Appeals court upholds ruling that AVX is responsible for Myrtle Beach pollution

dwren@thesunnews.comFebruary 7, 2013 

— A federal appeals court on Thursday unanimously upheld a lower court’s ruling in which electronics manufacturer AVX Corp. was found to be solely responsible for groundwater contamination near its 17th Avenue South facility here, dismissing the manufacturer’s claims that the ruling was based on testimony from an unqualified expert witness.

A three-judge panel for the U.S. Court of Appeals for the Fourth Circuit – which heard arguments in the case on Oct. 23 – announced its decision in an unpublished opinion, which means the ruling cannot be used as precedent in future cases. AVX has 45 days to petition the appeals court for a re-hearing and 90 days to ask the U.S. Supreme Court for a hearing.

AVX lawyer Kevin Dunlap and Wyn Hornbuckle, a spokesman for the U.S. Department of Justice, could not immediately be reached for comment.

Thursday’s opinion stems from a 2011 trial in which U.S. District Court Judge Terry Wooten ruled that the U.S. military did not contribute to trichloroethylene, or TCE, pollution in the groundwater at and near the AVX site, which is adjacent to the former Myrtle Beach Air Force Base.

Dunlap told the appeals court that Wooten made a legal error when he allowed Dennis O’Connell to testify as an expert because O’Connell specializes in sediments and doesn’t have enough experience with TCE and groundwater to qualify as an expert in the AVX case.

Judge Albert Diaz – who wrote the appeals court opinion – disagreed, saying AVX “undersells O’Connell’s expertise” and “fails to demonstrate that O’Connell lacked the specialized knowledge to provide expert testimony” on the migration of TCE through groundwater.

“O’Connell’s expertise in hydrogeology was indeed broad, but the issue is whether O’Connell could reliably apply his general experience with groundwater contamination to the particular chemical contaminant TCE,” Diaz wrote. “We commit great deference’ to a district court’s decision on that question.”

Judge Harvie Wilkinson and Judge Barbara Keenan concurred with Diaz’s opinion.

The manufacturer’s appeal centered on a lawsuit to determine whether the federal government should share in the cost of cleaning up TCE that has migrated through groundwater from the AVX site to 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.

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 in 2011 for $4.5 million.

O’Connell testified that groundwater from the former Air Force base flows in an opposite direction from groundwater at AVX, which flows toward the Horry Land property. 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.

Another part of AVX’s appeal focused on Wooten’s failure to conduct a “divisibility analysis,” required under federal environmental laws to determine how much of the cleanup costs should be assessed to each responsible party. The appeals court said such an analysis wasn’t necessary because there was no evidence that the military contributed to any of the pollution on the Horry Land site, therefore it was not a responsible party.

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.

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