Alan Kim | The Roanoke Times

The Giles County Partnership for Excellence owns Cumberland Park and plans to use coal ash from Appalachian Power's Glen Lyn power plant to raise more than 7 acres about 30 feet. That would put the riverbank at the level of U.S. 460, creating what the partnership says will be a building site for a job-creating business.

The Virginian-Pilot

Erosion along one of the fairways at Battlefield Golf Club, which was built over sculpted fly ash in Chesapeake, exposes a layer of dark material in February. Unlike the ash at Cumberland Park, the ash under the club was mixed with lime, a process that makes it much less likely that toxins will leach out should water get to the ash.

NARROWS -- There's nothing hurried about it.

A dump truck creeps down the gravel path from U.S. 460 to the pit at the south end of Cumberland Park. It swings around and backs onto the layers of coal ash that came on earlier trucks. This truck's bed raises -- the screen covering it has already swung out of the way -- and its tailgate clangs as coal ash darker than the leaden skies slides out. The truck stops and starts in jerks to loosen the ash clinging to the bed.

Once the truck has pulled away, a bulldozer climbs into the pile the truck has left, spreading it out with its blade, packing it down with its tracks. After a few minutes, the operator gets out and clears the damp ash from the dozer's tracks with a shovel. The compactor -- the thing kids call a steamroller even though they've long run on diesel fuel -- crawls across the diminished pile, flattening it in a way intended to make it solid and stable enough to hold up a building.

Before long, a grand jury is expected to be investigating this ambling process.

In January, five members of the Concerned Citizens of Giles County asked Circuit Court Judge Colin Gibb to empanel a grand jury to investigate whether the plan to truck 254,000 cubic yards of coal ash into Narrows constituted a public nuisance.

When the five got their day in court in February, Gibb decided he couldn't honor their request. At least not yet.

"Until the fly ash is actually there, there is no nuisance, is there?" Gibb said then. "It doesn't really exist until it's dumped."

But now the ash is being dumped. And, Gibb assured attorney John Robertson, when that happened, Robinson could resubmit his motion and the judge would empanel a special grand jury. That grand jury will decide whether there's enough evidence to take the public nuisance claim to trial.

Paul Thomson, one of the lawyers representing the land's owner, said this is the third time he has been involved in a case like this. The statute, he said, is an obscure mix of civil and criminal law that's about 90 years old, is rarely used and is not all that clear.

"It doesn't have a great deal of guidance," Thomson said.

Robertson, Thomson and his colleague Donald Summerlin are drafting instructions for the grand jury. Gibb will decide what the final version includes.

The project at issue, Cumberland Park, plans to turn waste into a building site. The Giles County Partnership for Excellence, a nonprofit formed for educational enrichment in the county, owns the land, about 13 acres on the banks of the New River. The plan is to use coal ash -- about three years worth of ash from Appalachian Power's Glen Lyn power plant -- to raise more than 7 acres about 30 feet. That would put the riverbank at the level of U.S. 460, creating what the partnership says will be a building site for a job-creating business.

The land is zoned for industrial use.

The partnership directors say they plan to sell that land and give the proceeds to the county school system to benefit vocational education.

The project will also benefit Appalachian Power. The Glen Lyn plant burns about 2,000 tons of coal each day, producing about 200 tons of ash. Disposing of that ash was costing Appalachian Power $25 or more per ton before Cumberland Park began operating. Now the company pays about $18 per ton.

For months, representatives of the partnership and Appalachian Power have talked about the measures taken to ensure the project's safety. It is farther from the river and farther from groundwater than environmental regulations require. A protective berm -- held in place by vegetation and metal anchors -- will rise a foot and a half above the 100-year floodplain. The ash will be covered by 2 feet or more of soil. Regulations don't require wells to monitor anything that might leach from the site, but Appalachian put in two monitoring wells anyway.

The Concerned Citizens of Giles County say that despite all that, it's senseless to bury 7 acres of the floodplain of an American Heritage River with ash that contains lead, arsenic and other toxins. The group considers Cumberland Park a threat to the river, to public health and to the local economy.

Both sides have pointed to a Chesapeake golf course as an example of what can happen when coal ash is used as fill material. Built on seven years worth of coal ash from a Dominion Power facility, Battlefield Golf Club was on a list of 14 sites distributed at Cumberland Park's recent media day. The list was to show that the process is working in other places across the commonwealth. But the golf course has been the focus of concern and media attention since rains have washed ruts that appear to have exposed fly ash that was once buried beneath 2 feet of soil.

The state Department of Environmental Quality and Department of Health are investigating, but there's little certain about the golf course's situation yet.

"In August, when we did the closure on the site, the place looked great," said Milt Johnson, waste compliance manager for the DEQ's Tidewater office. "The developers followed the coal combustion byproducts regulations to a 't.' "

If coal ash has been exposed, it must be covered again, Johnson said.

Gully washers might have cut into the coal ash, said Richard Matthews, lawyer for the golf course's owners. But that won't happen after they get a good stand of grass going, he said, though that's been difficult to do.

"It was drier than a bone down here in July, August and September," Matthews said.

Unlike the ash being compacted at Cumberland Park, the ash under Battlefield Golf Club was mixed with lime, a process that makes it much less likely that toxins will leach out should water get to the ash.

At least seven truckloads of ash were hauled the eight miles from Glen Lyn to Cumberland Park on March 26. That was one day after Joe Ryder, environmental director of the Glen Lyn plant, showed reporters, photographers and videographers around the site, telling them it was ready to begin receiving ash.

Ellen Woodyard, vice president of the Concerned Citizens of Giles County, saw the dumping that first day and set the legal wheels in motion.

The grand jury could begin its work by the end of the month.