Attorneys for Waste Industries file stay motion with Court of Appeals

A request to stop the requirements of the temporary injunction over operations at the Grady Road Landfill ordered by Judge Adele Grubbs is now filed with the state’s Court of Appeals.

The pair of attorneys for Waste Industries Matt Martin and John Husser requested the stay to the temporary injunction in a 37-page filing before the Court of Appeals in mid-June in an attempt to halt the order put in place by Grubbs, denying the defense’s previous attempt in a stay motion before her court.

In the new motion before the state’s appeals court, the case is presented on paper that first and foremost ETC of Georgia, whose parent company is Waste Industries, will win their case before the court. They base it on the fact that first and foremost, several issues with Grubb’s judgment on the temporary injunction and then denial of their motion to stay request interfere with the contract between the company and Polk County.

The filing continues to assert that the parent company of ETC of Georgia have “complete control over the manner of operations” per the contract with the county, specifically citing the interference over the use of daily cover of a combination of soil, tarps and spray-on covers violates the agreement. They ask the court of appeals to only consider the issue the matter based on the contractual rights of the company and what the state’s Environmental Protection Division allows.

Additionally, they listed their efforts made in previous years to address a “vocal minority of citizens who live near the Landfill have complained to ETC about odors and buzzards incident to Landfill’s operations for the past decade or more.”

Those they provided included their use of propane air cannons, offering installation of electronic strips to deter buzzards on the residential properties around the landfill, their use of misting de-odorizers, hire of employees to oversee odor control and trash clean-up out of the back of trucks, their use of spray-on covers later pulled by the EPD over permitting issues, and the use of the Nasal Ranger to monitor odors in the area around the landfill.

“Notwithstanding these voluntary measures and ETC’s (Waste Industries) compliance with the Operating Agreement, state regulations, and Georgia EPD permits, Polk County contends that ETC is liable for maintaining a public nuisance at the Landfill from odor and buzzards,” the filing stated.

Arguments over maintaining the status quo of the contract

One of the main arguments Waste Industries posed was whether county-owned property like the landfill can create the definition of a public nuisance if it is being operated within state and federal law and guidelines. They pointed to past case law in a lengthy legal discussion over why it can’t, and specifically that when the EPD revoked the use of Posi-Shell it didn’t change the status quo of the ability of Waste Industries to be able to use tarps and maintain the contract agreement.

They instead argue that previous case law cited to explain the request of the county for the temporary injunction erred because it was based on lawsuits filed against private businesses, not those on public land that are contracted out to a private firm like Waste Industries.

“The Landfill was specifically zoned and negotiated for operations as they currently are,” the filing stated. “In fact, Polk County established the Landfill’s present location and requested the use of tarps and alternative daily cover years before ETC took over. Moreover, ETC has operated the Landfill consistent with its contractual and regulatory obligations for over a decade and has not recently changed its operations.”

Attorneys in the filing also argued that Grubbs erred when she granted the temporary injunction because the county didn’t provide sufficient evidence, and by giving the county relief it didn’t request.

They also argued that Waste Industries will suffer harm in the absence of a stay, citing that minimal harm will come to those in considering a stay motion and that the public interest favors it based on can result in lost air space, leachate spills from breakouts and the buildup of methane gas pockets.

Waste Industries estimated in an affidavit filed on behalf of Grady Road Landfill Manager George Gibbons in May 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.

Previously, county officials had no comment about the lawsuit.

Grubbs heard two days of arguments in April before filing an early May decision in a request for a temporary injunction from the county requiring that Waste Industries begin using six inches of daily soil cover over waste brought into the landfill and keep it in place. She also stated that the county would be allowed day or night allowance onto the property for inspection by a county public works employee without need for permission, and no longer allowing sludge from public entities and private firms to be dumped at the Grady Road Landfill.

She also ordered that efforts continue to control the buzzard population and reduce odors at the site by Waste Industries.