MYRTLE BEACH — A federal appeals court in Richmond, Va., will let lawyers for AVX Corp. and the U.S. government present oral arguments this fall in a lawsuit involving groundwater contamination near AVX’s manufacturing facility along 17th Avenue South in Myrtle Beach.
The U.S. Appeals Court for the 4th Circuit has tentatively put the AVX lawsuit on its Oct. 23-26 calendar. AVX and the federal government have until July 23 to notify the court of any scheduling problems or motions that would interfere with that date. The court will finalize its schedule after that deadline and the appeal will be heard by a three-judge panel.
Wyn Hornbuckle, a spokesman for the U.S. Justice Department, said the federal government plans to proceed with arguments as scheduled by the court. Kevin Dunlap, a lawyer representing AVX, did not respond to a request for comments.
The appeal, filed by AVX, centers on a lawsuit to determine whether the federal government should share in the cost of cleaning up trichloroethylene, or TCE, in groundwater that has migrated over the years onto property once owned by Horry Land Co. TCE is an industrial degreaser that was commonly used in the 1960s and 1970s that has since been determined to cause health problems, such as cancer.
Judge Terry Wooten, in a district court ruling last year in Florence, said there is no evidence that the former Myrtle Beach Air Force Base – which was located adjacent to AVX – contributed to the groundwater contamination. Wooten ordered AVX to pay the entire projected $5 million cleanup cost for the Horry Land property.
AVX reached a settlement agreement in another legal dispute with Horry Land, which owned the contaminated property across the street from the manufacturer. The terms of that settlement were not disclosed, but property records show AVX bought the Horry Land property last year for $4.5 million.
AVX filed its appeal asking for a new trial, saying Wooten should not have allowed government witness Dennis O’Connell – an Athens, Ga., geologist – to testify because his specialty is sediment and surface water instead of groundwater, where the contamination exists.
“Plain and simple, O’Connell did not have the required pedigree/expertise and experience about the migration of TCE in the groundwater in the complex coastal geology of the site to provide expert testimony,” Dunlap, AVX’s lawyer, said in an appeal brief filed in June.
The federal government, in its response brief, said Wooten twice considered AVX’s objections to O’Connell’s testimony and ruled against the manufacturer both times. Wooten also stated in his ruling that he found O’Connell’s testimony more persuasive than the testimony of Steven Hart, a Charlotte, N.C., geologist hired as an expert witness by AVX.
“The testimony of Mr. Hart drew broad conclusions from more speculative evidence” than O’Connell’s, Wooten said in his ruling.
Hart testified that TCE likely migrated through groundwater from sites – including a pair of landfills, a motor repair shop and a golf course maintenance shop – the military used to operate adjacent to the AVX facility, and that the government was responsible for at least some of the contamination.
O’Connell, however, testified that groundwater from the former military sites flows in an opposite direction from groundwater at AVX, which flows toward the Horry Land property. O’Connell based his conclusions on a number of groundwater measurements taken between 1981 and 1990, which Hart did not consider, according to the government’s reply brief.
O’Connell’s testimony also matches the opinion of Carol Minsk, a geologist with the S.C. Department of Health and Environmental Control, who has stated that all of the contamination on Horry Land’s property came from AVX. Minsk has been the state regulator in charge of environmental cleanup at AVX since 2005.
Environmental tests have shown TCE levels as high as 1.6 million parts per billion in groundwater at the AVX site and 18,200 parts per billion in the groundwater of a roughly 10-block neighborhood to the north of the manufacturer’s location. The U.S. Environmental Protection Agency has set a maximum safe limit of five parts per billion for drinking water. Although the groundwater in Myrtle Beach is not used for drinking water, it must be cleaned to that standard to meet state and federal regulations.
AVX – which moved its world headquarters from Myrtle Beach to Greenville in 2009 – will clean up the groundwater by 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.
AVX also is facing pollution lawsuits filed by other property owners near its Myrtle Beach facility – one by a developer which says its condominium project was halted because of the contamination and the other a class-action case on behalf of property owners who say their land values have been ruined by TCE in the groundwater. Both of those cases are pending in state court.
Contact DAVID WREN at 626-0281.