South Carolina Environmental Law Project

Lawyers for the Wild Side of South Carolina

Coal ash fight continues in Pickens County
November 30th, 2017

By Ron Barnett, Greenville News

About this time two years ago, I broke a story about a company’s plans to dump hundreds of thousands of tons of coal ash into a landfill it was building near Liberty.

In the months that followed, Pickens County residents, understandably, rallied in opposition of the plan. Coal ash, after all, can contain toxic heavy metals such as lead and arsenic.

So there was much rejoicing when the county’s legislative delegation pushed through a new law during the 2016 session that requires that coal ash produced in the generation of electricity be placed in commercial Class 3 landfills, except under certain circumstances. The landfill that the company, MRR Pickens, hopes to operate near Liberty was approved as a Class 2 facility, which typically handle non-toxic wastes such as construction debris.

But in the meantime, MRR had filed a lawsuit against the county, seeking $25 million in damages – and the litigation has continued throughout 2017.

It has taken some nasty turns, too.

In the most recent filing, on Oct. 18, the attorney representing the county in the case asked for a “protective order” following a deposition in which an attorney for MRR “engaged in bad faith, uncivil, and harassing behavior toward the witness,” Chris Brink, the county’s community development director.

“Counsel’s behavior was meant to annoy, harass and embarrass the witness by directing him to read into the record an entire typewritten page,” the motion says.

That was just the latest salvo in a war of attrition in which MRR has repeatedly asked the judge to order the county to answer the company’s questions, and the county has repeatedly sought to avoid answering questions.

A “special referee” who was appointed to resolve disputes between the county and MRR over the litigation process ruled in June that the county must answer the questions.

I was surprised about some of what I saw in the file concerning when the county knew that MRR was planning to put coal ash at the site on State 93.

On Jan. 11, 2016, while I, and most Clemson fans, was watching the Tigers' valiant attempt to win the national championship in the first matchup with Alabama, the Pickens County Planning Commission was meeting. At the conclusion of the meeting, it put out a statement informing MRR that it was revoking its permit to operate a landfill, saying “we now understand from media reports that your company plans to dispose of coal ash/CCR in the proposed landfill.”

Members of the planning commission may not have known about it before they saw it in The Greenville News, but apparently the county attorney, Ken Roper did, according to an Oct. 19, 2015 email that was submitted as an exhibit in the case.

One of the bullet points in the email states that “…MRR is permitted to take Coal Combustion Residuals from any source if it meets all Class 2 specifications.” It also refers to MRR’s request to the state Department of Health and Environmental Control that it be allowed to increase the rate at which it fills the landfill up.

“Defendants have argued that the decision to terminate the land use approval and breach the contracts with MRR were reasonable and justified because MRR was hiding its intentions to accept coal ash/CCR from the County,” the company argued in one filing. “Therefore, what Kenneth Roper disclosed or failed to disclose to Defendants as members of the Planning Commission, Pickens County staff members, and Pickens County Council is a seminal issue in this case.”

That Class 2 reference is one of the key points of contention. County officials approved the landfill as a “C&D” facility – that is, one that would take construction and demolition waste and other non-toxic materials. They weren’t thinking about coal ash. DHEC changed the terminology and now calls such landfills Class 2.

Unbeknownst to most county officials, coal ash is listed as an acceptable waste for Class 2 landfills, although federal regulations require that they have liners and monitoring systems – which MRR planned to have. The county argues that MRR went behind its back to get variances from DHEC for coal ash, and the minutes of a Planning Commission meeting with MRR in January 2015 make no mention of coal ash.

Another key point in the legal bickering over the past few months is whether Roper, the county attorney, can be forced to give a deposition. The county is claiming attorney-client privilege, but the special referee agreed with MRR that Roper had been acting not only as a legal adviser but as a “quasi-interim County Administrator.”

That was part of the problem with this whole affair: During the year MRR was making plans, the county council fired the county administrator and was having a tough time trying to find anybody to take the job.

The county had sought to protect members of the County Council and Planning Commission from having to give depositions, citing “legislative immunity,” but that argument didn’t fly with Circuit Court Judge Letitia Verdin.

It’s hard to tell what the outcome of this case is going to be, but things haven’t been going the county’s way. I wasn’t able to get in touch with Gary Poliakoff, the attorney representing the county.

If MRR wins the case, would the company be able to operate in light of the new state law? Or would Pickens County somehow be compelled to fork over $25 million?

Should people who live near the site still be worried that a constant stream of trucks bearing toxic coal ash will be dumping the stuff in their backyard?

Those are questions I don’t have the answer to. But we’ll try to keep you informed.

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