By Stan Welch
Six years after the largest fuel spill in state history, Kinder Morgan has settled a lawsuit resulting from the spill of almost four hundred thousand gallons of fuel into an unnamed tributary of Brown’s Creek, which in turn feeds into Broadway Lake and Rocky River on its way to Lake Secession.
The settlement establishes a fund of a million and a half dollars, to be administered by Upstate Forever and the Savannah Riverkeepers, two prominent environmental organizations that filed the suit through the Southern Environmental Law Center (SELC).
Greenville attorney Frank Holleman was the lead attorney on the case, which had reached the U.S. Supreme Court before a ruling by SCOTUS in a similar case essentially knocked the legs from under the Kinder Morgan appeal, leading to the settlement.
Mihir Mehta, division director for DHEC, assured the audience at a public meeting in 2018, that DHEC is committed to the cleanup, but cautioned that it has been underway for only a year or so. “We are committed to seeing this cleanup conducted in a timely and appropriate manner, and will remain on the job until that is completed. But we have always said that this is a long term solution and will take a number of years.” He also mentioned that Kinder Morgan had suggested the possibility of an alternative source of the pollution; a claim that led Wilson to say that the only other possible source would be the ethanol facility also owned by Kinder Morgan. Chris DeScherer, an attorney for the SELC, asked if the company had provided any supporting evidence for their claim. Mehta conceded they had not. At another point in the process, Kinder Morgan attorneys argued that, since the fuel first impacted groundwater before entering Brown’s Creek, it was not subject to the Clean Water Act. That was the argument that was severely weakened by the Supreme Court’s ruling in a similar case.
A lawsuit against Kinder Morgan concerning the oil spill was revived earlier that year when the 4th U.S. Circuit Court of Appeals reversed a ruling by a District Court judge in 2017. Senior District Court Judge Henry Herlong’s decision to dismiss a suit filed by two environmental organizations last year was reversed by a 2-1 vote of the three judge Court of Appeals. The suit, filed by Upstate Forever and the Savannah Riverkeeper charged that Kinder Morgan was responsible for the spill of approximately 370,000 gallons of fuel into two creeks in the Belton area, fuel which they claim eventually reached Broadway Lake, Lake Secession, Lake Russell and eventually the Savannah River. The SELC represented the plaintiffs in that case.
District Seven Councilwoman, whose district includes the site of the spill, was tenacious in her pursuit of a resolution. She hounded state officials, as well as persuading the county to join SELC’s lawsuit as a friend of the court; a move that placed added pressure on Kinder Morgan.