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: [email protected]
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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.
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.
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.
- 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