Bill limiting public’s ability to sue polluters moves forward in S.C. Senate

A bill that environmentalists say will hurt state residents while protecting polluters will move to the S.C. Senate floor for consideration following a committee’s recommendation Thursday that it be approved.

The bill, approved by a 5-3 vote of the Senate Medical Affairs Committee, will be presented to the full Senate along with a minority report from those opposing the measure, including Sen. John Scott, D-Richland County. It is not clear when the Senate will take up discussion of the proposed legislation.

The bill would eliminate the ability of private citizens to file lawsuits under the state’s Pollution Control Act for any pollution discovered after June 6, 2012. The bill is intended to clarify language included in a 2012 amendment to the Pollution Control Act. The proposal — co-sponsored by Rep. Nelson Hardwick, R-Surfside Beach — has already been approved by the House.

Sen Tom Davis, R-Beaufort, said during Thursday’s committee hearing that the proposal would not take away anyone’s rights because private citizens still could file complaints about pollution with the S.C. Department of Health and Environmental Control. Any decision by DHEC could then be appealed to an administrative law judge.

“There will still be an administrative remedy,” Davis said. “The remedy is through the administrative law court as opposed to the circuit court.”

However, environmentalists including Nancy Cave — north coast director of the Coastal Conservation League — say DHEC often does a poor job of policing polluters in the state.

Frank Holleman, a lawyer with the Southern Environmental Law Center, said legal pressure from private groups — not state regulators — forced Santee Cooper and other state utilities to agree to clean up coal ash at their aging S.C. power plants, including the Grainger facility adjacent to the Waccamaw River in Conway.

The only state utility that has refused, he said, is Duke Energry, which has no plans to move an ash basin at its Lee power plant along the Saluda River near Anderson. DHEC recently sent Duke Energy a notice of violation over how the company has overseen ash ponds at the Lee site but the agency has taken no action to force the utility to clean up the pollution.

Duke Energy also is facing a criminal investigation in North Carolina related to a coal ash spill into the Dan River north of Greensboro.

Holleman said state lawmakers supporting the proposed legislation are bowing to the wishes of lobbyists who represent Duke Energy and other big businesses rather than acting in the public’s best interests. 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.

Rep. Kevin Hardee, R-Conway, represents the district where the Grainger plant is located and said he “very much wanted the coal ash removed.” But Hardee said he doesn’t agree that private legal pressure forced Santee Cooper to change its stance on removal of the ash ponds. He said legislators told Santee Cooper they would like the pollution removed and Conway City Council passed a resolution opposing a plan to leave the ash ponds in place.

Hardee said the measure to end private lawsuits will stop environmental groups who are taking advantage of the law and “profiting from the lawsuits.”

“They are looking for something to sue someone about,” he said. “It seems like it’s being used for the wrong intent.”

Hardwick, who also sponsored the 2012 amendment to the Pollution Control Act, told The Sun News that private individuals directly harmed by pollution still can file civil lawsuits claiming violations of other state laws, such as negligence and trespass. DHEC, however, would be the only agency able to bring claims under the Pollution Control Act.

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

For example, 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. Clemmons voted in favor of eliminating private pollution lawsuits when the measure was in the House. He did not return a telephone message seeking comment.

It was complaints from private individuals about groundwater pollution near AVX that spurred DHEC to take action against the company. Prior to those complaints, DHEC had taken the manufacturer at its word that no pollution was migrating off the company’s property.