Tuesday, Jan. 15, 2008

AVX's secret upsets experts

DHEC delay to disclose TCE data also in question

Toxic contamination at the AVX Corp. facility in Myrtle Beach was kept secret for 26 years, and that has some environmental experts and residents questioning why state regulators never did anything to inform the public about a potential health risk.

Even when tests last year indicated the contamination had spread to property adjacent to AVX, the S.C. Department of Health and Environmental Control did not notify residents, city leaders and adjacent landowners.

DHEC officials say they usually don't notify anyone unless there is an immediate health danger.

The case is drawing attention from environmentalists nationwide, including Robert Kennedy Jr., whose Kennedy & Madonna law firm has offered to help Myrtle Beach residents fight AVX in court.

"It's hard to believe everyone just sat on all this information for so long," said Kevin Madonna, who, with Kennedy, works with community groups nationwide on environmental issues.

Madonna said high levels of trichloroethylene found in groundwater near AVX could mean the chemical's fumes are seeping into nearby homes and businesses.

"That's a caustic chemical," Madonna said. "You don't want to be breathing that."

Nancy Cave, director of the Coastal Conservation League's North Coast office in Georgetown, said DHEC's decision not to inform anyone about the contamination is irresponsible.

An AVX spokesman has told residents the contamination is no threat to their health.

Cave said a legal opinion issued last month by state Attorney General Henry McMaster shows DHEC has a history of collusion with industry.

McMaster, in that opinion, said DHEC broke state law when it sealed public records about pollution at a nuclear waste dump in Barnwell County.

"More and more is being revealed about DHEC and its lack of responsibility to the health of our citizens and the environment," Cave said. "Their mission is to protect the people of this state, and they are not doing that."

DHEC spokesman Thom Berry said the agency investigates so many contaminated sites statewide that it is impractical to notify residents and local officials in every case.

AVX is one of 4,459 groundwater contamination sites overseen by DHEC, including 341 in Horry and Georgetown counties, according to an agency report last month.

Most of those cases are about leaking underground fuel tanks.

Berry said the AVX contamination does not qualify as an imminent threat because the trichloroethylene, or TCE, is not in drinking water.

"It's not because we have anything to hide, but we want to go in and find out what may be going on first and try to determine whether there is a real imminent danger," he said. "Then we can move forward in an appropriate way."

TCE is a liquid degreaser used by AVX and other manufacturers in the 1970s and '80s. The chemical, which has been linked with cancer and other health problems, can stay in groundwater for decades. Its poisonous vapors also can seep through soil and into homes and businesses above groundwater.

TCE rarely is an immediate risk because it can take years before exposure to the chemical results in health problems.

Notification comes late

Aside from the health risks, TCE contamination can ruin property values because home sellers must disclose any environmental problems to prospective buyers.

Madonna, the environmental lawyer based in Hurley, N.Y., said the AVX contamination levels are so high and the problem has persisted for so long that he doesn't understand why DHEC didn't notify anyone.

"It's unusual that the public has just become aware of this," Madonna said. "I'm surprised the state hadn't notified anyone."

AVX knew as early as 1981 that it had contaminated its 17th Avenue South facility, according to DHEC documents. AVX tried to clean up the contamination without notifying state officials, but it could not get rid of the chemical.

AVX notified DHEC of the contamination in 1995, and the state has been working with the manufacturer on a cleanup plan ever since.

AVX paid a $7,000 fine as part of a consent agreement with DHEC, but the manufacturer did not admit any wrongdoing.

The contamination did not come to the public's attention until last month when The Sun News published a story about a lawsuit Horry Land Co. filed against AVX.

Horry Land claims TCE contamination has migrated onto its property from AVX, and it wants the manufacturer to pay $5.4 million in damages.

A second lawsuit was filed last week by Surfside Beach lawyer Gene Connell. That class-action lawsuit is on behalf of all home and business owners in the 10-block neighborhood where TCE contamination has been found.

Connell wants AVX to pay those property owners the fair-market value for their contaminated land, an amount that could top tens of millions of dollars.

Finding out by accident

Horry Land lawyer Charles Jordan said his client found out about the TCE contamination almost by accident.

"They wanted to redevelop the property and in the process of doing some environmental tests they discovered the consent order with DHEC," Jordan said.

Horry Land had leased its property to AVX for 25 years, and the manufacturer used it as a parking lot for employees until the end of 2005. Environmental tests near the Horry Land property have shown TCE levels of up to 19,200 parts per billion in groundwater. The federal government has set the maximum safe level at five parts per billion.

Jordan said AVX and state officials never notified Horry Land that there might be a TCE problem in the area.

In fact, state records show, DHEC didn't become aware that TCE was migrating from the AVX site until after Horry Land sent copies of its test results to the agency.

"Because of this additional data, it is clear that the complete extent of the [TCE] plume has not been delineated," stated an Aug. 31, 2006, letter from DHEC to AVX. The state agency told AVX in that letter to come up with a plan to test more groundwater sites within 45 days.

Myrtle Beach spokesman Mark Kruea said the city received requests a year ago and in October to drill groundwater test wells.

That request came from a New York environmental firm that was working with AVX. Kruea said the city complied with the requests, although the paperwork did not say why the test wells were being drilled.

Kruea said DHEC never told the city about contamination near AVX. The first Myrtle Beach officials heard of it, he said, was in the newspaper.

Secrecy and danger

Berry, the DHEC spokesman, said there is a high threshold that must be met before a site can be declared an imminent health risk. That is because the agency does not want to needlessly alarm residents, Berry said, and because DHEC must be able to legally defend its decisions.

"We've taken actions in the past where we've closed businesses because of potential harm," Berry said. "Then those businesses file a lawsuit and we have to defend our action in court.

"Even though there may be serious problems at a site that must be addressed, that doesn't mean it necessarily rises to the level of imminent danger," he said.

McMaster, in his legal opinion last month, called on DHEC to be more forthcoming in such cases.

"Secrecy only heightens fear," McMaster stated.

Berry said the agency intends to do that in Myrtle Beach in the coming weeks by hosting a community forum to discuss the TCE issue. That meeting date has not been scheduled.

Meanwhile, questions about health risks and property values remain.

DHEC has ordered AVX to pay for a new round of environmental tests that will better determine how much contamination exists and whether it is present in soil and air samples. It is not clear when those tests will be completed.

Carol Minsk, a DHEC geologist who is helping to oversee cleanup at AVX, said there still are too many questions to make a definitive statement about the possible health risk.

Environmental experts agree the biggest danger for residents would come from breathing TCE vapors, which can seep through cracks in slab foundations and walls.

Lenny Siegel, a TCE expert and director of the Center for Public Environmental Oversight, has said "there is a good chance that vapors are rising into the buildings" near groundwater because the TCE readings are so high.

TCE levels near the AVX site are hundreds of times higher than the EPA's safe threshold, environmental tests show. Readings as far as 10 blocks away from AVX are eight times higher than the safe level.

Connell, in the lawsuit against AVX, says the contamination has ruined property values in the 10-block neighborhood. That is because S.C. law requires property sellers to disclose all defects and dangerous conditions to prospective buyers.

"No one is going to want to buy those homes for fear that the contamination might cause damage to their children, much less their property," Connell said.