Complaints detailed in landfill lawsuit hearing
Odors, buzzards, cattle deaths and much more detailed in April 17 testimony
The opening arguments in a first hearing in the lawsuit between Polk County and ETC of Georgia, a subsidiary of Waste Industries, began with a focus on odors, buzzards, run-off and whether soil cover on a daily basis or current solutions of using tarps will be reduce many of the problems at the Grady Road Landfill and for surrounding property owners.
Several of those property owners took the stand to talk about those problems during a day of testimony on Wednesday in front of Cobb County Senior Judge Adele Grubbs, along with an expert witness for Polk County and a trio of County Commissioners before arguments in the hearing ended for the day.
They’ll be back in court on Tuesday, April 23 for attorneys for the landfill operators to come and present their side of the case in a motion being presented to require Waste Industries to use six inches of daily soil cover, along with unrestricted and unannounced access to the landfill by a representative of the county.
Additionally called to the stand during the April 17 hearing was George Gibbons, who is manager over the landfill for Waste Industries. He also is manager of a South Fulton construction and demolition landfill as well.
County Attorney Brad McFall was joined by David Flint in calling and questioning witnesses over their experiences and opinions on landfill operations in past years, and especially how neighboring property owners complaints and reported livestock deaths due to buzzards, among many other issues. Attorneys Matt Martin, John Husser and David Peppers represented Waste Industries.
The opening round hearing before Grubbs began with each side allowed to make a pair of opening statements before moving into testimony for the day. Grubbs was brought in to preside over the case following the retirement of Superior Court Chief Judge Michael Murphy in October 2018. She retired officially from the bench in 2016, but remains a senior judge and hears cases in Cobb County Superior Court.
Here’s a full breakdown of the April 17 hearing. Additional coverage of the April 23 hearing will be available in the coming edition of the Standard Journal.
What the county wants
The hearing held in recent days giving attorneys representing Polk County the chance to provide arguments focused only on a single portion of the disagreement over landfill operations: mainly odor control. Flint making opening statements for the County stated that their efforts in the court appearance last week were to specifically impose what he dubbed a 90-day period where a six inch covering of dirt over the working face of the landfill is used, and to allow for the unannounced and unrestricted inspections of the Grady Road property.
Flint said the monetary portions of the lawsuit — covering overcharges on fuel and underpayments on the county’s portion of tipping fees per ton collected on Saturdays — would be handled at a later time, and he hoped could be negotiated in mediation outside of the courtroom.
He focused mainly on the landfill operations and the “noxious odors and buzzards” that were part of the first portion of the complaint.
“If adequate cover is placed over waste at the landfill, it would cut down and mitigate odors and the buzzards,” Flint stated. “Adequate cover is the main issue bringing Polk County and Waste Industries here today (Wednesday.)”
Flint also pointed toward a recent decision made by the Georgia Environmental Protection Division to pull the use of Posi-Shell, a spray-on coating mixed with odor reducers the landfill was using alongside a tarp and dirt covering on the sides curtail the odors coming off the working face on a daily basis rather than use just a soil covering.
Martin presenting opening statements for Waste Industries pointed toward several years of positive round of inspection scores from the Georgia Environmental Protection Division and said the company continues to operate within the permit held by Polk County and its allowances. He also pointed toward the original and revised operating agreement between the County and Waste Industries and language within that allows for the company to have some flexibility with how it operates the landfill so long as it stays within legal requirements, and how much trash can be brought to the site.
He also argued the company has continuously tried different approaches toward handling odor and wildlife problems in and around the site and “committed to timelines and substantial funds” to try and fix complaints and problems.
Along with that, Martin also stated the expert witness for the county, an Engineering Consultant named Kent McCormick, failed in his report in recommending a six inch soil cover daily to provide for how much it would cost, along with how it would change the airspace calculations and thus the longevity of the landfill itself.
Martin argued that adding soil would also increase the chances of leachate breakout due to methane pockets growing and expanding within the landfill. (More on this below.)
Neighbors testify about smells, buzzards
County attorneys during the April 17 hearing called upon several local witnesses to provide testimony about their experiences in several areas that have impacted their lives and property around the Grady Road Landfill. Chief among those: the smell.
Brought up to the stand first to testify was 76-yearold James Wilburn of a Grady Road address just down the road from the landfill, which borders his land to the north. The retired mechanic moved onto Grady Road in 2004, and at the time he told the court he never saw much of the operations there.
“It looked different then,” he said. “I didn’t have a mountain facing my house.”
He said the situation changed just a year after moving in after 2005, when ETC of Georgia took on operations on behalf of the county and year after year he saw the landfill grow vertically. Along with the growth of the landfill came increasing problems with odor.
“It’s terrible. Sometimes you can’t stand it outside, and sometimes you can smell it in the house,” Wilburn said.
He added he was unable to open doors or windows.
Wilburn was also one of three Grady Road residents and a property renter to complain about cattle deaths. He specifically said he was unsure of whether three baby calves he found dead were killed by buzzards who flock around the area of the landfill, but saw them around the bodies not long after their deaths.
He also described the sky as “black with buzzards.”
“It’s not quite as bad since they installed the air cannons,” Wilburn said. “They’re not circling over the landfill.”
He was also one of several to testify about buzzards using his property to roost, and the subsequent required cleaning of bird droppings on his property and trees dying from the large number of buzzards on his property.
Along with Wilburn, one man who has long been involved in complaints and opposition to the landfill took the stand as well. Glenn Campbell — who lives just a few doors down from Wilburn on Grady Road — said he’s no stranger to the issues and faces them daily himself.
“We get all of Atlanta’s garbage,” Campbell complained. “It comes from everywhere. Massive tons of garbage has made the odor worse.”
He told the court the odors keep him from him and his family from enjoying life outside, also complained of calves being killed by “thousands of buzzards” that roost on his farm as well, especially in the trees and on his house and barn.
When questioned by Martin in a cross examination on the stand, he asked Campbell whether he ever sought any specific monetary compensation from the landfill for problems experienced. At first Campbell said no, but then recalled he did receive free car washes for a period from Waste Industries due to mud coming from the property being tracked onto Grady Road as trucks left the landfill.
Martin also asked Campbell about postings on Facebook where he complained about run-off flooding problems coming off the Grady Road property and onto the neighbor’s land. Campbell said he never misrepresented the dates of when photos were taken when making posts on the social media site.
For Charles Baldwin’s time on the stand, the Rockmart Highway resident just a quarter mile from Grady Road had to bring in gloves to present physical evidence he’s found in his yard he believes came from the trucks leaving the site.
He donned latex gloves before he pulled out a pair of empty IV bags and the attached lines that he found in his yard and showed off to the court during the hearing. Baldwin told the court this was just one of the many items he finds in his yard on a daily basis. Plastic jugs, paper, and he said enough Walmart bags to stock the checkout aisles of a store.
“It’s scattered along the road from my house to Victory Baptist Church,” Baldwin said.
He did say that Waste Industries had been proactive on the litter issue, but only tackled the side of the highway and ditches. Baldwin said that doesn’t mitigate the trash that ends up on his property and others along Rockmart Highway. He also testified to buzzard problems.
Tim Pilgrim’s testimony on the stand for the county also addressed the buzzard issues. He complained about several cows and calves being killed by the birds, and said he went through the process of obtaining permission to shoot them.
Legally, the black vulture (black buzzard is a common term for them as well) are a protected species and can’t be hunted. They differ from the turkey vulture in that they do not have the distinctive red head, and that the black vulture is as much carnivore as scavenger.
Pilgrim even told the court he had pictures of the death the black buzzards have caused on the property he rents on Grady Road to graze cattle. He added that after losing four calves and two cows to the birds, he has taken to shooting upward into the air when he finds them on and around the property to scare them away.
Pilgrim like others also complained of run-off problems from the landfill that brought water and mud onto their land surrounding the facility, and brought on concerns of potential contamination. Though no test results to prove those claims have yet been presented into evidence, Pilgrim specifically said he believes some calves in his herd also died due to parasites found in run-off water.
Will soil cover work?
One of the main questions of the hearing was whether to avoid complaints about odor and vultures that Waste Industries should change from their current practice of tarping and side soil cover on the working face to a full soil cover of six inches after the working day is done when the landfill is open.
That question prompted the questioning of the county’s Engineering Consultant on the Grady Road Landfill operations to the stand. Kent McCormick of Triple Point Engineering of Macon was hired by the county to provide a pair of reports — one generated in September 2017 and another generated just weeks ago on April 3, 2019 — on the landfill’s operations and what proactive solutions can be taken in identified problems and complaints.
McCormick told the court he met with County Manager Matt Denton and Landfill Manager George Gibbons and the administrative assistant for the landfill office Julie Brookshire in generating both reports. He also only made four trips to the landfill itself during that time. He also testified that both the county and Waste Industries were cooperative in providing information and documentation to generate the reports.
The crux of his report that centered around the call for the hearing was over soil cover versus tarping. State regulations from the EPD require that Municipal Solid Waste Landfills, which is what the Grady Road site falls under when permitted and inspected, are either supposed to use a six inch soil cover on a daily basis over the working face (the area where trash is immediately dumped and compacted when the landfill is open) or if permitted to do so, can use six inches of soil on the sides of the working face and a tarp.
Polk County holds the permit to operate the landfill and contracts Waste Industries to do the real work at the landfill, such as ensuring it makes a profit to make annual payments to the county for the right to bring in trash from around the area, and to
Basically, that involves trash being brought in locally or from around the region and metro Atlanta to the property, where Waste Industries prepares an individual cell in different sections of the property that is lined with several layers of plastic, dirt, gravel and other materials to trap all the leaky juices from trash and the resulting breakdown of waste within bags and other containers that creates methane gas and ultimately a byproduct called leachate.
As those cells fill up, each day workers bring in dirt to fill in and slope the sides of the cell and build up a base for the next day’s trash to be compacted. In other landfills, the six inches of dirt placed atop trash at the end of the day provides a barrier from odors escaping, but in the case of the Grady Road Landfill and others they have permission to cover the top part with a tarp, so when new loads of trash come in per day they can begin compacting down the previous day’s layer underneath the new, and save what is dubbed “air space.”
That area of which trash is dumped on a daily basis is the working face, and it can be as large as 30,000 square feet of area at a time, just above two thirds of an acre of area.
When a cell is completely full in a specific part of the landfill, that is covered up and contained with two feet of soil all around, and eventually methane gas wells are added in as time goes on to extract and burn off the gas in a flare system.
McCormick’s pair of reports entered into the record contained the recommendation that Waste Industries go from their current permitted use of tarps to a six inch soil cover for a 60 day trial period to see if it diminished odor issues and the proliferation of vultures.
He was asked by both sides whether the solution would work, and each time responded with a “maybe.” McCormick also talked about the need to immediately cover any sludges (the byproduct of water treatment plants that are dried out) and to expand the methane gas extraction system whenever possible.
Questions were also raised about the use of spray-on covers to help mitigate odors, specifically the use of Posi-Shell. Posi-Shell is a product made by LSC Environmental Solutions that provides an easy to apply coating over the working face of the landfill using a mix of clay binders, fibers and polymers that dries into a stucco-like substance meant to save on airspace and prevent odors from escaping. Waste Industries did have a permit to use the spray-on coating from the EPD, but according to McCormick had not gone through the required process of having the permit in Polk County’s name and instead had done it in their own.
Having asked the EPD in his research on the landfill about the use of Posi-Shell and another product called Top Coat, the EPD learned of the technical error and revoked the permit to use Posi-Shell.
When Martin got the chance to cross examine McCormick during the afternoon session of the hearing, he asked specifically why Waste Industries’ operation of the Grady Road Landfill in the last six of seven inspections received a 100 percent rating, and a 95 percent rating in the seventh from 2016 to the present. He also asked about whether odor was a consideration in evaluating landfill operations, which it isn’t.
McCormick also was asked about Waste Industries’ use of a tool called the Nasal Ranger, which is a device that according to their website allows for an “odor strength measurement that is consistent from place to place.”
He admitted he found out about the device only from seeing it used by Waste Industries employees in the area around the landfill, and when researching it further included in his reports that the Nasal Ranger was only used nationwide as an industry standard from the company’s website. St. Croix Sensory, Inc. builds the device.
Martin also questioned McCormick over the issue of leachate breakout, which is a real problem when considering landfill operations. As trash breaks down when covered by soil, the leachate created by the rot can build up in pockets and if not properly pumped out in a contained system, can eventually push its way out from under the soil and leak, causing potential environmental and health and safety problems in and around the landfill.
McCormick said however so long as the landfill is operated within regulations and properly using a six inch soil cover over the working face, leachate breakouts aren’t as big as an issue. He did concede that if daily soil cover were stripped off to save on the lost air space from the six inches added on top of trash that it might be a middle ground, but didn’t specifically recommend the idea since it would not completely alleviate odor issues.
Gibbons takes the stand
Another of the key witnesses during the first half of the hearing was Grady Road Landfill manager George Gibbons.
His testimony included a general overview of how operations work at the Grady Road Landfill, as well as defending the use of products like Posi-Shell to cover trash daily, along with a detailed overview of the steps taken previously to curtail the black buzzard population.
However Gibbons was admonished twice by Judge Grubbs to answer questions fully and to avoid getting agitated on the stand.
His most detailed portion of testimony covered how Waste Industries have taken steps to try and alleviate problems through recommendations made by the Landfill Citizens Advisory Committee, such as trash collection alongside Highway 278 with private contractors and via an agreement with the Polk County Jail for use of prison details, and several trial-and-error solutions to keep the buzzards away.
Gibbons testified he felt the most effective solution so far had been the use of propane-fueled air cannons, which in short intervals during the daytime hours of operation create large blasts that scare away the black vultures. Spray cannons and falconry were also among the ideas tried, Gibbons testified.
Commissioners also testify
During last week’s hearing, Polk County Commissioners Chuck Thaxton, Hal Floyd and Jennifer Hulsey also got a chance to tell their sides of the story and provide details of their issues with Waste Industries over the past years in attempts to alleviate the problems neighbors around the landfill have suffered from.
After taking the stand, Hulsey later followed up with the Standard Journal about her comments to the court and stated that among her issues with smell and litter experienced by neighbors, she also believes that Waste Industries keeps promising solutions but haven’t yet delivered.
“We and the citizens have been told over and over all the issues we have brought to Waste Industries and ETC would be resolved, but they haven’t,” Hulsey said. “We keep getting the same things over and over again.”
She also accused Gibbons of being unfair with residents, specifically charging that he had stated that Glenn Campbell — who served on the Landfill Citizens Advisory Committee — would never be allowed on it after his years of complaints.
“Mr. Gibbons also didn’t notify our board he was having issues with molybdenum and arsenic levels when working with leachate and sending it to the City of Cedartown (to be treated,)” Hulsey said. “It was only after we called him before our board that he told us, and he admitted to me that he was taking samples improperly with water bottles and not with the proper sampling materials.”
The Standard Journal reached out to officials representing Waste Industries for comment following the Wednesday hearing, but had not received a statement by press time.
Arguments over the injunction continue on Tuesday morning in the main courtroom of Polk County Courthouse No. 2.