United States District Court, E.D. Virginia, Richmond Division
A. Gibney, Jr. United States District Judge
Sierra Club has sued Virginia Electric and Power Company
d/b/a Dominion Virginia Power ("Dominion") for
violations of the Clean Water Act ("CWA"). The
violations stem from discharges of arsenic from
Dominion's Chesapeake Energy Center ("CEC")
into the surrounding surface waters.
roughly fifty years, the CEC burnt coal to generate
electricity. Dominion stored ash from the burnt coal in piles
and lagoons on the CEC site. The piles and lagoons, in turn,
conveyed arsenic created in the power plant to groundwater
and, through the groundwater, to surrounding surface waters.
the CWA, any entity discharging pollutants into the surface
waters must secure a permit. Dominion does not have a permit
to discharge arsenic. Dominion's consolidation of waste
and conveyance of arsenic through groundwater to the surface
water forms the primary basis of the Sierra Club's CWA
Sierra Club has an alternative theory of liability. Dominion
does have two discharge permits for wastewater from the CEC
site, but neither authorizes the utility to release
discharges into groundwater. The Virginia Department of
Environmental Quality (the "DEQ") issued the
permits. Although the DEQ has found that Dominion has
complied with its permits, the Sierra Club thinks otherwise.
The alleged violations of the permits constitute the
plaintiffs alternative theory of liability.
the plaintiffs primary theory of liability, the Court finds
that Dominion's discharge through groundwater violates
the CWA. The Court will defer to the DEQ's judgment,
however, and find that the alternative theory of liability
does not amount to a violation.
finding of a violation, however, does not end the inquiry,
for the Court must fashion a remedy in this case. The Court
finds that Dominion's conduct does not merit the
assessment of civil penalties. The Court also finds that the
evidence does not justify the draconian injunction the Sierra
Club requests; a lesser measure will do.
bench trial, the Court finds the following facts:
sits on a peninsula surrounded by the Southern Branch of the
Elizabeth River ("SBER") on the eastern side, Deep
Creek on the southern side, and a man-made cooling water
discharge channel ("CWDC") on the western side.
generated electricity from 1953 until 2014. The CEC burnt
coal to make electricity, and created an enormous amount of
coal ash. Dominion moved the ash from the plant to several
on-site storage facilities. Between 1953 and 1984, Dominion
kept the ash in three different settling ponds, collectively
known as the Historic Pond. The Historic Pond does not have a
liner beneath it. Dominion created the Historic Pond and
engineered it with the express intention of using it for coal
1984, the DEQ issued Solid Waste Permit No. 440 ("Solid
Waste Permit") to Dominion. The Solid Waste Permit
authorized Dominion to construct a lined ash landfill on top
of a portion of the Historic Pond. Dominion placed a 20 mil
geosynthetic liner, with a thickness of 0.05 centimeters,
over the Historic Pond. On top of the liner, Dominion created
what it calls the Ash Landfill. The Solid Waste Permit also
included provisions dealing with groundwater. The permit
requires routine testing of the groundwater and submission of
status reports to the DEQ. Dominion submitted an application
to amend the Solid Waste Permit in June 2014, but later
withdrew its application.
the same time that Dominion constructed the Ash Landfill, it
dug up a separate part of the Historic Pond to create a
settling area, known as the "Bottom Ash Pond and
Sedimentation Pond." Unlike the Ash Landfill, the Bottom
Ash Pond and Sedimentation Pond do not have impermeable
linings beneath them. In total, the Historic Pond, Ash Landfill,
Bottom Ash Pond, and Sedimentation Pond (collectively,
"the Coal Ash Piles") currently hold about 2, 830,
000 cubic yards or 3, 396, 000 tons of coal ash.
addition to the Solid Waste Permit, the DEQ has also issued
two discharge permits for the CEC. These permits identify
specific outfalls through which Dominion can discharge
wastewater to surface water. The VPDES permits also set
conditions that limit the amount of the discharges.
coal ash contains high levels of arsenic. All told, the CEC
site contains approximately 150 tons of arsenic. Through the
ponds and landfill, Dominion has conveyed arsenic from the
old CEC generator into the groundwater at the CEC.
is the water found underground in spaces or pores between
soil particles or rock. As reflected in Dominion's
submissions to the DEQ in 2014, samples of groundwater from
ten wells on the Ash Landfill had arsenic concentrations
higher than 10 micrograms per liter, the Groundwater
Protection ("GWP") standard set by the Commonwealth
of Virginia for arsenic.Dominion's 2015 Annual Groundwater
Report flatly stated that concentrations of arsenic
"were at levels above the Groundwater Protection
Standards." (PI. Ex. 44, at 1.) In one well tested at
CEC, the arsenic concentration in the groundwater reached as
high as 1, 287 micrograms per liter. The record contains no
evidence that the site, in its natural state, contains
arsenic, independent of the waste from the CEC. Thus, the
findings in Dominion's own reports show that arsenic from
the ponds and landfill enters the groundwater.
turn, the groundwater around the CEC hydrologically flows to
the surface water including the SBER, Deep Creek, and the
CWDC. Groundwater moves within and is stored in
"aquifers, " regions containing significant volumes
of groundwater. Groundwater in aquifers obeys the principle
of "hydraulic continuity." Hydraulic continuity
means that nature maintains a balance so that if water leaves
a system then more water enters to recharge that system.
Precipitation usually recharges groundwater. The
precipitation percolates through the soil to the groundwater
and recharges it. Groundwater most commonly discharges to
surface water, such as a stream or lake.
moves from a condition of high hydraulic head to low
hydraulic head. Hydraulic head contains two elements: (1)
elevation head and (2) pressure head. Elevation head
essentially means that groundwater will move from high
elevations to low elevations; it will flow downhill. Pressure
head occurs in confined aquifers, where water will move away
from the pressure created by an overlying clay layer.
Overall, groundwater will move from areas of high hydraulic
head to areas of low hydraulic head.
principles of hydrology and Dominion's reports prove that
the groundwater is hydrologically connected to the surface
water. Anthony Brown, the Sierra Club's expert on
hydrology, testified that the sediments under the Coal Ash
Piles have moderate to high conductivity. This conductivity
allows groundwater to move freely through the sediment.
groundwater at the CEC site moves radially outward-toward
surface water. The data at CECW-3, an interior testing well
located south of the Ash Landfill, helps to demonstrate this.
CECW-3 consistently has the highest groundwater elevations of
the wells at the CEC, indicating that CECW-3 lies near where
the groundwater is being recharged. According to Brown, three
sources-seeps from the Bottom Ash Pond, leaks in the liner of
the Ash Landfill, and direct rainfall that flows through the
inner dike-likely recharge the groundwater. Because this well
at the center of the CEC had the highest hydraulic head, the
groundwater would move radially outwards towards areas of low
hydraulic head. The high hydraulic head (along with the
proximity of the edge of the Coal Ash Piles to the surface
water) shows that the groundwater flows through the ash and
then enters the surface water through a radial outward flow.
itself has agreed that groundwater moves laterally into the
surrounding surface water. Its 2015 Annual Groundwater Report
stated that "groundwater movement through the unconfined
and confined aquifers is generally lateral with discharge
into surrounding water bodies including the SBER and Deep
Creek." (PL Ex. 44, at 4.)
that Dominion finds itself in a lawsuit about its discharge
of arsenic, it changes its tune. Now Dominion argues that the
movement of groundwater does not directly connect with the
surface water, because the aquifer confines the groundwater
and impedes it from reaching the surface water. Dr. Alan Mayo
testified that clay was the primary constituent encountered
in thirteen of the seventeen wells, which impedes the
movement of groundwater both vertically and horizontally. The
Court rejects this argument: it runs counter to the geography
of the region and to Dominion's more candid
statements made before the pressure of litigation. The
evidence supports Brown's conclusion that groundwater
moves freely through the sediment.
addition, Mayo argued that a natural upward gradient at the
CEC site reduces the movement of the groundwater outward. The
evidence, however, better supports Brown's analysis of
groundwater movement. Once again, Dominion's own
documents support the analysis that the groundwater moves
radially outward from the center of the CEC site to the
adjoining surface waters. Additionally, the principles of
hydrology suggest that groundwater moves from high hydraulic
head to low hydraulic head, which would mean an outward flow
from the center of the CEC site, the area with the highest
short, the Court finds a direct hydrological connection
between the groundwater at the CEC site and the surface water
adjacent to the site.
ponds and landfill convey arsenic directly into the
groundwater and, from there, directly into the surface water.
As discussed above, the groundwater at the CEC site flows
through the coal ash before moving radially outward to the
surface water. During this process, arsenic in the coal ash
dissolves into the groundwater and travels along with the
groundwater to the surface water. The discharge into the
surface water contains arsenic at levels higher than the
Surface Water Protection ("SWP") standard, set by
the Commonwealth of Virginia, of 36 micrograms per liter.
own data, contained in its 2010 Natural Attenuation of
Arsenic Demonstration Report, shows arsenic at levels above
the SWP standard in most of the pore water samples collected.
Pore water is the water collected from inside the samples of
sediment. Specifically, that data shows that all of the
samples taken at the sediment-surface water interface have
higher arsenic levels than the SWP standard. This data is
relevant because the sediment-surface interface is where
groundwater discharges into the surface. The discharge into
surface water has elevated levels of arsenic, which shows
that the natural movement of the groundwater to the surface
water has not reduced the arsenic level to below the SWP
to its own evaluations and reports, Dominion now argues that
any arsenic in the surface water surrounding the CEC, or in
the sediments at the bottom of those waters, probably comes
from other industries in the area. Unquestionably, the CEC
lies in an industrial area. Dominion argues that because
sediments move upstream and downstream with the tides, it is
impossible to tell where the sediments used for the pore
water samples originally came from. Although some tidal
action may move sediments around, it defies logic to argue
that an enormous mound of arsenic does not contribute to the
arsenic in soil and water right next to it, especially given
the evidence of groundwater movement from the mound outward.
The number of samples taken, together with Dominion's own
previous reliance on the data in its submissions to the DEQ,
also convinces this Court that the data is
expert, Dr. Daniel B. Stephens, argued that the liner under
the Ash Landfill is not leaking, so at least the Ash Landfill
is not a source of any arsenic that may have reached the
surface water. The Sierra Club's experts opined that the
liner is leaking. They argued that a liner, such as the one
in this case, is commonly understood through the industry to
leak to some degree. Brown testified that the data from
CECW-3 indicates that the Ash Landfill liner is leaking and
contributing to the recharge at that well. The data shows
that the groundwater levels at CECW-3 exceed not only the
exterior wells, but also other interior wells. This shows
that CECW-3 has an additional source of recharge and arsenic.
Brown opined that leaks from the ...