Sludge Watch ==> Court order re odour from a composting site 1997-1999

[maureen.reilly at sympatico.ca]

Sludgewatch Admin:

I have now been contacted by people from many communities who are facing 
terrible odours from composting facilities or are trying to ward off the 
arrival of a 'bad actor' composting facility in their community.


Since the issue of odour and neighbour impact is forefront...here are some 
thoughts in a legal vein.

It is about a sludge compost site that was closed by court order for 
nuisance.
(Nuisance is a legal term here...and has a meaning that goes beyond the 
lighter popular use of the term).  Once a facility becomes established, it 
is very hard to get them out.

So facilities that are state-of-the-art fullly enclosed with biofilters are 
preferable to open air compost operations.



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PUBLIC WORKS -  www.pwmag.com
JUNE 1999 - "LEGAL ASPECTS OF PUBLIC WORKS"

     RESIDENTS OBJECT TO COMPOSTING FACILITY'S OPERATIONS.

     This case, Penland, et al., vs. Redwood Sanitary Sewer Service 
District, was sent back to the appellate court on remand from the Oregon 
Supreme Court, 327 Or I, 956 P2d 964 (1998).

     In its original opinion, 146 Or App 225, 934 P2d 434 (1997), the 
appellate court held that, regardless of whether the defendant district's 
operation of a composting facility constituted a nuisance, the operation was 
shielded by "discretionary function" immunity
under the Oregon Tort Claims Act (OTCA), and, thus, the trial court had 
erred in enjoining the facility's operation.

     The state Supreme Court reversed, concluding that discretionary 
function immunity under the OTCA "confers immunity on public bodies only 
from liability for damages and does not confer immunity from injunctive 
actions" including, particularly, an action to enjoin a nuisance.

     On remand, two issues that were initially deferred were addressed:  
First, is the composting operation a nuisance?   Second, if so, does the 
balance of equities warrant issuance of permanent injunctive relief?  The 
appellate court answered both questions in the affirmative and consequently 
affirmed the trial court's ruling.   Its opinion states in part:

     "The district operates sewage-related facilities, including a sewage 
treatment plant, in rural Josephine County.    As part of the sewage 
treatment process, the district reduces incoming raw sewage to sludge, or 
biosolids, a bacteria-laden condensed form of sewage, by draining the 
liquids from the solids.    Before 1988, the district trucked the sludge to 
various sites for land application, which involved spreading the sludge over 
a large area for agricultural and disposal purposes.

     "In 1988, the district's manager, Webber, who was charged with 
day-to-day oversight of its operations, instituted a small-scale pilot 
composting operation at the treatment plant.   In July 1990, the district 
instituted composting on a permanent basis.

     "In the initial stages of the composting process, sludge is solidified 
by being poured into an outdoor levee, or 'drying ring', which is exposed to 
the open air.   After about two weeks, the material loses enough moisture to 
be mixed with organic material for composting.

     "The reduced sludge, or biosolids, is then mixed with organic 
materials, such as wood, animal bedding, including animal waste, and yard 
waste, provided by local residents and businesses.    The bacteria in the 
sludge break down the mixture.   In order for the bacteria to decompose the 
sludge, the mixture must be exposed to air.

     "Thus, the mixture is placed in a large pile, approximately nine ft 
high, 20 ft. wide, and 100 hundred ft long, and exposed to the open air.   
The composted material is first piled over a perforated pipe for aeration.

    "After two to three weeks, the pile is removed from the pipe and is 
turned every two weeks for aeration.   There are normally seven piles at one 
time, each in a different stage of the composting process.   Defendant uses 
heavy equipment to move the piles as they decompose and to load the finished 
product.

     "After approximately 90 days, the material becomes finished compost, 
which defendant sells to the public as mulch or soil amendment.   The 
product, called Jo-Gro, contains no nutrients for fertilizing but is 
valuable for retaining moisture in soils.

     "If the sludge mixture is not aerated, it becomes anaerobic and, as a 
result, generates hydrogen sulfide.   Hydrogen sulfide can cause headaches, 
nausea, and throat problems and its odor is akin to that of rotten eggs.    
Hydrogen sulfide is generally released whenever a compost pile or the sludge 
pool is disturbed, but some level of hydrogen sulfide is always present as a 
result of the composting operation.

     "Plaintiffs are landowners and homeowners who live in rural Josephine 
County near the plant and composting operation.

     "Many lived in the neighborhood before the district instituted the 
permanent composting operation.   The closest plaintiffs, the Penlands, live 
about 180 ft from the property where the composting activities take place.

     "Plaintiffs and other neighbors began to notice odor, noise and dust, 
which they associated with the composting operation, in October 1991.   
Beginning in February 1992, plaintiffs and others complained to the district 
that, because of the odor and noise they ascribed to the plant, they were 
unable to enjoy outdoor activities, such as gardening, sitting on their 
porches, and barbecuing.

     "In response to those complaints, the district undertook several 
measures, including placing sound deflection panels on the electric wood 
grinder.   Plaintiffs apparently found those measures to be ineffective and 
their complaints continued.

     "(In the summer of 1994, after receiving the recommendation of an 
advisory committee, the district's board of directors  voted) to continue 
the composting operation at the sewage plant while implementing 21 of the ad 
hoc committee's recommended mitigation measures.  Those measures included 
using a  quieter loader, constructing vegetation screens, adding sound 
mufflers to equipment, eliminating construction lumber demolition, applying 
a commercial deodorizer, mixing the sludge more rapidly and efficiently, 
using fly bait, and adding dust-reducing spray misters.

     "In August 1994, plaintiffs filed this action, seeking to enjoin the 
continuation of the composting operation.   Plaintiffs alleged that that 
operation created a nuisance in that it created excessive odor, noise, and 
dust and interfered with the reasonable use of their properties."

     In determining whether the composting operation constitutes a nuisance 
-- i.e., whether it substantially and unreasonable interferes with the use 
and enjoyment of plaintiffs' property -- the appellate court assessed five 
facts:   (1)  the location of the claimed nuisance; (2)  the character of 
the neighborhood; (3)  the nature of the things complained of; (4)  the 
frequency of the intrusion; and (5) the effect upon the plaintiffs' 
enjoyment of life, health and property.

     The trial court, in oral remarks that comported with its ultimate 
written findings and conclusions, explained its application of those 
factors:

     "I do find that the nature of the defendant's use of its property has 
substantially changed since most of the plaintiffs purchased their property. 
   It's changed from a use that would have been consistent with just the 
sewage treatment facility plant, with the rural residential nature of the 
surrounding properties, to a use that's more akin to, in the words of one of 
the defendant's witnesses, an industrial site.     The changing nature, in 
this respect, of the defendant's use of the property, I do not believe could 
have been reasonably foreseen by the plaintiffs.

     "I find the plaintiffs to be credible in their testimony.   With 
respect to the noise regulations, the defendant's witnesses testified that 
they are to be enforced at the county level, not by DEQ (Department of 
Environmental Quality); that DEQ lacks both the authority and the staff to 
pursue noise complaints, and that the county has not done any testing as to 
the noise complaints on this property, nor pursued really any complaint in 
that respect.   The acoustical expert hired by the county, by the sewage 
district, stated his opinion that the noise level at one point at least did 
result from the composting operations and that they exceeded established 
levels.

     "I am completely convinced that the nature of the odor that's produced 
by the defendant's composting operations does cause some of the plaintiffs 
to gag, to be nauseated, to have headaches, to be unable to eat, and to be 
unable to sit in their yards or patios or otherwise utilize their yards.   
And by doing so, that odor substantially and unreasonably interferes with 
the plaintiffs' use and enjoyment of their property.

     "I also am convinced that the nature of the noise and the frequency of 
the noise at the site caused by the composting operations also substantially 
and unreasonably interferes with the plaintiffs' use and enjoyment of their 
property."

     The appellate court agreed with the trial court that the composting 
operation is a nuisance.   The district's sewage treatment plant, including 
the composting operation, is located in an area zoned RR-1 (rural 
residential one-acre) on the Rogue River.   Many, and perhaps all, of the 
plaintiffs live or own property within one-quarter mile of the facility.

     The district pointed to testimony by other witnesses, including 
scientists and experts in sewage treatment, that the composting operation 
did not generate an offensive odor -- or at least not an odor that could be 
consistently detected as offensive at plaintiffs' property.   In a related 
sense, the district argued that, given expert meteorological evidence based 
on evaluation of wind-direction data and the timing of certain plaintiffs' 
complaints, the source of the odor plaintiffs' witnesses described was a 
dairy across the river from the treatment plant.

     Conversely, many of the plaintiffs' witnesses testified that they could 
distinguish the dairy smell from the compost smell:  "It's a characteristic 
sewage smell.   It's completely different from any agricultural or 
dairy-type smell."    "We had cows so we knew what the cows' odor was."   "I 
have never found a dairy odor so offensive that I could not stand it."    It 
was further noted that many of the plaintiffs who testified, albeit not all, 
owned their property before the composting facility began full-scale 
operation.

     Reduced to its essentials, the district's position is that plaintiffs' 
witnesses either collectively imagined, were mistaken, or lied about the 
odors emanating from  the composting operation.    The trial court, which 
observed the witnesses, expressly determined that plaintiffs' witnesses were 
credible.

     The appellate court gave that assessment "great weight," and, given the 
balance of the evidence, affirmed the trial court's determination that the 
composting facility generated offensive odors that were consistently 
detectable on plaintiff's property.

     It further affirmed the trial court's finding that the odor did, in 
fact, substantially and unreasonably interfere with plaintiffs' use and 
enjoyment of their property.    Plaintiffs testified that the odor made them 
nauseated and prevented them from sitting on their decks or outside, or even 
from leaving their windows open at night for a summer breeze.

     Regarding the second issue of whether the equities warrant the issuance 
of an injunction abating the nuisance, the trial court observed:

     "With respect to the balance of the equities in this case, and the 
remedy, I want to state first of all, I have no intention to join the Board 
of Directors of the sewage service district.   I don't intend to 
micro-manage the affairs of the sewer service district.    So for that  
reason I can't really get into a situation where I'm setting what needs to 
be done to remedy the situation.    I considered the alternative of damages 
because of that difficulty, but quite frankly, I don't think I can ascertain 
the damages because I think what the damages might be today might be 
different two years from now once the capacity of the plant has doubled.   
And I don't think that damages, for that reason, are easily ascertained in 
this situation, nor do I think it would be a final solution.   I think you 
would just be inviting further litigation down the line if I tried to go 
that route.

     "(T)he defendant, since they have been aware of the plaintiffs' 
complaint, have expanded their operations and further invested in the 
composting operations on site, after becoming aware and having been notified 
of the complaints that were being made in this case.    And I think that by 
doing that, quite frankly, it demonstrates some arrogance on the part of the 
defendant, as well as, doing so, they did it at their own risk.   So I'm 
subjecting any consideration of the cost that has been expended since 
they've been aware of these complaints in balancing the equities.   I don't 
think they're entitled to go out and make substantial expenditures when the 
case is in litigation and to try to use those as some way to avoid 
responsibility.

     "(A)s I said, balancing the equities in this case is really the most 
difficult.   I don't deny that there are other people who are not in this 
courtroom -- the other patrons of the district who are going to be affected 
by my decision -- and that's been the hardest part probably of making this 
decision is those considerations.   But having considered that and 
considered the lack of any other remedy that I feel like would fit in the 
premises, I am going to grant the request for an injunction."

     In York vs. Stallings, 217 Or 13, 22, 341 P2d 529 (1959), the appellate 
court enunciated the standard for issuance of injunctive relief.   Once a 
nuisance is established, "it does not follow that an injunction should issue 
as a matter of course.   The court may refuse an injunction in certain cases 
where the hardship caused to the defendant by the injunction would greatly 
outweigh the benefit resulting to the plaintiff.   The injunction does not 
issue as a matter of absolute or unqualified right but is subject to the 
sound discretion of the court."

     Thus, the appellate court had to compare the benefit to plaintiffs with 
the hardship to the district resulting from a permanent injunction.    The 
benefit to plaintiffs is the ability to enjoy their property in a manner 
consistent with its rural character -- to garden, and eat outside, and keep 
their windows open on summer evenings.   For plaintiffs, an injunction would 
mean being able to use and enjoy their property as they did before the 
nuisance came to them -- to live, and breathe, free from a pervasive, 
nauseating odor.

     The court found that the concomitant detriment to the district is 
essentially, but not completely, economic.   If use of the existing 
composting facility is enjoined, the  district has, at least, two arguably 
feasible alternatives:  (1)  move the composting activities to another site; 
or (2) return to its prior practice of trucking the sludge and applying it 
to acceptable agricultural sites.    Either of those options, even if 
otherwise practicable, would involve substantial additional expense.   In 
addition, a return to the district's prior practice of land application 
would result in loss of significant environmental benefits.

     The district's plant manager, Robert Webber, and Steven Gilbert, an 
environmental engineer retained by the district, testified that composting 
was an environmentally superior alternative to land application of 
biosolids.

     Webber explained, in some detail, why returning to its previous 
practice of land application was no longer a feasible alternative for the 
district, notwithstanding the fact that many districts and nearby 
municipalities in southern Oregon, including the city of Grants Pass, 
continue that practice.    The concerns that Webber identified include 
groundwater contamination monitoring, site constraints, land use 
restrictions, sludge runoff, and grazing restrictions.

     In contrast, the district's objections to relocating the composting 
operation to an alternative, non-residential site appear to be purely 
financial.     That is, in contrast to land application, there is no 
evidence that practical or legal impediments, including land use or 
environmental restrictions, would somehow preclude such relocation.

     The capital cost of relocating the existing composting operation (as 
distinct from any expansion of that operation to accommodate projected 
population growth and demands) would be approximately $1 million.    The 
district current serves approximately 1,800 households.   The additional 
capital costs associated with relocating, amortized over a 20-year period, 
would result in a $5.00 per month rate increase per household over that 
period.   In addition, the district's annual operating costs would increase 
by about $100,000, representing the expense of trucking the present volume 
of biosolids/sludge from the existing treatment plant to the newly-relocated 
composting operation.

     Assessing those alternatives, the appellate court concluded, as did the 
trial court, that the hardship to the district from the issuance of an 
injunction does not "greatly outweigh' the benefit to plaintiffs.    There 
is no question that relocating the composting operation will, in fact, be 
expensive.   Nevertheless, two factors especially bear on its assessments of
the equities.

     "First, although a precise apportionment is impossible, the district's 
relocation expenses have been exacerbated by actions and additional 
expenditures that the district undertook after becoming aware of the 
Penlands' initial complaints in 1991 and of other plaintiffs' complaints by 
late 1992.   This was not merely a case of the nuisance coming to the 
homeowners, but of the district expanding its operations after plaintiffs 
protested.

     "Second, although the additional cost to the district will be 
substantial, the impact will be ameliorated because it can be spread among 
the district's rate-payers -- over 1,800 households.    If the district and 
those whom it serves are committed to the environmental values and benefits 
of composting, that may well be laudable.   But the cost of that commitment 
should be commonly borne and not visited solely upon a handful of 
'involuntary contributors who happen to lie in the path of progress'.

     We emphasize that this is not a case of simpleminded "NIMBY" 
parochialism -- of narrow-minded refusal to assume burdens that are, 
reasonably and necessarily, part of living as a community.    It is, rather, 
a clear and compelling case of living next to a public nuisance.   The 
equities favor the issuance of an injunction."

     The appellate court affirmed the trial court on both issues.

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