By: Ron Barnett, Greenville Online
Originally Published: February 18, 2016
The company that wants to build a landfill for coal ash near Liberty used “deceit, fraud, misrepresentation” and “bare-faced lies” to get state approval to bring in coal ash without Pickens County’s knowledge, an attorney for the county told a circuit judge Thursday.
Robert Goings, a lawyer for MRR Pickens, LLC, said accusations that the company used subterfuge and misrepresentations were “pure fantasy.”
Goings told the judge that the company only wants to do what the county agreed to allow when it approved a landfill for construction and demolition waste and land-clearing debris. He said the county is trying to renege on a legally binding agreement that could cost the company $25 million in lost profit.
The company already has spent nearly $4 million on developing the site, according to the lawyer.
Judge Robin Stilwell said he would review documents submitted by both sides and may have a decision by the middle of next week.
MRR says it needs to have the matter resolved before it can bid on a coal ash disposal contract. The company provided no further details about the contract, including the amount of waste and where it was coming from.
The company had asked for an emergency preliminary injunction to overturn the county Planning Commission’s withdrawal of its land use permit for the property along State 93 and Cartee Road.
Gary Poliakoff, an attorney who specializes in environmental law and is representing Pickens County in the case, presented transcripts of a January 2015 Planning Commission meeting in which company officials denied that a liner would be needed in the landfill and said nothing had changed from their original plans.
That, he argued, conflicted with sworn statements by the same company officials submitted with their lawsuit against the county in which they said they never told county officials there wouldn’t be a liner.
“Either their memories are terrible or they didn’t know there was a recording of it and thought they could get away with it,” Poliakoff said. “I would suggest the latter.”
Goings pointed to a Nov. 20, 2014, letter the company sent to the county that said approximately 60 acres of the facility would be a “lined landfill disposal area.”
The company promised during the January 2015 Planning Commission meeting that it would provide the county with all documents it submitted to the state Department of Health and Environmental Control, according to a transcript of the meeting. But Poliakoff said the company didn’t turn over records that show it was negotiating with DHEC over modifications that would meet the stricter Class 3 landfill standards in order to accept coal ash.
The U.S. Environmental Protection Agency requires that coal ash from power plants be put in lined landfills.
Despite the EPA requirement for a liner, DHEC says the coal ash MRR wants to put in the proposed Pickens County landfill would meet the same environmental standards as required for Class 2 landfills. As a result, DHEC approved what it considered a “minor modification” to the original MRR permit allowing the company to install a liner and drainage system – the same type as used in Class 3 landfills – but retain the Class 2 designation.
Poliakoff presented affidavits from experts on the potential environmental hazards of coal ash and who said coal ash is considered a “special waste” that must go to Class 3 landfills. The modification DHEC approved, he said, should have been designated as “major,” which would have required a public hearing.
County officials have said they were not aware of the company’s plans to put coal ash in the facility until late November 2015.
“If this were on the up and up, why would they not notify Pickens County?” Poliakoff asked.
The judge asked whether DHEC has determined that coal ash meets the Class 2 landfill standards.
Goings said the company has not yet submitted samples to DHEC for testing. “If DHEC says it’s not Class 2, you have my word it is not coming into this landfill,” Goings said.
“We’re very confident that it will be Class 2 waste or we would not be bidding on it,” Goings said.
The judge also asked whether granting a temporary injunction would be “merely academic” if lawmakers pass a bill working its way through the Legislature limiting coal ash to Class 3 landfills.
The bill passed unanimously in the House last week. It received second reading approval by a unanimous vote in the Senate on Thursday, according to Sen. Larry Martin of Pickens.
Planning Commission member Weldon Clark said after the hearing that he thought Poliakoff presented the case well.
“They lied to me, and I don’t like it,” he said.
The legal standard for an injunction such as MRR seeks requires that the plaintiff have “clean hands,” Poliakoff said.
“MRR has no clean hands in this case,” he said. “They have dirty hands.”