Upstate businessman target of first SC State Grand Jury pollution indictment

sfretwell@thestate.comApril 16, 2013 

— Industrial toxins suspected of leaking for parts of three decades in the Upstate brought unprecedented charges Tuesday against an Anderson businessman, who becomes the first person ever indicted by the State Grand Jury for an environmental crime in South Carolina.

George W. Smolen faces up to three years in prison for allegedly violating two state pollution laws while operating an Anderson-area company from 1981 until 2011, according to S.C. Attorney General Alan Wilson’s office.

The State Grand Jury indictment said Smolen discharged “large quantities” of organic and inorganic material to both the land and water during that three-decade period.

All told, those activities caused at least $2 million in damage to the environment – a threshold that allows the state Grand Jury to investigate.

The two-count indictment said Smolen dumped and stored hazardous waste without permits. The storage and discharges occurred on a frontage road in Anderson County, the indictment said. An attempt to reach Smolen was unsuccessful Tuesday night. A woman who answered the phone at the Smolen residence said he was unavailable and was unlikely to comment.

Records show the site is near Lake Hartwell off Interstate 85 between Anderson and Clemson. The business in question, Flex-a-Form, was a type of laboratory that prompted a U.S. Environmental Protection Agency probe and cleanup in 2011. EPA records indicate the site leaked “significant runoff’’ into two creeks that flow into the popular lake. Federal officials found arsenic, an ancient poison and industrial material, in soils well above safe standards. Arsenic also was found in a creek, according to the EPA.

Wilson’s office declined comment on the charges Tuesday, but former S.C. Attorney General Henry McMaster said the case is significant.

McMaster led efforts eight years ago to broaden the State Grand Jury’s powers to include environmental crimes. The Legislature ultimately approved his plan. But after complaints from the business community, the Legislature required that $2 million in environmental damages occur before an indictment could be issued.

“The whole idea was to use this for your big environmental cases, not your run-of-the mill environmental cases,” McMaster said Tuesday.

Questions about whether the $2 million threshold has prevented cases from being taken to the Grand Jury have surfaced since the law passed in 2005. Federal grand juries have historically handled environmental cases in South Carolina.

But McMaster said the threshold is not the reason a case was never brought under his watch. He said his office never found the right case to prosecute.

“We had a number of cases, situations, that we considered for use and determined not to use it,” McMaster said. He said the threat of being investigated by the Grand Jury has had a “deterrent value” for those who might consider breaking environmental laws.

With powers expanded to include environmental crimes, the State Grand Jury can subpoena records and require witnesses to testify, just like federal grand juries.

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