Listen to the latest Power of the Law Update, where SELC attorneys discuss the issues driving our work. In this update, Senior Attorney Frank Holleman goes behind the scenes of our coal ash work in South Carolina, where all major storage sites have a clean-up plan. Full text of the interview is below.
Senior Attorney Frank Holleman came to SELC in 2011. Today he is leading our efforts to clean up hundreds of millions of tons of toxic coal ash across our region, but back then, even he had no idea how extensive the problem was.
“I had probably heard about it,” recalls Holleman, “but I had no idea it was such a big deal until I saw what they were doing, and it seemed crazy, that it couldn’t possibly be true. But it is.”
The highly toxic ash sits mixed with water in wet, unlined lagoons next to nearly every major waterway in the Southeast. And the only thing holding back the toxic sludge: Mostly leaking, earthen dams.
“Coal ash, according to the EPA, is the source of about half of the toxic pollution of our rivers,” says Holleman, “and in the Southeast we have much more per capita than in other parts of the country.”
Those toxics are things like arsenic, selenium, and mercury—in incredibly high concentrations. And although the problem is still widespread in our region, there is one unequivocal success story: South Carolina, where a massive cleanup of the toxic ash is now underway.
But how did it happen? How did three powerful utilities commit to one of the biggest cleanups of toxic pollution in our region’s history? It began with another commitment, one right here at the Southern Environmental Law Center.
“A coal ash site in South Carolina was actually being litigated by private lawyers working on behalf of a local land owner,” Holleman remembers. “I noted that, and I knew the lawyers, and then about the same time the foundation that supports our work, EFA, put out a request for proposals to work on coal ash.
“And the combination of our work on the ground plus this proposal led us to actually address these sites one at a time, and not just focus entirely on national or state regulatory action: to try to enforce existing laws at the sites.”
The first of those actions came in the Catawba River basin, at the Wateree Station near Columbia, a power plant owned by South Carolina Electric and Gas, where SELC brought a state law cause of action, and won the initial legal skirmish.
“The utility agreed to clean up that site, and we settled eight months after filing a lawsuit,” Holleman says. “[They] agreed not only to clean it up, but to be bound to clean it up. To our knowledge that was the first enforcement action and agreement obtained by either private enforcers or government law enforcers to clean up a coal ash site like that in the Southeast.”
SELC then turned its attention to the other two utilities in the Carolinas: “We started researching both Duke and Santee-Cooper about the same time, but we took legal action first at the Santee-Cooper site near Conway,” Holleman remembers. “[It had] huge arsenic numbers. A state court judge agreed with our reading and rejected Santee-Cooper’s reading of the law, allowing our case to go forward.
“About a year after we got started we were able to sit down and negotiate, and Santee-Cooper reversed its position and agreed to clean up the ash, in part due to our litigation and in part due to the public pressure that arose once our litigation brought the situation to the public’s eyes.”
Both of those victories came before the February 2014 spill at a Duke Energy coal ash impoundment on the Dan River in North Carolina, but shortly afterwards SELC checked into the company’s coal ash lagoons in South Carolina—we had already begun our extensive work in North Carolina—and discovered how dangerous they were and how they were violating the law.
“So we went and met directly with the Director of South Carolina environmental agency,” recalls Holleman. “She almost immediately sent an inspector down there and found a large number of problems. Then we began following the process and critiquing many of Duke’s erroneous, mistaken, and inadequate reports they were providing to the state.
“And the state agency in South Carolina held their feet to the fire and, at the end of 2014, Duke announced they would clean up.”
That commitment came on the banks of the Saluda river, but in South Carolina, there was one more site to go, a coal ash lagoon on the banks of Lake Robinson that reportedly contained 660,000 tons of ash. In fact, the situation was much worse. SELC research uncovered nearly 4 million tons of ash at the site, and even more problems.
“Low-level nuclear waste had been dumped [there] over the years. [It] had extremely high arsenic numbers in the groundwater, and in 2015 Duke announced they would clean up that site by removing the ash to lined storage.
“So with that decision by Duke at Robinson, the utilities in South Carolina either are cleaning up or are committed to clean up every site where they store unlined coal ash near waterways in the state.”
That represents roughly 20 million tons of coal ash. “It was not going to happen without direct legal pressure,” Holleman says. "Somebody had to sue them to get started at least and, once the actual facts began to come out, the serious nature of the problem caught people’s attention, and this became a front-page story wherever it happened.”
Of course the success in South Carolina isn’t nearly the end of the story. Millions of tons of ash in North Carolina, Virginia, and Tennessee are the subject of additional SELC legal actions. And we’re looking at problems in Georgia and Alabama too.
But South Carolina’s success makes one thing perfectly clear: the utilities can clean up.
“These utilities are big engineering operations,” says Holleman. “The disadvantage is that when they are moving in a bad direction, it’s difficult to get them to change. But once they make the change and decide to move, they can get things done quickly.”
And, he adds, the cleanup in response to these law enforcement efforts is well underway. “SCE&G and Santee-Cooper are ahead of schedule, and ironically Duke, which had its coal ash spill in North Carolina, which was charged with crimes in North Carolina, has first begun moving ash in South Carolina, at the sites on the Saluda River.
“So in every sense of the word, South Carolina is leading the way compared to North Carolina, and for that matter, the rest of the region.”