A $30 million discovery

sfretwell@thestate.com, jmonk@thestate.comNovember 21, 2008 

On a lazy summer day six years ago, consultants uncovered three rusting fuel tanks at an old Exxon station in Orangeburg.

It was a hallelujah moment for attorney Bud Fairey.

His law firm had spent a decade and more than $1 million suing Exxon over contamination it claimed was left by leaking underground storage tanks across South Carolina. And it was a major breakthrough to find the leaking tanks that Exxon — and the S.C. Department of Health and Environmental Control — never identified. The discovery led to an unprecedented $30 million court settlement between Exxon and about 50 landowners in South Carolina.

But as satisfying as the settlement was, Fairey said the case exposed flaws in DHEC’s cleanup effort that he still can’t forget.

He’s convinced DHEC took Exxon’s word, at face value, that any tanks on the site had been excavated years earlier. He’s also irked that DHEC opposed his effort to include numerous property owners with polluted land in the case.

“There were times where we felt like we had to fight both Exxon and DHEC,” Fairey said. “DHEC should be more skeptical about whether information it receives is accurate.”

Agency staff members were not made available for interviews with The State. But court records show DHEC relied on data provided by consultants Exxon hired, rather than doing its own work.

A spokeswoman for Exxon, one of the nation’s largest oil companies, said Exxon did not admit liability for the contamination. She said the company declined further comment.

Fairey’s story began even before he finished law school.

For years, Exxon had paid Fairey’s aunt to use her property in Orangeburg for one of its gasoline stations. But the company decided to close the station in the late 1980s, leaving her without rent she counted on as income.

Problems arose when she put the property on the market.

A prospective buyer found evidence of lingering petroleum pollution in soil tests it had conducted, which eventually killed the sale — and cast such a cloud over the land that she was unable to sell it to anyone for years.

Mary Louise Fairey, who has since died, wasn’t sure why pollution was continuing to show up on her land. After all, she had a letter from DHEC saying the underground storage tanks on the property had been removed.

So her nephew, fresh out of law school, began working on the case for the Speights and Runyan law firm of Hampton. The firm filed suit in 1992 for his aunt.

For the next decade, Fairey and three other attorneys, including law firm partner Alan Runyan, spent thousands of hours poring over DHEC records and trying to gain access to Exxon corporate documents.

The work was difficult and at times discouraging — particularly in 1998, Bud Fairey said.

That’s when his firm learned DHEC, the state agency charged with safeguarding groundwater from pollution, had sided with Exxon on an important legal issue. The state agency had filed a legal brief opposing his effort to broaden the case so that people other than his aunt could claim damages against Exxon.

DHEC said making the suit a class-action case could undermine its ability to oversee cleanups. The agency wanted to make sure any cleanup order was consistent with the state’s cleanup standards, DHEC’s Stan Clark said in an e-mail to The State.

“It was absolutely unnecessary,” Fairey said, arguing that his case would have no bearing on the state cleanup program.

Fairey also was concerned with what he found later.

In an August 2002 court deposition, a DHEC cleanup regulator said some of the data his agency relied on came solely from Exxon consultants. He testified Exxon told DHEC buried fuel tanks had been removed.

The agency said contaminated groundwater was trickling across the street from another gas station.

Consultants hired by Speights and Runyan found a different story.

They continued to find elevated levels of pollutants in the soil. But the pollution was above the water table in places, indicating the contamination could not have trickled across the street through groundwater, Bud Fairey said.

Finally, the consultants suggested using shovels to gently dig on his aunt’s land for buried fuel tanks.

On Aug. 7, 2002, three underground storage tanks were found buried under four feet of soil. The following year, Bud Fairey’s law firm settled with Exxon for $30 million. It’s the only state case of its kind, Fairey said.

“This was like digging for treasure, except it wasn’t treasure,” Fairey said.

“After all this time and all these theories and all these scientific people saying stuff, to finally find something just confirmed what we first thought.”

Reach Fretwell at (803) 771-8537. Reach Monk at (803) 771-8344.

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