Supreme Court rules for mega landfill

sfretwell@thestate.comAugust 16, 2013 

The mega landfill rises like a mesa on the horizon near Bishopville. The landfill, which is sarcastically called, Mt. Lee, by some.

FILE PHOTOGRAPH — The State

— The S.C. Supreme Court delivered a costly setback this week to the neighbors of a huge Lee County garbage dump that had been ordered to pay them $2.3 million in damages for sending powerful odors across the countryside near Bishopville.

But the high court’s opinion – which limits the amount the landfill will have to pay – does more than hurt the case by three families against the mega dump. The ruling will make it harder for people to sue and collect money from stinky landfills, smelly hog farms and other businesses that create bad odors, an attorney in the case said.

That’s significant in South Carolina, a state with scores of landfills and animal farms but with limited protection by the Department of Health and Environmental Control from odors, said Spartanburg lawyer Gary Poliakoff, who represents families who sued the landfill.

“One control citizens had was the courts,” Poliakoff said. “Now the Supreme Court has determined to reduce the amount of damages that can be awarded in a case of this type.”

The decision limits the amount of money people can collect when they file nuisance odor and trespassing cases.

In a unanimous opinion Wednesday, the S.C. Supreme Court said invisible odors that float from one person’s property to a neighbor’s land aren’t trespassing. Trespassing occurs only when “physical, tangible things” intrude on a person’s property, the court said. Dust or water that leaves one person’s land and goes onto another’s property could be considered trespassing, but not odors, the court said.

Part of Poliakoff’s case used the trespassing argument.

The court also said anyone suing for actual damages to their property can only be paid the fair market value of their land or for how much the land would rent for if they were leasing it out. That would hurt poorer people whose land is less valuable, Poliakoff and veteran environmental lawyer Bob Guild said. Landfills and factory farms often locate in less affluent areas where land values are low, Guild said.

“A landfill will say, ‘We are looking at locating in a place where people’s property is devalued and, of course, our liability to exposure is low,’” he said, calling the decision “very disturbing.”

Despite the setback, Poliakoff said he will press ahead with the case and others filed by neighbors of the mega dump. He also is contemplating whether to ask the Supreme Court to reconsider its Wednesday decision.

The Lee County landfill case, which drew national attention last year because of the federal jury’s verdict, centers on what neighbors say is a legacy of strong, nauseating odors that make sitting in their backyards or grilling outdoors unpleasant.

During last year’s federal trial, one resident described the towering Republic Services landfill as a monster in the community’s midst. In 2012, the jury awarded the $2.3 million after determining that the landfill’s owner had been reckless and willful in allowing the odors to drift off site. About $1.8 million of the award was for punitive damages, with the remainder actual damages.

After the verdict in March 2012, a federal judge sent the case to the S.C. Supreme Court to decide legal questions. It now returns to federal court to determine how much to reduce the award, as well as to hear motions on whether to shut down the landfill.

Lee County’s landfill is known along the East Coast for its legacy of taking out-of-state garbage and for its towering presence along Interstate 20 at Bishopville, between Columbia and Florence. The landfill takes rail cars loaded with waste from other states, some as far away as New England.

Many people say it is a symbol of South Carolina’s willingness to accept the nation’s trash in exchange for jobs and tax revenues.

Shelley Robbins, who tracks landfill issues for the environmental group Upstate Forever, said odors, such as those in Lee County, are among the main complaints people have about mega dumps across South Carolina.

“The odor issue is significant,” she said. “Sometimes the odors are so strong you have to come in and take a shower.”

An attempt to reach Republic Services, one of the nation’s largest garbage companies, was unsuccessful this past week. The company has said it is trying to improve operations at the Lee landfill, where many problems occurred before the Arizona-headquartered company acquired it.

Despite the broader implications of the ruling, Poliakoff said the decision has several bright spots. The court’s decision focused on actual damages, or the amount a person can get for impacts to his property. As a result, Poliakoff is hopeful the bulk of the $2.3 million will stand when it returns to federal court.

The Supreme Court’s decision also allows the case to go back to U.S. District Court, where an even larger question could be resolved: whether to shut down the landfill.

Poliakoff has filed a motion to either shutter the mega dump or require Republic Services to improve its operating practices so odors will be less likely to escape. U.S. District Judge Joseph Anderson has not ruled on the motion, pending a decision from the Supreme Court on legal questions about the amount of damages that could be recovered.

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