UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF ALABAMA NORTHERN DIVISION In Re: Perry Uniontown Ventures I, L.L.C., and ) Case No.: 10-00276 ) ) Case No.: 10-00277 Perry County Associates, L.L.C. ) (Jointly administered) ________________________________________________________________________ Ethel L. Abrahams; Frank Acoff; Minnie B. Agee; ) ) Charles Allen; Annie P. Atkins; Emily Atkins; Stephen Ballard; Willie Banks; Ozell Benjamin; ) Betty Burrell; Sadie L. Buzzard; Bennie Carter; ) Betty Jean Carter; Travis Carter; Mary Dangerfield; ) Bertha Johnson Drew; James Estrict; Arthur Fikes; ) Chester Fikes; Eddie L. Fikes; Pamela W. Fikes; ) Patrick Gary; Annette C. Gibbs; James Gibbs; ) Valerie L. Milton Gibbs; William Gibbs; Lillie ) Gibson; Booker T. Gipson; James Gipson; Latonya ) Gipson; William Gipson; Tonya Goldsby; Michael ) Harris; Cynthia Thomas Holmes; Jerry Lee Holmes; ) Ruby Lee Holmes; Ronald Jenkins; Arthur Johnson; ) Christine Johnson; Dorothy Johnson; Larry Johnson;) Maurice Johnson; Modestine Johnson; Richard ) Johnson; Walter L. Johnson; Willie Johnson; ) Beatrice Jones; Jimmy Lee Jones, Sr.; Berna D. ) Knight; Shirley Lewis; Maiola McMillian; Kenya ) Powell Mitchell; Althea Milton; Robert Milton; ) Jerry Moore; Ella White Murdock; James R. ) Murdock; Jeremiah Powell; Katie M. Powell; ) Nehemiah Powell; Queen Robinson; Vernell ) Saterfield; Robert L. Shepard; Courtney Lee Smith; ) Kenneth Strother; Luvenia Thomas; Robert J. ) Thomas; Samuel Thomas; Tammy F. Thomas; ) Dorothy Tucker; Lorenzo Tucker; Andy Walker; ) Dora Williams; Felicia M. Williams; Grady James ) Williams; Joe James Williams; Mary Early ) ) Williams; Regina B. Williams; and Samuel Williams, ) ) Plaintiffs, ) ) v. ) ) Phill-Con Services, LLC, and ) Phillips & Jordan, Inc., ) ) Defendants. ) Case 10-00276 Adversary Proceeding No.: 10-00075 JURY TRIAL DEMANDED Judge: Margaret A. Mahoney Doc 338-1 Filed 05/23/11 Entered 05/23/11 15:04:39 Amended Complaint Page 1 of 35 Desc ________________________________________________________________________ Ethel L. Abrahams, et al., ) ) Plaintiffs, ) ) District Court Case No.: v. ) 10-0326-WS-N ) (Consolidated) Phill-Con Services, LLC , ) ) Defendant. ) ________________________________________________________________________ AMENDED COMPLAINT IN ADVERSARY PROICEEDING 10-00075 Come now the Plaintiffs to make and file this Amended Complaint as follows: Nature of Action 1. This is an action for negligence, wantonness, nuisance, and trespass arising from the construction and operation of a landfill in Perry County, Alabama, and from the disposal of solid wastes in that landfill. Parties 2. Plaintiffs are residents of Perry County, Alabama, who live adjacent to or in close proximity to the Perry County Associates Landfill1 (hereinafter, sometimes referred to as the “Landfill” or as the “Arrowhead Landfill”) (as is the case in this sentence and depending on the context hereinafter, the term “Landfill” may sometimes be meant to include the associated haul roads and rail yard) and who have been injured by the construction, operation and disposal of waste at said Landfill. At all times material hereto, Plaintiffs have resided adjacent to or in close proximity to the Landfill. In addition, at all times material hereto the Plaintiffs have had either an ownership or possessory interest in 1 Except for Vernell Saterfield and James Estrict. Ms. Saterfield is a resident of Perry County who works in the area around the Landfill. She also spends a considerable amount of additional time around the Landfill due to the need to care for her elderly mother. Although he resides elsewhere in Perry County, Mr. Estrict also works on a daily basis near the landfill on property he owns. There are two or more additional Plaintiffs who reside near the Landfill on a part-time basis. Case 10-00276 Doc 338-1 Filed 05/23/11 Entered 05/23/11 15:04:39 Amended Complaint Page 2 of 35 2 Desc the Perry County, Alabama, property on which they live and which is affected by the Landfill. 3. Defendant Phill-Con Services, LLC, (hereinafter, “Phill-Con”) is an Alabama limited liability company. Phill-Con has been an operator of the Arrowhead Landfill in conjunction with Defendant Phillips and Jordan, Incorporated, since October 2007, including all times material to the allegations set out herein. 4. Defendant Phillips and Jordan, Incorporated, (hereinafter, “P&J”) is a foreign corporation qualified to do business in the State of Alabama. P&J has acted as the contractor for all construction at the Landfill to date, including all waste disposal cells completed to date. Construction at the Landfill is ongoing or has been ongoing through at least March 2010. P&J is also an operator and customer of the Landfill. P&J has operated the Arrowhead Landfill in conjunction with Defendant Phill-Con since at least October 2007, including all times material to the allegations set out herein. As to its status as a customer, P&J has disposed of large quantities of dredged coal ash at the Landfill daily or regularly since July 2009. Jurisdiction and Venue 5. The Circuit Court has exclusive original jurisdiction over this matter pursuant to §§ 12-11-30(1) and 12-11-31(1) Code of Alabama, 1975 because the matter in controversy as brought by the Plaintiffs exceeds ten thousand dollars ($10,000) and because no other tribunal provides a plain and adequate remedy. 6. Venue is appropriate in the Perry County Circuit Court because the acts and/or omissions complained of herein occurred in Perry County. Legal and Factual Background of Case 7. On July 6, 2006, the Alabama Department of Environmental Management (hereinafter, “ADEM”) issued a solid waste disposal permit (i.e., Solid Waste Disposal Facility Permit 53-03) (hereinafter, sometimes referred to as the “Permit” or as “Permit Case 10-00276 Doc 338-1 Filed 05/23/11 Entered 05/23/11 15:04:39 Amended Complaint Page 3 of 35 3 Desc 53-03”) for the operation of the Arrowhead Landfill, which is categorized by ADEM as a Municipal Solid Waste Landfill (hereinafter, “MSWLF”). Various terms and conditions of the Permit were modified on June 25, 2007; January 31, 2008; July 20, 2009; October 27, 2009; and March 31, 2010. The terms and conditions of said permit are currently in effect until July 5, 2011. The Landfill is situated along Perry County Road 1 and within Sections 21, 22, 27, and 28, Township 17 North, Range 6 East in Perry County, Alabama. 8. Permit 53-03 requires the Landfill to be operated in accordance with all applicable regulations in Chapters 335-13-1 through 335-13-8 of the ADEM Administrative Code. This requirement is also reflected in ADEM Administrative Code Rule (hereinafter, “ADEM Admin. Code R.”) 335-13-4-.21, which states that: “Any person or agency operating … a landfill unit shall operate and maintain the facility consistent with [ADEM’s Solid Waste Regulations].” In correlative fashion, ADEM Admin. Code R. 335-13-4-.21(1)(a) incorporates all terms and conditions of the permit into the regulations by stating that: “The operation and use of [a] landfill shall be as stipulated in the permit.” ADEM Administrative Code Rule 335-13-4-.22(1)(d) also states that: “The [landfill] site shall be operated in accordance with approved plans and permits.” 9. Permit 53-03 specifically states that it does not authorize injury to persons or property or the invasion of other private rights (see §1.A. of the Permit). 10. Defendant P & J is and has been the contractor for construction activities at the Landfill. Even though the Landfill sits on approximately one thousand acres, the currently existing waste disposal cells were intentionally constructed on that portion of the Landfill nearest to occupied residences. Upon completion of the construction of those first waste disposal cells, the Landfill began accepting household garbage and/or other putrescible wastes. 11. The largest fly ash spill in United States history occurred in late December 2008 when a retaining pond at a coal burning power plant (i.e. the Kingston Fossil Plant) operated by the Tennessee Valley Authority (hereinafter, “TVA”) burst thereby dumping 5.4 million cubic yards of coal ash into the Emory River and a nearby upscale shoreline community. Shortly after the spill occurred, P&J entered into negotiations with the TVA Case 10-00276 Doc 338-1 Filed 05/23/11 Entered 05/23/11 15:04:39 Amended Complaint Page 4 of 35 4 Desc to dispose of 3,000,000 tons of the recovered coal ash at the Arrowhead Landfill. P&J started transporting the coal ash to the Landfill by railcar in July 2009. The contract between P&J and the TVA for the removal of the coal ash from the Emory River was signed in September 2009. 12. The coal ash disposed of at the Landfill is made up of fine silica particles, which contains radioactive material above background levels. Among other things, it also contains arsenic, lead, mercury, chromium, copper, selenium, cadmium, boron, thallium, and wet organic material dredged up from the Emory River. Count I 13. Plaintiffs hereby reallege, adopt, and incorporate by reference paragraphs 2 through 12 hereinabove as if fully set out in this Count. 14. ADEM Admin. Code R. 335-13-4-.22(3)(a) reads as follows: “Owners and operators of all MSWLFs must ensure that the units do not violate any applicable requirements developed under [an approved] State Implementation Plan ….” ADEM Admin. Code Rule 335-3-1-.02(1)(d), Rule 335-3-1-.02(1)(e), Rule 335-3-1-.02(1)(ss), and Rule 335-3-1-.08 are part of such an approved State Implementation Plan for the State of Alabama. 15. ADEM Admin. Code R. 335-3-1-.08 states that: “No person shall permit or cause air pollution, as defined in Rule 335-3-1-.02(1)(e) of this Chapter, by the discharge of any air contaminant for which no ambient air quality standards have been set under Rule 3353-1-.03(1).” 16. ADEM Admin. Code R. 335-3-1-.02(1)(e) states that the term “Air Pollution” shall mean “the presence in the outdoor atmosphere of one or more air contaminants in such quantities and duration as are, or tend to be, injurious to human health or welfare, animal or plant life, or property, or would interfere with the enjoyment of life or property ….” (Emphasis added). ADEM Admin. Code R. 335-3-1-.02(1)(d) defines the term “Air Contaminant” as “any solid, liquid, or gaseous matter, any odor, or any Case 10-00276 Doc 338-1 Filed 05/23/11 Entered 05/23/11 15:04:39 Amended Complaint Page 5 of 35 5 Desc combination thereof, from whatever source.” (Emphasis added). ADEM Admin. Code R. 335-3-1-.02(1)(ss) defines “Odor” as: [S]mells or aromas which are unpleasant to persons or which tend to lessen human food and water intake, interfere with sleep, upset appetite, produce irritation of the upper respiratory tract, or cause symptoms or nausea, or which by their inherent chemical or physical nature or method or processing are, or may be, detrimental or dangerous to health. Odor and smell are used interchangeably herein. 17. Additionally, Section VII of the Permit prohibits the recirculation of leachate at the Landfill at a rate and in a manner that causes odor. 18. All the regulations and/or permit terms set out and/or cited herein or incorporated herein by reference have been in effect at all times material to this Count. All regulations set out and/or cited in paragraphs 14 through 16 hereinabove were designed and adopted for the purpose of protecting the human health, welfare, and enjoyment of life of those persons coming into contact with air pollution from any given source. The permit terms set out in paragraphs 9 and 17 hereinabove were adopted for the protection of those persons who come into the vicinity of the Landfill. Plaintiffs are members of the class of persons for whose protection said regulations and permit terms were adopted. 19. Since at least July 2009, Defendants Phill-Con and P&J (hereinafter, sometimes referred to collectively as “Defendants”) have violated ADEM Admin. Code Rules 33513-4-.22(3)(a) and 335-3-1-.08 and Section VII of Permit 53-03 on a regular, frequent, ongoing, and substantial basis by operating the Landfill in a manner that has caused the regular, frequent, ongoing, and substantial presence in the outdoor atmosphere of an air contaminant comprised of odors in such quantities and duration as are, or tend to be, injurious to human health or welfare, or that would interfere with the enjoyment of life or property. The presence of said odor has occurred beyond the boundaries of the Landfill and at Plaintiffs’ homes and/or at the locations where Plaintiffs work or otherwise spend long periods of time. Case 10-00276 Doc 338-1 Filed 05/23/11 Entered 05/23/11 15:04:39 Amended Complaint Page 6 of 35 6 Desc 20. Defendants’ violation of the regulations and Permit 53-03 directly and proximately caused and are causing serious injuries and damages to the Plaintiffs such that Plaintiffs have been caused to suffer and bear the presence of unpleasant, foul, disgusting odors in and around their homes and/or at the locations where they work or otherwise spend long periods of time and have been caused to do so with such regularity, frequency, and duration and with such intensity as to cause them to suffer one or more of the following circumstances: the severe curtailment or limitation of outdoor activities, loss of appetite, headaches, dizziness, nausea, vomiting, irritation of the upper respiratory tract, interference with sleep, the necessity of keeping windows and doors shut and the increased use of air conditioners, severe mental anguish and suffering, the greatly diminished enjoyment of life and their property, and, in many instances, the diminution of the value of their real property. With one exception, Plaintiffs suffered all of said injuries while they were in their homes or on their property. These injuries are ongoing. 21. The regulations and permit term cited in paragraph 19 hereinabove were designed to protect the class of persons to which Plaintiffs belong from the kind of injuries Plaintiffs suffered as a result of the violation of said permit term and regulations. That is, Plaintiffs’ injuries are of the kind contemplated by the Permit and the regulations. Count II 22. Plaintiffs hereby reallege, adopt, and incorporate by reference paragraphs 2 through 12 and 14 through 18 hereinabove as if fully set out in this Count. 23. Section 1. F. of the Permit states that: “The Permittee shall maintain and operate the facility to minimize the possibility of a fire, explosion, or any unplanned sudden or non-sudden release of contaminants (including leachate and explosive gases) to air, soil, groundwater, or surface water, which could threaten human health or the environment.” Section 1.E.5 of the Permit states that in the event of noncompliance with the Permit reasonable steps shall be taken to minimize releases to the environment and to prevent significant adverse impacts on human health or the environment. Case 10-00276 Doc 338-1 Filed 05/23/11 Entered 05/23/11 15:04:39 Amended Complaint Page 7 of 35 7 Desc 24. The requirement to operate in a manner that minimizes the possibility of fire, explosions, and releases of contaminants and all other legal requirements imposed on the operation of the Landfill that are set out in this Count are for the protection of those persons who come into the vicinity of the Landfill. Plaintiffs live adjacent to or in close proximity to the Landfill or work around and close to the Landfill; consequently, pursuant to the regulations and permit conditions set out herein, Defendants owe and have owed Plaintiffs a duty to operate the Landfill with due care and a duty not to operate the Landfill in a negligent manner. 25. The operation of a MSWLF inherently poses a greater risk of harm to the surrounding community than does a more typical commercial enterprise. This is because, among other things, landfills generate explosive gases, noxious odors, and loud noises; contaminate groundwater; tend to increase the vector population; and generate fugitive airborne dust that may be contaminated with heavy metals or other pollutants. These risks are universally or commonly known, particularly to those in the landfill industry and to governmental regulators, and are acknowledged by, among other things, the legal requirement that: a) operators of such facilities test for the presence of explosive gases and groundwater contamination, b) operators restrict access to the facility, c) operators implement vector controls, d) operators apply daily cover to any active waste pile to control odors, and e) operators dispose of waste in a manner that prevents the release of odors into the outdoor atmosphere. Consequently, the operation of this Landfill inherently elevates the risk of harm to the surrounding community. 26. The requirement to operate in a manner that minimizes the possibility of fire, explosions, odors, and releases of contaminants and all other requirements set out in this Count are for the protection of those persons who come into the vicinity of the Landfill. Plaintiffs live or work adjacent to or in close proximity to the Landfill; therefore, it was foreseeable that Plaintiffs would probably be harmed if the Landfill was operated in a negligent fashion. 27. Due to the nature of Defendants activities and given that it was foreseeable that Plaintiffs would probably be harmed if the Landfill was operated in a negligent fashion, Defendants owed Plaintiffs a common law duty of due care in addition to the legally Case 10-00276 Doc 338-1 Filed 05/23/11 Entered 05/23/11 15:04:39 Amended Complaint Page 8 of 35 8 Desc mandated duties set out herein. Because the Landfill is a dangerous instrumentality, the standard of care owed by Defendants is greater than that owed by those engaged in other more typical commercial operations. 28. Since at least July 2009 Defendants have breached their duty to Plaintiffs on an ongoing and continuing basis by negligently operating the Landfill by engaging in the disposal of coal ash, which includes organic material from the dredging operations in the Emory River, and by engaging in leachate recirculation at waste cells that are adjacent to or in close proximity to Plaintiffs’ homes or work locations. Wet cell disposal (i.e., the intentional recirculation of leachate onto or into a waste cell) is used to increase the rate of microbial decay of disposed wastes, which allows for the disposal of greater volumes of wastes in a particular cell. Recirculation of leachate is also used to reduce the costs of leachate management. It is commonly known in the landfill industry that wet cell disposal greatly increases the rate of organic putrefaction and gas production thereby greatly increasing odor levels emanating from a landfill. By engaging in wet cell disposal at the Arrowhead Landfill, Defendants have negligently increased odor levels at the Landfill and have negligently allowed and are allowing large quantities of noxious odors to emanate from the Landfill and onto Plaintiffs’ properties and into their homes and/or work locations. 29. Defendants also negligently operated the Landfill by engaging in leachate recirculation in waste cells located adjacent to or in close proximity to Plaintiffs’ homes and/or work locations without utilizing active odor control measures at said waste cells until at least March 2010. That is, from at least July 2009 to March 2010, in order to minimize operational costs, Defendants operated the Landfill in such a manner as to greatly increase odors over the level that would have been produced by traditional methods of operation, yet they utilized no active odor control measures during that time and only installed minimal measures after that time as a result of the threat of legal action by Plaintiffs. Consequently, Defendants caused and allowed large quantities of noxious odors to emanate from the Landfill and onto Plaintiffs’ properties and into their homes and/or work locations. Case 10-00276 Doc 338-1 Filed 05/23/11 Entered 05/23/11 15:04:39 Amended Complaint Page 9 of 35 9 Desc 30. Since at least July 2009 Defendants have breached their duty to Plaintiffs on an ongoing and continuing basis by negligently operating the Landfill by utilizing coal ash as a daily cover on disposal cells. Coal ash is made up of fine silica particles; therefore, it is porous and highly permeable and not suitable for odor control on any waste cell containing putrescible waste. Furthermore, because Defendants are operating most or some of the waste cells at the Landfill in a manner that hastens the process of decay thereby increasing odor production (i.e., leachate recirculation), they should be using a material for daily cover on those particular cells that is highly impermeable rather than one that is highly permeable. Stated differently, Defendants are using a daily cover that allows much more odor to emanate from the Landfill at the same time they are generating much larger amounts of odor. However, Defendants use coal ash for cover to lower costs and, as to the cells where recirculation takes place, because it is permeable and porous and allows the leachate to be recirculated more easily and effectively. This negligent conduct has allowed and is allowing large quantities of noxious odors to emanate from the Landfill onto Plaintiffs’ properties and into their homes and/or work locations. 31. Defendants also negligently operate the Landfill by utilizing coal ash as a daily cover on disposal cells located adjacent to or in close proximity to Plaintiffs’ homes and/or work locations while leachate recirculation is utilized at said waste cells. That is, from at least July 2009 to the present, in order to minimize operational costs, Defendants have operated the Landfill in such a manner as to greatly increase odors over the level that would have been produced by traditional methods of operation; yet, as another cost saving measure, they utilize daily cover material that is more permeable than is ordinarily used at landfills rather than material that is less permeable. This negligent conduct has allowed and is allowing large quantities of noxious odors to emanate from the Landfill onto Plaintiffs’ properties and into their homes and/or work locations. 32. Since at least July 2009, Defendants have breached their duty to Plaintiffs on an ongoing and continuing basis by negligently transporting the coal ash from the railhead to the working face of the waste cell in a manner that generates large quantities of airborne dust in close proximity to Plaintiffs’ homes and/or work locations. Several hundred truckloads of coal ash are transported over haul roads from the railhead (hereinafter, the terms railhead and rail yard are used interchangeably) to the active waste cell each day. Case 10-00276 Doc 338-1 Filed 05/23/11 Entered 05/23/11 15:04:39 Amended Complaint Page 10 of 35 10 Desc The haul roads are surfaced with a chalk material. Additionally, the trucks haul open trailers of coal ash. The use of chalk surfaced roads by such a large number of trucks hauling huge amounts of silica particles exposed to the atmosphere results in the frequent, ongoing generation of large amounts of gray dust that blows off-site onto most Plaintiffs’ property and, in some instances, into their homes. Defendants also negligently allow various trucks to leave the Landfill site covered in dust, mud, and/or ash from the Landfill. The dust, mud, and/or ash are then deposited on public roads adjacent to or in close proximity to Plaintiffs’ homes and/or work locations. The amount of dust, mud, and/or ash deposited on the public roads is so great that very frequently it becomes a traffic hazard and is impossible to avoid when traveling on said roads. The dust, mud, and/or ash migrate or are blown onto most Plaintiffs’ property and/or into their homes. 33. Defendants’ negligence directly and proximately caused and is causing serious injuries and damages to the Plaintiffs such that Plaintiffs have been caused to suffer and bear the presence of unpleasant, foul, disgusting odors in and around their homes and/or at the locations where they work or otherwise spend long periods of time and have been caused to do so with such regularity, frequency, and duration and with such intensity as to cause them to suffer one or more of the following circumstances: the severe curtailment or limitation of outdoor activities, loss of appetite, headaches, dizziness, nausea, vomiting, irritation of the upper respiratory tract, interference with sleep, the necessity of keeping windows and doors shut and the increased use of air conditioners, severe mental anguish and suffering, the greatly diminished enjoyment of life and their property so as to make it impossible to enjoy the ordinary use of the premises as a dwelling or to pursue the ordinary occupation of life in the dwelling, and, in many instances, the diminution of the value of their real property. Defendants’ negligence has also proximately caused most Plaintiffs to suffer and bear the deposit of significant amounts of particulate matter onto their property and, in some instances, in their homes. This particulate matter includes chalk and/or coal ash and all the constituents thereof. The deposit of this particulate matter causes Plaintiffs, or some of them, respiratory irritation, discomfort, annoyance, inconvenience, fear and severe mental anguish. It also greatly diminishes their enjoyment of life and their property, and, in many instances, the diminution of the value of their real property. In some instances, it also causes them to fear eating vegetables from their subsistence gardens. With one exception, Plaintiffs Case 10-00276 Doc 338-1 Filed 05/23/11 Entered 05/23/11 15:04:39 Amended Complaint Page 11 of 35 11 Desc suffered all of said injuries while they were in their homes or on their property. Said injuries are ongoing. Count III 34. Plaintiffs hereby reallege, adopt, and incorporate by reference paragraphs 2 through 12, 14 through 18, and 23 through 33 hereinabove as if fully set out in this Count. 35. At all times material hereto, Defendants had full management and control of the Landfill. 36. According to the common knowledge and experience of mankind, the emanations of intensely foul odors from the Landfill onto Plaintiffs’ properties or work locations and the emission of significant amounts of airborne dust from the Landfill onto most Plaintiffs’ properties or work locations as set out herein could not have happened and come to be if Defendants’ operation of the Landfill had not been negligent. 37. Plaintiffs’ injuries are a direct proximate result of those foul odors and the dust. Count IV 38. Plaintiffs hereby reallege, adopt, and incorporate by reference paragraphs 2 through 12, 14 through 18, and 23 through 27 hereinabove as if fully set out in this Count. 39. Defendants intentionally located their first waste cells so that they would be as close as possible to the residences along the southern boundary of the Landfill. That is, the criteria, or one of the main criteria, for locating those waste cells was their close proximity to residences. Defendants intentionally initiated waste disposal in the waste cells located adjacent to residences before utilizing any other more remote waste cells. This was done even though the Landfill sits on approximately one thousand (1000) acres. This is standard or frequent practice in the landfill industry. In the landfill industry it is assumed that starting disposal operations as close as possible to neighboring residences and dealing early on with any injuries and adverse reaction from the community as a Case 10-00276 Doc 338-1 Filed 05/23/11 Entered 05/23/11 15:04:39 Amended Complaint Page 12 of 35 12 Desc result of that disposal is cheaper, more manageable, and more easily and quickly resolved than if the community is given time to see disposal operations coming towards them over time and to see the scope, nature and future impact of those operations. 40. All landfills produce odors. Consequently, by disposing of waste in a waste cell located adjacent to or in close proximity to residences, Defendants are operating the Landfill with a reckless indifference and/or conscious disregard of the rights and safety of the people living in those residences. That is, Defendants are operating the Landfill in a wanton and/or oppressive manner by intentionally placing waste as close as possible to said residences. Some Plaintiffs have suffered injury, harm, and damage from this wanton conduct since at least July 2008, and others have suffered so since at least July 2009. 41. Defendants have also breached their duty to Plaintiffs since at least July 2009 by consciously and/or deliberately engaging in the wanton and/or oppressive operation of the Landfill by engaging in the disposal of coal ash, which includes organic material from the dredging operations in the Emory River, and by engaging in leachate recirculation at waste cells that are adjacent to or in close proximity to Plaintiffs’ homes or work locations. Wet cell disposal (i.e., the intentional recirculation of leachate onto or into a waste cell) is used to increase the rate of microbial decay of disposed wastes, which allows for the disposal of greater volumes of wastes in a particular cell. Recirculation of leachate is also used to reduce the costs of leachate management. It is commonly known in the landfill industry that wet cell disposal greatly increases the rate of organic putrefaction and gas production thereby greatly increasing odor levels emanating from a landfill. By engaging in wet cell disposal at the Arrowhead Landfill, Defendants have maliciously and/or willfully and/or wantonly and/or intentionally and/or with reckless indifference allowed and are allowing large quantities of noxious odors to emanate from the Landfill and onto Plaintiffs’ properties and into their homes and/or work locations. 42. Defendants also operated the Landfill in a wanton and/or oppressive manner and with a reckless indifference and/or conscious disregard of the rights and safety of Plaintiffs and/or others by knowingly engaging in leachate recirculation in waste cells located adjacent to or in close proximity to Plaintiffs’ homes and/or work locations without utilizing active odor control measures at said waste cells until at least March Case 10-00276 Doc 338-1 Filed 05/23/11 Entered 05/23/11 15:04:39 Amended Complaint Page 13 of 35 13 Desc 2010. That is, from at least July 2009 to March 2010, in order to minimize operational costs, Defendants operated the Landfill in such a manner as to greatly increase odors over the level that would have been produced by traditional methods of operation, yet they knowingly failed to utilize active odor control measures during that time and only installed minimal measures after that time as a result of the threat of legal action by Plaintiffs. By engaging in wet cell disposal at the Arrowhead Landfill without active odor controls for several months, Defendants have maliciously and/or willfully and/or wantonly and/or intentionally and/or with reckless indifference allowed large quantities of noxious odors to emanate from the Landfill and onto Plaintiffs’ properties and into their homes and/or work locations. 43. Defendants have breached their duty to Plaintiffs since at least July 2009 by operating the Landfill in a wanton and/or oppressive manner and with a reckless indifference and/or conscious disregard of the rights and safety of Plaintiffs and/or others by knowingly utilizing coal ash as a daily cover on disposal cells containing putrescible wastes. Coal ash is made up of fine silica particles; therefore, it is porous and highly permeable and not suitable for odor control on any waste cell containing putrescible waste. Furthermore, because Defendants are operating most or some of the waste cells at the Landfill in a manner that hastens the process of decay thereby increasing odor production (i.e., leachate recirculation), they should be using a material for daily cover on those particular cells that is highly impermeable rather than one that is highly permeable. Stated differently, Defendants are using a daily cover that allows much more odor to emanate from the Landfill at the same time they are generating much larger amounts of odor. However, Defendants use coal ash for cover to lower costs and, as to the cells where recirculation takes place, because it is permeable and porous and allows the leachate to be recirculated more easily and effectively. This malicious and/or willful and/or wanton conduct has allowed and is allowing large quantities of noxious odors to emanate from the Landfill onto Plaintiffs’ properties and into their homes and/or work locations. 44. Defendants also operate the Landfill in a wanton and/or oppressive manner and with a reckless indifference and/or conscious disregard of the rights and safety of Plaintiffs and/or others by knowingly utilizing coal ash as a daily cover on disposal cells Case 10-00276 Doc 338-1 Filed 05/23/11 Entered 05/23/11 15:04:39 Amended Complaint Page 14 of 35 14 Desc located adjacent to or in close proximity to Plaintiffs’ homes or work locations while utilizing wet cell disposal at said waste cells. That is, from at least July 2009 to the present, in order to minimize their operational costs, Defendants have intentionally operated the Landfill in such a manner as to greatly increase odors over the level that would have been produced by traditional methods of operation; yet, as another cost saving measure, they intentionally utilize daily cover material that is more permeable than is ordinarily used at landfills rather than material that is less permeable. By using coal ash as daily cover while engaging in wet cell disposal in waste cells adjacent to or in close proximity to Plaintiffs’ homes or work locations, Defendants have maliciously and/or willfully and/or wantonly and/or intentionally and/or with reckless indifference allowed and are allowing large quantities of noxious odors to emanate from the Landfill and onto Plaintiffs’ properties and into their homes or work locations. 45. Defendants have breached their duty to Plaintiffs since at least July 2009 by transporting the coal ash from the railhead to the working face of the waste cell in a wanton and/or oppressive manner and with a reckless indifference and/or conscious disregard of the rights and safety of Plaintiffs and/or others. That is, Defendants transport the coal ash in a manner that generates large quantities of airborne dust in close proximity to Plaintiffs’ homes or work locations. Several hundred truckloads of coal ash are transported over haul roads from the railhead to the active waste cell each day. The haul roads are surfaced with a chalk material. Additionally, the trucks haul open trailers of coal ash. The knowing use of chalk surfaced roads by such a large number of trucks hauling huge amounts of silica particles exposed to the atmosphere results in the frequent, ongoing generation of large amounts of gray dust that blows off-site onto most Plaintiffs’ property and, in some instances, into their homes or work locations. Defendants also consciously, recklessly, and wantonly allow various trucks to leave the Landfill site covered in dust, mud, and/or ash from the Landfill. The dust, mud, and/or ash are then deposited on public roads adjacent to or in close proximity to Plaintiffs’ homes and/or work locations. The amount of dust, mud, and/or ash deposited on the public roads is so great that very frequently it becomes a traffic hazard and is impossible to avoid when traveling on said roads. The dust, mud, and/or ash migrate or are blown onto most Plaintiffs’ property and/or into their homes. Case 10-00276 Doc 338-1 Filed 05/23/11 Entered 05/23/11 15:04:39 Amended Complaint Page 15 of 35 15 Desc 46. Therefore, by intentionally using wet cell disposal in waste cells that are adjacent to or in close proximity to Plaintiffs’ homes and/or work locations and by generating dust, mud, and/or ash as set out hereinabove, Defendants, while knowing of the existing conditions, are consciously operating the Landfill in a manner that they know will inevitably cause or will in all probability cause injury to Plaintiffs and/or others. 47. Defendants’ wanton and/or oppressive conduct directly and proximately caused and is causing serious injuries and damages to the Plaintiffs such that Plaintiffs have been caused to suffer and bear the presence of unpleasant, foul, disgusting odors in and around their homes or work locations with such regularity, frequency, and duration and with such intensity as to cause them to suffer one or more of the following circumstances: the severe curtailment or limitation of outdoor activities, loss of appetite, headaches, dizziness, nausea, vomiting, irritation of the upper respiratory tract, interference with sleep, the necessity of keeping windows and doors shut and the increased use of air conditioners, severe mental anguish and suffering, the greatly diminished enjoyment of life and their property so as to make it impossible to enjoy the ordinary use of the premises as a dwelling or to pursue the ordinary occupation of life in the dwelling, and, in many instances, the diminution of the value of their real property. Defendants’ wanton conduct has also proximately caused most Plaintiffs to suffer and bear the deposit of significant amounts of particulate matter onto their property and, in some instances, in their homes. This particulate matter includes chalk and/or coal ash and all the constituents thereof. The deposit of this particulate matter into or onto most Plaintiffs’ homes results in both a personal injury and property damage. It causes Plaintiffs, or some of them, respiratory irritation, discomfort, annoyance, inconvenience, fear and severe mental anguish. It also greatly diminishes their enjoyment of life and their property, and, in some instances, the diminution of the value of their real property. In some instances, it also causes them to fear eating vegetables from their subsistence gardens. With one exception, Plaintiffs suffered all of said injuries while they were in their homes or on their property. Said injuries are ongoing. Case 10-00276 Doc 338-1 Filed 05/23/11 Entered 05/23/11 15:04:39 Amended Complaint Page 16 of 35 16 Desc Count V 48. Plaintiffs hereby reallege, adopt, and incorporate by reference paragraphs 2 through 12 hereinabove as if fully set out in this Count. 49. P&J built the Landfill, including all waste cells and haul roads. P&J also constructed all waste cells built specifically to accommodate the coal ash from the TVA. P&J is, or until very recently was, still in the process of constructing waste cells for the coal ash from TVA and for other waste streams. 50. As the contractor for the Landfill, P&J owed Plaintiffs a duty not to build a structure in such a manner that said structure would be so apparently defective that an ordinary builder of such structures who was of ordinary prudence would be put on notice that the structure was dangerous and likely to cause injury. 51. All landfills used for the disposal of putrescible wastes produce odors and all liners leak. Landfill waste disposal cells produce explosive gases and attract vectors and the operation of said waste cells is inevitably noisy. Haul roads surfaced in chalk will inevitably generate airborne dust. It is common knowledge that placing waste disposal cells and haul roads adjacent to or in close proximity to residences or work locations will, in all probability, cause various injuries and harm to those residences and to the people occupying those residences and to people regularly working nearby. Consequently, building chalk surfaced haul roads and waste disposal cells for the disposal of putrescible wastes adjacent to or in close proximity to residences and work locations is so apparently defective that an ordinary builder of ordinary prudence would be put on notice that the waste disposal cell was dangerous and likely to cause injury. That is, it would be foreseeable that locating haul roads and waste cells in such a manner and using them for their intended purpose would probably result in harm to Plaintiffs or others similarly situated. 52. P&J breached its duty to Plaintiffs by negligently constructing chalk surfaced haul roads and waste disposal cells adjacent to or in close proximity to Plaintiffs’ residences or work locations. More specifically, P&J knew that it was constructing haul roads and Case 10-00276 Doc 338-1 Filed 05/23/11 Entered 05/23/11 15:04:39 Amended Complaint Page 17 of 35 17 Desc waste disposal cells adjacent to residences and/or work locations. P&J knew that those haul roads would be used by numerous trucks per day and that the waste disposal cells would be used for putrescible waste. That is, given the nature and location of the haul roads and waste disposal cells constructed by P&J and given that P&J had specific knowledge about the intended use of the haul roads and waste cells, it was clearly foreseeable that the use of the haul roads and waste cells in the manner for which they were constructed would probably cause injury to Plaintiffs or others similarly situated. By constructing the haul roads and landfill cells under the circumstances set out herein, P&J has negligently created the conditions that have allowed and are allowing large quantities of noxious odors and, as to most Plaintiffs, large quantities of airborne dust to emanate from the Landfill and onto Plaintiffs’ properties and into their homes and/or work locations. 53. P&J’s negligence directly and proximately caused and is causing serious injuries and damages to the Plaintiffs such that Plaintiffs have been caused to suffer and bear the presence of unpleasant, foul, disgusting odors in and around their homes and/or work locations with such regularity, frequency, and duration and with such intensity as to cause them to suffer one or more of the following circumstances: the severe curtailment or limitation of outdoor activities, loss of appetite, headaches, dizziness, nausea, vomiting, irritation of the upper respiratory tract, interference with sleep, the necessity of keeping windows and doors shut and the increased use of air conditioners, severe mental anguish and suffering, the greatly diminished enjoyment of life and their property so as to make it impossible to enjoy the ordinary use of the premises as a dwelling or to pursue the ordinary occupation of life in the dwelling, and, in many instances, the diminution of the value of their real property. P&J’s negligence has also proximately caused most Plaintiffs to suffer and bear the deposit of significant amounts of particulate matter onto their property and, in some instances, in their homes. The deposit of this particulate matter into or onto Plaintiffs’ homes results in both a personal injury and property damage. The deposit of this particulate matter causes Plaintiffs, or some of them, respiratory irritation, discomfort, annoyance, inconvenience, fear and severe mental anguish. It also greatly diminishes their enjoyment of life and their property so as to make it impossible to enjoy the ordinary use of the premises as a dwelling or to pursue the ordinary occupation of life in the dwelling, and, in many instances, the diminution of the value of their real property. Case 10-00276 Doc 338-1 Filed 05/23/11 Entered 05/23/11 15:04:39 Amended Complaint Page 18 of 35 18 Desc In some instances, it also causes them to fear eating vegetables from their subsistence gardens. With one exception, Plaintiffs suffered all of said injuries while they were in their homes or on their property. Said injuries are ongoing. Count VI 54. Plaintiffs hereby reallege, adopt, and incorporate by reference paragraphs 2 through 12, 39, and 49 through 51 hereinabove as if fully set out in this Count. 55. P&J breached its duty to Plaintiffs by constructing haul roads and waste disposal cells in a wanton and/or oppressive manner and with a reckless indifference and/or conscious disregard of the rights and safety of Plaintiffs and/or others by so constructing said haul roads and waste disposal cells adjacent to or in close proximity to Plaintiffs’ residences or work locations. More specifically, P&J knew that it was constructing haul roads and waste disposal cells adjacent to or in close proximity to residences or work locations. P&J knew that these haul roads would be used by numerous trucks per day and that the waste disposal cells would be used for putrescible waste. That is, given the nature and location of the haul roads and waste disposal cells constructed by P&J and given that P&J had specific knowledge about the intended use of the haul roads and waste cells, P&J’s decision to engage in conduct that would harm Plaintiffs or others similarly situated was intentional, conscious, and deliberate. 56. The intentional, conscious, and deliberate nature of P&J’s decision to build waste disposal cells that would knowingly harm others is also demonstrated by the calculated decision to construct the waste disposal cells as close as possible to Plaintiffs’ residences as set out in paragraph 39 hereinabove. That is, by intentionally constructing waste cells that are adjacent to or in relative proximity to Plaintiffs’ homes or work locations, P&J, while knowing of the existing conditions, consciously constructed the Landfill in a manner that it knew would inevitably cause or would in all probability cause injury to Plaintiffs and/or others. 57. Once P&J obtained the right to dispose of the TVA coal ash at the Landfill and as an operator of the Landfill, it knew that the coal ash would be disposed of using wet cell Case 10-00276 Doc 338-1 Filed 05/23/11 Entered 05/23/11 15:04:39 Amended Complaint Page 19 of 35 19 Desc disposal. The use of wet cell disposal in waste cells constructed adjacent to or in close proximity to residences or work locations raises the probability of injury to Plaintiffs to a virtual certainty. Nonetheless, P&J continued to construct the waste cells for the disposal of the coal ash at the Landfill with a reckless and total indifference and/or conscious disregard of the rights and safety of Plaintiffs and/or others thereby injuring Plaintiffs. By constructing the landfill cells and haul roads under the circumstances set out herein, P&J has wantonly and/or recklessly created the conditions that have allowed and are allowing large quantities of noxious odors and, as to most Plaintiffs, large quantities of airborne dust to emanate from the Landfill and onto Plaintiffs’ properties and into their homes or work locations. 58. P&J’s wanton and/or oppressive construction of the haul roads and waste disposal cells directly and proximately caused and is causing serious injuries and damages to the Plaintiffs such that Plaintiffs have been caused to suffer and bear the presence of unpleasant, foul, disgusting odors in and around their homes or work locations with such regularity, frequency, and duration and with such intensity as to cause them to suffer one or more of the following circumstances: the severe curtailment or limitation of outdoor activities, loss of appetite, headaches, dizziness, nausea, vomiting, irritation of the upper respiratory tract, interference with sleep, the necessity of keeping windows and doors shut and the increased use of air conditioners, severe mental anguish and suffering, the greatly diminished enjoyment of life and their property so as to make it impossible to enjoy the ordinary use of the premises as a dwelling or to pursue the ordinary occupation of life in the dwelling, and, in many instances, the diminution of the value of their real property. P&J’s wanton conduct has also proximately caused most Plaintiffs to suffer and bear the deposit of significant amounts of particulate matter onto their property and, in some instances, in their homes. The deposit of this particulate matter into or onto Plaintiffs’ homes results in both a personal injury and property damage. It causes Plaintiffs, or some of them, respiratory irritation, discomfort, annoyance, inconvenience, fear and severe mental anguish. It also greatly diminishes their enjoyment of life and their property, and, in many instances, the diminution of the value of their real property. In some instances, it also causes them to fear eating vegetables from their subsistence gardens. With one exception, Plaintiffs suffered all of said injuries while they were in their homes or on their property. Said injuries are ongoing. Case 10-00276 Doc 338-1 Filed 05/23/11 Entered 05/23/11 15:04:39 Amended Complaint Page 20 of 35 20 Desc Count VII 59. Plaintiffs hereby reallege, adopt, and incorporate by reference paragraphs 2 through 12, and 39, hereinabove as if fully set out in this Count. 60. Defendant P&J constructed the Landfill, including the waste cells. P&J operates the Landfill. P&J also disposes of large quantities of coal ash at the Landfill. The coal ash is dredged from the Emory River in Tennessee and delivered to the waste cells commingled with some amount of organic matter from the Emory River. 61. As a disposer of large quantities of coal ash, P&J owes Plaintiffs a duty not to dispose of such waste in such a manner that said disposal would be so apparently injurious to Plaintiffs and/or others similarly situated that an ordinary disposer of such waste who was of ordinary prudence would be put on notice that such disposal was dangerous and likely to cause injury. 62. Given that P&J knows that the waste cells at the Landfill are adjacent to or in close proximity to residences or work locations, that the disposal at those cells is wet cell disposal, that wet disposal greatly increases the production of odor and explosive gas in a disposal cell, that the Landfill had no active odor control measures throughout the major period of the coal ash disposal to date (i.e. no active odor control until March 2010), and that coal ash is being used as daily cover at the disposal cells in question even though coal ash is highly permeable, it was foreseeable that the disposal of coal ash by P&J at the Landfill would probably result in harm to Plaintiffs or others similarly situated. 63. P&J negligently breached its duty to Plaintiffs since at least July 2009 by disposing of coal ash waste at the Landfill in the manner set out herein in disposal cells adjacent to or in close proximity to Plaintiffs’ residences or work locations. By disposing of coal ash under the circumstances set out herein, P&J has negligently created the conditions that have allowed and are allowing large quantities of noxious odors to emanate from the Landfill and onto Plaintiffs’ properties and into their homes or work locations. Case 10-00276 Doc 338-1 Filed 05/23/11 Entered 05/23/11 15:04:39 Amended Complaint Page 21 of 35 21 Desc 64. P&J’s negligence directly and proximately caused and is causing serious injuries and damages to the Plaintiffs such that Plaintiffs have been caused to suffer and bear the presence of unpleasant, foul, disgusting odors in and around their homes or work locations with such regularity, frequency, and duration and with such intensity as to cause them to suffer one or more of the following circumstances: the severe curtailment or limitation of outdoor activities, loss of appetite, headaches, dizziness, nausea, vomiting, irritation of the upper respiratory tract, interference with sleep, the necessity of keeping windows and doors shut and the increased use of air conditioners, severe mental anguish and suffering, the greatly diminished enjoyment of life and their property so as to make it impossible to enjoy the ordinary use of the premises as a dwelling or to pursue the ordinary occupation of life in the dwelling, and, in many instances, the diminution of the value of their real property. With one exception, Plaintiffs suffered all of said injuries while they were in their homes or on their property. Said injuries are ongoing. Count VIII 65. Plaintiffs hereby reallege, adopt, and incorporate by reference paragraphs 2 through 12, 39, and 60 through 62 hereinabove as if fully set out in this Count. 66. P&J breached its duty to Plaintiffs since at least July 2009 by disposing of coal ash waste at the Landfill in a wanton and/or oppressive manner and with a reckless indifference and/or conscious disregard of the rights and safety of Plaintiffs and/or others by knowingly disposing of said waste in the manner set out herein and under the conditions and circumstances set out herein and doing so in disposal cells adjacent to or in close proximity to Plaintiffs’ residences or work locations. That is, by intentionally disposing of coal ash in cells that are adjacent to or in close proximity to Plaintiffs’ homes or work locations, P&J, while knowing of the existing conditions, consciously disposed of coal ash at the Landfill in a manner that it knew would inevitably cause or would in all probability cause injury to Plaintiffs and/or others. By disposing of coal ash at the location and under the circumstances set out herein, P&J has wantonly and/or recklessly created the conditions that have allowed and are allowing large quantities of Case 10-00276 Doc 338-1 Filed 05/23/11 Entered 05/23/11 15:04:39 Amended Complaint Page 22 of 35 22 Desc noxious odors to emanate from the Landfill and onto Plaintiffs’ properties and into their homes or work locations. 67. P&J’s wanton and/or oppressive and intentional disposal of the coal ash in disposal cells adjacent to or in close proximity to Plaintiffs’ residences or work locations directly and proximately caused and is causing serious injuries and damages to the Plaintiffs such that Plaintiffs have been caused to suffer and bear the presence of unpleasant, foul, disgusting odors in and around their homes or work locations with such regularity, frequency, and duration and with such intensity as to cause them to suffer one or more of the following circumstances: the severe curtailment or limitation of outdoor activities, loss of appetite, headaches, dizziness, nausea, vomiting, irritation of the upper respiratory tract, interference with sleep, the necessity of keeping windows and doors shut and the increased use of air conditioners, severe mental anguish and suffering, the greatly diminished enjoyment of life and their property so as to make it impossible to enjoy the ordinary use of the premises as a dwelling or to pursue the ordinary occupation of life in the dwelling, and, in many instances, the diminution of the value of their real property. With one exception, Plaintiffs suffered all of said injuries while they were in their homes or on their property. Said injuries are ongoing. Count IX 68. Plaintiffs 2 hereby reallege, adopt, and incorporate by reference paragraphs 2 through 12, 14 through 18, 23 through 27, and 39 hereinabove as if fully set out in this Count. 69. The landfill opened on or about October 15, 2007. Since that time, Phill-Con has operated the Landfill in conjunction with P&J. Since that time, P&J has operated and continued the construction of the Landfill. It has also been the Landfill’s most significant customer by transporting millions of tons of coal ash to the Landfill for disposal. The Landfill is a dangerous instrumentality. It produces explosive gases and noxious odors, as do all landfills containing organic wastes. It has the potential to contaminate groundwater with heavy metals. It generates significant amounts of fugitive dust, and it has the 2 Vernell Saterfield is not included in this count and makes no assertions in regard to this count. Case 10-00276 Doc 338-1 Filed 05/23/11 Entered 05/23/11 15:04:39 Amended Complaint Page 23 of 35 23 Desc tendency to increase vector populations in the area. The operation of the Landfill is inevitably noisy. Moreover, it is located adjacent to or in close proximity to Plaintiffs’ property and/or residences. From its inception, it was clearly foreseeable that the existence and operation of the Landfill in this particular location would likely harm Plaintiffs. Consequently, Defendants had a statutory and/or regulatory and common law duty not to harm or injure Plaintiffs. 70. Since at least July 2009 Defendants’ operations at the Landfill have included the disposal of municipal wastes with large amounts of coal ash, which includes organic material from the dredging operations in the Emory River, and leachate recirculation at waste cells that are adjacent to or in relative proximity to Plaintiffs’ homes and/or property. Wet cell disposal (i.e., the recirculation of leachate onto or into a waste cell) is used to increase the rate of microbial decay of disposed wastes. Recirculation of leachate is also used to reduce the costs of leachate management. Wet cell disposal greatly increases the rate of organic putrefaction and gas production thereby increasing odor levels emanating from a landfill. By operating the Landfill at the location and under the circumstances set out herein, Defendants have created and are maintaining the conditions that have allowed and are allowing large quantities of noxious odors to emanate from the Landfill onto Plaintiffs’ properties and/or into their homes. 71. Since at least July 2009 Defendants’ operations at the Landfill have included the utilization of coal ash as a daily cover on disposal cells containing putrescible wastes. Coal ash is made up of fine silica particles; therefore, it is porous and highly permeable and not suitable for odor control on any waste cell containing putrescible waste. Furthermore, because Defendants are operating most or some of the waste cells at the Landfill in a manner that hastens the process of decay thereby increasing odor production (i.e., leachate recirculation), they should be using a material for daily cover on those particular cells that is highly impermeable rather than one that is highly permeable. Stated differently, Defendants are using a daily cover that allows much more odor to emanate from the Landfill at the same time they are generating much larger amounts of odor. However, Defendants use coal ash for cover to lower costs and, as to the cells where recirculation takes place, because it is permeable and porous and allows the leachate to be recirculated more easily and effectively. By operating the Landfill at the location and Case 10-00276 Doc 338-1 Filed 05/23/11 Entered 05/23/11 15:04:39 Amended Complaint Page 24 of 35 24 Desc under the circumstances set out herein, Defendants have created and are maintaining the conditions that have allowed and are allowing large quantities of noxious odors to emanate from the Landfill onto Plaintiffs’ properties and into their homes. 72. Defendants’ operations at the Landfill also include the utilization of coal ash as a daily cover on disposal cells located adjacent to or in relative proximity to Plaintiffs’ property and/or homes while wet cell disposal and leachate recirculation is utilized at said waste cells. That is, from at least July 2009 to the present, in order to minimize operational costs, Defendants have operated the Landfill in such a manner as to greatly increase odors over the level that would have been produced by traditional methods of operation; yet, as another cost saving measure, they utilize daily cover material that is more permeable than is ordinarily used at landfills rather than material that is less permeable. By operating the Landfill at the location and under the circumstances set out herein, Defendants have created and are maintaining the conditions that have allowed and are allowing large quantities of noxious odors to emanate from the Landfill onto Plaintiffs’ properties and/or into their homes. 73. Since at least July 2009 Defendants’ operations at the Landfill also include the transportation of coal ash from the railhead to the working face of the waste cell in a manner that generates large quantities of airborne dust in close proximity to Plaintiffs’ homes or property. Several hundred truckloads of coal ash are transported over haul roads from the railhead to the active waste cell each day. The haul roads are surfaced with a chalk material. Additionally, the trucks haul open trailers of coal ash. These trucks operate for extended periods each day and generate extremely loud and frequent noise. Defendants also allow various trucks to leave the Landfill site covered in dust, mud, and/or ash from the Landfill. The dust, mud, and/or ash are then deposited on public roads adjacent to or in close proximity to Plaintiffs’ homes or property. The amount of dust, mud, and/or ash deposited on the public roads is so great that very frequently it becomes a traffic hazard and is impossible to avoid when traveling on said roads. By operating the Landfill at the location and under the circumstances set out herein, Defendants have created and are maintaining the conditions that have allowed and are allowing large quantities of fugitive dust to drift or migrate from the Landfill onto most Plaintiffs’ properties and into their homes. Case 10-00276 Doc 338-1 Filed 05/23/11 Entered 05/23/11 15:04:39 Amended Complaint Page 25 of 35 25 Desc 74. Since at least July 2009 and on frequent, regular occasions sometimes lasting for days at a time, Defendants have conducted operations at the Landfill around the clock or for extended hours into the evening and on weekends with heavy machinery that generates loud, disturbing, and continuous noise. In addition, since at least July 2009 Defendants have operated their rail yard and/or railhead on a daily or almost daily basis. Defendants operate the railhead around the clock or for extended hours into the evening and early morning and on weekends. The operation of the rail yard generates loud, disturbing, and continuous noise. Said railhead is adjacent to or in close proximity to Plaintiffs’ residences or property. Further, by operating hundreds of trucks per day on the haul roads, Defendants are generating loud, disturbing, and continuous noise adjacent to or in close proximity to Plaintiffs’ residences or property. By operating the Landfill, railhead, and haul roads at the location and under the circumstances set out herein, Defendants have created and are maintaining the conditions that have allowed and are allowing frequent, ongoing loud, disturbing, noises to emanate from the Landfill, rail yard, and haul roads onto Plaintiffs’ properties and into their homes. 75. Since at least October 2007 Defendants operations at the Landfill also included the placement of waste in waste cells that were located as close as physically possible to the residences along the southern boundary of the Landfill. This was done even though the Landfill sits on approximately one thousand (1000) acres. Defendants intentionally placed waste as close as possible to said residences. In the landfill industry it is assumed that starting disposal operations as close as possible to neighboring residences and dealing early on with any injuries and adverse reaction from the community as a result of that disposal is more manageable and more easily and quickly resolved than if the community is given time to see disposal operations coming towards them over time and to see the scope, nature and future impact of those operations. By operating the Landfill at the location and under the circumstances set out herein, Defendants have created and are maintaining the conditions that have allowed and are allowing large quantities of odor, noise, and, as to most Plaintiffs, large quantities of fugitive dust to emanate from the Landfill onto Plaintiffs’ properties and into their homes. By operating the Landfill at the location and under the circumstances set out herein, Defendants have also created and are maintaining the conditions that cause the migration of vectors (i.e., flies) from the Case 10-00276 Doc 338-1 Filed 05/23/11 Entered 05/23/11 15:04:39 Amended Complaint Page 26 of 35 26 Desc Landfill to some Plaintiffs’ homes thereby causing said Plaintiffs to suffer a significant increase in the vector population around their homes. 76. Defendants have breached their duty to Plaintiffs. Since at least June 30, 2008, as to some Plaintiffs and since at least July 2009 as to other Plaintiffs, Defendants have maintained and/or contributed to the maintenance of a public and/or private nuisance. That is, since the said times, Defendants have engaged in a course of conduct or have permitted to exist a set of circumstances that in their natural and foreseeable consequence proximately cause hurt and damage to Plaintiffs. Said course of conduct and or circumstances (i.e., the operation of, the continued construction of, and the end use of the Landfill) proximately work hurt, inconvenience and damage to Plaintiffs. The acts or omissions of the Defendants set out in this Count have caused and are causing the Plaintiffs discomfort, annoyance, inconvenience, injury, harm, and damage and constitute an ongoing, continuing, unreasonable and substantial interference with Plaintiffs’ use and enjoyment of their real property. 77. To the extent that the operation of the Landfill is a public nuisance, it has caused Plaintiffs special damages in which the public does not participate. Said damages are set out hereinafter. 78. Defendants directly and proximately caused and are causing serious injuries and damages to the Plaintiffs such that Plaintiffs have been caused, since July 2008 in some cases and since July 2009 in others, to suffer and bear the presence of unpleasant, foul, disgusting odors in and around their homes or property with such regularity, frequency, and duration and with such intensity as to cause them to suffer one or more of the following circumstances: the severe curtailment or limitation of outdoor activities, loss of appetite, headaches, dizziness, nausea, vomiting, irritation of the upper respiratory tract, interference with sleep, the necessity of keeping windows and doors shut and the increased use of air conditioners, severe mental anguish and suffering, the greatly diminished enjoyment of life and their property so as to make it impossible to enjoy the ordinary use of the premises as a dwelling or to pursue the ordinary occupation of life in the dwelling, and, in many instances, the diminution of the value of their real property. Case 10-00276 Doc 338-1 Filed 05/23/11 Entered 05/23/11 15:04:39 Amended Complaint Page 27 of 35 27 Desc Plaintiffs suffered all of said injuries while they were in their homes or on their property. Said injuries are ongoing. 79. Additionally, since at least July 2009 to the present, Defendants’ course of conduct has proximately caused most Plaintiffs to suffer and bear the deposit of significant amounts of particulate matter onto their property and, in some instances, in their homes. The use of chalk surfaced roads by such a large number of trucks hauling huge amounts of silica particles exposed to the atmosphere results in the frequent, ongoing generation of large amounts of gray dust that blows off-site onto most Plaintiffs’ property and, in some instances, into their homes. The failure to require trucks leaving the site to be free of mud or dust on their tires and other exterior surfaces results in the frequent, ongoing generation of large amounts of gray dust that blows from the public roads onto most Plaintiffs’ private property and, in some instances, into their homes. This particulate matter includes chalk and/or coal ash and all the constituents thereof. The deposit of this particulate matter causes Plaintiffs, or some of them, respiratory irritation, discomfort, annoyance, inconvenience, fear and severe mental anguish. It also greatly diminishes their enjoyment of life and their property so as to make it impossible to enjoy the ordinary use of the premises as a dwelling or to pursue the ordinary occupation of life in the dwelling, and, in many instances, the diminution of the value of their real property. In some instances, it also causes them to fear eating vegetables from their subsistence gardens. Plaintiffs suffered all of said injuries while they were in their homes or on their property. Said injuries are ongoing. 80. Additionally, since at least July 2009 to the present, as a result of Defendants’ activities as set out in paragraph 74 hereinabove, Plaintiffs have been caused to suffer and bear loud, disturbing, and intolerable noises in their homes at all hours of the day and night, which: awaken Plaintiffs at odd hours, prevent or interfere with sleep, and, on frequent occasions, interfere with conversations or other activities. Plaintiffs suffered all of said injuries while they were in their homes or on their property. Said injuries are ongoing. 81. Some of the injuries set out in this Count are personal, physical injuries that accompany the interference with Plaintiffs’ use and enjoyment of their real property. All Case 10-00276 Doc 338-1 Filed 05/23/11 Entered 05/23/11 15:04:39 Amended Complaint Page 28 of 35 28 Desc injuries set out in this Count were and are accompanied by malice and/or insult and/or inhumanity and/or contumely. 82. Defendants’ operation, maintenance, and use of the Landfill, rail yard, and haul roads constitute an obstruction to the free use of Plaintiffs’ property and/or possessory interest, so as unlawfully to interfere with the comfortable enjoyment of the premises and to prevent the reasonable use of the premises for dwelling purposes. 83. Defendants have indicated that they intend to, and unless restrained by this Court, will continue to maintain the nuisances and do the acts complained of hereinabove. Each and every act has been done without the consent and against the will and in violation of the rights of the Plaintiffs. 84. Each act committed by the Defendants has damaged Plaintiffs and, unless restrained, will cause irreparable damage to Plaintiffs and will ripen into an easement by prescription. Plaintiffs have no adequate remedy at law. Count X 85. Plaintiffs hereby reallege, adopt, and incorporate by reference paragraphs 2 through 12, 14 through 18, 23 through 27, 39, and 69 through 84 hereinabove as if fully set out in this Count. 86. By operating the Landfill at the location and under the circumstances set out herein, Defendants have wantonly or maliciously or with reckless indifference or under circumstances of aggravation created and maintained the conditions that have allowed and are allowing large quantities of odor, noise, and, as to most Plaintiffs, large quantities of fugitive dust to emanate from the Landfill onto Plaintiffs’ properties and/or into their homes. By operating the Landfill at the location and under the circumstances set out herein, Defendants have also wantonly or maliciously or with reckless indifference or under circumstances of aggravation created and are maintaining the conditions that cause the migration of vectors (i.e., flies) from the Landfill to some Plaintiffs’ homes thereby Case 10-00276 Doc 338-1 Filed 05/23/11 Entered 05/23/11 15:04:39 Amended Complaint Page 29 of 35 29 Desc causing said Plaintiffs to suffer a significant increase in the vector population around their homes. Count XI 87. Plaintiffs 3 hereby reallege, adopt, and incorporate by reference paragraphs 2 through 12, 25, and 39 hereinabove as if fully set out in this Count. 88. Since at least July 2009, Defendants have transported the coal ash from the railhead to the working face of the waste cell in a manner that generates large quantities of airborne dust in close proximity to Plaintiffs’ homes or work locations. Several hundred truckloads of coal ash are transported over haul roads from the railhead to the active waste cell each day. The haul roads are surfaced with a chalk material. Additionally, the trucks haul open trailers of coal ash. The use of chalk surfaced roads by such a large number of trucks hauling huge amounts of silica particles exposed to the atmosphere results in the frequent, ongoing generation of large amounts of gray dust that blows off-site onto most Plaintiffs’ property and, in some instances, into their homes. Defendants also allow various trucks to leave the Landfill site covered in dust, mud, and/or ash from the Landfill. The dust, mud, and/or ash are then deposited on public roads adjacent to or in close proximity to Plaintiffs’ homes. The amount of dust, mud, and/or ash deposited on the public roads is so great that very frequently it becomes a traffic hazard and is impossible to avoid when traveling on said roads. The dust and/or ash migrate or are blown onto most Plaintiffs’ property and/or into their homes. 89. The actions of Defendants set out in this Count that resulted in dust, mud, and/or ash invading and coming onto most Plaintiffs’ property and/or into their homes was and is wrongful, unlawful, and were and are done without the authority or consent of the Plaintiffs. 90. The actions of Defendants set out in this Count that resulted in dust invading and coming onto most Plaintiffs’ property and/or into their homes was and is intentional. The use of chalk haul roads was and is intentional. The transport of hundreds of truck loads 3 Charles Allen, Willie Banks, Luvenia Thomas, Samuel Thomas, Tammy Thomas, Grady Williams, Lillie Gibson, Christine Johnson and Queen Robinson are not included in this Count and make no assertions in regard to this Count. Case 10-00276 Doc 338-1 Filed 05/23/11 Entered 05/23/11 15:04:39 Amended Complaint Page 30 of 35 30 Desc per day of coal ash on those chalk roads was and is intentional. The use of open trailers to transport the coal ash on the chalk roads was and is intentional. The use of waste cells adjacent to or in close proximity to Plaintiffs’ homes was and is intentional. The failure to clean the transport trucks before they left the Landfill was and is intentional. 91. Due to the inherent nature of a landfill and the proximity of Plaintiffs’ homes to the Arrowhead Landfill, it was clearly foreseeable that dust, mud, and/or ash would migrate and travel from the Landfill to most Plaintiffs’ property. 92. Substantial amounts of dust and/or ash from the Landfill have migrated to or settled on most Plaintiffs’ properties. At times, the dust and/or ash accumulates so rapidly on some of Plaintiffs’ properties that those Plaintiffs have to remove the material from porches, cars, and other external areas of their property on at least a daily basis. On many occasions, the particulate matter invades the interior of Plaintiffs’ homes and they have to keep doors and windows closed to minimize the invasion. The dust, and/or ash settle on furniture and on other surfaces in Plaintiffs’ homes and is resistant to easy removal. The dust and/or ash settle on plants in vegetable gardens and causes Plaintiffs to refrain from eating vegetables from those gardens due to fear and apprehension concerning the possible constituents in said dust and/or ash. 93. The deposit of this particulate matter causes Plaintiffs, or some of them, respiratory irritation, discomfort, annoyance, inconvenience, fear and severe mental anguish. It also greatly diminishes their enjoyment of life and their property so as to make it impossible to enjoy the ordinary use of the premises as a dwelling or to pursue the ordinary occupation of life in the dwelling, and, in many instances, the diminution of the value of their real property. Said injuries are ongoing. 94. Some of the injuries set out in this Count are personal, physical injuries. All injuries set out in this Count were and are accompanied by malice and/or insult and/or inhumanity and/or contumely. Case 10-00276 Doc 338-1 Filed 05/23/11 Entered 05/23/11 15:04:39 Amended Complaint Page 31 of 35 31 Desc 95. The unauthorized deposits of dust, mud, and/or ash by Defendants upon most Plaintiffs’ real property constitute a recurring, continuing, ongoing invasion of the right of said Plaintiffs to exclusive possession of said real property. 96. Defendants have indicated that they intend to, and unless restrained by this Court, will continue to do the acts complained of hereinabove. Each and every act has been done without the consent and against the will and in violation of the rights of the Plaintiffs. 97. Each act committed by the Defendants has damaged said Plaintiffs and, unless restrained, will cause irreparable damage to Plaintiffs and will ripen into an easement by prescription. Plaintiffs have no adequate remedy at law. Count XII 98. Plaintiffs 4 hereby reallege, adopt, and incorporate by reference paragraphs 2 through 12, 25, 39, and 88 through 96 hereinabove as if fully set out in this Count. 99. Because Defendants know that the use of chalk haul roads by several hundred trucks a day generates dust that blows or migrates off-site and because they know that some Plaintiffs have residences adjacent to or in very close proximity to the Landfill and the haul roads and because Plaintiffs have complained to Defendants, Defendants are on notice that they are unlawfully and without consent invading the property of those Plaintiffs; however, despite that knowledge those activities causing the invasion have continued. Consequently, Defendants have wantonly trespassed and are wantonly trespassing on those Plaintiffs’ property because Defendants’ invasion of those Plaintiffs’ property is with knowledge of the violation of the Plaintiffs’ rights in their property. 100. Because Defendants know that trucks leaving the Landfill are covered with particulate matter and because it is open and notorious that such large amounts of said particulate matter is deposited from those trucks onto public roads as to make said particulate matter a hazard and because they know that said particulate matter migrates 4 Charles Allen, Willie Banks, Luvenia Thomas, Samuel Thomas, Tammy Thomas, Grady Williams, Lillie Gibson, Christine Johnson and Queen Robinson are not included in this count and make no assertions in regard to this count. Case 10-00276 Doc 338-1 Filed 05/23/11 Entered 05/23/11 15:04:39 Amended Complaint Page 32 of 35 32 Desc from the public roads and because they know that some Plaintiffs have residences adjacent to or in close proximity to the public roads onto which the particulate matter is deposited, Defendants are on notice that they are unlawfully and without consent invading the property of those Plaintiffs; however, despite that knowledge those activities causing the invasion have continued. Consequently, Defendants have wantonly trespassed and are wantonly trespassing on those Plaintiffs’ property because Defendants’ invasion of those Plaintiffs’ property is with knowledge of the violation of the Plaintiffs’ rights in their property. 101. Defendants have been put on notice by Plaintiffs that their activities are causing particulate matter to invade most Plaintiffs’ property; however, despite that knowledge those activities causing the invasion have continued. Consequently, Defendants are wantonly trespassing on those Plaintiffs’ property because Defendants’ invasion of those Plaintiffs’ property is with knowledge of the violation of the Plaintiffs’ rights in their property. PRAYER FOR RELIEF A. Plaintiffs request a judgment against Defendants for the full amount of all actual and/or compensatory damages (including damages for emotional distress and/or mental anguish) and/or consequential and/or special damages they have suffered as a result of: a) Defendants’ negligence as set out in Counts I, II, and III; b) Defendants’ maintenance of a nuisance as set out in Count IX; and c) Defendants’ trespass as set out in Count XI. Each Plaintiff requests an award of $500,000.00 (five-hundred thousand dollars) for his or her emotional distress and/or mental anguish. The specific amount of all other damages to be awarded pursuant to this prayer for relief is to be determined at trial according to proof. B. Plaintiffs request a judgment against P&J for the full amount of all actual and/or compensatory damages (including damages for emotional distress and/or mental anguish) and/or consequential and/or special damages they have suffered as a result of P&J’s negligence as set out in Counts V and VII. Each Plaintiff requests an award of $500,000.00 (five-hundred thousand dollars) for his or her emotional distress and/or Case 10-00276 Doc 338-1 Filed 05/23/11 Entered 05/23/11 15:04:39 Amended Complaint Page 33 of 35 33 Desc mental anguish. The specific amount of all other damages to be awarded pursuant to this prayer for relief is to be determined at trial according to proof. C. Plaintiffs request a joint and several judgment for the full amount of all actual and/or compensatory damages (including damages for emotional distress and/or mental anguish) and/or consequential and/or special damages and for the maximum legally allowable amount of punitive damages as a result of Defendants’ intentional, deliberate, conscious, wanton, and/or reckless, and/or oppressive, and/or malicious acts as set out in Counts IV, X, and XII herein. Plaintiffs also request a judgment for the full amount of all actual and/or compensatory damages (including damages for emotional distress and/or mental anguish) and/or consequential damages and for the maximum legally allowable amount of punitive damages for the intentional, deliberate, conscious, wanton, and/or reckless, and/or oppressive, and/or malicious acts of P&J as set out in Counts VI and VIII. Each Plaintiff requests an award of $500,000.00 (five-hundred thousand dollars) for his or her emotional distress and/or mental anguish. The specific amount of all other damages to be awarded pursuant to this prayer for relief is to be determined at trial according to proof. D. Plaintiffs also request injunctive relief for the ongoing, irreparable harm caused by Defendants’ nuisance and trespass as set out in Counts IX, X, XI, and XII herein. More specifically, Plaintiffs request that the Court enjoin Defendants from recirculating leachate in their waste piles and from using coal ash or any other non-cohesive, permeable material for daily cover. Plaintiffs also request that the Court require Defendants to place a permanent cover on all side slopes of all waste cells. Plaintiffs also request the Court to enjoin Defendants from operating the Landfill in a manner that allows odor, as defined by ADEM Admin. Code R. 335-3-1-.02(1)(ss), to leave the Landfill site. In addition, Plaintiffs request that the Court enjoin Defendants from operating heavy machinery at the waste cells or operating the rail yard or moving large trucks along the haul roads prior to 7:00 am or after 7:00 pm. Plaintiffs also request that the Court require the Defendants to pave their haul roads and institute a truck cleaning program for all trucks leaving the Landfill. Plaintiffs also request that the Court prohibit Defendants from causing the waste piles rising out of the waste cells from being more than fifty feet above the elevation of the surrounding land at the Landfill. Case 10-00276 Doc 338-1 Filed 05/23/11 Entered 05/23/11 15:04:39 Amended Complaint Page 34 of 35 34 Desc E. Plaintiffs also request judgment for all costs and expenses as allowed under Alabama law. F. Plaintiffs request that any judgment hold Defendants jointly and severally liable for all amounts that may be awarded for each Count and as may be appropriate under the facts and pursuant to the controlling law for each Count. G. Plaintiffs also request such other and further additional or alternate relief of any type that this Court considers proper under the facts of this case. s/ David a. Ludder David A. Ludder (LUD001) Law Offices of David A. Ludder, P.L.L.C. Attorney for Plaintiffs 9150 McDougal Court Tallahassee, FL 32312-4208 850-386-5671 Fax: 206-888-5671 DavidALudder@enviro-lawyer.com s/ G. Keith Clark G. Keith Clark (CLA036) Attorney for Plaintiffs 130 Inverness Plaza, #234 Birmingham, AL 35242 205-298-9429 Fax: 205-298-7823 gkeithclark@charter.net Plaintiffs Demand A Trial By Jury On All Issues Contained In This Complaint Case 10-00276 Doc 338-1 Filed 05/23/11 Entered 05/23/11 15:04:39 Amended Complaint Page 35 of 35 35 Desc