McELMURRAY -- LAWSUIT FOR SLUDGE DEATHS OF DAIRY COWS AND POISONING
OF LAND WILL GO FORWARD  

McElmurray letter to editor
Subj: GEORGIA - AUGUSTA - LAWSUIT FOR SLUDGE DEATHS OF DAIRY COWS AND
POISONING OF LAND WILL GO FORWARD  
Date: 8/2/2005 10:57:20 AM Central Daylight Time
From: hshields@worldpath.net

Sent from the Internet (Details)

On the question of whether excessive metals were found in the soil, the McElmurrays pointed to
evidence in the record from which a jury could find that ... there were unquestionably
concentrations of at least some metals at issue exceeding state and federal regulatory limits at
levels so high as to classify the tested soils as hazardous wastes," the justices wrote.


http://chronicle.augusta.com/stories/080205/met_4801627.shtml

Court says sludge suit stays
By Rob Pavey | Staff Writer
Monday, August 1, 2005

Georgia's Court of Appeals refused to reconsider its partial reinstatement of a Richmond County
family's lawsuit claiming dairy cattle and land were poisoned by Augusta's sewage sludge.

In an order filed Friday in Atlanta, the justices denied the city's request for reconsideration and
added a nine-page opinion expanding its July 11 ruling that a local judge erred in granting
summary judgment in the city's favor.

R.A. McElmurray & Sons sued the city in February 2001, claiming sludge from the Messerly
Wastewater Plant spread on pastures as free fertilizer from 1979 to 1990 contained dangerous
amounts of heavy metals.

The city denied those claims, and the Superior Court trial judge, J. Carlisle Overstreet, found
insufficient evidence to support the McElmurrays' theory that feeding dairy cattle crops fertilized
with sewage sludge can result in an immune system deficiency that can endanger the dairy herd.

The trial judge also found that the McElmurrays could not identify "exceedances" of any metal
claimed to be harmful to cattle, and that such "exceedances" do not mean land has been damaged
or rendered unusable.

The appellate court found the awarding of summary judgment on those and other causation issues
unsupportable.

"On the question of whether excessive metals were found in the soil, the McElmurrays pointed to
evidence in the record from which a jury could find that ... there were unquestionably
concentrations of at least some metals at issue exceeding state and federal regulatory limits at
levels so high as to classify the tested soils as hazardous wastes," the justices wrote.

In attempting to determine whether the metals in the soil were caused by sewage sludge, the
plaintiffs' experts were criticized for not exploring whether commercial fertilizer used on the
McElmurray farm could have been the cause.

But because commercial fertilizers from the same suppliers used by the McElmurrays were used on
surrounding dairy farms with no adverse effect, the severe problems at the plaintiffs' farm and
another dairy involved in a separate lawsuit "stand out alone," the justices wrote.

"The conclusion, therefore, was that the only avenue for heavy metal introduction was the sludge
application," the order said.

The city has the option of further appeals to the Georgia Supreme Court.


Reach Rob Pavey at 868-1222, ext. 119, or rob.pavey@augustachronicle.com.

The Case

BACKGROUND: R.A. McElmurray & Sons dairy used sewage sludge from Augusta as free fertilizer
on pasturelands from 1979 to 1990. The farmers stopped using the sludge after cattle became sick
and some died.

The McElmurray family sued the city in February 2001, claiming sludge poisoned their cattle and
land. A local Superior Court judge later dismissed the suit in the city's favor, prompting an appeal
by the family to Georgia's Court of Appeals.


DEVELOPMENTS:

- Last month, Georgia's Court of Appeals reinstated parts of the McElmurray family's lawsuit.

- On Friday, the appeals court denied Augusta's request to reconsider its decision.

J. Carlisle Overstreet: Superior Court judge's 2001 ruling on the sludge case was overturned by
the Court of Appeals.



From the Tuesday, August 2, 2005 printed edition of the Augusta Chronicle