Waste Industies appealing to injunction

New hearing date set for May 22, case heading to the Court of Appeals

A hearing date has been set to give Waste Industries the opportunity to seek a stay order on the temporary injunction approved by Judge Adele Grubbs in the lawsuit filed by Polk County over the operations of the Grady Road Landfill.

Unless Grubbs chooses to reverse herself, it will likely be up to the state Court of Appeals to determine whether the Grady Road Landfill will require six inches of daily soil cover to be left in place. Waste Industries is currently complying with that order, and will continue to do so according to attorneys for the company.

Matthew Martin replied to written questions that soil is the cover being used at the landfill currently, though points out again that “the landfill’s permit from the Georgia EPD as well as ETC’s operating agreement with the county expressly permit the use of soil and tarps.”

The parent company of ETC of Georgia, the defendant listed on the lawsuit, is hoping Grubbs will reverse her decision made at the beginning of the month based on past case law and

Martin and John Husser argue in their filing in the stay request that the order is contrary to law for a number of reasons, including the Supreme Court’s ruling in past proceedings that if “a defendant has complied with local and state laws, and is operating consistent with an agreement with local government, there can be no public nuisance.”

Martin provided the Standard Journal with the following written statement in a follow-up on the temporary injunction ruling.

““ETC respectfully disagrees with Judge Grubbs’ Order and, on May 8, filed a notice of appeal to the Georgia Court of Appeals. ETC also filed a motion to stay the Order pending that appeal. That motion is scheduled to be heard on May 22,” he stated. “If the motion is denied, ETC will seek a stay from the Court of Appeals. Of course, notwithstanding the appeal and ETC’s operational and environmental concerns with some of the requirements Judge Grubbs imposed, ETC has and will continue to do its best to comply with the Order.”

Judge Grubbs stated in her ruling on May 2 that two different hearings in April provided enough evidence that Waste Industries is by overwhelming evidence” they are “maintaining a nuisance at the Grady Road Polk County Landfill.”

She additionally laid out stipulations in her injunction that requires Waste Industries to use six inches of daily soil cover, not allowing any sludges into the landfill, continuing efforts to reduce smell and buzzard populations from flocking in the area, and allow Polk County Public Works employee Jerry Barker unannounced visits to the landfill day or night for inspections.

Both attorneys and company officials for Waste Industries are looking to safety concerns and legal precedent to resolve their appeal in their favor and the May 22 court date before Grubbs in a 9 a.m. hearing and matter to a satisfactory conclusion.

Case law

Martin and Husser’s filing of May 8 to appeal the decision and seek a stay are based on several legal arguments from past lawsuits heard before judges on the state level, and begins with the following principle: a company acting on behalf of a local government is immune from legal responsibility for creating a “nuisance.”

In the simplest terms, it means that even though the trash they bring into the Grady Road Landfill from operators who pay Waste Industries for the right to bring in tons of trash per day might smell, and attract buzzards, and cause other environmental concerns it is not Waste Industries responsibility. They are only operating on behalf of Polk County’s government within the proscribed terms agreed upon in the contract. That includes the ability to tarp over the area where trash is being currently dumped and use other alternative methods like the previously permitted Posi-Shell, which was replaced by Top Coat.

Polk County is the holder of the state’s Environmental Protection Division permit to operate the Grady Road Landfill, not Waste Industries.

They specifically cite two cases — one partially overruled by the later court decision — of Vason v. S.C. R. Co. heard in 1871, and Augusta & S.C. R. Co. v. City Council of Augusta heard in 1897. They quote from that filing that the court ruled that “therefore, that the use of steam on this railroad is specially permitted by the public authorities, and that it cannot, therefore, be abated as a nuisance.”

“Applying this longrecognized principle of law, the Georgia Court of Appeals held “that which the law authorizes to be done, if done as the law authorizes, cannot be a nuisance.” Thus where the act is lawful in itself, it becomes a nuisance only when conducted in an illegal manner to the hurt, inconvenience or damage of another.” They are citing Effingham County Board of Commissioners v. Shuler Brothers from a 2004 case, and the City of Douglasville v. Queen from 1999 in their argument as well.

Basically, the attorneys state that because ETC (Waste Industries) is doing what they agreed to do in the contract that Waste Industries took over from ETC, they can’t be held liable for a perceived “nuisance” one way or another.

They also stated the county provided “no evidence that ETC had breached its Operating Agreement. Further, the County’s own expert, Kent McCormick, testified in a deposition and during the hearing that ETC was operating within the (Georgia) EPD permits” and went on to provide the transcript of the testimony of McCormick’s deposition.

He did state in the deposition based on the filing that “it is my opinion that they are not violating their permit.”

A question over the use of Posi-Shell, tarps

Their filing in the stay request also covers the permit being revoked for the use of Posi-Shell, and whether that included the use of tarps.

Attorneys for Polk County provided emails from the state EPD during the April 17 hearing that called into question the use of Posi-Shell, and whether Waste Industries was allowed to ask for a permit on their own without including the county in that request.

An April 8 email from the EPD’s Chad Hall revoking that permit to use PosiShell would require Waste Industries go back to using daily soil cover, and not their alternate daily cover of tarps. The attorneys provided evidence that Hall clarified his position on that requirement the county argued meant they had to use soil cover this month.

“David Pepper testified, however, that Mr. Hall had admitted that he was mistaken and that ETC’s use of soil and tarps was permitted,” the filing read. “Mr. Hall recently confirmed that mistake and that ETC’s use of soil and tarps as daily cover is authorized.”

He was further quoted in the filing as writing in a May 2 email that his statement was “an oversimplication” and that “the facility has been approved to use tarps as an alternate daily cover since 1994. EPD hasn’t seen anything in our files that took away or suspended this approval to use tarps as alternate daily cover. The facility could remain in compliance using either soil or tarps for daily cover.”

The status quo

Attorney also argued that in Judge Grubbs ruling on May 2, it “does not, and was never intended to, preserve the status quo.”

Basically, they argue that Court of Appeals rulings on injunctions previously don’t apply because precedent exists that doesn’t make odor complaints an urgent issue, that previous rulings since those applied by Judge Grubbs weren’t considered appropriate based on the case law, and that based on the use of the Nasal Ranger as “the only objective test before this court” that no “nuisance odorous levels had been recorded since monitorings began in October 2018.”

“George Gibbons testified, without contradiction, regarding the limited number of citizen complaints ETC received in 2017 and 2018,” the filing stated. “Further, Mr. McCormick’s September 25, 2017 report confirms he “noted little odor on [his] July 1 site visit” to the landfill.”

They added in the filing that based on a previous case where a preliminary injunction was overturned, DBL, Inc. v. Carsons (2003) and then later in Green v. Waddleton (2007) that both were overturned because the orders in those injunctions to abate a nuisance “did not preserve the status quo.”

“The court’s holding controls here,” the filing reads. “According to the PI Order, the odor issue has persisted since 2008. The record contains written evidence of complaints in 2014 and 2015. Under these circumstances, no urgency required the entry of the PI Order.”

Their argument to reverse the order on precedent boils down to since the odor complaints already existed before the suit was filed and then the request for the temporary injunction, it can’t be seen as a nuisance that requires immediate attention.

Landfills do create odors, and the company in a written response to questions posed by the Standard Journal stated they have spent at least $1.2 million in equipment costs in abatement efforts including the use of Topcoat, the misting system and the expansion of the gas collection system. That doesn’t include annual operating costs of those items.

They also have undertaken efforts to control the leachate through the introduction of enzymes into the lagoons where the liquid collects and is treated before being pumped and further processed elsewhere. Those also include utilizing odor inhibiting chemicals in the lagoons as well.

Their stay request also argues the order went beyond what the county had requested in their filing of the temporary injunction, stating that the exclusion of sludges from the landfill wasn’t presented as part of the request and only made in closing arguments and gave no time for the attorneys for Waste Industries to present any evidence on the impact of sludges.

They specifically argue this will cause harm to the Cities of Cedartown, Rockmart and several businesses who utilize the disposal of sludges from wastewater treatment processes into the landfill.

“The inability to dispose of ETC’s leachate at this WWTP (wastewater treatment plant,) is another environmental issue,” the filing cited. “The PI order ignores these risks and does not require the County to post any bond in the event they occur.”

Of additional note, the attorneys argue in the filing the appointment of Jerry Barker as the county’s representative to inspect the landfill unannounced is a conflict of interest, since he is employed by the county and is not a independent third party.

Concerns over environmental impact

In their request for the stay, attorneys also use the following point: there are real public health environmental concerns they argue exist if soil use continues.

“Further, ETC and the public at large risk significant environmental injury for which the Court did not require a bond,” the filing stated. “The Court will remember that no witness denied the potential consequences of daily cover using six inches of soil without stripping — trapping gas and leachate breakouts. To the contrary, Mr. McCormick conceded those risks.”

Leachate breakouts and gas pockets are long term problems to be considered.

Breakouts are caused when the liquid byproduct of trash breaking down in the landfill can’t flow downhill and into collection systems the way they should, creating a bubble underneath the surface of wastewater that can’t get out. If those pockets continue to grow large enough and put under enough pressure from additional layers of trash and soil placed on top of them, they burst outward and the liquid travels just like water to the easiest point of escape.

Gas pockets are similarly formed by the pressure of additional layers of soil and trash pushed downward, trapping the other byproduct from waste decomposing: methane. This is the reason for the gas collection wells and flare system at the landfill, so that methane within the landfill doesn’t seep out and into the air. If the gas has nowhere to escape, it’ll similarly cause a breakout and cause damage to the structure of the landfill itself.

Despite those environmental impact concerns, Waste Industries has not yet offered up any further alternative solutions than what they have tried. When asked specifically if they had other ideas besides the required six inches of daily soil to use in several questions posed by the Standard Journal, Martin replied on behalf of the company that use of tarps, soil and the Posi-Shell or Topcoat products was the best solution.

Martin also stated when asked that County officials have also not provided other alternatives beside soil cover, and that they were involved and agreed to the company’s use of spray-on cover and commissioners were on-hand during testing.

Airspace calculations were also not available at the time of reporting, and Martin said that “layering six inches of soil per day, in addition to potentially causing trapped gas and leachate break-outs, will take up significant air space over time.”

Statement from the company

Additionally, the following statement from the company was provided by Waste Industries Regional Vice President Jason Zepp following up on the appeal and request for a stay on the temporary injunction. It read:

“ETC of Georgia has been in partnership with the Polk County Commission since 2004 when the County turned operations over to ETC. This decision was driven by substantial operating costs and public debt to Polk County taxpayers. Since then, we have worked hard to be best -in-class, innovative landfill operators, active and responsible corporate citizens and have made charitable work in our community a top priority.”

Zepp went on to say that “We are proud that the Grady Road Landfill has one of the best operating records in Georgia and has consistently received exemplary inspection ratings from the Georgia EPD.”

“It is unfortunate, however, that the County Commission has chosen to spend its time and taxpayers’ dollars on an expensive lawsuit. ETC’s preference has always been to solve these issues cooperatively rather than through the expensive and slowmoving legal process,” the statement continued.

Then Zepp addressed many of the concerns in short that were also provided in the filing:

“The prohibition against accepting sludge has created an adverse economic impact and potential operational and environmental concerns for local generators. Sludge represents less than 5 percent of total volumes at the landfill, which is well within reasonable industry standards and a conscious decision to operate responsibly while serving our surrounding communities public work facilities.

Second, the injunction also allows a county employee unfettered access to the landfill, which creates a potential safety hazard and interferes with the landfill’s operations.

Third, the prohibition against stripping the 6 inches of soil has potential long-term consequences. Failing to strip soil could trap leachate and gas between the layers of the landfill. This practice could lead to leachate breakouts, as well as a multitude of gas issues. Moreover, leaving soil without stripping it daily is not standard industry practice, nor required by the EPD.”