AVX Corp. vs. Horry Land Company, Docket No. 4:07-cv-03299-TLW (2007) is environmental litigation alleging $5 million in damages to undeveloped land and will come down to the battle of the consultants to acertain where the contamination has come from - with 2 entirely different stories and legal theories.

AVX Corp. operates a manufacturing facility of electronic components (which used VOC compounds including TCE in its operations) and is adjacent to a 27 acre wooded and unpaved parking lot parcel owned by Horry Land (vacant, undeveloped land).  In 1979 Horry leased a portion of their property to AVX for use as a parking lot.  AVX acknolwedges a release of contamination on said property in 1995 and began monitoring it with state DEP oversight.  Horry was not notified of this and in 2005 conducted a Phase I to explore alternative uses for the property and to identify possible RECs.  Horry's consultant recommended a Phase II which was conducted near the AVX property inlcuding water samples and five geoprobe borings.  The borings found TCE contamiation according to Horry's consultant which greatly exceeding state standards. 

Horry hired an appraiser in 2007 that valued the land at $5,375,000 without contamination and 0 with the existing contamination.  At this point Horry sent demand letters to AVX Corp for costs and indemnification for remediation.

AVX Corp denies any liability and denies that it caused the contamination citing the defendant's own environmental reports conducted in 2007 which allegedly identified contamination never used by AVX and in remote areas not near the AVX property.  AVX conducted its own testing under a work plan approved by the state DEP.

AVX Corp then filed suit under CERCLA against Horry Land in October of 2007 for contribution costs, and declaratory judgment - seeking to find the defendant as the responsible party.  The defendant counterclaimed under a series of common law claims (not CERCLA) including: Negligence, Negligence Per Se, Strict Liability for Hazardous Waste, Nuisance and Trespass.

Both parties are seeking attorney's fees and costs involved with risk assessment to date.  Each is also seeking to hold the other liable for the actual contamination.

Battle of the consultants - to determine where the contamination came from and the best evidence will probably carry the day.

Interesting one site - 2 completely different theories of who is responsible, where the contamination came from and the theories of law for recovery.