GREEN ALERT
H.4654: VOTE NO UNLESS AMENDED
To: House Members
From: Conservation Voters of SC
Re: Common Agenda Priority
Carolina Bays, groundwater and wetlands protect
water quality and wildlife habitat, and provide flood
control, filtration and storage. The Polluter Bill is an
attack on these resources which are unique to SC.
Background: Protections for Carolina Bays and other wetlands and waters of the state were
included in the 1972 Pollution Control Act. The Supreme Court recently ruled that DHEC must issue
permits for pollutants discharged into ground or surface water, including Carolina Bays and other
wetlands that are currently at risk. The decision also agreed that the Act gives citizens a say in what
happens to the water that they depend on for recreation, drinking and their livelihood.
Unless amended, “Polluter bill” H4654 would eliminate the citizen's right under the Act to protect
his or her property from pollution - and make it easier for polluters to degrade public rivers and
lakes with toxins like arsenic. Please vote FOR the conservation amendments that establish
reasonable permitting for wetlands and Carolina Bays, clarify standing for citizens’ suits – and
support the important citizens’ suit to require South Carolina permits for the Savannah dredging.
(The permit that DHEC granted for construction in navigable waters when it issued its “certification”
is being challenged in the Administrative Law Court. An additional suit was just filed contending that
pollution discharges have not yet been permitted as required by the PCA.)
WETLANDS PROTECTION
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DHEC needs to do its job and establish a reasonable permitting program that includes
exemptions and exceptions just like the federal program does for normal farming and
forestry. The wetlands amendment reflects a consensus reached in 2005-2006: wetlands
under one-half acre are exempted; only a general permit is needed for wetlands between
one-half and one acre. Mud holes and man-made wet features would not meet the
definition of “waters of the state” and would not need permitting.
CITIZEN PROTECTION
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The citizens’ suit is a conservative principle that allows people to protect their property from
toxics and flooding and adverse impacts as a result of pollution, such as arsenic leaking from
coal ash ponds. The amendments clarify standing for its use and make clear that and
individual must prove harm from an illegal pollution discharge. Common law claims for
“nuisance and negligence” are not a substitute and are only “after the fact.”
The existing Frivolous Civil Proceedings Sanction Act is an additional protection against
unwarranted or unsubstantiated lawsuits. And the original law does not allow for damages
or for recovery of costs or fees for the prevailing party.
For more information: Debbie Parker, [email protected] ; Cary Chamblee, [email protected]
GUTTING THE S.C. POLLUTION CONTROL ACT (PCA) WILL HELP
THE DESTRUCTIVE SAVANNAH HARBOR DEEPENING
Last month, thousands South Carolina citizens opposed to the destructive Savannah deepening
brought a lawsuit seeking to stop the project because it lacks a South Carolina Pollution Control Act
(PCA) permit. Now some lobbyists are claiming, incredibly, that gutting the PCA won’t hurt chances
to stop the Savannah deepening. They are wrong. Gutting the PCA would help the Savannah
deepening while rolling back the rights of thousands of South Carolinians – an indefensible
combination. South Carolinians need the PCA. The pro-Savannah-deepening/anti-PCA bullet points
are below, with responses.
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Claim: “For current case, the state court lacks jurisdiction over the United States.”
Wrong. Whoever wrote this has not read the Clean Water Act. Even if this were true, the PCA case
could be brought in federal court, so this is no reason to gut the law.
Claim: “For current case, the Speece cones have not been placed, there is no discharge, and
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thus the case is premature and unripe.”
Nope. Precedent makes clear that lawsuits like this don’t have to wait until the actual damage
occurs; they can be brought to prevent planned destruction. The deepening was ripe enough for GPA
to seek DHEC certification, and for the General Assembly to take action. It is plenty ripe for court
action.
Claim: “For current case, the Corps has not issued a final decision (vis-à-vis a Record of
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Decision) and thus the case is premature and unripe.”
Wrong. There is no doubt that the Corps and GPA don’t plan to apply for a PCA permit so that
decision and ripe for challenge today. They need to be ordered by a court to apply for a PCA permit.
The important point to establish is that the Corps must come to SC for approval and can’t rest on the
401 certification agreement that the DHEC Board rubber-stamped.
Claim: “For current case, the Speece cones and their discharges are proposed to be located in
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Georgia, not South Carolina, waters, and thus the state court lacks jurisdiction.”
Wrong. The Corps says these cones will impact dissolved oxygen levels in South Carolina. They
can’t claim that the discharges will make it into South Carolina, and also claim that the same
discharges won’t make it into South Carolina. It is undisputed that the deepening will require
discharges and pollution in South Carolina, whether from these cones or other sources such as
dumping of cadmium-laden soil in Jasper County.
Claim: “The Speece cones and dissolved oxygen issues are currently being litigated by the SELC
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against the Corps in the Administrative Law Court. The SELC can raise all of these environmental
issues at the ALC and obtain the same relief they are seeking in state court.”
Sloppy, and wrong. The ALC will decide if the DHEC Board improperly certified that this project
complies with specific water quality standards. It won’t address whether a separate PCA permit was
required and the relief sought in the PCA case (a court order stopping the project until a SC PCA
permit is obtained) is different than sending the 401 certification back to DHEC. South Carolina
should NOT give up an important protection of its waters and environment from the Savannah Harbor
deepening because of other litigation on an entirely separate point.
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Claim: “For the future, the same issues of Speece cones and environmental impacts will be
raised in a federal challenge (by the SELC) to the Corps’ final decision based on the Corps’ final
environmental impact statement under federal law in federal court.”
Wrong again. Whether a PCA permit is required under state law is not a question of law under the
National Environmental Policy Act, the federal law governing impact statements. At any rate, possible
future federal litigation challenging a Corps decision under a federal statute is a much more uncertain
prospect than gutting a state law to remove a state challenge NOW.
Claim: “For the future, the same discharge issues may be raised by the SELC on negligence and
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nuisance claims.”
Wrong, ridiculous. The point of the litigation is to stop this misguided project in the first place
BEFORE the damage occurs. A common law suit would have to wait until AFTER THE SAVANNAH
RIVER HAS BEEN DREDGED AND DEEPENED. That is what the backers of the PCA amendments
would do – allow the Savannah project to go forward and tell people to sue somebody afterwards if
there are bad results. This is absolutely foolish. Nuisance and negligence are common law causes of
action that probably have no application here. They may be useful if the Corps got into a car wreck,
but not in this tax-funded train wreck.
Claim: “For the future, the Maritime Commission has the authority and power to raise any PCA
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claim against the Corps in the appropriate venue at the appropriate time (i.e., in federal court after
issuance of the Corps’ Record of Decision).”
Dangerously wrong. Gutting the PCA would prevent anyone – including the SRMC itself – from
challenging the lack of PCA permit in the Savannah case. And as discussed before, this claim need
not wait until a Corps’ ROD is done, and it need not be brought in federal court. In fact, as anyone
familiar with the Savannah project knows, this claim should be brought right now – and it has been –
before the horse gets fully out the barn. Plus no one should count on the Maritime Commission
from bringing this claim – it hasn’t done anything under the PCA to date, and a lot of time has gone
by.
Don't take away a key pollution-fighting tool
Island Packet
[email protected]
Published Sunday, February 26, 2012
If the Savannah River dredging permit debacle tells us anything, it is that we can't depend on
state officials alone to watch out for our interests.
Gov. Nikki Haley and the state Department of Health and Environmental Control let us down
when DHEC worked out a weak agreement to pave the way for a water quality permit to
dredge the Savannah River for more than 30 miles to Georgia's Savannah port.
Now lawmakers, who were so upset over the Georgia port permit that they unanimously
passed a joint resolution to try to undo it, are moving ahead with a bill that would take away
an important tool from private groups seeking to right an environmental wrong.
That tool is the ability to bring a lawsuit under the state's Pollution Control Act. A House bill
would prevent private parties from suing for violations under the law.
The Southern Environmental Center has filed a lawsuit claiming that the U.S. Army Corps of
Engineers needs a permit under that law, as well as a water quality permit, before it can go
ahead with the project to deepen the river.
The lawsuit, filed on behalf of the Savannah Riverkeeper, the S.C. Coastal Conservation
League and the S.C. Wildlife Federation, claims the Corps' plan to dump dredge spoil on the
South Carolina side of the river (specifically the proposed site of the Jasper County deepwater port) requires pollution permit. The groups contend the material to be dredged, by the
Corps' own admission, contains potentially toxic material, including cadmium.
They make a good point, and one that should have come from DHEC, but did not. DHEC's
staff, after initially turning down the water quality permit, and the agency's board turned their
efforts to coming up with a way to grant the permit after Haley asked them to reconsider. The
Pollution Control Act didn't come up in that debate.
The move to prevent private lawsuits under the act was a result of a state Supreme Court
decision last summer. The court ruled in a lawsuit filed by the Georgetown County League of
Women Voters, objecting to the filling of isolated freshwater wetlands, that a private person
or group can bring a lawsuit if they see violations of the law.
Other lawsuits that could be affected by the change in the law seek to limit cruise ships in
Charleston; stop arsenic pollution from a coal plant near Congaree National Park; and fix
groundwater contamination in Myrtle Beach around the old AVX industrial site, The
(Columbia) State newspaper reports.
Lawmakers must recognize the irony of their trying to stop lawsuits aimed at protecting
South Carolina's resources even as they take the highly unusual step of trying to undo an
agency decision on an environmental permit.
Their frustration with DHEC's giving a green light to a project that would potentially damage
critical environmental resources and put at a major disadvantage, if not stop entirely, a port
project on the South Carolina side of the river is palpable. They also see it as a strike against
the Charleston port and its own harbor-deepening plans.
The House ratified the resolution this past week. Haley has said she would veto it; we expect
lawmakers to override her veto.
Legislative action to overturn an agency decision is not the way to resolve this. In addition to
the lawsuit citing the Pollution Control Act, the state's Savannah River Maritime Commission
and the Southern Environmental Law Center have filed legal challenges against the water
quality permit.
State Sen. Tom Davis says the resolution, which sets out the Maritime Commission's
authority over dredging and navigation issues affecting the Savannah River, could be used to
drive home to the courts the role the legislature intended for the Maritime Commission.
The commission was shut out of the debate over the water quality permit, and it should not
have been. The permit conditions also didn't address the potential harm from the material to
be dredged, and they didn't address whether more suitable alternatives to dredging dozens of
miles up the river had been explored. Developing the Jasper port would be such an
alternative.
South Carolinians need the safeguards offered by the ability to file a lawsuit under the
Pollution Control Act when state officials fail to do their duty. The state's high court has said
such suits can be brought. The courts can sort out frivolous or unwarranted suits.
As in the Savannah River dredging case, lawmakers may find they need the help some day.
Read more here: http://www.islandpacket.com/2012/02/26/1976505/dont-take-away-a-keypollution.html#storylink=cpy