V~ry truly yours, 4~~~ESq. -----

Enclosure

Charlottesville • Chapel Hill • Atlanta • Asheville • Birmingham • Charleston • Nashville • Richmond • Washington. DC

10096 recycled paper

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

100rt recrrcfed paper

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\Cf\

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: bholman@selcsc.org~'-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: bhotman@selcsc.org 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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\6'

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.

I

oc-C')

C3 w-c ( sA7 ~

e-&

C3

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

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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. 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. 9805bholman@selcsc.org

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. 9805bholman@selcsc.org

Southern Environmental Law Center43 Broad Street, Suite 300Charleston, SC 29401Telephone: (843) 720-5270Facsimile: (843) 720-5240

Attorneysfor Plaintiffs

19