Source: http://www.mercurynews.com, July 12, 2012
By: Ian Bauer, Milpitas Post
Out-of-town lawyers specializing in class action lawsuits about pet food recalls, sewage backups and odors generated by landfills say they plan to file a class action suit against the operators of the Newby Island Landfill and Resource Recovery Park on the Milpitas-San Jose border.
Evans Law Firm PSC of San Francisco in conjunction with Detroit-based Macuga, Liddle & Dubin PC planned to file the suit in court this week, according to Ingrid Evans, a civil trial lawyer. She told the Milpitas Post Monday that her firm’s potential class action concerns “substantial odor complaints” her firm received from several local residents, despite Republic Services’ efforts to work with City of Milpitas for several years to mitigate odors from composting and solid waste operations — and no notices of violation from the governing Bay Area Air Quality Management District within the last five years.
On June 29, the firm sent a letter and accompanying question-and-answer survey to Milpitas residents regarding odors allegedly emitted from Republic Services’ Newby Island Landfill. Evans would not say how many letters were mailed nor how many responses she has received.
“We are currently investigating the possibility of filing litigation against Allied Waste’s Newby Island Landfill for the emission of noxious odors. Due to your proximity to the Newby Island Landfill, you may have experienced odors associated with this neighboring facility,” the letter reads. “Odors which interfere with the use and enjoyment of your home may constitute a nuisance that may entitle you to compensation. Any litigation filed by this office would also have the objective of preventing any future emission of noxious odors.”
The letter goes on to say her firm is working with Macuga, Liddle & Dubin. According to the firm’s website, Detroit-based Macuga, Liddle & Dubin focuses on class action lawsuits involving basement flooding, environmental contamination, governmental liability and consumer law cases.
Rick King, Newby Island general manager, acknowledged the potential suit, but did not want to comment further on the specifics.
“While it is our policy not to comment on litigation, I can tell you that Newby Island Landfill and Resource Recovery Park is committed to being a good neighbor at all of our facilities and to protecting and enhancing the quality of the environment in everything we do,” King said.
The law firm’s correspondence followed San Jose Planning Commission’s June 6 vote to recommend San Jose City Council approve an expansion to Newby Island Landfill at 1601 Dixon Landing Road in conformance with the California Environmental Quality Act and recommend the council approve a proposed planned development rezoning, as recommended by staff.
The approval would allow the landfill, operated by Republic Services of Santa Clara County (formerly Allied Waste Services) just west of the Milpitas city limits, to increase the permitted top elevation from 150 feet above mean sea level to 245 feet above mean sea level, and allow an increase in the capacity by 15.12 million cubic yards.
City of Milpitas filed an appeal of the planning commission decision. If the San Jose City Council approves the landfill capacity expansion next month, it will allow Newby Island to operate through approximately 2030, depending on material volume and diversion rates. If it is denied, the landfill would reach capacity by approximately 2020, a company spokeswoman previously said.
Those in town who have received the law firm’s letter had mixed reactions.
“The only thing I can say is that I find it refreshing that there is finally some light being cast on this long-standing problem. It has been a big problem since I moved here in 1978,” Milpitas resident Dan Manassau said. “Perhaps this may help our city join the rest of the Bay Area as an environment free of ongoing air pollution.”
In June, during the San Jose Planning Commission meeting, Manassau appeared as one of two Milpitas residents who disliked having the San Jose-based landfill close to his Milpitas home.
“The stink has been there for 35 years and I have been looking forward to the (landfill’s) closure date for a long time,” Manassau told the commission.
Manassau said he did not have enough information yet “about the law, the law firm, the odor regulations, or this action to make an informed decision or offer an opinion at this time” on the class action suit. He did complete the firm’s attached datasheet one that asks questions like “Have you noticed any odors from the Newby Island Resource Recovery Park Landfill at your home?” and “How long have you experienced the offensive odors at your home?”
Another resident said he is angry about the premise of a class action lawsuit.
“I am beyond incensed and livid that a law firm based in San Francisco is sending out solicitations to the citizens of Milpitas … in hopes of having people fall for their wanting to help them litigate real or imagined concerns about odors,” Ed Blake, chair of Milpitas Recycling and Source Reduction Advisory Commission, told the Post. “This law firm is no better than the predatory law firms who solicit on TV for Ôvictims’ so that they can build a case, get high rewards from which they abscond with attorney’s fees and leave the Ôvictim’ with little or nothing.”
BlakeÊsaidÊNewbyÊIsland Landfill is a benefit to residents as it provides a lower cost facility for City of Milpitas to dump its waste.
“It’s hard to find new landfills,” Blake said, noting landfill closures in the South Bay over the years that force waste to be trucked farther away. “That costs money.”
He added opponents to the class action suit should inform Milpitas officials.
“People should let their feelings be known about this,” Blake said.
According to Evans, the letter sent to residents last month was only a “by-product” of a class action case brewing for some time against Republic Services.
“We’re ready to file the complaint,” Evans said. “The letter is less relevant than the fact that we have a case.”
Evans said the class action will involve petitioning the court to allow Macuga, Liddle & Dubin in on the California legal case, known as seeking pro hac vice status.
“They can’t be admitted into the case until the judge rules on it,” Evans said, adding the class action may take three months before being heard in court. “It won’t be moving very quickly.”