existing ponds that are also unlined.
[16] 40 C.F.R. § 257.102(d).