Case Background

On behalf of the Sierra Club, on July 9, 2020 we filed a complaint against the South Carolina Department of Health and Environmental Control (DHEC) and agency officials, claiming the excessive delay in processing vital National Pollution Elimination Discharge System (NPDES) permits for Cross Generating Station, Winyah Generating Station and Wateree Steam Station is unlawful and creates serious environmental and public health risks.

The NPDES permit program, which has been delegated to DHEC by the U.S. Environmental Protection Agency, governs discharges of wastewater or effluent into waterways that, in these cases, contain toxins like arsenic, selenium and mercury that can remain in the environment for years. Exposure to these substances can be harmful to wildlife and can cause cardiovascular disease, neurological disorders and cancer in people.

Why Is This Important?

Under the federal Clean Water Act and the South Carolina Pollution Control Act, NPDES permits must be updated and reissued every five years. The NPDES permits for the three facilities, however, have been expired for nearly a decade.

· The last NPDES permit for the Cross Generating Station expired in August 2010. Cross, owned by the South Carolina Public Service Authority and operated by Santee Cooper, is a 1,833-megawatt plant located in Cross that discharges pollution into the Diversion Canal and Lake Moultrie. Lake Moultrie is one of the most popular recreational fishing and boating lakes in the South.

· The last NPDES permit for the Winyah Generating Station expired in July 2011. Winyah, owned by the South Carolina Public Service Authority and operated by Santee Cooper, is a 1,260-megawatt plant located in Georgetown that discharges into the North Santee River and Sampit River, via Turkey Creek, where the community fishes, crabs and shrimps.

· The last NPDES permit for the Wateree Steam Station expired in December 2012. Wateree, owned by Dominion Energy, is a 685-megawatt plant located in Eastover that discharges pollution into the Wateree River. The Wateree River flows beside Congaree National Park, one of the country's newest and most beloved parks.

‍

Demanding Action on Long-Expired Permits

“DHEC has caused serious harm to the health of South Carolinians by allowing these dirty, outdated coal plants to discharge even more toxic pollution into our waterways,” said Will Harlan, senior representative for the Sierra Club’s Beyond Coal campaign in the Carolinas. “State regulators must put permit protections in place immediately, and Dominion Energy and Santee Cooper must start moving completely away from dirty, damaging fossil fuels and toward the clean, safe, affordable energy communities demand and deserve.”

Although each plant applied for permit renewals prior to their expirations, DHEC has yet to act on the applications. Before filing the lawsuit, we worked on behalf of the Sierra Club in notifying DHEC of the many dangers resulting from its delay in acting on the permit applications and the importance of incorporating the new ELGs into every new NPDES permit for coal-fired power plants.

Along with the complaint, we petitioned for a writ of mandamus, or a judicial order, requiring DHEC to take action on the three renewal applications.

SCELP staff attorney Leslie Lenhardt said, “We have expended our best efforts to move the needle on these permits, but DHEC steadfastly refuses to act. We have no other option at this point but to seek a judicial order requiring them to make a decision on these languishing applications.”

Moreover, DHEC’s lack of action prohibits the public from participating in the public commenting procedures required by the Clean Water Act and the South Carolina Pollution Control Act. In particular, the members of the Sierra Club who live nearby these surface waters cannot weigh in and ensure the law is being applied correctly if there is no decision made on an application.

Social, Environmental and Climate Justice

Cross, Winyah and Wateree coal plants are located in predominantly Black and low-income communities. Black South Carolinians living near these sites are already overburdened by health threats. According to DHEC’s own findings, African Americans are disproportionately impacted by conditions like asthma and heart disease and comprise nearly half the state’s deaths from coronavirus, while making up just 27% of the population.

Black residents shouldn’t also be burdened by toxic waterways near their homes, churches and schools, said Xavier Boatright, an organizing representative for the Sierra Club’s Beyond Coal campaign, who lives near the Cross coal plant.

“The people responsible for making sure our communities are safe and our water is clean have failed us,” Boatright said. “Black people, people of color and low-income South Carolinians shouldn’t have to beg for basic environmental and health protections that are rightfully ours.”

‍

Update

On January 15, 2021, DHEC entered into an agreement to update permits at the three coal plants on the following schedule:

- Wateree Station, July 1, 2021

- Winyah Station, Oct. 1, 2021

- Cross Station, Oct. 1, 2021

The permit deadlines can be extended by three months, but only if the Biden Administration rescinds or rolls back the 2020 effluent limitations guidelines rule (which sets federal limits on levels of toxic metals in wastewater that can be discharged from coal, gas, oil and nuclear plants), or if a court stays the 2020 rule or overturns it. There will be a 60-day public comment period when each draft permit is issued.

Will Harlan, of Sierra Club’s Beyond Coal campaign, said the agreement is a critical move in the right direction. “But let’s be clear: there’s no excuse for letting these permits expire and leaving families and their kids exposed to toxins like arsenic and mercury for a decade. We have to stop this ongoing pollution as soon as possible—but the real solution is to stop burning dirty, dangerous fossil fuels in the first place, and replace them with the clean, safe, and affordable renewable energy South Carolinians demand and deserve.”

Leslie Lenhardt, SCELP staff attorney, added, “This is great news for our waters, wildlife and communities. We have achieved our goal of forcing DHEC to render decisions on these coal plant applications after years of the agency's extensive inaction. This settlement ensures the applications will be evaluated without further delay and under the correct regulatory standards, thereby protecting public health from unlawful and toxic contamination.”