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AVX wants to omit evidence and testimony

Electronics component-maker AVX Corp. has asked a federal judge to exclude much of the testimony and evidence that could be damaging to the company during a trial this week that will determine whether AVX must pay adjoining property owner Horry Land Co. for contaminating its groundwater with a toxic chemical called trichloroethylene.

Among the evidence the company wants to withhold from a jury: opinions about the decline in Horry Land's property values as a result of the contamination; the damaging health effects of trichloroethylene, also known as TCE; environmental contamination at other AVX sites; and opinions about the length of time it will take to clean up the pollution at Horry Land's site.

AVX also wants a judge to bar Horry Land lawyer Saunders Bridges Jr. from calling the company's manufacturing facility "a hazardous waste dump."

Bridges, a Florence lawyer, has said in previous court hearings that AVX's mishandling of toxic chemicals at its Myrtle Beach site during the 1970s and 1980s was akin to the operation of a hazardous waste dump.

Court documents show AVX used "substantial amounts" of TCE for more than three decades - as much as 465 tons per year - at its 17th Avenue South facility before discontinuing its use in 1986 because of health concerns. Thousands of gallons either leaked or were dumped into groundwater during that period.

AVX spent more than a decade trying to cover up the pollution before finally telling state regulators about the spills in 1995, court documents show.

Bridges declined to comment on the case. Kevin Dunlap, a Spartanburg lawyer who represents AVX, did not respond to a request for comments.

A trial over the contamination issue is scheduled to start Wednesday in federal court in Florence - more than three years after Horry Land first filed a lawsuit against the manufacturer over contamination of its property along 17th Avenue South in Myrtle Beach.

The state's Department of Health and Environmental Control learned in 2006 that TCE had spread through groundwater from AVX's manufacturing plant on 17th Avenue South to a roughly 10-block neighborhood in Myrtle Beach.

This week's trial only concerns the Horry Land property across the street from AVX. A pair of lawsuits filed by property owners throughout the 10-block area are pending in state court.

DHEC has said there is no health threat from the contamination because groundwater is not used as a drinking water source in Myrtle Beach. However, property owners say their land values have plummeted because of the contamination.

Horry Land Co., for example, said in court documents that its property would be worth $5 million if the contamination did not exist. With the contamination, the property is worthless, the company said in court documents.

Proving that the drop in property values is due to pollution rather than the real estate crash could be difficult, according to Richard Lovelace, a Conway lawyer who specializes in real estate and banking issues.

"You're not going to be able to break apart the decline that's due to environmental contamination and the decline that's due to the drop in the real estate market," Lovelace said. "It's going to be a real problem trying to prove damages."

Lovelace said property values have dropped about 40 percent in the Myrtle Beach area since the real estate crash began. Real estate sales data show a roughly 50 percent decline in prices for property in the 10-block area where lawyers say values have been affected by the AVX pollution.

AVX claims in court documents that there has been no damage because the property is vacant and Horry Land was not marketing it for sale. If there has been any damage, AVX said, it is temporary because the TCE can be removed from the groundwater to meet federal drinking water standards.

Horry Land will try to prove a strict liability claim during this week's trial, which means it will not have to prove any negligence on AVX's part to win its case. Such liability usually is reserved for those who engage in activities that are known to be dangerous to others.

AVX claims in court documents that its use and disposal of TCE was standard practice for manufacturers in the 1970s - years before the degreaser was shown to cause health problems, such as cancer - and, therefore, does not constitute strict liability.

"There is no evidence in this case that the handling and use practices at the time AVX discovered the TCE contamination deviated from industry standards," Dunlap said in documents filed last week. "There certainly is nothing to indicate that AVX's conduct in not reporting the TCE contamination was a violation of the law or applicable regulations."

Bridges, however, has said AVX's secret attempts to clean the pollution over a 14-year period after a massive spill was detected could raise the manufacturer's level of culpability.

"It's not just a matter of the contamination itself, but it's the matter of what did they do on their plant right across the street from us for that 14-year period?" Bridges said during a previous court hearing.

This is the second time AVX has tried to exclude evidence from this trial.

AVX previously tried to keep Horry Land from getting access to about 1,500 pages of documents detailing the company's secret clean-up efforts at the Myrtle Beach site. A judge ruled last year that AVX must turn over the documents and they are expected to play a major role in this week's trial.

Another document that AVX asked last week to be excluded is a consent order the company signed with state regulators in 1996 after it admitted causing environmental contamination at its facility.

That consent order details the company's use of TCE and other chemicals and its attempts to clean up the contamination before reporting it to state regulators. DHEC said in the order that AVX had violated the state's Pollution Control Act and other environmental regulations. AVX was fined $7,000 and ordered to clean up its property.

AVX wants that consent order and any testimony about it excluded from the Horry Land trial because the order states that it "may not be utilized by third parties against AVX as proof of any allegations, findings, or conclusions contained herein."

AVX's requests to exclude evidence and testimony were included in 13 "motions in limine" - Latin for "at the threshold - the company filed last week. Such pre-trial motions address issues that a party thinks might be prejudicial to a jury if they were to hear them in open court.

If the motions are granted, Horry Land could not mention the excluded evidence or testimony without first approaching the judge where a jury can't hear the discussion and then obtaining permission. Violations of such motions, if granted, could result in a mistrial.

This week's trial will be held in two phases. In the first phase, a jury will decide whether AVX is financially liable for the contamination on Horry Land's property and, if so, how much the company should pay. A second phase will immediately follow the jury trial in which a judge will hear AVX's claims that Horry Land and the U.S. military contributed to the pollution. If a judge rules in favor of AVX during that phase, he then will determine what portion of the cleanup costs each party should bear.

AVX has said it believes some of the TCE migrated from the former Myrtle Beach Air Force Base, which is adjacent to the company's property. Military officials say the former base is not a source of the pollution.

Among court documents filed last year by the military was a 1995 report from an AVX consultant that blamed the manufacturer for all of the TCE on its property.

"AVX's own consultants determined that past material-handling practices and/or leaks from the former underground TCE storage tanks [including associated piping] caused the groundwater contamination" that eventually migrated to Horry Land's property and the surrounding neighborhood, said William Nettles, the U.S. attorney in South Carolina.

DHEC officials also have said AVX is the sole source of TCE contamination at the Horry Land site and the surrounding neighborhood.

Jury selection for this week's trial is scheduled for Tuesday followed by testimony beginning on Wednesday. AVX has said in pre-trial disclosures that it plans to call 21 witnesses and present 394 exhibits during the trial. Horry Land has said it plans to call 27 witnesses and present 18 exhibits as well as an unspecified number of AVX documents, consultants' reports and financial records.

Environmental tests have shown TCE levels as high as 18,200 parts per billion in groundwater on the Horry Land site. The U.S. Environmental Protection Agency has set a maximum safe limit of five parts per billion for drinking water. Although the groundwater is not used for drinking water, it must be cleaned to that standard to meet state and federal regulations.

A part per billion is a scientific measurement equivalent to three seconds out of a century or one pinch of salt in 10 tons of potato chips.

Experts disagree over how long it will take to clean up the groundwater near AVX. The company's consultants say it can be cleaned within five years while Horry Land's consultants say a cleanup could take decades.

AVX 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.