South Carolina Environmental Law Project

Lawyers for the Wild Side of South Carolina

Pickens County fires back in coal ash battle
December 27th, 2017

By Ron Barnett, Greenville News

A few days after my column updating the legal battle over a proposed coal ash landfill in Pickens County ran late last month, the county blasted back with a motion accusing the plaintiff in the case, MRR Pickens, of obstruction and asking the judge to order the company to answer the county’s questions.

I promised I would keep you updated on the case, so here goes:

As you may remember, MRR, the company that wants to dump this waste that contains arsenic, lead and other toxic metals at a site near Liberty, had been making similar obstruction claims against the county in its most recent filings.

Also, my update last month revealed that the Pickens County Attorney, Ken Roper, had received notice that MRR planned to dump coal ash at the site several months before the county had claimed previously.

In the latest filing, on Nov. 30, however, the county makes what sounds to me like a compelling argument to put that in perspective.

Attorney Gary Poliakoff, who represents the county in the $25 million lawsuit, argues that even if Roper knew in October instead of late December of 2015 that coal ash was in MRR’s plans, the company still had sought and received approval for coal ash from state regulators months before that, without notifying the county.

The Nov. 30 filing lays out a timeline that says MRR began discussions with the state Department of Health and Environmental Control as early as spring 2014 on the possibility of adding a liner and other features that are required for landfills containing more hazardous materials than what Pickens County had in mind when it approved the landfill on State 93.

“No notice was provided by MRR or DHEC to Pickens County, adjoining landowners, or to the public,” the motion says.

Over the next year, MRR continued negotiations with DHEC over changing its permit to allow adding features that would accommodate coal ash disposal, without neither the company nor the agency telling the county anything about it, the motion says.

DHEC approved the permit modification on Aug. 10, 2015, again without notifying the county or the public, under the justification that it was a “minor” modification.

On Oct. 19, 2015, MRR sent what the county describes as a “duplicitous” email to the county attorney discussing a variance in the amount of waste the company would be allowed to put into the landfill each year and mentioning “coal combustion residuals” in a list of seven bullet point items.

“While MRR appears to make great emphasis of this Oct. 19 email, such is misplaced,” the county argues in its motion. “Said email is of no consequence in this litigation. By October, MRR had already secretly and duplicitously obtained the Permit Modification with no notice to County, landowners or the public.

“MRR’s Permit Modification, obtained fraudulently, was already issued more than 2 months earlier.”

Meanwhile, MRR officials, in a meeting with the Pickens County Planning Commission in January 2015, had made what the county argues in the motion were “4 blatant and false misrepresentations.”

Quoting from a transcript of the meeting, the county says an MRR official told the Planning Commission that the details for the project were “just the same” as when the county gave initial approval for the landfill in 2007. But MRR “had already submitted extensive engineering reports to DHEC and discussed modifying the 2008 Permit to add Class 3 features.”

Class 3 is a type of landfill Pickens County doesn’t allow.

Also at that January 2015 meeting, an MRR official had said its proposed landfill “is exactly the same type of landfill that the county is operating.” But the county’s landfill has no liner and doesn’t accept toxic waste.

An MRR official also told the Planning Commission that the company would submit to the county any documents it submitted to DHEC. “However, the evidence shows that MRR in 2014 had submitted multiple engineering reports to DHEC, that it did not furnish to the County,” the motion says.

Finally, an MRR official told the commission the landfill would not need a liner. But the company by that time had submitted plans to DHEC to add a liner.

I’m not a lawyer, but it seems clear to me that MRR was not being forthright with the county about its intentions.

The county, however, also shares some blame.

In the weeks prior to that Oct. 19, 2015 email to Roper, MRR had met with him twice and discussed coal ash, according to an MRR filing in the case.

MRR had offered to meet with Pickens County Council at its meeting in November 2015, the company says in a memorandum filed in the case.

“Most importantly, during late 2015 when MRR contacted the County multiple times for discussions relating (to) the landfill and coal ash/CCR, there was no permanent full time County administrator and the interim administrator, Ralph Guarino, was working three jobs and seeking relief from the interim position,” the memorandum says.

Roper told MRR that he planned to discuss the coal ash issue with members of county council either individually or at the November 2015 council meeting, according to the company's memorandum.

MRR says it emailed Roper three days before the November council meeting to ask if he needed any more information about the coal ash issue.

“Mr. Roper replied via email stating that he had been unable to get MRR on the agenda for the November 16th meeting because the County was consumed with getting a new administrator hired,” the memorandum says.

If the previous council — most of whom were replaced at the last election — hadn't been so hard to get along with and had been able to keep an administrator on the job, things might not have gone as far as they did. And maybe this lawsuit could have been avoided.

However, the saga will continue in the new year.

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