CONWAY — A pair of unlined coal ash ponds adjacent to the Waccamaw River at Santee Cooper’s Grainger electric generating plant here are a disaster waiting to happen, and the state has been slow to do anything about them or the high levels of arsenic migrating from the ponds into surrounding groundwater, according to a trio of environmental groups that are suing the state-owned electric utility.

Santee Cooper spokeswoman Mollie Gore, however, said the utility does not consider the ponds a threat to the environment and the arsenic detected in groundwater has been contained to the Grainger site and does not pose a public health hazard. Gore said the state-owned utility has not made a final decision on what to do about the ponds and called the lawsuit “disappointing and very disruptive” to Santee Cooper’s ongoing work to find the best solution for the Grainger site, which shut down operations in May.

At the heart of the lawsuit is what environmentalists say is Santee Cooper’s plan to leave the coal ash ponds – which total about 82 acres, or more than three times the size of the lake at Broadway at the Beach – where they are and without any remediation into perpetuity. Gore said no final decision has been made.

Environmentalists say the S.C. Department of Health and Environmental Control has been slow to force Santee Cooper to clean up the pollution even though the state agency in charge of protecting the public’s health and environment has known about the arsenic contamination in groundwater for more than a decade.

DHEC also allowed the Grainger plant to operate for the past six years under an expired water discharge permit. State law allows industries and others to operate under expired environmental permits as long as a renewal application has been filed.

Santee Cooper filed its renewal application and the expired permit has stayed in effect while DHEC reviews the application. Frank Holleman, a lawyer with the Southern Environmental Law Center, said dragging that process out for six years means public notices that could have drawn attention to the environmental issues at Grainger never occurred.

Santee Cooper has never obtained a permit for the arsenic groundwater discharges.

“The main responsibility lies with the polluter,” said Holleman, who is representing the environmental groups in the legal action. “But if DHEC was doing everything it needed to do, private citizens wouldn’t have had to file this lawsuit.”

DHEC spokesman Mark Plowden, in a written statement, said the agency has been working with Santee Cooper since August 2009 to assess the contamination. Testing since then has “determined that the groundwater contamination is not adversely impacting the Waccamaw River water quality,” he said.

Ponds are a ‘significant threat’

Three groups – Winyah Riverkeepers Foundation Inc., the S.C. Coastal Conservation League and The Southern Alliance for Clean Energy – filed a lawsuit against Santee Cooper in June, asking a judge to find the utility in violation of the state’s Pollution Control Act. The groups want Santee Cooper to clean up the contaminated groundwater and move the ponds to a lined industrial waste landfill located away from the Waccamaw – which is a tidal river – and its flood plain. Such work could cost millions of dollars, but environmentalists say it would be cheaper than cleaning up a spill.

Santee Cooper has asked a judge to dismiss the lawsuit. No court date has been scheduled.

Holleman said the ponds could dump up to 650,000 tons – the equivalent of more than 30,000 double-axle dump truck loads – of coal ash into the Waccamaw River in the event of a hurricane, flood or other natural disaster. The only thing separating the ponds from the adjacent river are berms made of soft clay and silty soil.

“It could compromise the drinking water intakes and perhaps interrupt water service for some extended period of time,” Holleman said. “Recreational use of the river would be suspended for an extended period. The Grand Strand’s reputation as a tourist destination would take a severe hit. It is hard to promote an area as a beach and swimming destination when there are headlines about a coal ash spill.”

Holleman said the long-term biological impact on the river could be serious and difficult to predict, and the legal liability for the utility would be “staggering.”

“Also, it is important to remember that coal ash is loaded with heavy metals and toxins and carcinogens – including arsenic,” Holleman said. “They would be discharged all at once into the Waccamaw, along with the coal ash sludge itself. And the people of the area would be living in an environment where their major river system has been flooded with toxic carcinogens.”

Such a disaster would not be unprecedented. In late 2008, a dike at the Kingston Fossil Plant in Roane County, Tenn., ruptured and spilled 1.1 billion gallons of coal ash slurry into the Emory and Clinch rivers. The Tennessee Valley Authority will spend an estimated $1.2 billion to clean up the mess, which killed fish, destroyed homes and threatened drinking water.

Christine Ellis – the Waccamaw Riverkeeper, who advocates for protection of the river through the Winyah Rivers Foundation – said the TVA disaster focused her attention on the coal ash ponds at Grainger.

“Before that, I didn’t know too much about it,” Ellis said, adding that she started reviewing the generating plant’s environmental records at that point. Ellis said she now is convinced that the coal ash ponds represent an immediate threat to the Waccamaw River’s future as a recreational and economic asset.

There are at least 1,161 coal ash ponds nationwide, according to U.S. Environmental Protection Agency data, and nearly half of them – 535 – have no liners. Such liners help contain coal ash slurry within a pond and prevent migration to adjacent groundwater.

“We took this action because coal ash poses a significant threat to our rivers and the quality and health of our water,” Dana Beach, director of the Coastal Conservation League, said in a written statement. “We hope this complaint will lead to meaningful discussions with Santee Cooper and other utilities on alternative disposal of coal ash that has minimal impacts to our human and natural environment.”

Testing groundwater since 1994

DHEC first asked Santee Cooper to monitor the groundwater at its Grainger site in the early 1990s and the initial data was reported to state regulators in 1994, according to a March 4, 2010, memo from Santee Cooper Chief Executive Lonnie Carter to the utility’s board of directors.

Even before monitoring began, there were indications that pollution from the ash ponds could migrate to the river through groundwater.

“It is logical to assume that the groundwater flow direction of the shallow aquifer in this area would be from the ash ponds to the Waccamaw River,” Maxie Chaplin, Santee Cooper’s manager of performance and environmental services, wrote in a Feb. 28, 1991, letter to DHEC.

Chaplin told DHEC that the area around the ash ponds “would probably be considered wetlands” and that the berm separating the ponds from the river sometimes is partially submerged during high river flows.

The initial groundwater monitoring included six wells and data was reported semi-annually. Three of the wells consistently showed groundwater arsenic levels below the EPA’s maximum safe level of 10 parts per billion. However, the other three wells consistently showed arsenic levels ranging from less than 100 parts per billion to 900 parts per billion.

A part per billion is a tiny measurement that is equivalent to one penny in $10,000 or a pinch of salt in a 10-ton bag of potato chips.

Arsenic is a colorless and tasteless metal that occurs naturally in soil and from the coal-burning activity that fueled the Grainger plant. Long-term exposure to arsenic has been linked to several types of cancers.

DHEC hydrogeologist Stacey Adams told Santee Cooper in a Feb. 9, 2009, letter that the groundwater contamination put the utility in violation of the state’s Pollution Control Act. Federal regulations call for groundwater to be cleaned to drinking water standards, even if the groundwater is not a drinking water source, and the Grainger tests showed arsenic levels that far exceeded those standards.

“At this time, the department requests the [Grainger] facility submit a proposal for work to stabilize the situation or a corrective action plan for the remediation of arsenic contaminated groundwater at the site,” Adams told Santee Cooper in the letter.

Santee Cooper has yet to submit a remediation plan, but it did submit plans for additional testing in August 2009. DHEC never formally cited Santee Cooper for violating the S.C. Pollution Control Act and has not taken any enforcement action against the utility.

Carter, in his 2010 memo to the utility’s board of directors, called a groundwater cleanup “somewhat unrealistic.”

“DHEC could choose to call this a violation, even with the somewhat unrealistic expectation of meeting drinking water standards under an impoundment [coal ash pond] that was designed in the 1960s without the benefit of post-1990s liner technology,” Carter said in the memo.

The additional wells installed in 2009 showed even higher levels of arsenic in the groundwater – up to 2,112 parts per billion, or more than 200 times the federal government’s drinking water standard.

Ellis said water quality monitoring by a volunteer group at Coastal Carolina University indicates nearby groundwater is increasingly feeding the Waccamaw River. The volunteer testing measures conductivity – water’s ability to conduct an electric current – but does not specifically identify arsenic or other contaminants. The higher conductivity levels recorded in recent years, during which drought conditions have existed, indicate more groundwater presence in the river. Groundwater often has salts and other chemicals that can increase conductivity. Higher conductivity levels also can be caused by pollution.

Too early to talk about solution

DHEC in 2009 also asked Santee Cooper to take water samples from the Waccamaw River to see if arsenic had made its way there from the coal ash ponds.

Most of those surface water tests showed levels below the EPA’s maximum safe point of 10 parts per billion.

A few of the tests, however, showed arsenic levels approaching 10 parts per billion and one – taken on Oct. 21, 2010 – came in at 11 parts per billion.

“The Waccamaw is a big river, and a tidal one, and its waters can dilute arsenic while still moving it through the aquatic system,” Holleman said. “So, the fact that arsenic was detected in the river water at all is significant.”

Holleman said the utility should have been testing the river’s sediment because arsenic is heavier than water and tends to bond to sediment deposits.

DHEC’s Adams, in an April 21, 2011, email to Santee Cooper, said she thinks “it would be a good idea to go ahead and collect sediment samples,” but the utility apparently was never required to do so.

In an internal Santee Cooper memo last year, the utility reported that “DHEC verbally, and then in an e-mail, requested sediment sampling in the Waccamaw River near the [Grainger] station.”

The memo concludes: “To date, no action has been taken and DHEC has not provided any specific guidance or a schedule to complete this.”

DHEC’s Plowden, in the written statement, said Santee Cooper conducted a fish tissue study in 2011 to determine whether arsenic had damaged fish in the Waccamaw River.

“There was no arsenic detected in any of the fish sampled,” Plowden said. However, other contaminants in the river have led DHEC to issue advisories for many types of fish found in the Waccamaw River, with the agency recommending consumption of no more than eight ounces per week.

“Groundwater and surface water monitoring are continuing at the site while remedial alternatives are being evaluated to address both the groundwater contamination and the source of the arsenic.”

Ellis said DHEC “has not gone far enough in terms of requiring some type of corrective action” at the Grainger facility.

“There’s more that needs to be done to remediate the contamination and threat to the river,” she said.

Gore, Santee Cooper’s spokeswoman, said the utility is fulfilling all of DHEC’s requirements and a final plan to address the coal ash ponds and groundwater contamination is in the works.

“The ultimate plan will be the subject of technical analysis,” she said, adding that since Grainger is idled, the property “is in a holding pattern until we decide.”

“It’s way too early to say what we’re going to do,” she said.

Gore said testing since the 1990s has shown the contamination has not left the Grainger property, there are no drinking water wells in the vicinity and the arsenic does not represent a health danger.

“Everything is showing the situation has been stable since we sank the wells nearly two decades ago,” she said.

Some tests, however, have shown increases in arsenic levels. One well, for example, recorded arsenic at 926 parts per billion in October 2010 and 2,112 parts per billion six months later.

Fred Richardson – executive director of the Grand Strand Water and Sewer Authority, which uses the Waccamaw River for one of its drinking water sources – said the authority does not test the river water for arsenic or other chemicals prior to treatment. The authority pays DHEC to test the drinking water after it has been treated and no arsenic has been detected in any of those tests.

Legislation could thwart lawsuit

Although Santee Cooper denies the environmental groups’ allegations and Gore said the utility will “fully defend ourselves in the lawsuit,” the utility has not contested any of the claims made against it in the utility’s court filings.

Instead, Santee Cooper wants a judge to dismiss the lawsuit under terms of an amendment the state legislature approved this year, which bans private citizens from filing actions under the S.C. Pollution Control Act. The legislature took that action after a state Supreme Court ruling in 2011 opened the door to what lawmakers said were sometimes frivolous lawsuits by people looking to collect monetary damages from developers.

State Rep. Nelson Hardwick, R-Surfside Beach, was the proposal’s primary sponsor. He told The Sun News earlier this year that DHEC is the only entity that should be allowed to file actions under the state’s Pollution Control Act.

Santee Cooper, in its motion for a dismissal, said the environmental groups filed their lawsuit after the new legislation took effect. Holleman said the groups filed the lawsuit on the same day that Gov. Nikki Haley signed the proposal into law, but the paperwork was filed prior to her signature.

Santee Cooper lawyer Rush Smith III said in court documents that the actual moment Haley signed the legislation “is immaterial” because state law does not recognize fractions of days. Haley’s signature on June 6 means the law took effect the first minute of that day, Smith said, adding that a court ruling to the contrary “would reward a race to the courthouse.”

Holleman said Santee Cooper’s motion “is not a serious legal obstacle” and that he will file a response to the motion. In addition to forcing the removal of the ash ponds and cleanup of the groundwater, the environmental groups want Santee Cooper to pay the costs of the litigation.

To Ellis, the legal maneuvering is secondary to the environmental groups’ main goal – protecting the Waccamaw River, and the community’s continued use of that asset, from an ongoing environmental threat.

“Nobody should have the right to pollute that public resource,” Ellis said. “The Waccamaw River is a defining feature for our community – it’s a recreation source, a habitat source and a drinking water source. It contributes to our quality of life and the economy of our community. To have it sullied doesn’t make sense.”

Contact DAVID WREN at 626-0281.