Judge denies Santee Cooper’s request to dismiss Grainger pollution lawsuit

A judge has denied Santee Cooper’s request to dismiss a lawsuit over pollution at the Grainger Generating Station here, saying the pollution occurred before a new state law took effect this year banning lawsuits by private groups and individuals seeking to sue violators of the state’s Pollution Control Act.

The ruling by Judge Larry Hyman means the lawsuit will move forward. The Southern Environmental Law Center, which is representing a trio of private environmental groups in the lawsuit, is seeking to force state-owned utility Santee Cooper to remove a pair of coal ash ponds at the Grainger plant. The environmental groups say the ponds are leaking arsenic and other contaminants into nearby groundwater and present a threat to the adjacent Waccamaw River.

“This decision allows us to move forward to protect the Waccamaw River and Conway and to clean up illegal arsenic and coal ash pollution by Santee Cooper,” Frank Holleman, senior attorney at the SELC, said in a written statement. “This is a significant step towards removing and cleaning up this threat to coastal South Carolina and its environment.”

Santee Cooper spokeswoman Mollie Gore called the lawsuit “unnecessary and disruptive,” adding that the utility already had started reviewing proposals to close the ash ponds in accordance with environmental regulations when the SELC filed the lawsuit.

“There is a process already in place and they [SELC] were involved in it,” Gore said. “This lawsuit doesn’t serve any purpose other than to garner publicity for the plaintiffs.”

Gore said Santee Cooper continues to review alternatives for the ash ponds and the public will have an opportunity for input when a proposed solution goes before the S.C. Department of Health and Environmental Control for approval.

Holleman said the ruling means the SELC now will be able to review Santee Cooper’s internal documents, question its officials and collect additional evidence about the arsenic contamination.

The environmental groups filed their lawsuit against Santee Cooper on June 6, the same day Gov. Nikki Haley signed into law legislation that bars private individuals from suing over alleged violations of the S.C. Pollution Control Act. The legislation – sponsored by state Rep. Nelson Hardwick, R-Surfside Beach – states that only DHEC has the authority to prosecute violations of the act.

Santee Cooper lawyer Rush Smith III said during a hearing last month that the environmental groups are barred by the legislation Haley signed because their lawsuit was filed on the same day.

However, the legislation Haley signed included a “savings clause” that preserves the rights of private individuals and groups to sue for pollution that occurred prior to June 6. The ban on private lawsuits only takes effect for pollution that occurs after that date.

“The savings clause of the 2012 act expressly preserves rights, duties and liabilities as they existed when the 2012 act was passed,” Hyman stated in his order. “According to allegations of the complaint, the defendant [Santee Cooper] had polluted and was polluting in violation of the Pollution Control Act when the 2012 act was passed. Under the plain and unambiguous language of the savings clause of the 2012 act, the defendant’s motion to dismiss must be denied.”

Hyman’s decision was hailed by environmentalists who have worked to force utilities to safely remove coal ash ponds from nearby drinking water sources.

“Coal ash impoundments in the Southeast are long overdue for proper disposal and management of this toxic waste,” Ulla Reeves, regional program director of the Southern Alliance for Clean Energy, said in a statement. “We hope this decision will lead Santee Cooper to clean up its coal ash waste and legacy of arsenic and water pollution.”

Dana Beach, director of the S.C. Coastal Conservation League, said in a statement that Santee Cooper has a “responsibility to remove its toxic coal ash from Conway and safely dispose of it.”

“It is not acceptable for any corporation, public or private, to burden future citizens and taxpayers with this serious threat to public health and the environment,” Beach said.

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 the utility has not made a decision on what to do about the coal ash ponds. Santee Cooper announced Monday that the two units at the Grainger will be permanently shut down on Dec. 31. The Grainger plant has been idle since last spring. Santee Cooper’s board voted in October to shut down the plant after considering the cost of complying with more stringent environmental regulations.

The SELC filed a similar lawsuit against South Carolina Electric & Gas, which agreed last summer to remove 2.4 million tons of coal ash from its ponds on the Wateree River in lower Richland County.

High levels of arsenic and other contaminants have been migrating since at least the 1990s from the Grainger plant ponds into surrounding groundwater and the pollution could impact the adjacent Waccamaw River, according to the lawsuit, which was filed by the Winyah Riverkeepers Foundation Inc., the S.C. Coastal Conservation League and The Southern Alliance for Clean Energy.

Initial groundwater monitoring at the Grainger site included six wells and data was reported semi-annually to state regulators. Three of those 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.

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.

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.

Environmentalists say DHEC 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 has never obtained a permit for the arsenic groundwater discharges.

Holleman told The Sun News earlier this year that 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 river are low berms made of soft clay and silty soil. Those berms sometimes are submerged when the river’s water levels are high.

“It could compromise the drinking water intakes and perhaps interrupt water service for some extended period of time,” Holleman said, referring to the Waccamaw River’s status as one of the drinking water sources for the Grand Strand Water and Sewer Authority, which supplies drinking water to this area.

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.”

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.