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Enclosure
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S OUTHERN ENVIRONMENTAL LAW CENTERTelephone 843-720-5270 43 BROAD STREET. SUITE 300
CHARLESTON. Sc 29401-3051Facsimile 843-720-5240
June 5, 2012
VIA HAND DELIVERY
Ms. Melanic Huggins-WardClerk of CourtHorry County Court ofCommon Pleas1301 Second AvenueConway, SC 29526
Re: Winyah Rivers Foundation, Inc., d/b/a Waccamaw Riverkeeper, South CarolinaCoastal Conservation League, and the Southern Alliance for Clean Energy v.South Carolina Public Service Authority
Dear Ms. Huggins-Ward:
Please find enclosed for filing the original of:
1. Complaint;2. Civil Action Cover Sheet;3. Summonses;4. Filing fee of $ 150 in the form of a company check.
I have also included three (3) copies of the complaint and civil action cover sheet. Pleasefile-stamp these copies and return each, along with the original summonses, to me so that I mayserve it upon the defendant.
Thank you for your assistance. Please do not hesitate to contact me if you have anyquestions regarding this filing.
Very truly yours,
J. Blanding Ho an, Esq.
Enclosure
Charlottesville ~ Chapel Hill ~ Atlanta ~ Asheville ~ Birmingham Charleston ~ Nashville ~ Richmond ~ Washington, DC
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CIVIL ACTION COVERSHEET
IN THE COURT OF COMMON PLEAS
Plaintiffs
vs.
COUNTY OF HORRY
STATE OF soum CAROLINA
WINYAH RIVERS FOUNDATION, INC., d/blaWACCAMAW RIVERKEEPER, SOUTH CAROLINACOASTAL CONSERVAnON LEAGUE, AND THESOUTHERN ALLIANCE FOR CLEAN ENERGY,
SOUTH CAROLINA PUBLIC SERVICEAUITHORITY
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SC Bar #: 9805 "eSubmitted By: J. Blanding Holman IV Telephone #: 843-720-5270 o-;zAddress: Southern Environmental Law Center Fax #: 843-720-5240 35t.?.-\:::43 Broad Street, Suite 300 Other: "P"
Charleston, SC 29401 E-mail: [email protected]~'-NOTE: The cover sheet and information contained herein neither replaces nor supplements the filing and service of pleadings or other papersas required by law. This form is required for the use of the Clerk of Court for the purpose ofdocketing. It must be filled out completely,signed, and dated. A copY of this cover sheet must be served on the defendant(s) along with the Summons and Complaint.
))))))))))))))))))))
Defendant. )---------~---_-:::...:==::..::.:.-
DOCKETING INFORMATION (Check all that apply)*IfAction is Judgment/Settlement do not complete
181 JURy TRIAL demanded in complaint. 0 NON..JURY TRIAL demanded in complaint.o This case is subject to ARBITRATION pursuant to the Court Annexed Alternative Dispute Resolution Rules.o This case is subject to MEDIATION pursuant to the Court Annexed Alternative Dispute Resolution Rules,181 This case is exempt from ADR. (Proof of ADR/Exemption Attached)
NATURE OF ACTION (Check One Box Below)
Special/Complex /OtberI8l Environmental (600) 0 Pharmaceuticals (630)o Automobile Arb, (610) 0 Unfair Trade Practices (640)
o Medical (620) 0 Out-of State Depositions (650)o Other (699) 0 Motion to Quash Subpoena in
an Out-of-County Action (660)o Sexual Predator (510)
o Other (999)
Public Service Commission(990)Employment Security Comm (991)
Contractso Constructions (l (0)
o Debt Collection (110)o Employment (120)
o General (130)o Breach ofContract (140)
o Other (199)
Inmate Pe1itionso PCR(500)o Mandamus (520)o Habeas Corpus (530)
o Other (599)
Torts - Professional Malpractice Torts - Personal Injury
0 Dental Malpractice (200) 0 AssaultlSlanderlLibel (300)
0 Legal Malpractice (210) 0 Conversion (310)
0 Medical Malpractice (220) 0 Motor Vehicle Accidmt (320)Previous Notice oflntent Case # 0 Premises Liability (330)20_-CP-__ 0 Products Liability (340)
0 Notice/ File Med Mal (230) 0 Personal Injury (350)
0 Other (299) 0 Wrongful Death (360)0 Other (399)
JudgmentslSettlements Administrative LawlRelief
0 Death Settlement (700) 0 Reinstate Driver's License (800)
0 Foreign Judgment (710) 0 Judicial Review (810)
0 Magistrate's Judgment (720) 0 Relief (820)
0 Minor Settlement (730) 0 Permanent Injunction (830)
0 Transcript Judgment (740) 0 Forfeiture-Petition (840)
0 Lis Pendens (750) 0 Forfeiture--Consent Order (850)
0 Transfer of Structured 0 Other (899)Settlement Payment RightsApplication (760)
0 Other (799)
Real Property
o Claim & Delivery (400)o Condemnation (410)o Foreclosure (420)o Mechanic's Lien (430)
o Partition (440)o Possession (450)o Building Code Violation (460)o Other (499)
Appealso Arbitration (900)
o Magistrate-Civil (910)
o Magistrate-eriminal (920)o Municipal (930)o Probate Court (940)o SCOOT (950)o Worker's Comp (960)
o Zoning Board (970)
oo
Submitting Party Signature: P4'!jASCCA / 234 (01/2011) P
Date: Jvse ~ '(to\1-
STATE OF SOUTH CAROLINA
COUNTY OF HORRYIN THE COURT OF COMMON PLEAS
WINYAH RIVERS FOUNDATION, INC., d/b/aWACCAMAW RIVERKEEPER, SOUTH CAROLINACOASTAL CONSERVATION LEAGUE, AND THESOUTHERN ALLIANCE FOR CLEAN ENERGY,
CIVIL ACTION COVERSHEET
vs.
ri i iiis i Qoc))
SOUTH CAROLINA PUBLIC SERVICEAUITHORITY
))))
Defendant. )1
cy
DOCKETING IN FORMATION (Check all the apply)'If Action is Judgment(Serllenmnr do nol comp/a/e
H JURY TRIAL demanded in complaint. P NONARY TRIAL demanded in complaint.This case is subject to ARBITRATION pursuant to the Court Annexed Alternative Dispute Resolution Rules.This case is subject to MEDIATION pursuant to the Court Annexed Alternative Dispute Resolution Rules.
H This case is exem t from ADR. Proof of ADR/Exam tion Attached
~ rl 5
SC Bar ¹: 9805Submitted By: J. Blanding Holman IV Telephone ¹: 843-720-5270Address: Southern Environmental Law Center Fax ¹: 843-720-5240 C c/r
43 Broad Street, Suite 300 Other:Charleston, SC 29401 E-mall: [email protected] cnNOTE: Thc cover sheet and information contained herein neither replaces aor supplements the filing snd service of pleadings or other papersas required by law. This form is required for the use of the Clerk of Court for the purpose of docketing. It must be fined out completely,si ned anddated. Aco ofthiscoversheetmustbeservedontbedefendan s alon withthcSummonsand Cpm laint.
CI00C]I3CI
ContractsConstructions (100)Debt Collection 010)Employment (120)
General(130)Breach of Contract (140)Other (199)
~Ansn or Acrros~cl kc B r i
Torte - Professional Malpractice Torte — Personal InjuryI3 Dental Malpractice (200) Q Assault/Slander/Libel (300)C) Legal Malpractice (210) Q Conversion (310)
Q Medical Malpractice (220) 0 Motor Vehide Accidmt (320)Previous Notice of intent Case ¹ 0 Premises Liability (330)
Cl Pmducts Liability (340)Notice/ File Med Mal (230) Cl Personal Injury (350)
P Other (299) C] Wrongful Death (360)0 Other (399)
Real PropertyQ Claim dr Delivery(400)
(3 Condemnation (410)
P Foreclosure (420)
Cj Mechanic's Lien (430)Partition (440)
P Possession (450)
C) Building Code Violation (460)(3 Other (499)
Inmate Petitions
0 pcR (soo)(j Mandamus (520)
0 Habeas Corpus (530)
C) Other (599)
HI300
Judgments/SettlemeutsC) Death Settlement (700)
C) Foreign Judgment(710)
Q Magistrate's Judgment (720)
Q Minor Settlement(730)
0 Transcript Judgment(740)C] Lis Pendens (750)
(3 Transfer of StrucanedScttlemcnt Payment RightsApplication (760)
(-l Od m (799)
Special/Complex liytherEnvimnmental (600) Q Phsnnaceuticals (630)Automobile Arb. (610) Q Unfair Trade Practices (640)Medical (620) P Out-of State Depositions (650)Other (699) 0 Motion to Quash Subpoena in
an Out-of-County Action (660)Sexual Predator (5 10)
00000C]0
Administrative Law/ReliefReinstate Driver's License (800)Judicial Review (810)Relief (820)Permanent Injunction (830)Forfeiture-Petition (840)Forfeiture—Consent Order (850)
Other (899)
Appeals
C) Arbitratioe (900)
P Magistrate.Civil (910)
P MagistrstoCrtminal (920)
C) Municipal (930)
C) Probate Court (940)
Q SCDOT (950)
(j Worker's Comp (960)
Q Zoning Bond (970)
Q Public Service Commission(990)
C] Employment Security Comm (991)
P Other (999)
Submitting Party Signature:
SCCA / 234 (01/2011)
nate: g~
Note: Frivolous civil proceedings may be subject to sanctions pursuant to SCRCP, Rule 11, and the South Carolina FrivolousCivil Proceedings Sanctions Act, S.C. Code Ann. tj15-36-10 et. seq.
SCCA / 234 (01/2011)
.
h. Cases that have been previously subjected to an ADR conference, unless otherwise required byRule 3 or by statute.
5. In cases not subject to ADR, the ChiefJudge for Administrative Purposes, upon the motion of the court orof any party, may order a case to mediation.
6. Motion ofa party to be exempt from payment of neutral fees due to indigency should be filed with theCourt within ten (10) days after the ADR conference has been concluded.
Please Note: You must comply with the Supreme Court Rules regarding ADR.Failure to do so may affect your case or may result in sanctions.
SCCA / 234 (01/2011)
FOR ~ATED ADR COUNTIES ONLYAllendale, Anderson, Beaufort, Clarendon, Colleton, Florence, Greenville, Hampton, Horry,
Jasper, Lee, Lexington, Pickens (Family Court Only), Richland, Sumter, Union, Williamsburg, and York
SUPREME COURT RULES REQUIRE THE SUBMISSION OF ALL CIVIL CASES TO AN ALTERNATIVEDISPUTE RESOLUTION PROCESS, UNLESS OTHERWISE EXEMPT.
You are required to take the following action(s):
1. The parties shall select a neutral and file a "ProofofADR" form on or by the 210" day of the filing of thisaction. If the parties have not selected a neutral within 210 days, the Clerk ofCourt shall then appoint aprimary and secondary mediator from the current roster on a rotating basis Irom among those mediatorsagreeing to accept cases in the county in which the action has been filed.
2. The initial ADR conference must be held within 300 days after the filing of the action.
3. Pre-suit medical malpractice mediations required by S.C. Code $ 15-79-125 shall be held not later than 120days a0er all defendants are served with the "Notice of Intent to File Suit" or as the court directs. (Medicalmalpractice mediation is mandatory statewide.)
4. Cases are exempt Irom ADR only upon the following grounds:
a. Special proceeding, or actions seeking extraordinary relief such as mandamus, habeas corpus, orprohibition;
b. Requests for temporary relief;
c. Appeals
d. Post Conviction relief matters;
e. Contempt of Court proceedings;
f. Forfeiture proceedings brought by governmental entities;
g. Mortgage foreclosures; and-
h. Cases that have been previously subjected to an ADR conference, unless otherwise required byRule 3 or by statute.
5. In cases not subject to ADR, the ChiefJudge for Administrative Purposes, upon the motion of the court orof any party, may order a case to mediation.
6. Motion ofa party to be exempt Irom payment of neutral fees due to indigency should be filed with theCourt within ten (10) days after the ADR conference has been concluded.
Please Note: Yuu must comply with the Supreme Court Rules regarding ADR.Failure to do so may affect your case or may result in sanctions.
SCCA / 234 (01/2011)
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SUMMONS
C.A.No.:
20 \2 -G~-l1R- ~~Ct').
YOU ARE HEREBY SUMMONED and required to answer the complaint herein, a copyof which is herewith served upon you, and to serve a copy of your answer to thiscomplaint upon the subscriber, at the address shown below, within thirty (30) days afterservice hereof, exclusive of the day of such service, and ifyou fail to answer thecomplaint, judgment by default will be rendered against you for the relief demanded inthe complaint.
Charleston, South Carolina
Dated:~, 2012Address: Southern Environmental Law Center
43 Broad Street, Suite 300Charleston, SC 29401
IN THE COURT OF COMMON PLEASSTATE OF SOUTH CAROLINA
HORRY COUNTY
WINYAH RIVERS FOUNDATION, INC.,d/b/a WACCAMAW RIVERKEEPER,SOUTH CAROLINA COASTALCONSERVATION LEAGUE, AND THESOUTHERN ALLIANCE FOR CLEANENERGY,
Plaintiffs,SUMMONS
C.A. No.:
SOUTH CAROLINA PUBLIC SERVICEAUTHORITY,
Defendant.
TO THE DEFENDANT ABOVE-NAMED:
YOU ARE HEREBY SUMMONED and required to answer the complaint herein, a copyof which is herewith served upon you, and to serve a copy of your answer to thiscomplaint upon the subscriber, at the address shown below, within thirty (30) days afterservice hereof, exclusive of the day of such service, and if you fail to answer thecomplaint, judgment by default will be rendered against you for the relief demanded inthe complaint.
Charleston, South Carolina
Dated: ~(ii 5, 2012Address: Southern Environmental Law Center
43 Broad Street, Suite 300Charleston, SC 29401
2012-CP-~V- 4.4;(02
NATURE OF THE CASE
1. This action challenges ongoing unlawful discharges of arsenic and other
contaminants into waters of South Carolina without a permit by Defendant South
Carolina Public Service Authority ("SCPSA"), in violation of the South Carolina
Pollution Control Act, codified as S.C. Code § 48-1-10 et seq. This action also
challenges SCPSA's denial of the people of South Carolina and Horry County of their
legally-guaranteed rights to participate in governmental decisions that apply to polluters,
like the SCPSA, who pollute South Carolina's waters, groundwater, and environment.
2. Defendant SCPSA is engaged in the generation, transmission, distribution,
and sale of electricity. SCPSA is a state agency with its headquarters in Moncks Comer,
1
IN THE COURT OF COMMON PLEASSTATE OF SOUTH CAROLINA
HORRY COUNTY
WINYAH RIVERS FOUNDATION, INC.,d/b/a WACCAMAW RIVERKEEPER,SOUTH CAROLINA COASTALCONSERVATION LEAGUE, AND THESOUTHERN ALLIANCE FOR CLEANENERGY,
Plaintiffs,
SOUTH CAROLINA PUBLIC SERVICEAUTHORITY,
Defendant.
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COMPLAINT(JURY TRIAL DEMANDED)
C.A. No.: 2012-CP-QQ
NATURE OF THE CASE
1. This action challenges ongoing unlawful discharges of arsenic and other
contaminants into waters of South Carolina without a petmit by Defendant South
Carolina Public Service Authority ("SCPSA"), in violation of the South Carolina
Pollution Control Act, codified as S,C. Code $ 48-1-10 et seq. This action also
challenges SCPSA's denial of the people of South Carolina and Horry County of their
legally-guaranteed rights to participate in governmental decisions that apply to polluters,
like the SCPSA, who pollute South Carolina's waters, groundwater, and environment.
2. Defendant SCPSA is engaged in the generation, transmission, distribution,
and sale of electricity. SCPSA is a state agency with its headquarters in Moncks Corner,
ot man-made disaster, accident, or other failure
of the impoundments would result in a catastrophic discharge oftons of coal ash into the
Waccamaw River.
2
South Carolina. In 1966, SCP SA began operating the Grainger Station coal-fired
electricity generating plant in Conway in Horry County, S C.
3. For decades, SCPSA has been polluting the waters, groundwater, and
enviromnent of South Carolina and Horry County by discharging large quantities of
arsenic and other pollutants Irom coal ash impoundments located on the banks of the
Waccamaw River at the Grainger Station in Conway in Horry County, South Carolina.
These impoundments are unlined, they are surrounded by wetlands, the coal ash is stored
in a wet condition, and the hnpoundments contain approximately 650,000 tons of coal
4. Arsenic is a highly toxic substance and a known carcinogen.
5. SCPSA's coal ash impoundments are located in a populated area and in an
area that is used for recreation and fishing by many residents and visitors. The coal ash
impoundments are also located upstream of intakes for public drinking water and
upstream of the Waccamaw National Wildlife Refuge. The waters that flow Irom,
through, beneath, and beside the coal ash impoundments flow into Winyah Bay.
6. SCPSA's coal ash impoundments are located dangerously close to the
Waccamaw River on its banks, and when the water is high, the river partially submerges
the dikes. The dikes for the coal ash impoundments contain silty soil and sofl clays, and
the groundwater is located as little as five feet below the dike surface. In an earthquake,
soils in the dams may liquefy. A natural or man-made disaster, accident, or other failure
of the impoundments would result in a catastrophic discharge of tons of coal ash into the
Waccamaw River,
7. South Carolina's Pollution Control Act ("PCA") bars polluters &om
contaminating the waters, groundwater, and environment of South Carolina without a
permit issued by the South Carolina Department ofHealth and Environmental Control
("DHEC"). The PCA thereby ensures that polluters who would contaminate the
environment must first obtain a permit that includes conditions and terms set by DHEC.
Further, the PCA ensures that people affected by the pollution, people who live near it,
and the public of South Carolina will have an opportunity to participate in the decision
whether their environment will be polluted and under what conditions. The PCA affords
these rights to the public through its permit requirement, the process for which includes
public comment, public hearings, and judicial review.
8. SCPSA is a state agency. SCPSA has never obtained a permit for its
arsenic pollution of the groundwater and thereby the Waccamaw River. SCPSA thereby
is and has been violating South Carolina state law, specifically South Carolina's Pollution
Control Act. By never applying for a permit for its ongoing pollution of South Carolina's
waters, groundwater, and environment, SCPSA has avoided public knowledge and
examination of its pollution and has denied the public of South Carolina and Horry
County an opportunity to comment and to be heard regarding the pollution of their
environment by SCPSA, a state agency. By not seeking a permit as required by South
Carolina law, SCPSA closed out of the process the people who live near the coal ash
impoundments and near the Waccamaw River, the people of Conway and Horry County,
the people of South Carolina, the Plaintiffs, and their members. Thus, it has blocked
public comment, public hearings, and judicial review of the terms of a permit regarding
the continuing pollution by SCPSA.
and notified SCPSA in writing that SCPSA is
violating the South Carolina Pollution Control Act because ofits unpermitted arsenic
pollution of South Carolina' environment from its coal ash impoundments at the Grainger
Station.
12. Yet to date, SCPSA has done nothing to stop its serious and continuing
arsenic pollution of South Carolina's environment. It has not removed the coal ash from
the unlined impoundments on the Waccamaw River but instead has left the coal ash in
place, has added additional coal ash, and has knowingly continued to pollute the
environment of South Carolina and Horry County with arsenic and other pollutants.
13. Because it has no permit, SCPSA continues to violate the PCA by
discharging arsenic and other contaminants from its unlined coal ash impoundments into
the groundwater and the Waccamaw River without a permit as required by the PCA, and
the public has been shut out of the process.
14. SCPSA has idled the Grainger Station. It has begun to formulate plans to
leave the unlined coal ash impoundments-located among wetlands on the Waccamaw
River and separated from the River only by earthen berms-in place forever and in
perpetuity, continuing to pollute the environment of South Carolina and Horry County on
4
9. At least since the mid 1990s, SCPSA has known that it has been and is
polluting the environment of South Carolina and Horry County with arsenic and other
contaminants from its coal ash impoundments at Grainger Station.
10. At least since 2000, DHEC has urged SCPSA to address its arsenic
pollution.
11. In 2009, DHEC determined and notified SCPSA in writing that SCPSA is
violating the South Carolina Pollution Control Act because of its unpermitted arsenic
pollution of South Carolina'nvironment from its coal ash impoundments at the Grainger
Station.
12. Yet to date, SCPSA has done nothing to stop its serious and continuing
arsenic pollution of South Carolina's environment. It has not removed the coal ash from
the unlined impoundments on the Waccamaw River but instead has left the coal ash in
place, has added additional coal ash, and has knowingly continued to pollute the
environment of South Carolina and Horry County with arsenic and other pollutants.
13. Because it has no permit, SCPSA continues to violate the PCA by
discharging arsenic and other contaminants from its unlined coal ash impoundments into
the groundwater and the Waccamaw River without a permit as required by the PCA, and
the public has been shut out of the process.
14. SCP SA has idled the Grainger Station. It has begun to formulate plans to
leave the unlined coal ash impoundments—located among wetlands on the Waccamaw
River and separated from the River only by earthen berms—in place forever and in
perpetuity, continuing to pollute the environment of South Carolina and Horry County on
an ongoing basis, and risking a catastrophic failure that would spill hundreds of
thousands of tons of toxic coal ash into the Waccamaw River.
JURISDICTION AND VENUE
15. The Grainger Station, its coal ash impoundments, and their pollution are
present in Horry County, and this Complaint states violations of South Carolina law by
SCPSA. This Court therefore has jurisdiction over this action and jurisdiction over the
parties. The Plaintiffs have the right to bring this action for declaratory and injunctive
reliefunder Section 48-1-250 of the PCA. See Georgetown Cnty. League of Women
Voters v. Smith Land Co., 713 S.E.2d 287, 289-90 (S.C. 2011).
16. Venue is proper in this Court pursuant to S.C. Code Ann. tj 15-77-50.
The Plaintiffs and Their Members
17. PlaintiffWinyah Rivers Foundation, Inc., d/b/a the Waccamaw
Riverkeeper (the "Foundation") is a tj 501(c)(3) non-profit public interest organization
operating in South Carolina. Its mission is "to protect, preserve, monitor, and revitalize
the health of the lands and waters of the greater Winyah Bay watershed." It is a
grassroots organization whose members support the mission ofprotecting the rivers in the
greater watershed that empties into Winyah Bay at Georgetown including the Waccamaw
River.
18. The Foundation's Waccamaw Riverkeeper program educates and
advocates for the protection of the Waccamaw River watershed in South and North
Carolina.
19. The Foundation, through its Waccamaw Riverkeeper, works to improve
water quality through monitoring and conservation advocacy, and works to increase
I'
South Carolina communities by working with individuals, businesses, and government to
ensure balanced solutions to environmental problems. Protecting waters, rivers, wetlands
and aquatic habitat in the Lowcountry of South Carolina has been an important goal of
the League since its establishment. The League works in and has members in Horry
County, the Waccamaw River watershed, and the Winyah Bay watershed.
21. The Southern Alliance for Clean Energy ("SACE") has been a leading
voice for energy policy to protect the quality oflife and treasured places in the Southeast,
including South Carolina, since 1985. SACE works to minimize the impact ofthe energy
sector on the Southeast's communities, natural resources, and economies. SACE works
6
public awareness through education and partnerships with other community and
conservation groups. The Foundation comments on permits, regulatory proposals, and
government actions that affect the Waccamaw River watershed. Such couunents are an
essential part of the Foundation's work and an important way that it carries out its
mission. The Foundation thereby expresses the views of its members, Board, and staff,
and also shares its expert knowledge and experience with the government agencies and
applicants seeking permits or other govemrnental authorization or benefits. The
Foundation's members also participate in this way, and the Foundation encourages its
members to do so.
20. Plaintiff South Carolina Coastal Conservation League ("League") is a not-
for-profit corporation founded in 1989. The League is incorporated under the laws of
South Carolina, maintains its headquarters office in Charleston, South Carolina, and
currently has approximately 5,000 members. Its mission is to protect the natural
environtnent of the South Carolina coastal plain and to enhance the quality of life of
South Carolina communities by working with individuals, businesses, and government to
ensure balanced solutions to environmental problems. Protecting waters, rivers, wetlands
and aquatic habitat in the Lowcountry of South Carolina has been an Important goal of
the League since its establislunent. The League works in and has members in Hurry
County, the Waccamaw River watershed, and the Winyah Bay watershed.
21. The Southern Alliance for Clean Energy ("SACE") has been a leading
voice for energy policy to protect the quality of life and treasured places in the Southeast,
including South Carolina, since 1985. SACE works to minimize the impact of the energy
sector on the Southeast's communities, natural resources, and economies. SACE works
to support clean energy, air, water, and safe communities. SACE has an office in
Charleston, South Carolina, and works on energy issues in South Carolina, including the
South Carolina Lowcountry.
22. The Foundation, the League, and SACE (collectively, the "Conservation
Groups") represent the interests ofmembers who live in the immediate and general
vicinity of the Grainger Station coal ash impoundments, in the Conway area, in Horry
County, in the Waccamaw River Watershed, and in the Winyah Bay Watershed and who
have an ongoing interest in protecting water quality, protecting the public, and protecting
and conserving wildlife and wildlife habitat in the areas near and downstream of the
Grainger coal ash impoundments. The areas near and downstream of the Grainger coal
ash impoundments are used, enjoyed, and depended upon by these organizations and their
members for recreation, fishing, aesthetic enjoyment, wildlife observation, and other
uses. Harm to this area, including its water quality, wildlife habitat and aesthetic value,
impairs and will impair these organizations'nd their members'se and enjoyment of the
area.
23. As set forth above, the Plaintiffs and their members have interests which
are and will be adversely affected and irreparably harmed by the Grainger coal ash
impoundments and by their current and continued placement beside the Waccamaw
River.
24. The Conservation Groups and their members have been harmed by
SCPSA's pollution of South Carolina's waters, groundwater, and environment. Members
of the Conservation Groups recreate, fish, and hunt on and near the Waccamaw River in
the vicinity of and downstream t'rom SCSPA's Grainger Station. They fear
contamination ofwildlife and river water by discharges from SCSPA's coal ash lagoons
containing arsenic and other pollutants. Members of the Conservation Groups also enjoy
visiting the Waccamaw National Wildlife Refuge, which is located downstream from the
Grainger coal ash impoundments, and consume drinking water withdrawn downstream
from the Grainger coal ash impoundments. The Defendant's discharges of arsenic and
other contaminauon Irom the Grainger coal ash lagoons and the threat of a catastmphic
failure of the Grainger coal ash lagoons are reducing the use and enjoyment by the
Conservation Groups and their members of the Waccamaw River, the Winyah Bay
Watershed, and the Waccamaw National Wildlife Refuge.
25. The Conservation Groups and their members also have been damaged by
being denied their right to participate in the decisions concerning SCPSA's pollution of
South Carolina's waters, groundwater, and environment. If SCPSA had complied with
the law, the Conservation Groups would have conunented on SCPSA's pollution of the
Waccamaw River, the Waccamaw River Watershed, and the Winyah Bay Watershed, as
well as the terms and conditions under which it is allowed to pollute, particularly the
Conservation Groups'oncerns regarding the protection of important water resources and
their expertise concerning those resources. Likewise, the Conservation Groups'embers
would have commented on SCPSA's pollution of the Waccamaw River and watershed
and the Winyah Bay Watershed and the terms and conditions under which SCPSA is
allowed to pollute. Further, a public hearing should have been held on these topics to
obtain further information and to inform the public about the pollution and the effects on
the Waccamaw River and watershed and the Winyah Bay Watershed, and the
Conservation Groups and their members should have had an opportunity to attend and
Pllblic
hearings, and the lack ofan opportunity for judicial review.
9
speak at such a hearing. The Conservation Groups and their members would have
requested such a hearing if they have been given the opportunity to do so. The
Conservation Groups and their members should also have had an opportunity for judicial
review of any permit, if the permit were issued with such terms and conditions that the
Conservation Groups and/or their members considered to be inappropriate for the health
and benefit of the Waccamaw River and its watershed, the Winyah Bay Watershed, the
environment of South Carolina, and the public.
26. As set forth above, the Conservation Groups and their members have
interests which have been and are adversely affected and irreparably harmed by SCPSA's
ongoing violation of the PCA; and the Conservation Groups and their members have
been damaged by SCPSA's ongoing violation of the PCA. These actual and potential
injuries and damages have been and confinue to be caused by the illegal discharges &om
SCPSA's unlined coal ash impoundments into groundwaters of the State and the
Waccamaw River and Winyah Bay. These injuries will not be redressed except by an
order &om this Court requiring SCPSA to take immediate and substantial action to stop
the flow of ash into these impoundments, to empty the impoundments of all coal
combustion byproducts, to move its storage of coal ash away &om the floodway and
floodplain of the Waccamaw River, to remediate the groundwater contamination at
Grainger Station, and to comply with the other relief sought in this action. The
Conservation Groups and their members also have been harmed and damaged by their
exclusion from the process, the lack of an opportunity for public comment and public
hearings, and the lack of an opportunity for judicial review.
"Any person who discharges or proposes to discharge pollutants directly
or indirectly to groundwaters of the State ... shall submit a complete application to the
Department in accordance with this section and R.61-9.124."
29. Under the PCA, a permit is an "authorization, license, or equivalent
control document issued by the Department to implement the requirements of this
regulation, 40 C.F.R. Part 123, and R. 61-9.124 ... Permit does not include any permit
which has not yet been the subject of final agency action, such as a draft permit or a
proposed permit." S.C. Code Ann. Regs. 61-9.122.
30. The PCA requires that the public be given the opportunity to participate in
the pennitting process before DHEC may authorize the discharge of pollutants into the
environment of the State. Under the PCA, the public has the right to comment and
10
STATUTORY BACKGROUND
27. Under the PCA, it is "unlawful for any person, directly or indirectly, to
throw, drain, run, allow to seep or otherwise discharge into the enviromnent of the State
organic or inorganic matter, including sewage, industrial wastes and other wastes, except
as in compliance with a permit issued by the Department." S.C. Code $ 48-1-90
(emphasis added). The PCA's definition of "the environment" includes waters of the
State and groundwater. 1d. $ 48-1-10.
28. The PCA's permitting requirements are further defined in Regulation 61-
9.505. "The Land Application permit and State permit program requires permits for the
discharge ofpollutants from any source directly or indirectly into groundwaters of the
State and to the land of the State." S.C. Code Regs. 61-9.505.1(b)(1) (2011). Section
505.21 provides, "Any person'who discharges or proposes to discharge pollutants directly
or indirectly to groundwaters of the State... shall submit a complete application to the
Deparnnent in accordance with this section and R.61-9.124."
29. Under the PCA, a permit is an "authorization, license, or equivalent
control document issued by the Department to implement the requirements of this
regulation, 40 C.F.R. Part 123, and R. 61-9.124... Permit does not include any permit
which has not yet been the subject of final agency action, such as a draft permit or a
proposed permit." S.C. Code Ann. Regs. 61-9.122.
30. The PCA requires that the public be given the opportunity to participate in
the permitting process before DHEC may authorize the discharge of pollutants into the
environment of the State. Under the PCA, the public has the right to comment and
10
request a public hearing on a proposed permit before it is issued and to seek judicial
review after it is issued. S.C. Code tjtj 48-1-100, 48-1-150, 44-1-60(G).
31. The PCA requires public notice and the opportunity to comment before
the Department may issue a PCA permit. See S.C. Code (j 48-1-100 ("If, after
appropriate public commentprocedures, as defined by department regulations, the
department finds that the discharge from the proposed outlet or source will not be in
contravention ofprovisions of this chapter, a permit to construct and a permit to
discharge must be issued to the applicant") (emphasis added); S.C. Code Regs. 61-
9.122.1(g)(10) and 505.1 (g)(10) (clarifying that section 48-1-100 "requires an
opportunity for public comment before issuance ofpermits to discharge"). The PCA also
allows citizens to request a public hearing prior to DHEC's issuance of a permit. S.C.
Code f 48-1-150.
32. After public notice, the opportunity for comment, and any public hearings
granted by the Department, DHEC issues a "department decision." S.C. Code f 44-1-
60(D). DHEC must give notice of its decision to "the applicant, permittee, licensee, and
affected persons who have requested in writing to be notified." Id. $44-1-60(E)(1).
Parties and affected persons are given fifieen days after notice of a department decision is
mailed to request a final review conference. 1d. A)44-I-60(E)(2). Ifno request for a final
review conference is made within fifteen days of notice being mailed, the Department
decision becomes the final agency decision. Id.
33. Affected members of the public have a right to appeal a final agency
permitting decision pursuant to the South Carolina Administrative Procedure Act, S.C.
Code tj 1-23, and the PCA: "An applicant, permittee, licensee, or affected person may file
11
a request with the Administrative Law Court for a contested case hearing within thirty
calendar days" after the board declines to hold a final review conference, the sixty-day
deadline for a final review conference passes, or the agency decision resulting &om the
final review conference is received by the parties. S.C. Code tj 44-1-60(G). Thereafter, a
decision of the Administrative Law Court may be reviewed by the South Carolina Courts.
FACTS
34. SCPSA owns and operates Grainger Station, a coal-fired electricity
generating facility located on the Waccamaw River at Conway, South Carolina. Grainger
Stafion includes two adjacent coal ash impoundinents, known as Ponds One and Two,
which are immediately adjacent to the Waccarnaw River. Pond One is approximately 43
acres and Pond Two is approximately 39 acres in size. Both impoundments are unlined.
These impoundments contain approximately 650,000 tons ofcoal ash.
35. The impoundments are located in wetlands adjacent to the Waccamaw
River and are separated from the river by a dike. The dike is made of earth, including
silty soils and sofi clay. In the case of an earthquake, soils in the dike may liquefy, and
SCPSA is aware of this threat.
36. Water &om Pond Two is discharged into the Waccainaw River pursuant to
National Pollutant Discharge Elimination System ("NPDES") permit ¹SC0001104. The
NPDES permit contains no eKuent liinitation for arsenic. That permit expired in 2006,
has not been reissued, and has continued in place administratively. SCPSA has
intentionally not asked DHEC to issue a new NPDES permit for that discharge point
because of concerns about arsenic limitations.
12
37. The NPDES permit authorizes discharges into the Waccamaw River only
&om Outfall 001, the point source discharge into the Waccamaw River from Ash Pond
Two, and &om Outfall 002, which is the discharge point for once-through cooling water.
The NPDES permit does not authorize discharges into the Waccamaw River &om any
other source. Indeed, none of the pollution addressed in this Complaint is covered or
authorized by SCPSA's NPDES permit. DHEC has found that SCPSA's arsenic
pollution of the groundwater at Grainger Station is not authorized by any permit.
38. The ash, coal pile runo6; and other waste streams directed to the Grainger
coal ash impoundments contain metals, including arsenic. When the ash comes into
contact with water, these metals, along with other contaminants, tend to leach or dissolve
into the water. Arsenic levels that greatly exceed South Carolina's groundwater
standards have been detected consistently in groundwater monitoring wells in the vicinity
of the two impoundments since at least the 1990s.
39. In 2009, DHEC found and notified SCPSA in writing that SCPSA was in
violation of the South Carolina Pollution Control Act due to its discharges of arsenic into
the environment at Grainger without a permit. DHEC also determined that SCPSA
violated the South Carolina Water Classification and Standards.
40. SCPSA has never obtained a permit for its arsenic pollution of
groundwater and thereby the Waccamaw River at Grainger, and it has never taken steps
to end and remediate its arsenic pollution. Instead, it has only monitored the arsenic
pollution. Over the years, SCPSA's arsenic pollution at Grainger has continued unabated
and, if anything, has increased.
13
41. SCPSA has specifically resisted and failed to test sednnents in the
Waccamaw River, despite repeated requests &om DHEC to perform sediment testing.
42. Because SCPSA has never applied for a permit for the arsenic and other
pollution of groundwater and thereby the Waccamaw River at Grainger, the public, the
Conservation Groups, and their members were not and have not been given notice or the
opportunity to submit comments to DHEC regarding SCPSA's arsenic and other
pollution of the Waccamaw River and its watershed, the Conway community, the Winyah
Bay Watershed, Horry County, and South Carolina. The public, the Conservation
Groups, and their members were also denied the opportunity to request a public hearing
or to appeal any permit allowing SCPSA's continued pollution. The public, the
Conservation Groups, and their members were also denied the opportunity to comment
on, to request a hearing concerning, or to seek judicial review of the failure to stop or
remediate the arsenic contaminaflon and pollution, to prevent it in the future, to require
that it be inoved away &om the Waccamaw River, or to require that the coal ash be
handled and stored in a way that does not pollute or contaminate the environment with
arsenic, other toxic substances, and other pollutants.
43. In addition to contaminated water, arsenic, and other pollutants flowing
and leaching from the unlined ash iinpoundments into the waters and groundwater of the
State, the impoundments contain silty soil and soft clays. In the event of an earthquake,
they are subject to liquefying. They pose a significant risk to the Waccamaw River and
watershed, the Winyah Bay Watershed, the Conway community, Horry County, and
South Carolina, particularly since SCPSA plans to leave the coal ash impoundments in
their present location forever.
14
impoundments or from locations other than those specified in the
NPDES pennit.
45. Today, SCPSA continues to operate Grainger Station without a pennit for
its ongoing discharges of arsenic and other contaminants from the coal ash
impoundments into waters and groundwaters of the State.
46. The groundwater contamination beneath Grainger Station has increased
over time. Recent data indicate that groundwater from monitoring wells near the
Waccamaw River contain arsenic exceeding 2000 ppb and 3000 ppb - more than 200 to
300 times the legal limit. The legal limit is 10 ppb.
47. SCPSA's current plans would subject the State, the people of the State, the
Conservation Groups, their members, and the waters and groundwater of the State, Horry
County, and Conway to arsenic and other pollution from SCPSA's coal ash
impoundments for decades to come and to a perpetual and pennanent dangerous risk
from hundreds of thousands oftons of coal ash stored in impoundments adjacent to the
Waccamaw River.
48. By not obtaining a pennit as required by law, SCPSA has avoided public
notice, public comment, an appeal to the DHEC Board, and judicial review of its
pollution. Thereby, SCPSA has denied the public, the Conservation Groups, and their·
members a voice in this very serious issue facing the State, its people, and its
environment.
15
44. SCPSA has never obtained a permit to authorize its discharges of arsenic,
contaminated water, and other pollutants into the waters and groundwater of the State
&om the coal ash impoundments or &om locations other than those specified in the
NPDES permit.
45. Today, SCPSA continues to operate Grainger Station without a permit for
its ongoing discharges of arsenic and other contaminants from the coal ash
impoundinents into waters and groundwaters of the State.
46. The groundwater contamination beneath Grainger Station has increased
over time. Recent data indicate that groundwater &om monitoring wells near the
Waccamaw River contain arsenic exceeding 2000 ppb and 3000 ppb — more than 200 to
300 times the legal limit. The legal limit is 10 ppb.
47. SCPSA's current plans would subject the State, the people of the State, the
Conservation Groups, their members, and the waters and groundwater of the State, Horry
County, and Conway to arsenic and other pollution from SCPSA's coal ash
impoundments for decades to come and to a perpetual and permanent dangerous risk
&om hundreds of thousands of tons of coal ash stored in impoundments adjacent to the
Waccamaw River.
48. By not obtaining a permit as required by law, SCPSA has avoided public
notice, public comment, an appeal to the DHEC Board, and judicial review of its
pollution. Thereby, SCPSA has denied the public, the Conservation Groups, and their
members a voice in this very serious issue facing the State, its people, and its
environment.
15
49. The Foundation has partnered with local and national groups to establish
the Waccamaw River Blue Trail on the stretch of the river near and downstream &om
Grainger Station, and it has been working to have the U.S. Deparbnent of the Interior to
designate the Waccsmaw River a National River Trail. Both these projects will help to
protect, conserve, and restore the Waccamaw River; will bring local, regional, and
national attention ofbenefit to the Waccamaw River and the local community; and will
encourage local residents and tourists to make beneficial use of the Waccainaw River,
including the portion near, around, and downstream of Grainger Station. The continued
pollution of groundwater and the Waccamaw River and the presence of these coal ash
lagoons in perpetuity by the Waccamaw River are harmful to this effort, to the interests
of the Conservation Groups in this effort, and the interests, uses, and enjoyment of the
Conservation Groups'embers in this Blue Trail. The reinoval of the coal ash lagoons
by SCP SA would be of great benefit to this effort, to the interests of the Conservation
Groups, and to the interests, uses, and enjoyinent of the Conservation Groups'einbers
in this Blue Trail. The Conservation Groups, their members, and the public have been
and will be harmed in this way also by the continued presence of and pollution lrom the
Grainger coal ash lagoons.
CLAIM FOR RELIEF
(Violation of the South Carolina Pollution Control Act — Discharge of pollutantsinto the environment of the State without a permit)
50. The allegations of the preceding paragraphs are incorporated by reference
as if repeated and set forth herein.
51. The PCA prohibits the discharge ofpollutants into the waters,
groundwaters, and environment of the State without a permit. S.C. Code $ tj 48-1-90, 48-
16
1-10. A permit under the PCA requires public participation in the form ofnotice and
comment procedures as well as the opportunity to request a public hearing and obtain
judicial review. Id. at tjtj 48-1-100, 48-1-150, 44-1-60(G).
52. SCPSA has never received a permit authorizing it to discharge arsenic and
other contaminants &om the unlined coal ash impoundments into the waters,
groundwaters, and environment of the State, nor into the Waccamaw River from any
source other than its NPDES-permitted outfall. These continuing unpermitted discharges
by SCPSA violate $ 48-1-90 of the PCA.
53. SCPSA is capable of taking and is required to take significant action to
reduce the ongoing contamination of the groundwater and Waccamaw River. However,
SCP SA has taken no steps to do so and instead plans to leave the coal ash impoundments
in place in perpetuity, thus continuing to leach arsenic and other toxic substances and
pollutants from the unlined impoundments into the groundwater, waters, and enviroiunent
of South Carolina for decades to come and an indefinite period of SCPSA storing tons of
coal ash in impoundments in wetlands dangerously close to the Waccamaw River. To
date, SCPSA has taken absolutely no action to remediate existing groundwater
contamination.
54. In violation of law, the public, the Conservation Groups, and their
members have been denied their rights to participate and comment under the PCA.
17
an appropriately lined ISWLF facility outside the
floodway and floodplain of the Waccamaw River, with appropriate
monitoring;
c. Removes all existing coal combustion byproducts and contaminated
soil from the impoundments at the Grainger Station within a
reasonable amount of time and stores them in an appropriately lined
ISWLF facility outside the floodway and floodplain of the Waccamaw
River, with appropriate monitoring;
d. Prevents the flow of contaminated groundwater into the Waccamaw
River;
e. Prevents the coal ash impoundments from leaking, seeping, and
flowing into the Waccamaw River, except as permitted by the NPDES
permit; and
18
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully request that this Court:
A. Issue a declaratory judgment stating that Defendant has violated the PCA with
its ongoing unpermitted discharges of arsenic and other contaminants into the
water, wetlands, groundwater, Waccamaw River, and environment;
B. Enter appropriate preliminary and injunctive relief to ensure that Defendant:
a. Ceases disposal of all coal combustion byproducts in the
impoundments at the Grainger Station;
b. Utilizes dry disposal of all new coal combustion byproducts &om
Grainger Station in an appropriately lined ISWLF facility outside the
floodway and floodplain of the Waccamaw River, with appropriate
monitoring;
c. Removes all existing coal combustion byproducts and contaminated
soil from the impoundments at the Grainger Staflon within a
reasonable amount of time and stores them in an appropriately lined
ISWLF facility outside the floodway and floodplain of the Waccamaw
River, with appropriate monitoring;
d. Prevents the flow of contaminated groundwater into the Waccamaw
e. Prevents the coal ash impoundments from leaking, seeping, and
flowing into the Waccamaw River, except as permitted by the NPDES
permit; and
thJ6+tuay of JlAk'e ,2012.
;J--~£~ ,lid.Frank S. Holleman III
S.C. Bar No. [email protected]
Southern Environmental Law Center601 West Rosemary Street, Suite 220Chapel Hill, NC 27516-2356Telephone: (919) 967-1450Facsimile: (919) 929-9421
J. Blanding Holman IVS.C. Bar No. [email protected]
Southern Environmental Law Center43 Broad Street, Suite 300Charleston, SC 29401Telephone: (843) 720-5270Facsimile: (843) 720-5240
Attorneys for Plaintiffs
19
f. Remediates the groundwater beneath Grainger Station resulting from
its unpermitted discharges.
C. Award Plaintiffs the costs of this action; and
D. Grant Plaintiffs such further and additional relief as the Court deems just and
proper.
THE PLAINTIFFS HEREBY DEMAND A TRIAL BY JURY
Tl 'h&6% y f JIIV'012.
Frank S. Holleman IIIS.C. Bar No. 2564fholleman selcnc.org
Southern Environmental Law Center601 West Rosemary Street, Suite 220Chapel Hill, NC 27516-2356Telephone: (919) 967-1450Facsimile: (919) 929-9421
J. Blanding Holman IVS.C. Bar No. [email protected]
Southern Environmental Law Center43 Broad Street, Suite 300Charleston, SC 29401Telephone: (843) 720-5270Facsimile: (843) 720-5240
Attorneysfor Plaintiffs
19