PEARISBURG -- Opponents of a riverside coal ash project will get the grand jury they asked for, but not until there's coal ash on the site.

"Until the fly ash is actually there, there is no nuisance, is there?" Circuit Court Judge Colin Gibb said from the bench Wednesday. "It doesn't really exist until it's dumped."

Once the ash dumping begins, Gibb said, he will approve a request to impanel a grand jury to investigate whether the project is a public nuisance -- whether it interferes with rights shared by the community.

The issue is Cumberland Park, a plan to put 254,000 cubic yards of coal ash on property beside the New River. The Giles County Partnership for Excellence, a nonprofit formed for educational enrichment in the county, plans to use the ash as fill material. The ash -- about three years worth of coal waste from Appalachian Power Co.'s Glen Lyn plant -- would cover more than 7 acres about 30 feet deep. That would raise the riverbank to the level of U.S. 460, creating what Howard Spencer, the partnership's executive director, says will be a building site for a job-creating business at the edge of Narrows.

The Concerned Citizens of Giles County sees the project in a different light. Coal ash contains arsenic, lead and other toxins. The citizens group argues that piling ash in the 100-year flood plain of the New River threatens the health of the river, residents and the tourism industry.

William Rakes, the partnership's attorney, asserted in court that the commonwealth's solid waste disposal laws and regulations shouldn't be trumped by disgruntled neighbors.

"The fact that somebody doesn't like it doesn't mean they have the power to come in and stop the project," Rakes said.

Opponents should have taken their concerns to the Virginia Department of Environmental Quality, Rakes said. They should have pursued administrative remedies before setting a course that lawyers on both sides and the judge agree is rarely followed -- requesting a special grand jury to investigate the project.

But the commonwealth's solid waste regulations don't apply to this project.

"There wasn't really a comment period or public participation," said Aziz Farahmand, waste program manager at the DEQ's Roanoke office.

If the ash project were called a landfill, there would have been public hearings and a public comment period. But using the ash as construction fill exempts it from solid waste regulations. That means public hearings and protective measures required for solid waste disposal projects -- including monitoring wells and a liner to keep toxins in the ash from leaching into groundwater -- are not required at Cumberland Park.

Del. Anne Crockett-Stark, R-Wytheville, and Sen. John Edwards, D-Roanoke, introduced legislation this year that would have outlawed such exemptions in a flood plain. Crockett-Stark's bill was killed in the House Agriculture, Chesapeake and Natural Resources Committee. Edwards' bill passed the Senate, but was tabled by the same House committee.

Before Edwards' bill was killed, Appalachian lobbyist Ron Jefferson got it amended so that it would exempt Cumberland Park.

"It was an intentional lobbying to make sure that facility could be grandfathered," said Michael Morris, chairman and chief executive officer of American Electric Power, Appalachian's parent company. "Grandfathering projects already under way is common, common legal practice in the legislative process."

Morris was at Virginia Tech recently as part of AEP's Future of Energy University Listening Tour. Several of the questions he fielded that day dealt with the Giles County coal ash project.

Though they aren't required, Appalachian put monitoring wells at the site two months ago in answer to a request from the Giles County Board of Supervisors. The company also agreed to test the composition of the ash periodically, as the supervisors asked. Appalachian won't accommodate the supervisors' request for a liner under the ash.

"My understanding is it is far too late for that request," Morris said.

It would have been better to hold public meetings early in the process, he said, but it's too late now.

"It's our obligation to have electricity available to you whenever you want it," Morris told the audience at Tech. Now and for some time into the future that means burning coal and disposing of coal ash.

"Things need to be built, and they will be built in inconvenient places," Morris said.

The first coal ash was expected to be trucked to Cumberland Park a month ago, according to Appalachian spokesman John Shepelwich, but weather has held up site preparation. For now, ash from the Glen Lyn plant continues to be trucked to the Boomer mine site near Charleston, W.Va.