Led by Myrtle Beach-area legislator, state lawmakers consider further limits to private pollution lawsuits

Proposed legislation that environmentalists say would further erode private citizens’ ability to hold polluters accountable for their actions took another step toward passage Wednesday with a Senate subcommittee forwarding the bill to a full committee hearing scheduled for Thursday.

The Senate Medical Affairs Subcommittee, chaired by Sen. Ray Cleary, R-Murrells Inlet, unanimously agreed to move the bill – an amendment to the state’s Pollution Control Act – to the full committee but did not make a recommendation about whether or not it supports the measure.

The bill – co-sponsored by state Rep. Nelson Hardwick, R-Surfside Beach – would eliminate the ability of private citizens and environmental groups to file lawsuits under the Pollution Control Act for any pollution discovered after June 6, 2012, regardless of when the pollution actually occurred.

The bill is intended to clarify similar language included in a 2012 amendment to the act.

The legislature approved a law in 2012 that prohibits private claims under the Pollution Control Act. However, that legislation included a “savings clause” that grandfathered private pollution lawsuits prior to June 6, 2012. Environmentalists took that clause to mean private lawsuits can continue to be filed as long as the pollution that is the subject of the litigation occurred before June 6, 2012. A circuit court ruling that year appeared to back up the environmentalists’ interpretation.

Lawmakers who support the current proposal say the intent of the 2012 law was to prohibit any further private litigation. They say the S.C. Department of Health and Environmental Control is the only agency allowed to bring legal action under the Pollution Control Act.

“This would be very detrimental to environmental efforts,” said Nancy Cave, north coast director of the Coastal Conservation League. “Private individuals have to have some leverage because DHEC is not as vigilant as we feel they should be.”

Hardwick said private individuals directly impacted by pollution still can file lawsuits claiming violations of other state laws – such as negligence and trespass – but the Pollution Control Act should be left to DHEC’s oversight. He said the bill would stop third-party groups, such as the Coastal Conservation League, from suing on someone else’s behalf.

Members of the Senate subcommittee said Wednesday there needs to be further clarification on what legislators intended when they approved the 2012 law.

“I don’t think we want to change policy here, we want to affect what was approved two years ago,” said Sen. Tom Davis, R-Beaufort. Davis said he still isn’t clear on what legislators meant by the language included in the 2012 law.

“What we passed is what everybody said they agreed to,” said Sen. Brad Hutto, D-Orangeburg. “Now, there’s been a different interpretation about the language that we passed. . . . I think one side is going to tell you they thought what was written down meant something that it didn’t and the other side is going to tell you we agree to what was written down.”

“I think that’s the heart of the problem,” Cleary said. “There was an agreement and everybody thinks it was agreed to different.”

Cleary said he hopes to bring representatives from both sides together for Thursday’s full committee meeting “so we can get a better feel for it.”

The Senate committee is taking up the measure after the House approved the bill in February. State Rep. Dwight Loftis, R-Greenville County, co-sponsored the legislation with Hardwick.

The proposal has the support of Horry County’s legislative delegation, including those lawmakers whose districts have been beset by pollution in recent years.

State Rep. Alan Clemmons, R-Myrtle Beach, represents residents in a roughly 10-block neighborhood where electronics manufacturer AVX Corp. polluted the groundwater with a toxic chemical called trichloroethylene. And state Rep. Kevin Hardee, R-Conway, represents a district where coal ash ponds at the Grainger electric plant threaten the adjacent Waccamaw River.

Clemmons and Hardee, who voted in support of the bill when it was in the House, did not return telephone calls seeking comment.

Lawsuits brought by private groups have played key roles in forcing remediation of pollution in Horry County.

For example, Santee Cooper initially wanted to leave the coal ash ponds in place indefinitely at the Grainger site, but agreed last year to move them to an offsite, lined landfill after private environmental groups sued the state-owned electric utility.

“We would still have coal ash ponds sitting at Grainger if we hadn’t been able to litigate,” Cave said.

Frank Holleman – a lawyer for the Southern Environmental Law Center, which fought Santee Cooper in court – said private actions under the Pollution Control Act “have been very good for South Carolina and particularly Horry County and the coast.”

“It has allowed citizens to protect their communities from illegal, toxic pollution,” he said.

Hardwick, who sponsored the 2012 legislation banning private lawsuits under the Pollution Control Act, said citizens still have a venue for fighting pollution violations by filing a complaint with DHEC.

“If they see something that is a violation, they can ask DHEC to investigate it,” he said.

Holleman said the limits on private actions under the Pollution Control Act are an example of state legislators bowing to business interests at the expense of their constituents. The S.C. Chamber of Commerce, for example, listed the elimination of “frivolous lawsuits” under the Pollution Control Act as one of its top legislative issues for this year.

“This is being driven by the utilities and manufacturers; nobody from the public has asked for this bill,” Holleman said. “Unfortunately, instead of looking at what’s in the public’s best interests, so many legislators just follow the lead of the lobbyists for those utilities and manufacturers.”