South Carolina Environmental Law Project

Lawyers for the Wild Side of South Carolina

ThermalKEM Incinerator

After a six-year legal battle, SCELP and its allies prevailed when ThermalKEM closed its hazardous waste incinerator and gave up its quest to build a second one. ThermalKEM had burned toxic waste in Rock Hill for years, and wanted to expand its operation with a second incinerator. When ThermalKEM sought a new permit, SCELP got involved. After nearly 50 days of DHEC hearings and another dozen or so days in court, including hearings in the South Carolina Supreme Court, Federal District Court, and the U.S. Fourth Circuit Court of Appeals, ThermalKEM finally gave up efforts to permit its expansion and closed its operation in 1995.

In 1989, ThermalKEM filed a suit to contest DHEC's new "need assessment" regulation, which requires a demonstration of need before a permit can be issued for a new or expanded hazardous waste facility. SCELP, along with Columbia attorney Bob Guild (who was already fighting the plant on behalf of local residents) and a whistle blower recently fired by the company, intervened in that case on behalf of the Sierra Club and Energy Research Foundation.

The case began under very bad auspices, with Hurricane Hugo making landfall the night before an important hearing and washing away the Baruch Marine Laboratory at Hobcaw, which hosted back then the first SCELP office. Although ThermalKEM won the case in the lower state court, the SC Supreme Court later voided that order and dismissed the company's suit. DHEC then denied ThermalKEM's application for a permit to build a new incinerator at its Rock Hill plant. Before DHEC could begin appeal hearings on that permit, the company filed another suit in federal court (soon followed by a similar suit by the industry group Hazardous Waste Treatment Council), challenging the constitutionality of the DHEC needs assessment regulation. SCELP again sought to intervene on behalf of the environmental groups represented in the first case, but Judge Perry refused to allow them to enter the suit, only to have his decision reversed on appeal by the Fourth Circuit Court of Appeals.

The federal cases remained pending for over two years, holding up DHEC permit appeal hearing, but following a change in ownership, ThermalKEM gave up and shut down its operations at the end of 1995.

Case Update

The ThermalKEM litigation is a key chapter in the history of "South Carolina Hazardous Waste War." In its early years, SCELP and its allies fought hard on what was becoming the most serious group of environmental issues facing our state, by then unflattering nicknamed the "dumping ground of the nation".

As federal and state regulators moved to enact appropriate regulations, reckless operators used every available loophole (and clamored for more) to remain unaffected by the new requirements. In this regard, a great piece from the early days of the Internet, recounts the ThermalKEM story in vivid and unfortunately still relevant terms.

In addition to the need to resist steady industry influence and recurrent attempts to weaken if not get rid altogether of hard-fought and life saving measures dealing with toxic substances and waste management, there is one more important lesson to be learned from this Rock Hill beleaguered site: clean up are much easier said (promised, studied, planned, committed to) than done. We will keep our eyes on DHEC's progress and invite you to read more about the South Carolina Hazardous Waste War, the aftermath of which our state still does not seem entirely able to deal with.

ThermalKEM Incinerator

"In the early 1970s, Walter and Peggy Neal bought 45 acres near Rock Hill and opened a solvent recycling business. Neal planned to distill old paint and solvents to recover usable chemicals and burn the residue in open pits. Directly across the street from Neal's operation lies the historic Nazareth Baptist Church. Smoke and fumes from the fires would often make members of church, founded in 1859 by the slave ancestors of today's members, cry and cough during services (...) In 1990, the state legislature finally responded to the reality that the entire nation was dumping industrial offal in South Carolina and passed a law that requires an assessment of instate need for new or expanded waste facilities. This law hurt companies like ThermalKEM who regularly receive well over 90 percent of their waste from other states. The law also prohibits siting a hazardous facility within 2,000 feet of a church, school or residence. Under the new restrictions, ThermalKEM could not be built on the present site." (source: POINT, 1995)