Cottonpatch, DHEC settle suit over sand mine dust up

From WMBF News Partner, My Horry News:

A lingering lawsuit tied to the controversial Cottonpatch digging site has been settled.

Cottonpatch and its contractor, Southern Asphalt of Conway, reached a settlement with the State Department of Health and Environmental Control, according to court records filed last week.

The settlement allows Cottonpatch and Southern Asphalt to continue digging operations at its site off Gardner Lacy Road without interference provided that material excavated from the site is not taken offsite or sold, except for use in the SC Department of Transportation's backgate interchange project at US 17 Bypass in SC 707, court records state.

Cottonpatch can also ship or sell material for other SCDOT projects provided it's no greater than 15 percent of cubic yards of material excavated between April 5 and the completion of the backgate interchange.

The interchange has an estimated completion date of August 2014, said Horry County spokeswoman Lisa Bourcier.

After the interchange opens to traffic, Cottonpatch may use excavated material to serve a future subdivision on its property, according to the settlement.

But the settlement also allows Cottonpatch to abandon the stormwater permit and excavate material solely as a borrow pit for future SCDOT projects.

DHEC spokesman Jim Beasley declined to comment about the settlement. "We prefer the settlement just speak for itself. It would be inappropriate for us to make any further comment," he said.

Dennis DiSabato, spokesman for the Carolina Forest Civic Association, said there are pros and cons to the settlement.

DiSabato said the deal sets a definite end date on further digging operations.

But he's concerned about the clause allowing Cottonpatch to abandon its stormwater permit and use the site as a borrow pit.

DiSabato is also concerned the agreement doesn't address other underlying complaints citizens who live in nearby Waterford Plantation, Clear Pond and Myrtle Beach National, have voiced, such as noise, dust and increased truck traffic.

"It does not address the immediate concerns of the residents who live around the Cottonpatch site, but there are some very definite positives," DiSabato said.

Stan Barnett, attorney for Cottonpatch and Southern Asphalt, said the agreement spells out what he said his clients had a right to do all along.

"There were no releases of contaminants. There were no discharges of any fluent from that work that caused any violation of the stormwater permit," Barnett said. "There was just disagreement about how the mining statute dovetails with the stormwater statute."

Cottonpatch originally applied for a mining permit in 2010, but withdrew it following stiff public outcry.

Then Cottonpatch applied for a subdivision request, which is less strict and doesn't require a mining permit to conduct digging operations provided either (a) material is being sold strictly to SCDOT for road projects or (b) a subdivision is being built.

Cottonpatch initially claimed the road project exemption, but DHEC discovered material was being sold to multiple buyers, DHEC documents state.

Developers then claimed the subdivision exemption, but DHEC stated in public records that digging operations were in excess of eight feet, a stipulation of the stormwater permit.

Photos taken by Horry County stormwater officials depicted a pit more than 30 feet deep.

In February 2012, DHEC issued a cease and desist order to Cottonpatch contractor Southern Asphalt, saying in public records that digging operations exceeded permitted digging depths and that material was being sold to multiple buyers.

Cottonpatch responded by filing suit in July 2012. Barnett said Monday that his clients chose to ignore the cease and desist order.

"We did not comply with the cease and desist order," he said. "We took the position it was invalid."

According to the settlement agreement, DHEC agreed to suspend the cease and desist order provided excavated material is used in accordance with the settlement.

In turn, Cottonpatch and Southern Asphalt agreed to dismiss the lawsuit, court records state.

Cottonpatch and Southern Asphalt have said that the digging is for a retention pond for an eight-lot subdivision.

Subdivisions do not require mining permits, nor do they require any timetable for construction.

Cottonpatch had also failed multiple state and local inspections, according to inspection reports the Carolina Forest Chronicle obtained through SC Freedom of Information Act (FOIA).

The settlement between Cottonpatch and DHEC states that the construction site passed an inspection that was conducted Oct. 30, 2012.