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Carolina Chems., Inc. v. South Carolina Dep't of Health & Envtl. Control

Citation: 17 ELR 20582
No. No. 0821, 351 S.E.2d 575/(S.C. Ct. App., 12/01/1986)

The court holds that a past generator of industrial pesticide wastes has no duty under the South Carolina Pollution Control Act (Act) to prevent continued leaching of chemicals into groundwater at a disposal site, and liability under the Act is prospective only. The court first holds that a past generator has no duty under the Act to prevent continued leaching of wastes disposed of prior to the Act's enactment and in accordance with existing laws and regulations. Although it is unlawful under the Act to discharge industrial wastes into the environment except as in compliance with a permit issued by the appropriate state agency, the wastes in question were discharged prior to the enactment of the Act, the generator complied with all laws and regulations in force at the time of disposal, and there is no finding that the disposal constituted a public nuisance. The court rejects the state's argument that the generator is presently violating the statute by allowing the wastes to leach into the groundwater. Once it discarded its waste, the generator intended to abandon any further interest in or control over the waste, and no additional responsibility for the waste was imposed by the contract under which it used the disposal site. The court next holds that the Act's imposition of liability is prospective only. The Act is not a remedial or procedural statute which might overcome the presumption against retroactive application of statutes. The generator's conduct did not constitute either a common law nuisance or a violation of existing laws or regulations. Moreover, the liability created by the Act is different from the potential liability that existed when the generator disposed of the wastes, since it mandates compliance with a permit requirement that did not exist at that time. The court distinguishes cases cited by the state in support of retroactive application, since those cases did not involve a generator disposing of its wastes under contract in accordance with then-applicable law or concerned statutes that expressly provided for retroactive application. The court holds that the owner of the land, an airport district, is liable under the Act for continued seepage from wastes dumped by the generator. The district presently owns the land and accepted responsibility for the discarded containers under the contract between it and the generator which allowed disposal. The district's conduct in allowing the leaching to continue without a permit is taking place now, after the Act's enactment, and thus is within the scope of regulated activities.

Counsel for Appellant
Walton J. McLeod III, Jacquelyn S. Dickman
South Carolina Dept. of Health and Environmental Control
2600 Bull St., Columbia SC 29201
(803) 758-5443

Counsel for Respondent
D. Reece Williams, Frank R. Ellerbe
Robinson, McFadden, Moore, Pope, Williams, Taylor & Brailsford
Suite 600, Jefferson Sq., P.O. Box 944, Columbia SC 29202
(803) 779-8900

GARDNER and CURETON, JJ., concur.