Source: The Sun News (Myrtle Beach, S.C.), October 9, 2014
Posted on: http://envfpn.advisen.com
Electronics manufacturer AVX Corp. will pay $1.2 million to the owners of 42 properties in Myrtle Beach where groundwater contaminated by the toxic degreaser trichloroethylene was discovered, according to a preliminary settlement approved this week by a circuit court judge.
AVX used the degreaser — commonly known as TCE and used to clean machinery — for decades and state regulators have said the groundwater pollution migrated from the manufacturer’s property to the surrounding neighborhood, but the company did not admit any liability in the agreement.
The agreement — which comes nearly seven years after a class-action lawsuit was filed against the company — still needs the approval of property owners, who will have a chance to voice their feelings during a court hearing Dec. 8 in Conway. The agreement also comes at a time when significant progress is being made to clean up the pollution.
Kurt Cummings, AVX’s chief financial officer and spokesman, could not immediately be reached for comment. Gene Connell, the Surfside Beach lawyer who filed the class-action lawsuit on behalf of property owners, called the agreement “reasonable” and said it could put an end to litigation that promised “to go on for several more years.”
Marjorie Hewitt, who owns two pieces of property in the contaminated area, told The Sun News she was surprised by the agreement.
“I was starting to think we weren’t going to get anything,” Hewitt said, referring to the drawn-out court battle. “I’ve followed the case for so long and kept all the newspaper clippings. It’s a good deal if I get something.”
A drainage ditch from AVX that emptied into Withers Swash cut through the middle of Hewitt’s property and Hewitt said she and her husband, Steve, often wondered whether the ooze that made its way through their land was dangerous to their children, pets and vegetable garden. Hewitt said her husband and father-in-law, who also lived in the contaminated area, both died of cancer, but she “can’t pinpoint any one cause.”
“You don’t put the blame on anyone, you just go on with your life,” she said.
The proposed agreement calls for $510,000 to be divided among the property owners, with some individuals owning multiple properties within the contaminated area. The remaining $690,000 would go to pay lawyers’ fees and costs related to the complex litigation. Connell said the case involved more than 1 million pages of documents, 50 depositions and more than 2,800 hours of work.
In addition to dismissing the class-action lawsuit, the agreement would bar all future claims against AVX by the property owners.
Judge Larry Hyman gave preliminary approval to the agreement on Monday — the same day that he reduced the number of property owners covered by the class-action lawsuit by about 80 percent.
Connell had argued that the contamination spread from the AVX site to 5th Avenue South, a stretch that included more than 200 parcels including a mix of residential and commercial properties. AVX pointed to evidence from its groundwater testing and the S.C. Department of Health and Environmental Control that showed the contamination was confined to a roughly six-block area between AVX and 11th Avenue South headed toward Withers Swash.
Although property owners outside of that boundary are not covered by the class-action lawsuit, they can bring their own claims against AVX, the judge ruled.
Individuals within the contaminated area contend the pollution has reduced their property values. AVX lawyers have said there is no evidence property values have been impacted and pointed to real estate that has sold at fair market value since the contamination was publicized.
AVX is spending $8 million to clean the contamination through 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. A groundwater test report in July shows there have been “substantial decreases” in TCE levels in several areas during the nearly two years since the cleanup process began.
For example, groundwater from a monitoring well that recorded TCE levels of 50,300 parts per billion in 2003 shows levels of 183 parts per billion two years after treatment started. Groundwater from an extraction well that recorded TCE levels of 89,000 parts per billion in 2003 has been reduced to 10 parts per billion. A part per billion is a scientific measurement that represents the concentration of something in water or soil. One part per billion is equivalent to a pinch of salt in 10 tons of potato chips or one sheet in a roll of toilet paper stretching from New York to London.
The U.S. Environmental Protection Agency has set a maximum safe limit of five parts per billion for drinking water. Although the groundwater near AVX is not used for drinking water, it must be cleaned to that standard to meet state and federal regulations.
AVX has estimated it will take about five years to reduce TCE levels in the groundwater to EPA standards.
The proposed agreement with property owners brings a close to nearly all of the legal action that followed the disclosure in 2006 that AVX had polluted groundwater beyond its boundaries in Myrtle Beach. The last remaining issue is before the state Supreme Court, which has yet to rule on whether owners of property outside the contamination area can sue AVX because stigma from the nearby pollution has damaged their property values. The court heard arguments in that case in January.
AVX in 2011 settled a separate lawsuit with adjacent property owner Horry Land Co., which also claimed its property values had been ruined by the contamination. The terms of that settlement are confidential, but property records show AVX bought the 21.5-acre Horry Land site for $4.6 million.
A third contamination lawsuit — filed by a family that wanted to develop a condominium project near the manufacturer — ended in August 2013 when a jury awarded $750,000 to JDS Development. Both sides later agreed to vacate the judgment in favor of a confidential settlement.
Also in 2013, a federal appeals court upheld a lower court’s ruling in which AVX was found to be solely responsible for the groundwater contamination in Myrtle Beach, dismissing the manufacturer’s claims that the ruling was based on testimony from an unqualified expert witness. AVX had claimed some of the pollution might have come from the former Myrtle Beach Air Force Base, which is adjacent to the manufacturer, but Judge Terry Wooten said there is no evidence to support that claim.
DHEC had urged AVX as early as 2000 to test groundwater on property adjoining its facility but state regulators backed off after AVX said all of the contamination had been contained on its own land. Testimony during a 2011 trial showed AVX officials knew as early as 1981 that pollution might be spreading from its site to other properties, but the company hid that information from state regulators. The pollution wasn’t discovered until 2006, when an adjacent property owner conducted environmental tests in advance of planned development.
Although TCE is a health hazard that can cause cancer and other diseases, DHEC does not consider the Myrtle Beach pollution to be dangerous because the groundwater is not being consumed by individuals. State health regulators also conducted soil gas sampling which showed no dangerous TCE fumes were emitting from the ground into nearby homes or businesses.
AVX moved its world headquarters from Myrtle Beach to Greenville in 2009, shortly after the TCE pollution became a concern for Myrtle Beach politicians and residents. The company, which is publicly traded, makes ceramic capacitors that are used in the medical, automotive and consumer electronics industries.