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Judge: landfill injunction rules stay in place

Kevin MyrickMay 24, 2019

The rules will stay in place for Waste Industries operations at Grady Road Landfill the latest hearing before Cobb County Superior Court Judge Adele Grubbs went through arguments in a motion to stay sought by the defense.

Grubbs determined after less than an hour hearing arguments on the morning of May 22 that the motion to stay made by Waste Industries attorneys wasn’t enough to halt the ongoing operational changes made at the facility off Highway 278.

Waste Industries attorney Matt Martin was limited to arguments against keeping the injunction in place based off of evidence already presented to the court in two hearings and additional filings in April and prior to the May 2 decision.

Martin provided several points for Grubbs to consider, including the fact that previous cases before the state appellate and supreme courts had held up keeping the status quo under circumstances like those between Waste Industries and Polk County, that greater financial costs are being taken on by the company and the county taxpayers.

Waste Industries estimated in an affidavit filed on behalf of Grady Road Landfill Manager George Gibbons that costs were piling up on a monthly basis while the order was in place. However in her official written order, Grubbs struck it from consideration on whether to consider the stay request.

The May 21 filing estimated the county is losing $26,000 a month on tipping fees, not including the $282,407 Waste Industries is spending on diverting waste, loss of money to disposing of sludges, trucking those sludge to a Taylor County facility, and $122,281 lost in revenue to the depletion of airspace per month.

The total figure also includes the costs of $13,230 in overtime for labor and $25,000 in additional equipment rentals, detailed in the filing.

County Manager Matt Denton had no comment about any funds the county might be losing that were cited in the affidavit.

Gibbons’ affidavit also echoed concerns already raised by Waste Industries over the use of six inches of daily cover that methane gas generated by decaying trash will become trapped between the new layers of soil not there, that it will hamper the operations of the gas collection system the company reported they spent $1 million in 2018 expanding, and that leachate breakouts could cause substantial environmental impacts.

Martin also stated the company is operating within the Georgia Environmental Protection Division regulations for the landfill, which prompted a response from the bench over whether that was true or not.

A point Grubbs said her order disagreed with, but one that Waste Industries could contend on the record.

She later included that point in her written order.

Grubbs stated “the Defendant assigns error to the Court’s injunction because there is a legal contract between Polk County and the Defendant Waste Industries. The Plaintiff will fail in its appeal on this issue. Here the Defendant Waste Industries has not complied with local and state laws, it has violated the rules of the EPD...” and goes on to cite three different paragraphs in her previous order.

He also pointed to complaints that back to at least 2014 over smells at the landfill and issues with buzzards, as well as arguing that Waste Industries’ use of the Nasal Ranger proves the improvement in odor issues, the need control odors using six inches of daily soil cover as part of the terms of the injunction in place was moot.

Martin also sought relief on the issue of sludges. He pointed toward customers like the City of Cedartown and the City of Rockmart’s wastewater treatment plants not having anywhere else to take the byproduct of water treatment, and Waste Industries is picking up the costs currently to ship it to a Taylor County facility who will accept it.

He said the “water treatment plants will be significantly impaired” in their operations if the injunction is allowed to continue.

Grubbs pointed out that some arguments that Martin made to try and persuade her to reverse her decision would be better made in a different motion and at least twice called upon attorneys to seek a request to modify her May 2 filing.

She pointed stated she “won’t convert a motion to stay to a motion to modify” her order, but would consider it in a separate hearing prior to an August hearing date to determine whether the injunction was providing a positive outcome.

Additionally, whether the Court of Appeals will hear the request to reverse her preliminary injunction order is still left to be heard, a process that will likely take longer than the original 90 days put forth by Grubbs in her May 2 decision.

Mediation also became a topic as the hearing came to a close and she announced her intentions to deny the stay.

County Attorney Brad McFall made two arguments before the bench against that idea, first being the county expects the likelihood of a summary judgment in the second component of the lawsuit over whether Waste Industries owes the county $884,764.39 over previous payments due on Saturday dumping and interest generated on that money as well as fuel surcharges that were paid by the county unnecessarily.

McFall additionally pointed out that at this point in the stages of the suit, the county is “not concerned about the dollar, but the county is concerned about having a good neighbor.”

He said that when court convenes on the outcome of the stipulations laid out by Grubbs in the injunction order in August, she’ll hear from the landowners around the Grady Road Landfill that soil cover is working.

When she was first assigned to the case, Grubbs said she called upon both sides to sit down and talk, and then found that neither made any movement toward a negotiated settlement in the ensuing months before the April hearings, she would not consider an order for mediation.

“Nothing happened, nothing was done and nothing was achieved,” she said about mediation.

Grubbs’ latest written decision also intends to clear up whether the legal argument of being employed by the county under contract as being immune from legally being declared a nuisance also was denied.

“Unlike the cases cited by the Defendant, it is not the landfill itself that is the Nuisance. IT is the way the Defendant is operating it, and operating it in violation of the law,” Grubbs wrote. “The injunction is necessary to abate and mitigate the harm to the residents, property and livestock, from the Defendants ongoing conduct.”

Waste Industries officials did not wish to comment following the Thursday written decision was released.

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