Proposed pollution legislation could impact AVX lawsuit

Lawmakers are proposing legislation that would reverse a state Supreme Court ruling last year that gives private individuals – including those affected by pollution near the AVX Corp. manufacturing facility in Myrtle Beach – the right to sue violators of the S.C. Pollution Control Act.

Gene Connell, a Surfside Beach lawyer representing property owners near AVX, planned to include violations of the Pollution Control Act as a separate cause of action in his class-action lawsuit against the manufacturer. Connell said he is having second thoughts after a court hearing Wednesday because he is worried AVX will use the issue to delay a court case that now is in its fifth year. A trial is scheduled for next January.

Connell’s decision could be a moot point, however, if legislators approve a law limiting who can sue under the act.

State Rep. Nelson Hardwick, R-Surfside Beach – the legislation’s primary sponsor – said the Supreme Court’s 3-2 ruling in a Georgetown County case last year opened the door to sometimes frivolous lawsuits by people looking to use the Pollution Control Act to help collect monetary damages from developers and others.

The court’s ruling allows private individuals – even those with no direct ties to polluted property – to sue under the act for recreational and aesthetic reasons, such as the destruction of bird or wildlife habitats. Hardwick said lawyers have amended numerous lawsuits since last year’s ruling to include violations of the Pollution Control Act in an effort to bolster their claims in court.

“When you get standing under the act, it builds your [legal] case,” Hardwick said, adding that if individuals “can show someone is a polluter [under terms of the act], they can say they were damaged.”

Hardwick said the state, through the S.C. Department of Health and Environmental Control, is the only entity that should be allowed to take legal action under terms of the act. The proposed legislation states that “no private cause of action is created by or exists under” the Pollution Control Act.

Hardwick said lawmakers did not consider the AVX pollution when drafting the proposed legislation, but that private individuals still can file lawsuits claiming violations of other state and federal laws – such as negligence, trespass and the Superfund legislation – that cover damages resulting from pollution.

Connell said the proposed legislation is a pro-business and anti-property owner attempt to protect lawmakers’ “developer friends” from liability.

“If pollution damages your property, you should be able to sue for damages,” he said.

State Rep. Alan Clemmons, R-Myrtle Beach, signed on as a sponsor of the proposed legislation this week. Clemmons lives near the AVX site and represents residents who are suing the manufacturer. Clemmons did not respond to requests for comments.

State Rep. George Hearn, R-Conway, also is a sponsor of the legislation. Hearn’s wife, state Supreme Court Justice Kaye Hearn, wrote a dissenting opinion in the court case last year arguing that private individuals do not have a right to sue under the Pollution Control Act. George Hearn could not be reached for comment.

The legislation was introduced on Jan. 24 and has been referred to a House committee. Similar legislation has been introduced in the Senate.

Hardwick’s bill would be retroactive and would cancel any pending claims – including those by AVX’s neighbors – under the Pollution Control Act except those brought by the state.

Connell said the primary benefit of filing a claim under the Pollution Control Act is that it allows individuals to obtain a court-ordered injunction to stop activity that causes pollution and force remediation of the pollution. Connell said the lawsuit against AVX would continue even without that claim because he has cited several other alleged legal violations in the case.

Judge Larry Hyman ruled during a court hearing Wednesday in Conway that Connell can include violations of the Pollution Control Act in the AVX lawsuit, but added that he disagreed with the Supreme Court’s ruling.

“Essentially, it’s a new right to sue, contrary to my opinion,” Hyman said. “I didn’t think it [the act] was a private right.”

AVX’s lawyers had opposed adding violations of the Pollution Control Act to the class-action lawsuit.

Hardwick said the proposed legislation in the state House will help clarify what activities require permitting from DHEC. He said the Pollution Control Act, which was written in the 1950s, is too ambiguous because it currently bans the unpermitted discharge of any organic or inorganic matter into the environment.

“You can’t permit everything out there,” Hardwick said.

For example, the proposed legislation would exempt discharges for which DHEC has no regulatory permitting program in place. That would include discharges into isolated wetlands – the focus of the Supreme Court case.

DHEC spokesman Adam Myrick said there is nothing in any of the agency’s authorizing regulations about an isolated wetlands permitting program.

“And, currently, there are no plans to make any changes on that front and move forward in creating such a program,” Myrick said.

The Supreme Court case that led to the proposed legislation involved an isolated wetland that was filled in by developer Smith Land Co. on a 0.33-acre lot in Pawleys Island. An isolated wetland is one that has no connection to other water or wetlands. The court’s ruling gave DHEC jurisdiction over isolated wetlands, reversing a Georgetown County Circuit Court ruling and the state agency’s operating procedure.

Such wetlands previously were ruled outside of DHEC’s control, lawyer David DuRant – who represented Smith Land Co. – said at the time of the Supreme Court ruling. Isolated wetlands also do not need permitting under the federal Clean Water Act.

The Supreme Court’s ruling means developers and others must first get a DHEC permit before filling any isolated wetland. The court ruled that DHEC has authority to issue such permits under the Pollution Control Act.

The court also said private individuals can sue developers for violations of the act, although Kaye Hearn and Justice John Kittredge disagreed.

Amy Armstrong – a Pawleys Island lawyer who represented the Georgetown County League of Women Voters, which filed the lawsuit – said at the time of the ruling that the court’s decision removed “a significant obstacle to those citizens seeking environmental accountability in this state.”

Armstrong could not be reached for comment on Wednesday.

In the AVX case, residents near the manufacturer claim the company contaminated groundwater in the neighborhood with a degreaser called trichloroethylene, or TCE, which has been linked to cancer and other health problems. The property included in the class-action lawsuit stretches from 17th Avenue South to 5th Avenue South. Most of the property is residential, although about 44 commercial lots are included – sites where hotels, restaurants, shopping centers and an urgent care clinic are located.

Connell is seeking unspecified damages from AVX to compensate about 230 land owners for the loss of property values that resulted from the contamination.

Although TCE is a health hazard, DHEC does not consider the pollution in the 12-block neighborhood to be dangerous because the groundwater there is not used as a drinking water source.

AVX – which moved its world headquarters from Myrtle Beach to Greenville in 2009 – has been paying for studies to determine the best way to clean up the pollution and expects to use a process called enhanced reductive chlorination, in which a substance similar to molasses is injected into the groundwater. The molasses-like mixture creates bacteria that eat the TCE, breaking it down into harmless matter.