While Henrico County and a landfill company continue sparring over a big pile of coal ash, a legal battle in Chesapeake over an even bigger pile of ash shows just how messy this stuff can be.

Here’s the situation in Henrico: A landfill off Darbytown Road has amassed approximately 150,000 tons of coal ash — a powdery byproduct from coal-burning power plants. East End Resource Recovery, which operates the landfill, says its permit allows it to use the ash as structural material to fill in the vast hole left while it digs out an old municipal dump. The county, however, says the landfill can’t do that.

Residents in Fulton and nearby neighborhoods report that the ash has been blowing from the pile and landing on their homes and vehicles. The ash isn’t legally considered to be hazardous waste, but is known to contain heavy metals such as arsenic, lead and mercury.

“So it’s not a hazardous waste, but it is a health hazard,” said Robert H. Witte Jr., vice chairman of the Henrico Board of Zoning Appeals, at an April 28 meeting where the board considered the matter of the landfill company’s permit.

“Water’s a health hazard if you stick your head in a bucket,” responded Timothy Hayes, a lawyer for the landfill company.

Henrico filed a motion for a preliminary injunction on April 28 which prohibits the landfill from bringing in any more ash, as well as tires. “They’ve told us that they’ve ceased bringing it in,” county attorney Benjamin Thorp says. The county also asked the court to order the landfill company to submit a plan for removing all coal ash, as well as tires, from the property by June 30.

In a separate legal complaint, the county lists the landfill company’s “continuing violations” of its use permit and alleges that “there is clearly observable harm” from the storage and use of coal ash on the property. In a response filed May 6, East End Resource Recovery issued a general denial of the county’s allegations and specifically denied that it’s causing observable harm.

Despite the legal back-and-forth, the landfill company has been agreeable to working with the county, Thorp says. The next steps will be hashed out in Circuit Court.

Trouble is, the ash continues to blow from the pile, a fact that Hayes, the landfill company’s attorney, doesn’t dispute. And no one’s really sure how dangerous that could be. Fugitive dust, as this is called, “seems to be a more and more common problem that people are talking about at different [coal ash disposal] sites,” says Lisa Evans, senior administrative counsel for Earthjustice, a nonprofit environmental law firm.

The Environmental Protection Agency only recently has begun to examine the issue. In June 2010, the agency said that blowing dust can violate the Clean Air Act.

“People have been complaining about it forever,” Evans says, but because they don’t have air-monitoring facilities at most coal-ash-disposal sites, environmental groups have focused more on the problem of groundwater contamination.

That’s the point of contention in Chesapeake, where residents are going to court over a heap of coal ash 10 times the size of the one in Henrico.

There, a 217-acre golf course was built atop 1.5 million tons of coal ash from a nearby Dominion Virginia Power plant. Dominion paid about $7 million — $4.50 per ton — to dispose of the ash, The Virginian-Pilot reported.

The water under the golf course is contaminated, according to a study released in March. Dominion has offered to pay $6 million to extend city water to homes near the golf course.

In 2009, about 450 people living near the Battlefield Golf Club at Centerville sued Dominion, the course developer and other companies for several hundred million dollars in damages. A Chesapeake judge dismissed 10 of the 12 accusations, but ruled that the others could proceed. The next hearing in the case is scheduled for May 25.

The plaintiffs estimate it would cost $75 million to remove the ash and fill the site with dirt, plus hundreds of millions more to pump and treat the groundwater in the aquifer.

The Chesapeake golf course and the Henrico landfill aren’t analogous situations. In marshy Chesapeake, for example, the water table is high, and no liners were used to separate the ash from manmade lakes because the golf course was considered a “beneficial use” of the ash. In Henrico, liners would be used above and below the ash, and two feet of topsoil would be on top, Hayes said at the recent hearing.

You don’t need to take extreme measures to dispose of ash safely, Evans says. A modern landfill can handle it, as long as it has a composite liner, a system to collect any liquids that leach out, and a groundwater monitoring system. Or, the ash can be combined with concrete and used for projects such as road building.

The EPA is weighing new rules that would require liners and groundwater monitoring at landfills containing coal ash. But it won’t adopt those rules this year, an agency spokesman says.

By 2015, Dominion hopes to open its own new coal-ash landfill in Chesterfield County, to accept the more than 600,000 tons its Chesterfield Power Station produces each year. S