Amid questions about arsenic pollution at the Wateree River, a judge refused Wednesday to dismiss a legal case against SCE&G and the Department of Health and Environmental Control over leaks from the utility's lower Richland power station.
Administrative Law Judge Carolyn Matthews said there is "sufficient evidence" to continue farmer Heath Hill's legal appeal against a mega-landfill and pollution discharge permits for SCE&G. She dismissed a motion to drop the case.
Hill fears the landfill and discharge will ruin groundwater, pollute the Wateree and lower property values. Congaree National Park supporters also have expressed concern about arsenic pollution just upriver from the federal nature preserve.
Hill's attorneys said Wednesday that DHEC was wrong to approve the landfill and river discharge because the utility's 39-year-old power station has allowed arsenic to pollute groundwater and seep into the Wateree near Eastover since the 1990s.
SCE&G and the state environmental agency have done little to clean up the mess first documented by a nationally respected consulting firm more than a decade ago, Hill's lawyers contend. Polluted water sent from the landfill to the coal pond will only make matters worse, they say.
"It blows my mind that all this time has passed and arsenic continues to flow (into) the river," said James Smith, a state legislator who is representing Hill.
Smith's comments came on the second day of a hearing on whether DHEC properly issued the permits to SCE&G. The hearing continues today with top power company officials expected to take the stand.
Arsenic, a byproduct of burning coal to make power, is a cancer-causing metal used through the ages as a poison. It is held in coal ash in an unlined 80-acre waste pond near SCE&G's U.S. 601 power plant. The pond has leaked, both to groundwater and through a hill toward the Wateree River.
Despite allegations that DHEC hasn't forced SCE&G to clean up the pollution, agency lawyer Stephen Hightower said his department has done plenty. DHEC and SCE&G struck a deal in 2001 to examine contamination leaking from the coal ash pond.
To address contamination, "There is this agreement that has an established method by which to investigate and to come up with a potential corrective action if such is warranted," DHEC's Hightower said.
The deal resulted in no fines against the power company. Smith and co-counsel Bob Guild said the deal has never resulted in any action to clean up the contamination. The agreement allows groundwater pollution at levels 300 times the federal safe drinking water limit for arsenic.
Hightower said the agency's decision to approve landfill and discharge permits for SCE&G was based solely on the law.
"The purpose of this trial is not to say what we would like to have; it is what the law requires," Hightower said.
On Wednesday, SCE&G lawyer Greg Delleney, who is also a state representative, asked Matthews to dismiss the case because Hill's lawyers had shown no violation of state law by DHEC. Delleney said Hill is concerned about land use, but that is not a DHEC responsibility.
SCE&G attorney Beth Partlow also told Matthews that Hill has hired people to put pesticides, some of which contain arsenic, on his crops in lower Richland.
Pollution from coal ash ponds is a major concern nationally. A massive spill in Tennessee last year has federal officials looking at tougher regulation. And a report in North Carolina this week found groundwater contamination near all coal ash ponds that Duke Energy and Progress Energy own in that state.
In South Carolina, testing last month by consultants for both Hill and SCE&G found high levels of arsenic seeping through a containment dike and draining toward the river. It was the same contamination noted in the 1990s by the Battelle Corp. for the power industry's national trade association - but the pollution last month was at higher levels, Hill's lawyers said.
The Battelle report found arsenic levels up to 604 parts per billion trickling through the dike and toward the Wateree River in 1997. Consultants' tests last month found arsenic levels in the seepage of up to 1900 parts per billion draining to the Wateree, Guild said. The federal safe drinking water standard is 10 parts per billion.
Clemson University environmental professor David Freedman noted some fish in the stretch of the Wateree closest to the leaking coal pond have been found with high arsenic levels. A 2000 SCE&G report showed levels in one catfish so high that Freedman said it would increase a person's chances of cancer if they ate that fish.
"I personally would not" eat that fish, Freedman said, referring to the catfish with arsenic levels exceeding 500 parts per billion.
"I don't want to unnecessarily increase my risk. If there are other locations of the river where I can catch fish where the arsenic level is lower, that's where I'm going to fish."