IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA ANDERSON DIVISION

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1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA ANDERSON DIVISION UNITED STATES OF AMERICA, THE ) OFFICE OF THE GOVERNOR OF THE ) STATE OF SOUTH CAROLINA, THE ) DIRECTOR OF THE SOUTH CAROLINA ) DEPARTMENT OF NATURAL ) C/A NO. 8: GRA RESOURCES, THE COMMISSIONER OF ) THE SOUTH CAROLINA DEPARTMENT ) OF HEALTH AND ENVIRONMENTAL ) ORDER CONTROL, and THE COMMISSIONER OF ) THE DEPARTMENT OF NATURAL ) RESOURCES, STATE OF GEORGIA, ) ) Plaintiffs, ) v. ) ) SCHLUMBERGER TECHNOLOGY ) CORPORATION, ) Defendant. ) Sangamo-Weston, Inc. operated a capacitor manufacturing facility near Pickens, South Carolina until the late 1970's. During the period of operation it released an estimated 400,000 pounds of polychlorinated biphenyl compounds (PCBs) into the environment. The release of PCBs resulted in contamination within Twelvemile Creek and Lake Hartwell. Subsequently, Schlumberger Technology Corporation ("Schlumberger") acquired Sangamo-Weston and, although it did not actually release the PCBs into the environment, it became a responsible party under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. 9601, et.seq. Liability under CERCLA involves both remediation of the environmental contamination and natural resource damages. The matter before the Court involves only the natural resource damages aspect of 1

2 CERCLA. In order to resolve its natural resource damages liability, Schlumberger entered into a Consent Decree with the federal and state Natural Resources Trustees ("the Trustees"). The Consent Decree, among other things, required Schlumberger to remove the Woodside I and II dams from Twelvemile Creek and restore a project stretch of approximately 7,600 feet (extending from approximately 1,500 feet upstream of Woodside I dam and ending approximately 700 feet below Woodside II dam) of Twelvemile Creek for ecological damages (the "Twelvemile Creek Project"). Schlumberger also agreed to pay approximately twelve million dollars into a fund to be maintained by the Trustees for projects related to the recreational fishery damages (the "Restoration Account"). The Consent Decree did not require Schlumberger to remove a third dam, the Easley-Central Water District dam, on Twelvemile Creek, located upstream of the Woodside I and II dams and, therefore, it is not part of the Twelvemile Creek Project which is presently underway. The Consent Decree provided that removal of the third dam was one project the Trustees could consider for funding from the Restoration Account. The Consent Decree allocated a portion of the Restoration Account to Georgia projects with the remainder of the fund allocated to South Carolina projects. The Restoration Account presently contains approximately nine million dollars for South Carolina projects. A hearing was conducted by this Court on October 13, 2009, regarding issues related to the allocation of the Restoration Account funds held by the Trustees for South Carolina projects in the Twelvemile Creek/Lake Hartwell area. All of those in attendance who wished to be heard were provided an opportunity to present their respective positions. Paul League served as spokesperson for the Trustees. Also 2

3 appearing were the following: (1) Frank Holleman, III representing Upstate Forever, Pickens County Soil and Water Conservation District, and the Lake Hartwell Association; (2) Dr. Larry Dyck on behalf of the Lake Hartwell Association; (3) Brad Wyche representing Upstate Forever; (4) Carl Edwards, Charlie Gibson, and Rusty Burns on behalf of the Water Education and Environmental Center; (5) Larry W. Hudson on behalf of the Easley-Central Water District; (6) Pickens County Councilman Jim London; (7) Joey Manson; (8) Amanda Bauknight; (9) Joe Carroll; and (10) Peter Osborne. While the Trustees have tentatively decided to use the Restoration Account funds for fish habitat enhancement, public access to the Lake Hartwell fishery, and off-site recreational fishing, the majority of those addressing the Court argued in favor of one of two projects for which the Trustees have not yet proposed funding. These two proposed projects are the removal of the Easley-Central Water District dam on Twelvemile Creek after removal of sediment behind this dam and the establishment of a Water Education and Environmental Center on Lake Hartwell in Anderson County. It is questionable whether the Court has the authority to compel the Trustees to expend funds for any particular project. However, the Court has the right to recommend matters within the ambit of the Consent Decree. Moreover, although the decision to determine which projects to fund may lie initially with the Trustees, the Trustees must act in accordance with the requirements of CERCLA and the Consent Decree for utilization of the Restoration Account funds. Further, as the Consent Decree clearly states, this Court retains jurisdiction to modify and enforce the terms 3

4 and conditions of this Consent Decree and to resolve disputes arising hereunder as may be necessary or appropriate for the construction or execution of this Consent Decree. Consent Decree XXIV, 57 (emphasis added). See also id. at XIX, 50 (explaining that this Court can modify the Consent Decree upon the noticed motion of any party). Therefore, it is ultimately the province of this Court to ensure the Trustees expenditure is being used as required by the Consent Decree, specifically that the remaining funds be used for the following three purposes: (1) create opportunities for the public generally to harvest fish that are not subject to the current fish consumption advisories; (2) enhance the recreational fishery of Lake Hartwell, Twelvemile Creek, and the surrounding area; and (3) improve the habitat and natural resources withing the Twelvemile Creek corridor. See Consent Decree IV, 5. The removal of the Easley-Central Water District dam and the establishment of a Water Education and Environmental Center appear to have significant support from the public. This Court also finds these two projects clearly accomplish the three purposes for which the Restoration Account funds were established. The Court is aware that the Trustees have prepared a Draft South Carolina Recreational Fishing Compensation Plan which involves consideration of various South Carolina projects for the expenditure of the approximately $9 million in the Restoration Account. Before this final plan is completed, the Court strongly recommends the following: approximately $3 million be allocated for the Easley-Central Water District dam and sediment removal project; approximately $3 million be allocated to the Water Education and Environmental Center project; and the remaining funds of approximately $3 million be used for the projects outlined in the Draft South Carolina 4

5 Recreational Fishing Compensation Plan. AND IT IS SO ORDERED. G. Ross Anderson, Jr. United States District Judge October, 2009 Anderson, South Carolina 5