Source: The State, Columbia, SC, April 1, 2012
Posted on: http://envfpn.advisen.com
A federal jury on Friday ordered the owner of a huge landfill in Lee County to pay $2.3 million in damages to six Bishopville area residents for causing a stench they say has made life miserable for them.
The jury award against a division of waste giant Republic Services is rare, if not unprecedented in South Carolina, because it requires a company to pay damages based on nuisance landfill odors that affect people’s enjoyment of their property, attorneys for the residents said.
Lee County Landfill SC LLC is considering an appeal and likely will ask U.S. District Judge Joseph Anderson to throw out the award, company lawyers said. An appeal could cause the case to drag on for months or even years.
But Gary Poliakoff and Bill Hopkins, lawyers for the Lee County residents, called the jury’s verdict historic and courageous — and a victory for citizens who suffer damages from landfill companies.
“The waste industry needed a message in South Carolina,” Poliakoff said, noting the Palmetto State has long been considered an easy place for landfill companies to operate without tough restrictions. “The industry has considered South Carolina a patsy state and Lee County as a patsy county.”
Not only did the residents win damages, but Poliakoff has filed a motion to either close the landfill or require it to change its operating practices. That issue will be decided by Anderson. A hearing is scheduled for April 18.
Friday’s verdict followed two weeks of testimony and two days of jury deliberations. The 10-member jury, composed of six women and four men who are not from Lee County, awarded the residents $532,500 in actual damages and $1.8 million in punitive damages.
The latter award is based on the jury’s finding that the landfill’s operators were reckless and willful in allowing odors to escape the site, which Poliakoff and Hopkins said is notable.
Lee County’s landfill is well-known to East Coast states as a destination for their garbage. It traditionally has taken far more out-of-state waste than any other garbage dump in South Carolina. Rotting trash, industrial sludge and sewer plant sludge comes from Northeastern states on rail cars, as well as by truck from North Carolina, the residents’ attorneys said at the trial.
Easily visible from Interstate 20, the landfill towers 140 feet above the flat plain of eastern South Carolina. The landfill experienced notable problems in 2008, when it sparked complaints from area residents about a drifting odor. Motorists also complained about the smell as they drove through Lee County.
During testimony, the landfill’s neighbors said it’s hard to sit outside, hold cookouts and garden because the rotten-egg odor is sometimes so powerful. They said the stench comes and goes, but has been nauseating at times. In some cases, the smell has even permeated the walls of their homes, one witness said. She said the smell drove her inside one night in the past month while her family tried to view a colorful rainbow.
“I’m just glad it’s over,” said Alan Jackson, one of the six residents who filed suit in 2010. “All we wanted was to not have that smell. I hope this will help it go away.”
Others suing included Jackson’s wife, Kathy; Perrin and Debbie Babb; and Wayne and Sarah Elstrom. The six local residents who won the case live within about two miles of the dump, which opened in the early 1990s — which they say was well after they had moved to the Bishopville area.
Lawyers for Lee County Landfill SC LLC conceded during the trial that the landfill caused “minimum and moderate odors” during 2008 and 2009, but they said state Department of Health and Environmental Control inspectors didn’t see a major problem.
“DHEC didn’t find them to be serious,” landfill attorney Steven Weber said during closing arguments. The site has had only two DHEC violations and agency officials did not believe the landfill was reckless, landfill lawyers said.
Weber, a Charlotte lawyer, said during the trial that the key to the case was whether the odors were unreasonable and substantial — which the landfill contends they were not. During testimony, officials with Republic Services said they made improvements to minimize odors after the Arizona company acquired the landfill in 2008. Among those was a second flare to burn off stinking landfill gases
“We’re disappointed in the result” of the trial, Weber said Friday. “But we do appreciate the time and effort the jury invested in the trial. We are considering an appeal. We will ask the court to set aside the verdict.”
Republic Services is a Fortune 500 company worth more than $1 billion. Headquartered in Arizona, Republic has about 200 landfills nationally. Lee County Landfill SC LLC, an arm of Republic, has a net worth of $15.78 million, the judge was told Friday.
Whether Anderson will toss out the verdict remains to be seen. South Carolina has a cap on punitive damages, that in this case, may limit the award slightly. But Poliakoff said there are exceptions to the cap. While the jury was out of the room, Anderson told attorneys he had “grave concerns” about punitive damages that might be handed down.
During the trial, which began March 19, Poliakoff brought in an odor expert and used witnesses in an attempt to show the impacts the landfill smell had had on their lives — and what he said was the company’s failure to properly cover waste that created odors. He said water that collects in the landfill, known as leachate, and methane gas had seeped out and contributed to the stink.
Poliakoff said the landfill’s operators could have installed a plastic cap across the top to prevent water from trickling through the existing mound of garbage, but they had refused to do so. The cap would keep rainfall out and help hold odors down, he and Hopkins said Friday.
“There shouldn’t be any offsite odors,” Hopkins told the jury, referring to expert witness testimony in the trial.
Weber said few landfills have such caps.