Category Archives: April 2023

April 2023, Offsite Insights, Savannah River Site

Offsite Insights 2023-4: The DOE-DHEC-EPA Radioactive Waste Public Relations Collaboration

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by Don Moniak
April 10, 2023

The U.S. Department of Energy’s (DOE) Savannah River Site (SRS) and environmental protection agencies charged with protecting public health and our environment from the radioactive, toxic, Cold War SRS, recently collaborated on a news release from Superfund site owner DOE-SRS that understated the risks of SRS radioactive wastes, and overstated the significance of an updated radwaste cleanup agreement that could ultimately allow more radioactive waste disposal at SRS. The regulatory agencies charged with protecting public health and our environment from the hazards at SRS allowed a Superfund site owner, in this case the federal government, to lead the public communications effort.

In August of 2020, the State of South Carolina reached a settlement with the federal government to remove 9.5 tons of stabilized, surplus plutonium stored at the Department of Energy’s (DOE) Savannah River Site (SRS) by 2037.  The stored plutonium is not considered a nuclear waste and is stored above ground.

This past December, two years after the plutonium settlement, the South Carolina Department of Health and Environmental Control (DHEC) and the US Environmental Protection Agency modified an agreement with DOE-SRS on the management of thirty-five million gallons of highly radioactive, liquid waste. Unlike the plutonium, this “high-level” waste is in an unstable form, and is stored in forty three underground storage tanks; some of which are “either fully or partially submerged in the ground water,” according to a 2014 Nuclear Regulatory Commission (NRC) assessment.

Unlike the SRS plutonium legal settlement that defines how much material must leave the state by 2037, either pure or in a diluted waste form, the radwaste agreement is vague enough to provide loopholes for the federal government to dispose of more radwaste at SRS in massive, modern waste tanks.

The Collaborative News Release

On March 28th, three months after signing of the modified agreement, the Department of Energy’s (DOE) Savannah River Site (SRS) operations office issued a news release titled SRS, Regulators Reach Agreement for Liquid Waste Cleanup Milestones. The story pertained to the future management of the 35 million gallons of unstable mix of highly radioactive waste and less reactive and radioactive waste remaining within the radwaste tanks. This radwaste setting at SRS has long been considered the greatest environmental, safety, and health threat in South Carolina; and one of the greatest in the nation—dwarfing the formidable plutonium storage concerns.

The news release was a public relations work of art; typical DOE fare that omitted any reference to the inherent dangers of the radwaste while presenting an insignificant update to an old agreement as a great milestone. What is most unique about the delayed news is that DOE officials admit it was a collaboration (1) between DOE, DHEC, and the EPA.

In the release, DOE-SRS public relations staff quoted DHEC official Henry Porter stating:

“Collaborating with the federal government to agree upon these milestones, values, and goals is critical in achieving the site’s waste cleanup mission and protecting the community and environment beyond the barricades.”

EPA official Randall Chaffins chose to state the obvious prior to complimenting DOE’s relationship with its contractors:

“Safely remediating the radioactive liquid waste and removing the tanks from service at the Savannah River Site protects human health and the environment. EPA is appreciative of the mutually beneficial partnership with DOE and its contractors.”

Neither DHEC nor the EPA have issued independent statements. Questions sent to Mr. Porter and DHEC media contacts on April 3rd were diverted to DHEC’s “constituent services division,” and remain unanswered. (2)

The collaborative news release describes the radioactive waste tanks as “one of the largest environmental risks in South Carolina,” but failed to identify why the radwaste complex qualified for this designation.

The inherent hazards within the waste tanks, and the risks of fires, explosions and leaks are excluded from the narrative. The words cesium, strontium, plutonium, mercury, and hydrogen, to name a few of the hazardous radwaste elements, are absent.

The kinder, gentler term “Liquid Waste” is used in lieu of “radioactive liquid waste” in all but a few instances.” Reduction of “curies” is presented as the primary goal, but the curie inventory is omitted and no context is provided.

“High level radioactive waste” is reduced to “high level waste tank” in the first two paragraphs. To the uninformed, the concept sounds like a physical and geographic description, not an indication of danger.

Community-Free Collaboration

Surrounding communities most at risk from accidents, and most economically affected by the stigma of nearby unstable radwaste, were absent from the negotiations. At the January meeting of the SRS Citizens Advisory Board in downtown Aiken, DHEC and the EPA devoted less than two minutes briefing the Board on the update during the general updates portion of the meeting (3). No public forums are planned by the agencies charged with protecting communities from harm.

Meanwhile, the collaborative negotiations did involve the “liquid waste contractor at SRS, Savannah River Mission Completion (SRMC), (who) assisted with FFA milestone negotiations.” The contracting consortium which stands to profit from any delays in radwaste risk reduction was at the table, but communities who bear the most risk were absent.

The Agreement and The Amendment

The agreement amendment, which was more of a minor, even trivial, adjustment to the larger, forty-year old Federal Facilities Agreement between the agencies and the responsible Superfund site party, was signed by the three parties December 22, 2022. The amendment (4) is shorter than the news release, and is merely an agreement to pursue common “goals and values,” that leaves DOE’s radioactive waste processing and tank closure schedules, as defined in its internal 2019 plan, unchanged. A slightly updated tank closure schedule that mirrors DOE plans is also included.

Most notable among the common “goals and values,” are two “values” for which “vague” is an understatement:

“3. Maximize the amount of curies (especially long-lived radionuclides) vitrified and ready for ultimate disposal out of state; and
4. Limit disposal of curies onsite at SRS so that residual radioactivity is as low as reasonably achievable.”

The agreement amendment contains no firm, quantitative targets, and no defined framework for measuring “as low as reasonably achievable” compliance. The loophole for dumping more “low level” radwaste into six or seven, new, thirty-million gallon Saltstone Disposal Units at SRS is obvious.

The agreement corresponds to DOE’s own plan for closures and completion of the risk reduction effort (5) It does not accelerate the pace of tank closures (6) The tank radwaste produced over a 35-year period will still take at least 40 years to remediate to a safer form, and no legal path for removing any waste from SRS to a long-term disposal site is in sight. The amended agreement was an agreement to take as long as, if not longer, to finish waste processing than in previous agreements.

Hydrogen in RadWaste

One of the omissions of fact in the news release was the hydrogen hazard. While DOE-SRS continuously work towards a greater understanding of hydrogen gas generation which is a key constant limiting radwaste risk reduction progress, DHEC and the EPA do not appear to share the same level of concern.

Coincidentally, one week after the agreement was signed, SRS workers discovered a failed part in its defense-in-depth safety system to prevent hydrogen explosions in the radioactive waste storage tanks. A January 11, 2023 report describes the important, though not uncommon, or unexpected discovery:

“On December 29, 2022, during startup of the Tank 25 purge exhaust fan, Operations noticed steam vapors coming from purge stack. When the purge fan was secured with steam in service, steam vapors were visible. Subsequent inspection of Tank 25 revealed liquid under the purge cabinet. The purge fan was secured. The Tank 25 purge reheater has a functional class of Safety Class and is a credited control to prevent a waste tank explosion.”

Purge reheater failures were reported several other times since 2013, but in those reports there was no mention of its Safety Class role in preventing waste tank explosions.

The DOE-DHEC-EPA agreement contains a single sentence about hydrogen gas generation. In the 2018 revision, a requirement was added about monitoring and reporting of “new nuclear safety requirements regarding hydrogen generation rates within the tank systems.” No updates to this requirement were made in the December 2022 amendment.

“Liquid Waste”

“Liquid Waste” is the kinder, gentler term used to describe the intensely radioactive mixture of precipitated salts referred to as “saltcake”, lighter salt solutions referred to as “supernates”, and heavier, but more mobile, fluids referred to as “sludge” that is presently stored in dozens of Cold War era, gallon waste tanks at Savannah River Site (SRS) ranging in size from ~0.75 to 1.3 million gallons.

The waste is primarily a product of Cold War nuclear weapons materials production, a complex mix of nuclear fission products generated during plutonium production, dissolved nuclear fuel metal cladding (generally aluminum) and the acids, solvents, mercury, and other materials used during the plutonium purification process.

According to the Institute for Energy and Environmental Research’s (IEER) Nuclear Dumps by the Riverside, the “ main radionuclides remaining in the tanks are strontium-90, cesium-137, technetium-99, and cobalt-60, but the residual waste also includes selenium-79, carbon-14, iodine-129, plutonium-238, -239, -240, -241 and -242, neptunium-237, americium-241, and curium-244 and -245.”

Since the mid 1990’s, various SRS contractors have worked towards converting unstable, liquid radioactive tank waste into more stable, solid forms; and “closing” tanks by encasing the residual, most difficult to remove waste in grout.

There is presently 34.2 million gallons of this unstable radioactive waste remaining in 43 waste tanks, with a total reported radioactivity in March of 2022 of 220 million curies, half the total of that reported in 2002. Revision 21 of the SRS Liquid Waste System Plan reported 61 million curies encased in glass, 0.5 million in Saltstone grout, and a ~240 million curie reduction due to natural radioactive decay.

Considerable progress has been made with SRS radwaste risk reduction, especially in comparison to the decades of failed start-up efforts at DOE’s Hanford Plant in Washington State, but at rates well below original forecasts.

The workforce for this cumulative cleanup task constitutes one of the larger labor pools in Aiken County, with the primary contractor employing ~ 2500 people.

From “Liquid Waste System Plan, Revision 21” . Since 2018, ~28 million curies of radioactive waste has been removed from the waste tanks and converted to more stable, solid waste forms. The highly radioactive sludge is encased in a glass form and stored pending a currently unknown, out-of-state disposal path. The less radioactive salt cake and supernate is mixed in a grout and disposed of at SRS in new waste vaults. The process is risk reduction, not risk removal. The only loss in on-site radioactivity is through decay.

Risks of Fires and Explosions in Radioactive Waste Tanks

While leaks from the tanks draw the most attention, the greatest hazard involves the risk of explosions. The infamous Kyshtym chemical explosion in 1957 at the Mayak “Production Association” plutonium recovery and processing site was the earliest warning of the worst consequences from mismanaging plutonium recovery waste.

The explosion caused the release of ~twenty million curies of radioactivity, of which ~two million curies spread outside of the Mayak radiochemical production complex. Ultimately 9,000 square miles were contaminated, about 10,000 people were evacuated, and the adverse and tragic regional human health effects are still being studied and debated seven decades later.

A 2017 article in the Journal of Radiological Protection described the disaster as follows:

“Starting in the earliest period of Mayak PA activities, large amounts of liquid high-level radioactive waste from the radiochemical facility were placed into long-term controlled storage in metal tanks installed in concrete vaults. Each full tank contained 70–80 tons of radioactive wastes, mainly in the form of nitrate compounds. The tanks were water-cooled and equipped with temperature and liquid-level measurement devices. In September 1957, as a result of a failure of the temperature-control system of tank #14, cooling-water delivery became insufficient and radioactive decay caused an increase in temperature followed by complete evaporation of the water, and the nitrate salt deposits were heated to 330 °C–350 °C. The thermal explosion of tank #14 occurred on 29 September 1957 at 4:20 pm local time. At the time of the explosion the activity of the wastes contained in the tank was about 740 PBq [5, 6]. About 90% of the total activity settled in the immediate vicinity of the explosion site (within distances less than 5 km), primarily in the form of coarse particles. The explosion gave rise to a radioactive plume which dispersed into the atmosphere.”

A nontechnical description of incident is that the waste “overheated and exploded, belching up a 160-ton cement cap buried twenty-four feet underground and tossing it in the air. A column of radioactive dust and smoke rocketed skyward for a half mile, which sent down a sooty fallout. The blast issued into the earth’s atmosphere 20 million curies.”

The U.S. Atomic Energy Commission, its successor agencies DOE and the NRC, and their contractors, have long recognized the hazards and worked to mitigate them, even while routinely downplaying the hazards to the public.

A 1976 Analysis of Hydrogen Explosion Hazards from Savannah River Laboratory researcher J.B. Porter reported that “small concentrations of gaseous hydrogen are safe in the absence of air; however, any air leaks in the process equipment could cause an explosion-fire hazard.”

The likelihood of a hydrogen explosion today in the waste tanks holding is considered very low, due to the intense and expensive levels of safety mitigating the hazard. But it is real enough that hydrogen generation is a primary limiting factor inhibiting the progress of processing the unstable radwaste to more stable forms; and efforts to reduce hydrogen generation are necessary to meet radwaste risk reduction goals.

Hydrogen is generated in high level radwaste tanks from radiolysis, chemical heat decomposition, and decomposition of some organic materials. Stirring of the sludge layer and the “homogeneity” of sludge batches necessary for processing at the SRS vitrification plant creates added hydrogen generation concerns.

In a presentation and paper titled “Structural Effects of Postulated Hydrogen Explosions in Process Piping and Vessels,” SRS researcher Charles Keilers described the risks as follows:

“Liquid HLW generates hydrogen from radiolytic and thermolytic decomposition; the hydrogen poses an explosion hazard. Unless purged, it may build up to flammable levels – 4 vol% in air or higher. Combustion at low concentrations results in a slow, low-intensity pressure transient – a low-level deflagration – that could injure unprotected personnel but is not structurally damaging. However, at about 12 vol% in constricted geometries, the flame front can accelerate to hundreds of meters-per-second and be capable of deflagration-to-detonation transition (DDT).

Hydrogen monitoring and control is a constant at the waste tank complex. Tanks are categorized according to the rate of hydrogen generation; such as “very slow” and “slow generation” tanks. Hydrogen is purged and ventilated in “slow” tanks and failed hydrogen monitors merit incident reports from the contractor to DOE managers; but forced ventilation is not required in “very slow” generation tanks.

While the federal government and its contractors are circumspect during public discourse in risk assessments of fires and/or explosions that could scatter radioactive debris across the countryside, the measures undertaken provide enough evidence that the possibility is real.

In a 2009 emergency planning document, Savannah River National Laboratory (SRNL) researchers wrote that:

“Potential source terms are sufficiently large to require that SRS maintain an ingestion exposure emergency planning zone (IPZ) for emergency response.”

The radius for this emergency planning zone is 50 miles(below)


Even in the absence of measurable human suffering, the stigma of radioactive contamination would negatively impact property values across the region and cripple local agricultural markets, at least in the short-term. The only entity willing to underwrite insurance against such an accident is the federal government, which is mandated by the notorious, sixty-five year old Price-Anderson Act to underwrite liability for any major nuclear accident.

Even in the absence of an accidental off-site release of radioactive materials, a hydrogen fire or explosion in piping or processing vessels could injure workers, disrupt waste processing for months or even years, and cost tens of millions of dollars to repair.

The 2014 accident at the Waste Isolation Plant (WIPP) in Southeast New Mexico, the nation’s dumping ground for transuranic radwaste heavily contaminated with plutonium and/or other actinide isotopes, is an instructive example.

Nine years ago a fire caused a container filled with transuranic waste to rupture. The subsequent radiological release contaminated twenty two workers and prompted a three year shutdown of the WIPP and DOE’s national efforts to ship waste there. It was a billion dollar accident that permanently sullied the reputation of WIPP.

According to a recent research paper in the Journal, Process Safety and Environmental Protection, the root cause of the accident escaped detection for eight years, but was postulated to have involved the use of an organic cat litter brand that was mistaken for an inorganic material. The paper has a title that, if not serious, would suggest an imagination run amock: Thermal runaway of nitric acid-soaked kitty litter in transuranic waste.

Prevention of serious accidents at SRS is the responsibility of the Department of Energy and its contractors. South Carolina’s Department of Health and Environmental Control and the EPA are mandated to provide backup and assurances for SRS radioactive waste operations. If the agencies are collaborating with a polluter and responsible party on a feel-good public relations campaign, how necessary are they in the process? DHEC in particular is certainly not living up to former Governor Nicki Haley’s statement in 2016 that “We will not back down: South Carolina will not be a permanent dumping ground for nuclear waste.” 

FOOTNOTES:

(1) The DOE-SRS answer to the question of public relations collaboration:


(2) The following was sent to DHEC on April 3rd:

“Mr. Porter, 

The Department of Energy’s Savannah River Site issued a news release regarding the revised Federal Facilities Agreement between DOE, DHEC, and EPA. The article states you signed the agreement, and attributes this statement to you: 

“’The South Carolina Department of Health and Environmental Control considers the high-level waste at the Savannah River Site one of the largest environmental risks in the state,’ Porter said. ‘Collaborating with the federal government to agree upon these milestones, values, and goals is critical in achieving the site’s waste cleanup mission and protecting the community and environment beyond the barricades.'” 

Could you explain: 

1. Why are the waste tanks “one of the largest environmental risks in the state?” DHEC’s own webpage also fails to explain the risks; it only identifies the existence of the hazard. What are risk “beyond the barricades?” 

2. What are the other largest environmental risks in the state? 

3.  What increased risk is there for non-DOE employees and contractors working within the “barricades,” , or traveling through the site?” For example, the U.S. Forest Service conducts timber sales that result in timber harvesting crews being on-site year round. Hwy 125 is a major evacuation route that passes through SRS. CSX Railroad operates a major rail line through the site. 

4. Where is the DHEC news release? 

I have not located any news releases at the DHEC website regarding this latest development. Does DHEC routinely allow the polluter to write the narrative about the risks they create and are charged with controlling? Is this part of what “collaboration with the Federal Government” also means: that the polluters from the Federal Government, and its contractors, define what is and is not important for our communities and our environment? 

5. Why was there no community representatives present during these negotiations, while the federal government’s contractor was involved? How is it that those who bear the greatest risks from delay of radioactive waste risk reduction are absent, but the entity that stands to profit from any delays is present? 

The following questions were also posed to the media division of DHEC:

“Could someone please explain why DHEC did not issue its own news release, thus allowing the polluter DOE, to define the terms of the agreement? 

Was there an agreement between DHEC, DOE, and EPA to allow DOE to take the lead on the public information front of this issue? 

Why is the agency charged with protecting South Carolina communities and resources allowing the federal government to write the news, but declining to do so itself? 

(3) The discussion of the updated FFA at the SRS CAB meeting included the following comments, taken from the You Tube video of the meeting and edited for clarity:

At the 41:00 minute mark of the SRS Citizen Advisory Board meeting on January 23, 2023, DOE-SRS Site Manager Michael Budney addressed the updated FFA for one minute during his statement:

“We all signed the 2022 high level waste tank Milestones agreement so this sets the plan for 16 old style high-level waste tanks.  The actual milestones for cleaning those tanks. And we have a plan to complete all 51 tanks within 14 years by the end of 2037.  You know last year that the word was finished in 15, um now it’s finished in 14. We’ve got to keep updating that every year we don’t want to keep saying finish in 15 because that’ll just extend the program so 2037 is a date to get it all done. And that Milestone agreement has been Incorporated in appendix L of our federal facility agreement which is available at http://www.srs.gov and it’ll appear in the appendix for fiscal year 23.”

In other words, there was no change to the schedule. The agreement had to be updated to read “ fourteen years” instead of “fifteen years” because a year had passed, not because the overall schedule had been changed. 

After addressing the updated amendment, Mr. Budney added, in relation to the upcoming processing schedule, that at the vitrification facility (DWPF): 

“We are undergoing the final implementation of the glycolic acid chemical flow sheet which is known enables us to increase the rate which we put material through there because it reduces the rate at which hydrogens produce in those facilities so we’re able to step up the rate to meet the potential processing rates at DWPF.”

Also at that meeting, DHEC official Susan Fulmer touched upon the agreement for less than thirty seconds, at the 1:06 mark:

“The liquid waste tank Milestones that were negotiated and that agreement was signed in December, that was the result of many many many months of work by all three parties. It was a very good discussion back and forth trying to really understand the liquid waste program and so we really appreciated the efforts that DOE and their contractor put forward to helping us understand and for the three parties to be able to arrive at the new tank Milestone schedule so that was a a good way to end the year wrapping those negotiations up.” 

The FFA was not on the list of the SRS-CAB’s “topics of consideration” for future meetings.

The SRS-CAB does not engage with the public, issues no independent reports for public consumption, allows no questions during its meetings, and only allows 30 minutes for public comments towards the end of each day of its meetings. The Board routinely meets far from the site boundaries, and has not met in Barnwell or Allendale Counties for more than twenty years.

(4) The 2022 High Level Radioactive Waste amended agreement to the Federal Facilities Agreement is one and half pages long, with two attachments, and is on pages 310 to 314.

The first page of the amended agreement.



(5) The end-date goal for completion of the conversion of unstable radioactive waste to more stable, manageable, solid forms, and closure of waste tanks is still not expected until 2037. The 2037 goal requires waste processing at steady rates exceeding the past two decades of liquid-to-solid waste processing production; as this table in the 2019 system plan illustrates:

SRS Radioactive Tank Waste closure in 2037 is dependent upon highly optimistic production rates that have not been achieved in the past.


(6) In 2007, DOE committed to closing 22 waste tanks by 2022. According to a presentation at the March 2022 SRS Citizens Advisory Board meeting, only eight of the original fifty-one tanks have been closed.

The 2007 commitments from DOE, from the Federal Facility Agreement.

In the 2019 System Plan, tank closures were scheduled by 2035. All bulk waste removal was to be complete in older style tanks by 2031; and tanks were to be removed from service by 2035. The new agreement appears to provide two more years to finish the job. The FFA appears to follow the DOE plan, and not set the pace for the DOE plan.

April 2023, Nature News

The Eastern Box Turtle

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By Burt Glover

Last summer, I was overjoyed to see an eastern box turtle in my yard. It was no doubt, searching for food. The sight drew me back to halcyon memories of 1960’s Aiken. Hitchcock Woods was our go-to collection site, especially right after a heavy rain. Box turtles were a coveted pet to own — more desirable than crawfish, bullfrog tadpoles, lizards, snakes or any of the other hapless animals that we managed to capture. The parents took a dim view of our wild-caught pets — especially turtles — and mandated that we let them go after a few days. I now know that this was a wise choice.  

The coloration of box turtles is stunning — the dark shell and skin with the yellow blotches everywhere. On a sun-splotched forest floor, this camouflage is perfect. Males and females look similar. You can tell them apart by a number of features, including their comparative size, the curvature of the hind shell, eye color and the appearance of the nails on the back feet. They are called box turtles because of their ability to draw their body parts (head, legs, tail) into their shell when being threatened, and close off, or  “box-in” that shell so that not even an ant can get inside. Young turtles are not so successful at “boxing” until they mature, and so many of them die at the hands of skunks, raccoons, rodents, dogs and crows.  

The males tend to have red eyes; the females tend toward yellow and brown eye coloration.

Until recently, I had always assumed that box turtles just wandered aimlessly around in the woods looking for food … and, well, that’s about all I knew about them. As I later learned, there is so much more.

Throughout their lifespan (averaging 40, or sometimes upward of 100 years), each turtle occupies his or her own territory, which is about the size of a football field. If removed, it will innately find its way back to this plot, unless the distance is too far, in which case, it will most likely wander, aimlessly searching out this plot for the rest of its life. 

Though it may be obvious to some, I always wondered how turtles grow. The answer, of course, is that they grow in much the same way that a human head grows. Individual bone-like plates in its shell, numbering 50 or so, grow and expand. The shell grows from the inside, and any damage to it will eventually be repaired. Just as humans can feel pain and pressure through their fingernails, so can turtles through their shells. Because their ribs are fused to the bones of the shell and cannot move, they must rely on movements of internal muscles, especially those associated with the legs, to force air in and out of the lungs. This is why they seem to hiss when quickly drawing their legs into the shell.

All reptiles require sunlight to synthesize the vitamin D necessary to grow strong bones, and box turtles are no exception. They need a sunny spot in which to bask. Because they cannot regulate their body temperature, though,  a hot summer day may find them hiding in vegetation or underneath leaves on the forest floor to keep from drying out and overheating. When a thunderstorm arrives and the air cools, they take great advantage of this to get out and search for food or a mate. Unfortunately, many of them end up on the highways which cross their territory.     

Female box turtle

Box turtles are intelligent and have an excellent sense of smell and sight for locating nutrition. Being omnivores, they must eat a wide variety of foods throughout their lives in order to remain healthy. The diet of younger turtles consists mainly of protein for growing — earthworms, caterpillars, insects, snails, millipedes, etc. Adults tend to have more of a vegetarian diet, including leafy plants, fruit, berries, mushrooms and grasses. Adult turtles, it is said, can survive 90 to 160 days without food, but only a day or two without water. Basking in the sunlight is frequently needed, also. 

Female turtles can retain sperm within their body for up to four years, fertilizing the eggs when conditions are right. Many times, she ventures out of her territory after a summertime rain to do so and may be seen crossing busy highways. The eggs are buried in sandy or soft loamy soil, and then she leaves. The sex of the hatchlings is determined by the temperature at which the eggs incubate. Cooler temps produce males, warmer temps produce females. In-between, chances are 50-50.

Box turtles are so much more complex than I ever imagined. Their beauty and popularity as pets may end up being their downfall. One 41-month study in Louisiana estimated that as many of 30,000 of them were taken from the wild, usually for export to Europe or Asia. Half of those were estimated to have died from improper conditions.

Taking on a box turtle as a pet — providing the correct diet, sunlight, and environmental conditions they need for healthy existence and survival — can be a Herculean effort. And unless you have a pen the size of a football field that happens to be inside the turtle’s home territory, it’s unfair to keep them. The most desirable thing to do is is to enjoy their presence in their native habitat. For this, I thank my parents for all the turtles I returned to their homes in Hitchcock Woods.

If you see one crossing the highway, it’s a kindness to move him or her over to the side, in the direction they are heading. If you are lucky to see one in your yard, realize that he is not on your land; instead, you are living on the land that he has been inhabiting since, possibly, before you were born.     

___________________ 

Contributor Burt Glover became an accidental naturalist during his earliest childhood days exploring the dirt roads, backyards, polo field and barns of the Magnolia-Knox-Mead neighborhood of 1950s Aiken. Birds are his first love, and he can identify an impressive range by song alone. He asserts that he is an observer, not an expert, on the topics of his writings, which range from birds, box turtles, frogs and foraging, to wasps, weeds, weather and beyond

April 2023, Laws & Bylaws, Pascalis 2023 - SRNL Lab

Keeping Up Appearances: City Attorney Gary Smith’s $9,600,000 Project Pascalis Bond Opinion

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What do Aiken City Attorney Gary Smith, failed Project Pascalis, and the “appearance of a conflict” have in common? Answer: A Bond Opinion for the $9.6 million City of Aiken debt.

by Kelly Cornelius
April 8, 2023

The failure of Project Pascalis continues to plague concerned Aiken citizens as well as local officials, who are now proposing to pay the debt from the Pascalis property deals by using $9.6 million in state funds gained from the State of South Carolina’s plutonium settlement with the federal government.

The full proceedings of the general obligation bond issuance recently obtained via a Freedom of Information Act (FOIA) request (1) has revealed that embattled Aiken City Attorney Gary Smith was involved in the city’s efforts to obtain the $9.6M bond necessary for the Pascalis project property purchases. Specifically, Smith signed one of two “bond opinions” that assured the $9.6 million being borrowed under the auspices of the City of Aiken’s credit.

This involvement occurred weeks after he was reported to have recused himself via a phone call with AMDC attorney Gary Pope, Jr.; and contradicts statements made in court filings in the Blake et al vs City of Aiken et al lawsuit involving alleged illegalities during the Pascalis proceedings.

This is only the latest in a long line of appearances of conflicts for Smith associated with failed Project Pascalis, and the properties that make up the boondoggle, but it is the most troubling.

Summary of City Attorney Ethics Issues

To recap, City Attorney Smith has been the subject of lawsuits and ethics complaints regarding Project Pascalis since at least April of 2022. At the center of the controversy was the deep involvement of his law partner, Ray Massey, as a lead investor and legal agent for RPM Investment Partners, LLC; the winning developer chosen for Project Pascalis by the Aiken Municipal Development Commission (AMDC) in December of 2021.

The controversy only grew after it was discovered that RPM was selected before the public Request for Proposals was publicly advertised; that the Purchase and Sales agreement between the AMDC and RPM was for only $5 million dollars, almost half the price paid by the AMDC one month earlier; and that an invoice from Smith, Massey, Brodie, and Guynn and Mayes to WTC Investments, LLC shows the firm was involved in cobbling together the properties during the earliest phases of the project.

The “Early Juncture” and “Fall of 2021” Recusal Excuses

More than five months after announcing the first details of Project Pascalis, the AMDC finally held two public meetings on April 20, 2022. During the second meeting, I raised my concerns about the obvious conflict of interest:

“City Attorney Gary Smith sat with the City Council when they made their decision and on the 28th they made the decision to sell this property or give it away I should say. Convey it, they made that decision about Newberry street to RPM development.  The only agent listed for RPM development is a Ray Massey and when you look on the website of Mr Smith’s private firm it’s Smith Massey Guynn whatever else. This is his business partner! There is no conflict of interest in this that anyone else sees but me?”

Three minutes later, meeting moderator Tim O’Briant asked Gary Pope, Jr to address the issue. Pope claimed that Gary Smith recused himself at “an early juncture” and “has been uninvolved in these matters.” Pope’s exact comments are as follows:

My name is Gary Pope. I’m  with Pope Flynn. I work out of the Spartanburg and Columbia offices. I’ve typically served the city and capacity as bond counsel in connection with financings and also other special projects. At an early juncture in this project Gary Smith called me and said I believe that my partner may have, maybe proposing as part of a group for this so I’m going to recuse myself, and I need you to represent the city and the AMDC as we go through this process.

So Mr. Smith has been uninvolved in these matters and I’ve been handling them on behalf of the city so I wanted to make sure before his good name was besmirched and let the record sort of reflect that we have done things by the book the right way and didn’t want to let that pass right, didn’t want that angle, and also that the property was sold from the sellers to the AMDC which Mr. Smith I believe does not represent any capacity currently that’s that’s my role at present, so i wanted to also clarify that he’s recused himself.”

The video of his testimony can be seen here:

April 20th, 2022 AMDC evening meeting gives birth to Smith’s phone in recusal

In response to a FOIA request filed after that meeting, the city wrote the following about Smith’s purported recusal from the Pascalis proceedings:

“The City of Aiken has determined that Mr. Smith declared his recusal verbally in the Fall of 2021 when RPM, LLC’s development proposal came before the Aiken Municipal Development Commission.  While no document was produced, or required, for Mr. Smith to recuse himself, an associated document responsive to your inquiry is the executed dual engagement agreement with Attorney Gary T. Pope, Jr. by and between himself, the City of Aiken and the AMDC.

“This engagement letter, dated October 14, 2021 and executed October 15, 2022 was in response to Mr. Smith’s recusal, the effect of which was replacing him as attorney of record for the City in any matter where there might be an appearance of conflict.”

The City’s FOIA response raised even more ethics issues for Mr. Smith, because:

  1. According to South Carolina ethics laws a recusal cannot be delivered via phone, but must be written and then submitted into the public record. No record of a recusal, which would have a date stamp, was available.
  2. Smith was on the attendance roster at a March 22, 2022, joint AMDC/ City Council closed-door, Executive Session meeting in which Project Pascalis was the only topic. Mr. Smith was there as City Attorney and billed the city 1.5 hours as part of his monthly legal work. (2)

    This meeting occurred five months after Pope has his phone call with Smith and then signed his engagement letter, and five months after RPM was incorporated. Of interest, Gary Pope was also at the March 22nd meeting, held just one month before telling the April 20th audience that Smith had recused himself early on and “by the book.”

(View full minutes here).

3. Smith was present and involved in (and it was broadcast) the March 28, 2022, Aiken City Council First reading to give away part of Newberry Street to RPM Development Partners. The transcript of that exchange is detailed in The Pascalis Attorneys.

Since those first vague recusal excuses were offered, more evidence has emerged:

As recently reported in In the Courts: Pascalis and the Regional Dump, Smith was paid for time advising the Design Review Board the day before their vote to demolish the historic Hotel Aiken at the request of RPM. And in The Pascalis Attorneys, Smith’s involvement in the city ordinance authorizing the $9.6 million bond is made clear.

“Ladies and Gentleman: We are Counsel….”

Now another piece of evidence has emerged: the Bond Opinion. According to the Government Finance Officer’s Association’s “Best Practices”page, bond counsel plays an essential role in ensuring the integrity of the process:

“An essential member of a government issuer’s bond financing team is bond counsel. Bond counsel not only prepares authorizing documents, disclosure documents and assists in compliance with IRS regulations, but also renders an opinion on the validity of the bond offering, the security for the offering, and whether and to what extent interest on the bonds is exempt from income and other taxation. The opinion of bond counsel provides assurance both to issuers and to investors who purchase the bonds that all legal and tax requirements relevant to the matters covered by the opinion are met.”

In response to a FOIA request for the Pope-Flynn bond opinion , the City of Aiken finally released the entire bond record, the 144-page Transcript of Proceedings; although it has still never publicly disclosed the full document.

The Pope-Flynn legal opinion for the $9,600,000 General Obligation Bond is on Page 135 of the transcript, and is signed “Pope-Flynn, LLC.” The entire law firm was behind the opinion, which begins with “Ladies and Gentleman, We have acted as Bond Counsel to the City of Aiken in connection with the above referenced bond.” (2)

On Page 132 of the transcript, Gary Smith’s legal opinion, on his firm’s letterhead, begins with “Ladies and Gentleman, We are counsel for the City of Aiken, South Carolina and have acted as such in connection with the issuance by the City of the above-referenced bond.” (below)

The letterhead, opening paragraphs, and signature from City Attorney’s Gary Smith’s General Obligation Bond Issuance legal opinion. (Click to enlarge)


Oct 25, 2021 is ten full days after Pope-Flynn signed its dual engagement letter; and it is nearly 4 months after Keith Wood, then Chair of the AMDC, raised conflict of interest concerns regarding Smith in a confidential June 10th, 2021 email. Then AMDC Executive Director Tim Obriant and City Manager Stuart Bedenbaugh were both copied on that June 2021 email.

In paragraph 57 of Smith’s August 2022 response to the Blake et al vs. City of Aiken et al lawsuit, his lawyer wrote:

“With respect to the allegations set forth in Paragraph 108 of the Complaint this Defendant did not provide legal counseling to the AMDC after June 2020 and does not have sufficient information or knowledge to admit or deny the allegations set forth in said Paragraph.”

Perhaps Gary Smith’s lawyer does not consider a legal opinion necessary for the AMDC to purchase the Pascalis properties as providing legal counseling to the AMDC, or perhaps Smith did not inform his counsel of this contradictory piece of evidence.

The Ethics Issue Today.

City Council was made aware of this latest conflict of interest concern during my public comment on the evening of Feb 13th, 2023, and Council responded with what has become a tradition of cricket song and deer-in-headlight stares.

Combined on that dais are the Mayor, the City attorney, and six Council Members for a total of eight at the helm of the failed Project Pascalis and the proposed Project Labscalis. Five of the eight have recused themselves for real or potential conflicts of interests at some point in time during both processes.

The only elected official to ever directly address the public’s concerns regarding Attorney Smith was Mayor Osbon, who accused Aiken area resident and businessman Drew Johnson of libel on May 9, 2022, after Mr. Johnson raised ethics concerns (see video below). Ninety minutes later, the Mayor and five council members voted to give away part of Newberry St to RPM Development Partners.

From the origins of this bond to the proposed bailout of the bond, Project Pascalis has been littered with conflicts of interest, dogged with deceit, wrapped in secrecy, and stained with the loss of public trust. The one thing City Council and the Mayor have made transparent is their disregard for citizen’s input and concerns.

Meanwhile, the historic Hotel Aiken continues to suffer from neglect , the taxpayer-funded Pascalis properties on Newberry St sit in the crosshairs of a proposed federal contractor office complex, and a “structured parking solution,” better known as a parking garage, is proposed in support of the federal contractor office complex being designed for use by the Savannah River National Laboratory.

The question yet to be answered is this: in the battle between the City’s conflicts of interest and public opinion, who will prevail in determining the fate of Aiken’s beloved downtown and the small, privately-owned downtown businesses in the crosshairs of the wrecking ball?

Footnotes:

(1) The FOIA request from Kelly Cornelius was for: “a copy of the legal opinion from Pope-Flynn as referred to on page 61 of the ordinance 8232021D 10,000,000 Parkway Bond you can find that here and the opinion I request is again referred to on page 61 in this link. https://edoc.cityofaikensc.gov/WebLink/DocView.aspx?id=1005864&dbid=0&repo=City-of-Aiken-LF Thank You.”

This document provided is 144 pages long, whereas the version released by the AMDC included only 64 pages long, and did not contain the legal opinions and several other certifications and required documents. SC FOIA law does not require public bodies to create new records, so the entire document was provided.

(2) City of Aiken legal department invoices obtained via FOIA by Don Moniak of The Aiken Chronicles show that Gary Smith billed the city 1.5 hours for the March 22, 2022 meeting on Project Pascalis. (below)

Gary Pope, Jr. billed the AMDC 5.5 hours to attend the March 22, 2022, meeting, and have a phone conversation with Tim O’Briant. The hours discrepancy is due to travel time, since Pope-Flynn’s home offices are in Spartanburg and Columbia.

MDA refers to Master Development Agreement. James Wilson was an attorney for RPM Development Partners. All told, the AMDC paid
Pope ~$2500 for travel hours in March 2022.


April 2023, City Government, In the Demolition Zone, Money Trails, Pascalis 2023 - SRNL Lab

The Agenda-Setting Aiken Corporation

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Some City of Aiken decisions are first made by the Aiken Corporation before formal approval by City Council. Most recently, a $250,000 no-bid contract was awarded to the Aiken Corporation by Aiken City Council three months after the Aiken Corporation hired its own contractor to pursue the downtown Savannah River National Laboratory project.

In addition, City Manager Stuart Bedenbaugh committed to paying for sewer and water infrastructure for a downtown housing development ten months before it was presented to City Council; and agreed to give away the right-of-way on a portion of Lancaster Street to the Aiken Corporation, without formal Council approval.

(Update: Council members Lessie Price and Gail Diggs did resign from Aiken Corporation at the end of March, 2023; leaving no representation from the City on the Aiken Corporation Board of Directors.)

by Don Moniak

April 7, 2023

With the exception of Aiken City Council members Lessie Price and Gail Diggs, who recently expressed their intentions to resign from the Aiken Corporation Board of Directors, the Aiken Corporation Board has no elected officials. Unlike the soon to be defunct Aiken Municipal Development Commission (AMDC), the Aiken Corporation is not a distinct, incorporated, separate body politic authorized to conduct any munipical policy or decision-making. Yet it does.

On March 8, 2023, The Aiken Corporation Executive Committee made two decisions affecting its downtown Aiken interests, which now intersect even more closely with the City’s downtown property interests. According to the meeting minutes of the City of Aiken’s preferred non-profit, charitable organization:

1. “Motion was made by Ms. Martha Lockhart and seconded by Mr. Norman Dunagan to appoint a seven -member committee to oversee Aiken Corporation/LED’s role in their downtown development projects. Motion unanimously approved.”

2. After a one hour Executive Session, a “motion was made by Mr. Pat Cunning and seconded by Mr. Sam Erb to accept the proposed Professional Services Agreement with the City of Aiken.” The agreement names the Aiken Corporation as “The Developer” for the pre-development phase of the proposed Savannah River National Laboratory (SNRL) downtown off-site office complex ( presently being referred to as Project Labscalis).

The seven-member downtown sub-committee is composed of Chamber of Commerce President David Jameson, Chamber of Commerce Executive Committee member Charlie Hartz, City of Aiken Planning Commissioner Sam Erb, Pat Cunning, Karen Daly, Aiken Corporation Chair Arthur “Buzz” Rich, and Chamber of Commerce Executive Committee Chair Jason Rabun; who is also the Vice-Chairman of the City of Aiken Planning Commission.

Listed as an attendee, via phone, at the meeting was City Councilwoman Lessie Price. There is no record of her recusal from the vote to accept the proposed Professional Services Agreement with the City of Aiken. One month prior, at the Aiken Corporations’ February 8th Executive meeting, Price and fellow Councilwoman Gail Diggs were present for a vote to “sign an agreement with the City of Aiken to share in the cost of hiring McMillan, Pazdan & Smith Architecture” for the Labscalis project. Aiken Corporation secretly hired the firm in December 2022.

Listed as a guest at the February 8th meeting was Linda Johnson, President of the Historic Aiken Foundation (HAF), who endorsed the SNRL project shortly after the city announced its plans. HAF Board Member Luis Rinaldini, who is also a plaintiff in the Blake et al vs City of Aiken et al lawsuit against Project Pascalis has also stated he “is personally a big supporter of the (SRNL) project.”

Council Approval of the Aiken Corporation’s Labscalis Contract

On March 13th, Councilwomen Price and Diggs (who was not at the March 8th meeting) did recuse themselves from the City Council vote to enter into the Professional Services Agreement with the Aiken Corporation—a no-bid contract worth up to $250,000. The contract also mandates the Aiken Corporation hire a lawyer to negotiate leases with third parties like the Savannah River National Laboratory.

The leases will be on at least two properties that are part of the Pascalis properties obtained by the AMDC in November 2021 with tax-payer monies funded by a general obligation bond issuance that has left the City $9.5 million in debt. The Aiken Chamber of Commerce played a critical role in the property deal, writing an earnest money check for $135,000 to take assignment of the $9.5 million Purchase and Sale Agreements between Weldon Wyatt’s WTC Investments, LLC (Agent: Ray Massey) and the Shah and Anderson families.

The March 13th vote passed unanimously, 4-0, as Mayor Rick Osbon also recused himself due to his personal business conflict of interest regarding the presence of Warneke Cleaners on soon to be city-owned property.

The contract now allows an organization dominated by Chamber of Commerce members to control property which the Chamber played an instrumental role in procuring on behalf of the AMDC and the City of Aiken. No Chamber members recused themselves from the February 8th or March 8th Aiken Corporation votes—unlike former AMDC commissioner David Jameson who recused himself on the November 9, 2021 AMDC vote to purchase the properties. (1)

This pattern is the reverse of past decisions by Council members. On August 5, 2020, Ms. Price and fellow councilmembers Ed Girardeau and Ed Woltz abstained from an Aiken Municipal Development Commission vote to allow “the Municipal Development Commission (to) write a letter to City Council asking them to take the Aiken Hotel off the Aiken Historic Register and address the condition of the Aiken Hotel and its renovation.”

After the three City Council members decided to abstain or recuse from AMDC votes that might come before City Council, the ordinance defining the AMDC’s membership requirements was changed to remove Council members from the commission.

City Manager Stuart Bedenbaugh and City Councilwoman Kay Brohl also attended the March 8th meeting. In his supporting memorandum on the March 13th Council vote, Mr. Bedenbaugh omitted the fact that the Aiken Corporation had already voted to accept the contract. During discussion of the agenda item, Ms. Brohl did not acknowledge her presence at March 8th meeting.

Aiken Corporation Decides, City Council Follows

The $250,000, no-bid, Aiken Corporation contract with the City fits a pattern, wherein some City of Aiken decisions are first made at Aiken Corporation meetings, and later presented to City Council for approval. Two examples in the past two years include a property deal on Lancaster Street and the South Company development on Union Street known as Union Street Station.

Lancaster Street Right of Way Proposed Giveaway

At the Aiken Corporation’s March 9, 2022, meeting, City Manager Bedenbaugh brought up an item of new business, the transfer of property on Lancaster Street to the Aiken Corporation—once the City obtained the property from the SC Department of Transportation (SCDOT):

“Mr. Bedenbaugh reported that the SCDOT plans to transfer the right- of-way of Lancaster Street between Barnwell Avenue and Edgefield Avenue to the City of  Aiken. Once it is transferred, the City will deed the property to the Aiken Corporation for potential development. Chairman Rich reported that he believes the property is potentially large enough to build five or more residences and that the Corporation has already been contacted by a potential developer to either buy or develop the property.”

Two months later, the minutes read: 

“Chairman Rich reported that the City is still waiting on SCDOT to turn over the property to them. Once that happens, the City will donate to Aiken Corporation. Based on the layout of the property, approximately 10 houses could be built.  Aiken Corporation needs to decide on what to do with the property, whether to build on it or sell it.” 

The July 2022  minutes read: 

“Mr. Stuart Bedenbaugh reported that he has the paperwork 
from DOT stating that the property has been transferred to the City and he will include on the City Council’s July agenda to transfer the strip of land on Lancaster to the Aiken Corp.”

In August 2022 the deed was reported to be enroute to the City, but no updates on the Lancaster Street giveaway have occurred since. The Aiken County land database does not show any change in property ownership on that block. (2) The impact of ~3,000 citizen signatures on the Do It Right! Alliance legal petition to prohibit a similar property giveaway on Newberry Street on the stalled Lancaster Street process is unknown.

The corner of Barnwell Avenue and Lancaster Street showing the Right of Way in question. (Photo by Don Moniak)

The Union Street Station Housing Development Utilities Subsidy

At the October, 13, 2021, Aiken Corporation meeting, City Manager Stuart Bedenbaugh committed the city to funding the water and sewer costs for the South Company’s proposed Union Street Station development on Union Street adjacent to Gyles Park— for which the Aiken Corporation had been offering assistance since January of 2021. (3) The minutes read:

“Mr. Cunning asked if the City committed to providing water and sewer to the properties. City Manager Stuart Bedenbaugh stated yes, the City will provide water and sewer.”

The Aiken Corporation continued discussing the development and the development progressed. The “First Reading of an Ordinance Approving A Development Agreement with The South Company” was brought before City Council ten months later, on August 8, 2022. In his supporting memorandum, City Manager Bedenbaugh wrote, in part, about the “Union Street Station” development:

“As part of our staff review of the project, we determined the existing water and sewer lines in the area must be replaced to provide adequate service to the new development and the surrounding neighborhood.”

No mention was made of the Aiken Corporation’s role in the process; and Councilwoman Price and Diggs, who were Aiken Corporation Board members at the time, voted with the rest of Council to unanimously approve the ordinance on both August 8th and again on the Second Reading on August 22, 2022. Councilwoman Price actually made the motion on August 22, which was seconded by Councilwoman Diggs.

One notable portion of the agreement (4) to provide the South Company up to $169,749 in taxpayer funds to provide water and sewer for six single-family housing units is:

“ The Developer shall promptly and fully comply with all regulations and ordinances of the  City applicable to the Project to include landscaping and signage ordinances with the written exception of any variances agreed to and approved by the City. “

On December 21, 2022, City of Aiken Stormwater Administrator Samantha Pollack issued a cease and desist order to Ed Dudley of Union Street Station due to the lack of a stormwater permit. The order read:

“This stop work order is being served based on a site visit conducted on December 21, 2022 in which unauthorized grading has been observed, no sediment and erosion controls are in place, and no NOI has been submitted to the City of Aiken.”

At the next Aiken Corporation meeting, the incident was discussed, and the minutes read:

“Chairman Rich reported that he sent an email to Mr. South’s attorney, 
Morris Rudnick, stating that he would rather discuss matters with him instead of Mr. South. He  sent Mr. Rudnick a list of items that need to be completed. There is a cease and desist order sign  on the door of the house on Union Street. It was suggested to leave the project on hold until the items are addressed on the list.”

The cease and desist order from City of Aiken officials has not been raised during any meetings of the Aiken City Council that approved a $169,749 subsidy to a downtown developer.

Union Street Station housing development on December 21, 2022. Photo in City of Aiken Cease and Desist Order


Footnotes:

(1) The meeting minutes for the November 9, 2021 AMDC meeting include the following statements regarding the AMDC resolution to “accept assignment of options to purchase real property from the Greater Aiken Chamber of Commerce in connection with Project Pascalis.”

AMDC Executive Director Tim O’Briant stated: “The Greater Aiken Chamber of Commerce and their Executive Committee stepped in and agreed to hold those options and make available the sum of $135,000 to pay the earnest money on the contract. Today this resolution will repay the Chamber of Commerce for their advance for the options to purchase the property.”

“The motion was approved by the Commission, with Mr. Verenes and Mr. Jameson abstaining from participating in the discussion and voting on the resolution.”

(2) The Aiken County property database still shows the Lancaster Street parcel as having no ownership, like SCDOT Right of Ways elsewhere in the City.

The City of Aiken has proposed donating this strip of undeveloped right of way on Lancaster Street, in the City’s Parkway District, to the Aiken Corporation for a housing development—necessitating the removal of most of the trees.



(3) On August 11, 2021, the minutes show the following vote taken:

“Chairman Rich made a motion seconded by Sam Erb for the Aiken Corporation to purchase the property from the  South’s for the sum of $90,000.00. South would then be given an exclusive option for a 24 month  period after the sale to repurchase the property at the sum of $17,500 per lot with the requirement  that the lots be purchased in numerical order, 1-6. They would be required to purchase the first lot within four months. South would also be required to finish all land layout as required by the  City and to have a final recorded subdivision plat before closing. The motion was unanimously  approved with the abstention of Tim Simmons. “

According to the Aiken County property data base, the property is still owned by

(4) The Agreement with the South Company is on Pages 71-81 of the August 22, 2022 City Council Agenda Packet.


Aiken County, April 2023, Laws & Bylaws, Pascalis 2023 - SRNL Lab

In the Courts: Pascalis and the Regional Dump

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by Don Moniak
April 6, 2023

Two dissimilar cases with one lawyer in common are in the courts this month (1). The first involves actions by the City of Aiken during the Pascalis Project; and the culpability of the city attorney. The second involves a City of Aiken sanitation truck driver—although the city is not named as a party. The information in the court record on the latter case is very limited.

The Pascalis Lawsuit

A motion to dismiss Aiken City Attorney Gary Smith from the Blake et al vs City of Aiken et al lawsuit, aka the Pascalis lawsuit, is listed on today’s Second Judicial State District Court’s non-jury motions roster.

As detailed in The Pascalis Attorneys, Smith’s role in the Project Pascalis saga relates to his failure to recuse himself from the project proceedings due to conflicts of interest; as his legal partner Ray Massey was deeply involved with the $100 million plus downtown demolition and redevelopment project from its earliest stages through its cancellation in late September, 2022.

On March 13, 2023, Smith filed an answer to the First Amended Complaint that mostly reiterated his August 2022 answer to the original July 5, 2022 summons, an answer addressed in the article, The Gary Smith Defense.

In the the Plaintiff’s April Memorandum in Opposition to dismissing Smith, they argue that Smith is a “proper, if not necessary party,” because:

“In this case, the City and its boards have been alleged to have failed in properly recording a conflict of interest involving its City Attorney, Gary Smith. The duty to disclose is certainly the City’s, but Gary Smith is the subject of that alleged conflict of interest and so is affected by the declaration and should be joined, under the provisions of the Declaratory Judgment Act. In fact, if he was not named, one would think he would seek to intervene under Rule 24(a), SCRCP, so that he could protect his interests in this adjudication involving his alleged conflict of interest.”

Among the claims made in both answers, Smith denied involvement in the City of Aiken’s Design Review Board (DRB) process that led to the Board’s March 1, 2022, decision to permit the demolition of the Beckman Buiding at 106 Laurens Street, home to three existing businesses, and the vacant Hotel Aiken. Mr. Smith’s law partner Ray Massey was an investor in, and represented, the applicant, RPM Development Parters, LLC, for that demolition request. Both properties were owned by the Aiken Municipal Development Commission (AMDC).

In paragraph 56 of his latest answer, Mr. Smith’s counsel wrote: 

“This Defendant affirmatively states that he has not provided legal counseling to the DRB as part of its consideration of any aspect of the Project, and is without sufficient information or knowledge to admit or deny the specific allegations regarding any actions taken by the DRB with respect to the Project.” 

However, Mr. Smith’s billing invoice (below) to the City for work in February 2022 shows that on February 28, 2022, the day before the DRB approved demolition request for the Hotel Aiken “and associated shops,” Mr. Smith likely advised DRB Chair McDonald Law and then City Planner and DRB staff liason, Mary Tilton on the demolition request.

As reported in Why is the City of Aiken Toying with 113 Downtown Jobs, Mr. Law exchanged numerous ex-parte, back-channel communications with AMDC director Tim O’Briant regarding Project Pascalis, including one in which Chairman Law thanked Mr. O’Briant for guiding the process along. Ms. Tilton was cc’ed on most of those emails, none of which entered the “quasi-judicial” DRB public record.

Although redacted, the timing of the meeting strongly suggests research into the legality of the demolition request.

Billing invoice from Smith, Massey, Guynn, Brodie, and Mayes for Gary Smith’s work in his capacity as Aiken City Attorney in February 2022. The estimate of the redacted content for Feburary 28, 2022 is in the red box. The redactions were made by city officials AFTER a Freedom of Information Act (FOIA) request (from myself, Donald Moniak) for legal invoices was completed, which delayed the FOIA response, arguably in violation of state FOIA law, by more than two weeks. Many, if not most, of the redacted content can be inferred through other public records. For example, at the time the City of Aiken was involved in litigation with Jane and Mark Thompson that challenged the City’s road maintenance fee. Attorney Andrew Lindemannn represented the City in that case, and Eric Shytle is a Municipal Association of South Carolina (MASC) lawyer.


The meeting minutes for the March 1, 2022 DRB “work session” that preceded the Board’s public hearings include this exchange:

“Board Member Knowles expressed her concern that the application for demolition should come before the DRB along with an application for the final plan for replacing the structure to be in compliance with the Old Aiken Design Guidelines.

Planner Mary Tilton informed the Board that the Old Aiken Design Guidelines only require a plan to be presented. She read the Section on Demolition from Page 42 of the Old Aiken Design Guidelines: ‘Any application for a demolition shall include plans for the re-development of the site after demolition.’”

That legal interpretation was not introduced during the actual demolition hearing. This is typical protocol for City of Aiken “work sessions,” where important matters are often discussed without introducing the discussion into the formal, public, on-air record.

City Attorney Gary Smith was absent from both the work session and the meeting; and did not provide the Board any backup, conflict-free, legal counsel. Instead, Ms. Tilton presented the legal case; contrary to standard Planning Department practices of deferring legal questions to the legal department.

For example, on June 27, 2022, Planning Director Marya Moultrie expressed a need for a legal opinion during Aiken City Council’s public hearing on a rezoning request. Council then entered Executive Session to accept advice from City Attorney Smith. That discussion that led into  Executive Session is at 1:19 :00 of the meeting video. During that discussion, Planning Director Moultrie stated:

“I think we’re getting possibly a question for a legal question right yeah and I don’t want to get into that.”

The Regional Dump Case

On the jury roster for the week of April 17-21 is a case involving a plaintiff who suffered an injury while driving a City of Aiken garbage truck, the regional solid waste authority that serves Aiken County and its municipalities, and the law firm that routinely represents local government entities.

In Harris and Harris vs Three Rivers Solid Waste Authority, the plaintiffs alleged in their summons and complaint that “on or about February 19, 2020,” Plaintiff Michelle Harris had driven a City of Aiken sanitation truck to the regional Three Rivers Solid Waste Authority landfill within the Department of Energy’s Savannah River Site (SRS).

The 1400-acre dump has been operating since 1998, and accepts disposal of municipal solid waste, commercial waste, and industrial waste from nine member counties and SRS.

On the day in question, the plaintiffs allege that an unidentified driver of a large waste truck owned by the Defendant Three Rivers knocked the city’s truck on its side while it was the landfill, stating the landfill’s operator:

“ Without consent, directed and instructed Plaintiff Michelle Harris to keep her vehicle stopped as he unreasonably attempted to remove waste products from (her) vehicle causing her vehicle to capsize or tilt over on its side by striking her vehicle in the process and caused a collision that resulted in personal injuries.”

No exhibits such as an accident report are in the available court records.

The defense for Three Rivers, represented by professional government- defense lawyer David Morrison of Columbia (who also represents the AMDC in the Pascalis lawsuit) denied all allegations, but implicitly acknowledged harm by putting forth the standard argument that the plaintiff was more at fault than the defendant.

Morrison also argued that the City of Aiken employee was violating unspecified landfill rules:

“The Defendant was not negligent, not vicariously liable, and has no institutional liability because the Plaintiff’s wrongful actions in driving her truck improperly on the landfill created an emergency situation where she required emergency care from the Defendant’s employees at the landfill and the Plaintiff’s claim arises out of the emergency care the agents of the Defendant administered. As such the Defendant is protected from suit under the Good Samaritan defense pursuant to S.C. Code Ann. § 15-1-310.”

The case is on the Jury Roster for Judge Clyburn’s docket the week of April 17-21, 2021.

FOOTNOTE

(1) The jury roster docket for April 17-21 includes personal injury cases involving a local Dollar General and the Richland Avenue Walmart , a land dispute and breach of contract case involving a charity known as Double You Omen Living Trust Covenant.

Today’s motion roster included motions involving a breach of contract case at Todd’s Hill, a construction case at Three Runs Plantation, and a Motion to Compel discovery from the owners of the Kozy Kort Motel in Clearwater, SC; part of a convoluted and complex, three-year old personal injury/sex trafficking complaint brought by an anonymous plaintiff. The American Hearth Motel on Richland Avenue offered $100,000 to settle this past January to “avoid further litigation costs,” and is now listed as inactive in the court record. The Plaintiff’s identity remains sealed from public disclosure under a protective order.