Maryland takes Virginia to court over coal ash plan on the Potomac

Fearing a potential threat to the Potomac River and the Chesapeake Bay, Maryland is wading into a water pollution controversy in Virginia, appealing a decision that allows a power company to drain treated water from coal ash ponds into a creek that flows into the Potomac.

Gov. Larry Hogan's secretaries of environment and natural resources, and Maryland Attorney General Brian E. Frosh, asked a state judge in Richmond to review Virginia's approval of Dominion Virginia Power's plan to drain the ponds at its Possum Point Power Station, located on the banks of the Potomac, across the river from Maryland.


"Being good stewards of the Potomac watershed means taking extreme caution so that that untreated or improperly treated coal ash does not foul waterways," Frosh said in a statement. "Any plan to dump waste in or near the river needs heightened scrutiny and rigorous analysis, and that is what this legal step is ensuring."

Dominion has four ponds at Possum Point that hold a mix of coal ash and water. The company plans to drain the water out of the ponds, treat it and discharge it into Quantico Creek. The coal ash that's left behind will be moved into one pond that will become a dry landfill and be capped.


"The plan we are implementing will protect the state's rivers and groundwater while safely disposing of the coal ash ... with permanent caps and continuous groundwater monitoring," said David Botkins, a Dominion spokesman, in a statement. "It is the safest and best approach and will meet all state and federal environmental requirements."

Virginia environmentalists and fishermen protested the state's approval, saying water from the ash ponds might be unhealthy for humans and detrimental to wildlife.

"All the concerns we raised were basically ignored," said Dean Naujoks, Potomac riverkeeper for the Potomac Riverkeeper Network, a watchdog environmental group. The riverkeeper and Prince William County's Board of Supervisors also have appealed the state's decision.

Coal ash — sometimes called fly ash — is a byproduct of burning coal to generate electricity. Safely storing and disposing of it has been an issue across the country.


In Anne Arundel County, Constellation Energy for years put coal ash into an unlined landfill in Gambrills, made from an old sand and gravel mine. The ash leaked into a drinking water source for the surrounding community, leading to a multimillion-dollar settlement with neighbors in 2008 and a county ban on disposing of coal ash in a landfill. Later that same year, a coal ash spill at a Tennessee power plant coated 300 acres of land with a coal ash sludge, leading to a $1 billion cleanup.

Coal ash can contain arsenic, lead, mercury, hexavalent chromium and other heavy metals that can cause health problems, according to Clean Water Action, a nonprofit environmental group that has lobbied for stricter rules for handling coal ash. About a fifth of the coal ash produced by power plants is stored in wet ponds, according to the group.

Dominion officials say they are complying with environmental standards that now call for the closure of coal ash ponds. Possum Point no longer uses coal — it is powered now by gas and oil — and no longer produces coal ash.

The company said the water removed from the Possum Point ponds will be treated and monitored for contaminants — a plan that Virginia regulators approved in January.

Virginia's State Water Control Board also approved a discharge permit in January for water from coal ash ponds at Dominion's Bremo Bluff facility on the James River.

"These permits fully comply with state and federal laws and regulations to protect people's health and the environment," the state's environmental quality director, David K. Paylor, said in a statement last month. "They will ensure that water in the receiving streams meets the water quality standards."

Maryland, however, has opposed the Possum Point plan and urged Virginia's regulators not to approve it. In January, Mark J. Belton, Maryland's secretary of natural resources, sent an eight-page letter to Virginia outlining concerns that the water from the coal ponds would "cause significant harm to human and aquatic life … even though the Permit may technically satisfy regulatory standards."

The appeal from Maryland, filed on Monday, asks the Richmond Circuit Court to review the permit.

Ben Grumbles, the state's environment secretary, said in an interview that he's confident Maryland and Virginia can "work together" for a stronger permit. But he said going to court was a necessary step.

"This is a way to protect our rights and interests in modifying the permit," Grumbles said.

He said Maryland will also keep close watch over a permit Dominion will need to combine the coal ash into a single landfill after the water is drained.

Grumbles, who was President George W. Bush's top water quality official at the Environmental Protection Agency, said it's not often that one state sues another over water issues.

But he said it's common for states to have differing ideas about how to protect a shared waterway such as the Potomac, which he notes "doesn't respect political boundaries."

Naujoks, from the riverkeeper group, said he was glad Maryland appealed the permit, as the state has greater resources to pursue a legal fight than his nonprofit.

"They're responsible for this resource. It seems logical Maryland should get involved," he said.


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