Source: http://www.myrtlebeachonline.com, July 19, 2013
By: David Wren
A pollution trial that was sidetracked last year by a lack of jurors is scheduled to start Monday in Conway with would-be condominium developers JDS Development of Myrtle Beach Inc. blaming the failure of their project on groundwater contamination caused by electronics manufacturer AVX Corp.
David and Steve Nance, partners in JDS Development, claim groundwater containing trichloroethylene, or TCE, migrated from the AVX site along 17th Avenue South to their property, causing their bank to withdraw a construction loan for their planned Southern Pines condo project at the intersection with Beaver Road.
AVX denies the allegations and is expected to argue that the real estate collapse – not polluted groundwater – caused the project’s demise.
The case – originally filed in January 2008 – was supposed to go to trial last year, but only 20 potential jurors showed up during the first day of jury selection and the trial had to be delayed. Judge Benjamin Culbertson has said at least 200 people will be summoned this time to provide a sufficient jury pool.
In addition, AVX has filed more than a dozen pre-trial motions that will have to be heard before the trial begins. Most of those motions seek to have certain evidence and testimony excluded from the trial. For example, AVX previously asked Culbertson to bar any references to TCE’s health hazards, claiming such references are irrelevant to the property damages claim and are only an attempt to scare jurors. Culbertson took that request under advisement last year.
TCE, an industrial degreaser commonly used by the military and others decades ago, can cause cancer after long-term exposure. State regulators do not consider the pollution near AVX to be a health hazard because the groundwater there is not used for drinking water.
The Nances have said they had all the permits and financing in place for their condo project by September 2007, but their construction loan was canceled once the contamination was made public through a series of reports in The Sun News.
When the contamination was publicized, the developers “lost all financing for the project and could no longer market the [condos] to prospective buyers,” according to court documents.
The Nances want AVX to pay an unspecified amount for damages to their 4.4-acre parcel and for the loss of income that would have been generated by the condo sales. The developers had been marketing the condos at prices starting at $180,000.
AVX has said the groundwater pollution does not hinder development and points to the nearby The Market Common project – where homes, restaurants and shops have been built on former military property polluted with TCE and other contaminants – as evidence. AVX also says the pollution has not permanently damaged property values because the company is cleaning up the groundwater to meet federal standards, a process that should be finished within five years. The Nances’ lawyers dispute that timeframe.
This is the second of three civil lawsuits filed over pollution generated at the AVX site.
AVX in 2011 settled a similar pollution lawsuit filed by Horry Land Co. – which owned property across the street from the manufacturer – just as a federal jury trial in Florence was entering its fourth day. AVX agreed to purchase Horry Land’s 21.5–acre parcel after testimony and trial documents showed the company knew about the pollution since at least 1981 but did not try to stop its migration and did not inform adjoining land owners, city, state or federal officials about the problem.
A class-action lawsuit filed on behalf of property owners near the AVX facility is pending and no trial date has been scheduled.
Horry Land discovered the groundwater contamination in July 2006, when environmental tests performed in advance of planned development showed TCE levels of up to 18,200 parts per billion in the groundwater. The maximum amount allowed by the U.S. Environmental Protection Agency is five parts per billion.