A federal judge on Thursday denied the city of Easley’s motion to dismiss a lawsuit that claims the city has been violating the Clean Water Act for decades in a neighborhood that has been scarred by huge sinkholes.
U.S. District Judge Timothy M. Cain said the city’s argument — that the plaintiff failed to put its phone number on its notice of intent to sue — was "an overly technical application of the law" and insufficient to throw out the case.
“The court finds that the notice was reasonably specific enough to give the city opportunity to rectify the problem and avoid a citizen suit,” Cain said after hearing arguments from lawyers on both sides.
Sarah Spruill, the attorney representing the city, also raised questions about whether the plaintiff, a homeowner group, had alleged an actual violation of the Clean Water Act.
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“It appears that their complaint is primarily about stormwater, and stormwater in itself is not a violation,” she said. “You can’t make it stop raining in this subdivision in Easley.”
But the judge said that was not the proper venue to take up that issue.
Easley Mayor Larry Bagwell said he hadn’t spoken to the city’s attorney about Thursday’s ruling and wouldn’t comment until he had.
The hearing at the federal courthouse in Anderson was the latest in a saga that goes back decades in the Oak Creek neighborhood, which has a string of sinkholes in front yards that resulted from the failure of a drainage system.
The city has begun a $1 million project to replace the damaged pipes and fix the property damage, but Luc de Gaspe Beaubien, who lives in the neighborhood and is acting as an expert consultant for the plaintiffs, says the repairs aren’t sufficient to solve the problems.
The suit asks that the court issue the city civil penalties of at least $1 million and for the court to “prevent any work on the storm water system that is not fully in compliance with the laws, regulations and standards of the USA.”
It claims that silt and pollutants have washed from the neighborhood into Brushy Creek and then to the Saluda River, which is a violation of the Clean Water Act.
Speaking for the city, Spruill cited cases in which lawsuits have been thrown out for failure to follow all the filing rules, including providing a phone number for the plaintiff on the notice of intent to sue.
In this case, the plaintiff is Franklin Horse Enterprise, LLC, a corporation owned by de Gaspe Beaubien’s wife, who is joined by a neighbor, Rob Burnett, in bringing the suit. The corporation has no phone number, lawyers said.
The attorneys’ phone numbers were given on the notice, which must be filed 60 days before filing suit, which the judge said was adequate to meet the intent of the rule.
Charles Bridgmon, an attorney for the plaintiff, told the judge that the city has known about the problems in Oak Creek since 1988 when it took possession of the right of way.
“They tried to fix a sinkhole by dumping sand in it,” he said. “That is an obvious violation.”
Cain said he has followed news accounts of the issue and added, “Apparently people have been fussing about it for a long time. There’s been a lot of back and forth and the city is trying to remedy it.”
He suggested that the best course may be to resolve the dispute out of court.
“It seems to me like everybody involved in the case ought to sit down and come up with a solution,” he said.
The city was given 30 days to come up with a response.