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Sierra Club v. Virginia Electric and Power Co.

United States District Court, E.D. Virginia, Richmond Division

March 23, 2017

SIERRA CLUB, Plaintiff,


          John A. Gibney, Jr. United States District Judge

         The 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.

         For 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.

         Under 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 claim.

         The 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.

         As to 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.

         The 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.

         I. FACTS

         After a bench trial, the Court finds the following facts:

         The CEC 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.

         The CEC 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 ash.

         In 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.[1]

         Around 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.[2] 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.

         In addition to the Solid Waste Permit, the DEQ has also issued two discharge permits for the CEC.[3] 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.

         The 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.

         Groundwater 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.[4]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.

         In 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.

         Groundwater 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.

         The 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.

         The 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.

         Dominion 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.)

         But now 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[5] 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.

         In 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 hydraulic head.

         In short, the Court finds a direct hydrological connection between the groundwater at the CEC site and the surface water adjacent to the site.

         The 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.

         Dominion's 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 standard.

         Contrary 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 accurate.[6]

         Dominion's 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 ...

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