Landfill must pay $2.3M to neighbors

Three couples who live near the Lee County Landfill in Bishopville won a $2.32 million verdict in federal court last month against the landfill and its owner, Republic Services, Inc., one of the nation’s largest waste management companies.

The plaintiffs – Perrin and Debbie Babb, Wayne and Sarah Elstrom, and Alan and Kathy Jackson – complained that odors, gas, fumes and dust emanating from the landfill were so noxious and unbearable that at times they could not stand to be outside in their yards. They also complained of airborne trash, excessive truck traffic and rodents.

“We presented no evidence at all of property values,” said Gary Poliakoff of Spartanburg, who represented the plaintiffs. “We made a decision not to do that. Our position was that it doesn’t matter what the value of one’s house is if the quality of life has been damaged.”

Poliakoff said he believes it is the largest jury verdict ever won against a landfill in South Carolina. It may also be the first federal jury decision in South Carolina to hinge on odors and how they effect quality of life.

The alleged injuries addressed quality of life, enjoyment of property, annoyance and inconvenience and interference with mental tranquility. After a two-week trial, a jury found the landfill and the Republic Service companies guilty of trespass, nuisance and neglect and found clear and convincing evidence that the landfill was willful, wanton and reckless.

The Lee County Landfill, just off Interstate 20 in Bishopville, is the largest of South Carolina’s 20-or so municipal landfills, covering about 120 acres. The garbage is piled to a height of 140 feet. It accepts more waste than any other in the state, much of it from across state lines. Its state permit allows the landfill to take in as much as 1.9 million tons of waste annually. South Carolina is one of the nation’s top importers of garbage from other states.

The jury awarded punitive damages of $1.8 million – $300,000 to each of the six plaintiffs – and compensatory damages of $532,500 – $77,500 to each of three plaintiffs and $100,000 each to the remaining three.

Poliakoff said he has represented plaintiffs against landfills in South Carolina on three prior occasions. Each case settled before trial. He said the plaintiffs in this case made a settlement offer before trial, but the defendants did not respond.

The plaintiffs alleged that landfill operators failed to follow waste treatment regulations, failed to install needed technology, and attempted to handle more waste than the landfill was capable of handling.

In February 2009, representatives of the landfill held a public meeting in response to neighbors’ complaints about odors. At that time, landfill representatives agreed to take more aggressive measures to keep odors in check. The plaintiffs filed suit in June 2010.

One of the factors contributing to the stench is that waste transported by rail often sits in the sun decomposing for a week or so before arriving in Lee County, Poliakoff said. The state Department of Health and Environmental Control cited the Lee County Landfill twice for failing to adequately cover freshly dumped garbage in December 2008 and in May 2009. Federal regulations require operators to spread a cover of at least six inches of soil or an equivalent over fresh garbage at the end of each working day.

One of plaintiff’s witnesses, Professor Timothy G. Townsend of the University of Florida’s Department of Environmental Engineering Sciences, said that odors emanating from the Lee County Landfill were due to fugitive gas emissions and uncovered garbage. The defense argued that the off-site odors were not as pervasive and frequent as the plaintiffs maintained.

In addition to their monetary awards, the plaintiffs sought an injunction requiring defendants to either close the landfill, which defendants estimated would cost $5 million, or address the odor issues. Judge Joseph F. Anderson agreed to delay the injunction hearing until after post-trial motions are heard, in light of the recent Fourth U.S. Circuit Court of Appeals decision in U.S. ex rel Drakeford v. Tuomey Healthcare Systems Inc., in which the court held that granting a judgment on equitable claims after granting a new trial on a jury question violates Seventh Amendment rights

Defense attorney Steve Weber of Parker Poe in Charlotte said he would be asking the court to set aside the verdict in post-trial motions and is considering an appeal based upon the outcome of those motions.

The plaintiffs first filed suit in the Lee County Court of Common Pleas, but the case was removed to federal court at the defendants’ request. Republic Services is incorporated in Delaware and headquartered in Arizona.

The case was filed as a class action, but the plaintiffs voluntarily dropped the class allegations.

Poliakoff said he hopes the verdict sends a signal to the state’s regulatory agency.

“The primary reason that the waste industry has come to know South Carolina to be a patsy state is that it’s easier to get a permit in South Carolina than in other states, and when you get a permit you can operate under the most lenient of regulations,” he said.

Verdicts & Settlements Report

Case name: Perrin and Debbie Babb, Wayne and Sarah, Elstrom, Alan and Kathy Jackson,et at vs. Lee County Landfill SC, LLC, Republic Services of South Carolina, LLC, and Republic Services, Inc.,

Case number: 3:10-cv-01724-JFA

Court: U.S. District Court, Columbia

Judge: Joseph F. Anderson Jr.

Date of verdict: March 30, 2012

Total Amount: $2.32 million

Attorneys for plaintiff: Gary W. Poliakoff (Spartanburg), Bill Hopkins (Columbia), Richard Middleton (Savannah)

Attorneys for defendant: Kevin Dunlap, Parker Poe (Spartanburg), Steven Weber, Parker Poe (Charlotte)

Has the plaintiff been successful in collecting the judgment? Post-trial motions are pending