Judge to decide whether Santee Cooper pollution lawsuit proceeds

A state judge said Wednesday he will wait until after the Thanksgiving holiday to rule on whether a lawsuit pitting environmentalists against state-owned electric utility Santee Cooper will proceed.

A trio of environmental groups wants the utility to remove a pair of coal ash ponds at the Grainger Generating Station in Conway, saying the ponds are polluting groundwater and the adjacent Waccamaw River with arsenic and other contaminants. The groups – which are suing under the state’s Pollution Control Act – also want Santee Cooper to clean up groundwater around the idled coal-fired electric plant.

Santee Cooper asked Judge Larry Hyman to dismiss the case, saying a legislative amendment to the act now bans lawsuits filed by private individuals or groups.

Hyman said during a court hearing that he will give both sides until Nov. 26 to provide additional documents backing their arguments before making a ruling “as soon as possible thereafter.”

Santee Cooper lawyer Rush Smith III said the environmental groups waited too long to file their lawsuit. The Southern Environmental Law Center, which represents the groups, filed the lawsuit shortly after noon on June 6. Gov. Nikki Haley signed the amendment into law at about 5:15 p.m. that day. Smith said courts do not recognize fractions of days, therefore, the law was in effect for the entire day once Haley signed it.

Frank Holleman, a lawyer with the Southern Environmental Law Center, called Smith’s argument “fiction” and said the amendment specifically states that it takes effect upon Haley’s approval.

More important, Holleman said, is the amendment’s statement that a ban on future private lawsuits has no impact on private individuals’ rights to hold polluters liable for actions that occurred before the amendment was signed into law. Holleman said pollution at the Grainger plant has existed for decades before the June 6 amendment and private individuals affected by that pollution still have a right to sue.

Hyman questioned whether the legislature simply shifted the venue for such private complaints away from the courts and to the S.C. Department of Health and Environmental Control, which can take administrative action against polluters including fining them and forcing them to clean up contamination.

Hyman said allowing new lawsuits for actions that occurred before the amendment was signed could open the door to repeated court filings by different groups over the same pollution.

“My concern if we have a private right of redress in these environmental matters is I see no end to them – I see them going on forever, repeatedly,” Hyman said, asking Holleman at what point do the lawsuits end.

“It ends when the defendant stops violating the law,” Holleman said. “Our clients’ rights to protect the community from this pollution should not be erased.”

Although Santee Cooper denies the environmental groups’ allegations and a spokeswoman told The Sun News that the utility will “fully defend ourselves in the lawsuit,” the utility has not contested any of the claims made against it in court filings.

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.

High levels of arsenic and other contaminants are migrating from the 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 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, 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.