Richland County Court Rules Against DHEC, Allowing Coal Ash Lawsuit to Proceed

A Richland County court has ruled that conservation groups represented by the Southern Environmental Law Center may go forward with a lawsuit challenging the South Carolina Department of Health and Environmental Control (DHEC)’s refusal to take action on a permit to control discharges from coal ash lagoons at Santee Cooper’s Grainger Generating Station in Conway.

The Waccamaw Riverkeeper and Southern Alliance for Clean Energy filed the suit in response to DHEC’s special treatment of Santee Cooper that has protected Santee Cooper from new pollution treatments. Santee Cooper’s Grainger permit was issued in 2002, over a decade ago, and expired over six years ago.  DHEC has refused to take action on a new permit, instead letting Santee Cooper continue to operate under the expired, outdated permit. To make matters worse, DHEC actually drafted a new permit with more stringent limits for arsenic, mercury, and copper, but deferred to Santee Cooper and never issued it.

Under the Clean Water Act, discharge permits must be reissued every five years to ensure up-to-date standards and pollution controls, and to allow the public to review, comment upon, and contest permits when they are issued.  By refusing to act, DHEC has shut the public out of this process.

The groups asked the court to order DHEC to do its job and take action on the permit.  When the suit was filed, it emerged that DHEC had more than 500 of these expired permits on the books.  DHEC director Catherine Templeton was quoted as saying the permit backlog was “absolutely unacceptable.”  But in court, DHEC took the opposite position: it moved to dismiss the case, saying it had no intention of issuing the permit and arguing it had no enforceable duty to act.

Judge Allison Lee of the Richland County Superior Court denied DHEC’s motion to dismiss the case. The conservation groups can now move forward with questioning DHEC officials under oath about why they have not acted.

Santee Cooper stores hundreds of thousands of tons of coal ash in old unlined lagoons in wetlands on the banks of the Waccamaw River in Conway, upstream from drinking water intakes and the Waccamaw National Wildlife Refuge.  DHEC and Santee Cooper have known for years that the lagoons are polluting the Waccamaw and groundwater with arsenic, as well as mercury, copper, and other pollutants.  The conservation groups and the Southern Environmental Law Center have also filed a separate suit against Santee Cooper challenging additional unpermitted discharges of arsenic and other pollutants into the groundwater at the Grainger site.  Santee Cooper moved to dismiss that suit but an Horry County judge ruled against Santee Cooper in December, allowing that suit to proceed.