Ga. Pac. Consumer Prods., LP v. Ratner

• Decision Date: 08 March 2018
• Docket Number: A17A1969, A17A1970
• Citation: 812 S.E.2d 120
• Parties: GEORGIA PACIFIC CONSUMER PRODUCTS, LP v. RATNER, et al.; and vice versa.
• Court: Georgia Court of Appeals

345 Ga.App. 434

812 S.E.2d 120

GEORGIA PACIFIC CONSUMER PRODUCTS, LP

v.RATNER, et al.; and vice versa.

A17A1969, A17A1970

Court of Appeals of Georgia.

March 8, 2018

Reconsideration Denied March 28, 2018

David E. Hudson, Augusta, Edward M. Hughes, Quentin LaMont Marlin, Savannah, Ryburn Clay Ratterree, Philip Michael Thompson, Marietta, for Appellant in A17A1969.

John C. Bell Jr., Augusta, Timothy David Roberts, Benjamin Mason Perkins, Savannah, for Appellee in A17A1969.

John C. Bell Jr., Augusta, Timothy David Roberts, Benjamin Mason Perkins, Savannah, for Appellant in A17A1970.

David E. Hudson, Augusta, Edward M. Hughes, Quentin LaMont Marlin, Savannah, Ryburn Clay Ratterree, Philip Michael Thompson, Marietta, for Appellee in A17A1970.

Doyle, Presiding Judge.

Kirbi Ratner, Aaron Ratner, David L. McDonald, and Kathy H. McDonald (collectively, "the Plaintiffs") filed suit against Georgia-Pacific Consumer Products, LP ("GP"), to recover in nuisance, negligence, and trespass, as well as for attorney fees and punitive damages.¹ The Plaintiffs allege that GP has damaged their property and interfered with the use and enjoyment of their property as a result of its operation of a recycled paper mill plant that existed prior to construction of their homes. In response to GP’s motion for summary judgment and the Plaintiffs’ cross-motion for partial summary judgment, the trial court entered orders (1) denying summary judgment to GP on the Plaintiffs’ claims for nuisance, negligence, punitive damages, and attorney fees; (2) granting summary judgment to the Plaintiffs on their motion for partial summary judgment on their nuisance claim; and (3) granting summary judgment to GP on the Plaintiffs’ trespass claim. In Case No. A17A1969, GP appeals from the denial of its motion for summary judgment on the claims of nuisance, negligence, punitive damages, and attorney fees and the grant of the Plaintiffs’ motion for partial summary judgment on the nuisance claim. In Case No. A17A1970, the Plaintiffs cross-appeal from the grant of GP’s motion for summary judgment on the issue of trespass.

We first address whether Georgia’s "right to farm" statute, OCGA § 41-1-7, bars the Plaintiffs’ claims for nuisance. Concluding that it does, we next turn to whether GP operated the paper mill in a negligent manner, rendering the statutory bar inapplicable. Because we conclude that GP did not do so, we find both that the statutory bar applies and that the Plaintiffs’ negligence claim fails on the merits. Finally, we grant summary judgment to GP on the Plaintiffs’ claims for trespass, punitive damages, and attorney fees.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. A de novo standard of review applies to an appeal from a [grant or] denial of summary judgment, and we view the evidence, and all reasonable conclusions and

inferences drawn from it, in the light most favorable to the nonmovant.²

So viewed, the record shows that these cases arise from GP’s operation of a paper mill (the "Mill") in Effingham County, Georgia. The Mill was originally built in 1986 as a facility to convert waste paper into recycled tissue, towel, and napkin products for retail and commercial sale. To this day, GP continues to make paper products from mixed amounts of recycled fibers recovered from waste paper with smaller amounts of virgin fibers.

Since the Mill began operations, approximately 130 acres of the Mill’s property have been used as a site for "sludge" disposal. Sludge is a byproduct of the paper recycling process that results when usable fibers are separated out from the waste paper. The separation process washes out inks, ash, clays, calcium

carbonate, titanium dioxide, and talc (collectively, "filler") from waste paper. The filler, short fibers, and water all flow into a treatment plant where the solids settle and become sludge.

In order to ensure that this process complies with requirements of the Georgia Environmental Protection Division, which issued various permits for the Mill, GP adds bacteria to the sludge to reduce the amount of oxygen and sulfates in the sludge. During this process, hydrogen sulfide is created and ultimately released from the sludge. Hydrogen sulfide is a flammable, colorless gas that smells like rotten eggs. Hydrogen sulfide occurs both naturally in the atmosphere and from human-made processes, including the landfill and paper operations. The creation of hydrogen sulfide is a natural, essential, and unavoidable part of the recycled paper making process.

Although hydrogen sulfide can be extremely toxic if there is a large quantity in a confined space, the United States Environmental Protection Agency does not consider it a hazardous air pollutant. In addition, the State of Georgia has not established air quality limits for hydrogen sulfide. As a result, the amount of hydrogen sulfide emitted by the Mill is not regulated by any of GP’s environmental permits.

The Plaintiffs’ homes were built in the early 2000’s after being approved for development by the County Commission in Mallard Pointe, a subdivision which is and always has been located across the street from the Mill’s sludge disposal cells. There are approximately 20 homes in the subdivision.

In 2006 and 2007 GP first became aware of complaints of HVAC failures. Specifically, the Plaintiffs have allegedly experienced problems with the hydrogen sulfide’s foul odor, as well as corrosion of metal components in HVAC units, external and internal metal fixtures of their homes, main panel components, copper

piping, and smoke detectors inside their homes. The Plaintiffs’ expert opined that no other source of hydrogen sulfide was likely in Mallard Pointe, and therefore, the Mill was emitting concentrations of hydrogen sulfide sufficient to cause corrosion in the Plaintiffs’ homes and HVAC units.

In response to the complaints from Mallard Pointe residents, GP undertook numerous efforts to remediate the emissions, including replacing damaged HVAC units, but those efforts did not eliminate the problem. GP now pays to have the sludge removed from the Mill and beneficially reused for farming purposes.

1. In Case No. A17A1969, GP contends that it was entitled to summary judgment on the Plaintiffs’ nuisance claim because it is

immune from nuisance liability under Georgia’s "right to farm" statute, OCGA § 41-1-7. We agree.

Even though the Plaintiffs moved across the street from a pre-existing recycled paper mill, the defense of "coming to the nuisance" is generally not recognized in this state as a complete bar to bringing a claim.³ Nevertheless, Georgia, like all other states, has a statute, colloquially referred to as the "right to farm" statute, which codifies a "coming to the nuisance" defense in certain circumstances. This statute is in derogation of the common law, and thus it must be strictly construed.⁴

(a) Whether the Mill meets the definitions contained in the right to farm statute .

Codified at OCGA § 41-1-7, Georgia’s "right to farm" statute was passed because it is the legislature’s

declared policy of the state to conserve, protect, and encourage the development and improvement of its agricultural and forest land and facilities for the production or distribution of food and other agricultural products, including without limitation forest products. When nonagricultural land uses extend into agricultural or agriculture-supporting industrial or commercial areas or forest land or when there are changed conditions in or around the locality of an agricultural facility or agricultural support facility, such operations often become

the subject of nuisance actions. As a result, such facilities are sometimes forced to cease operations. Many others are discouraged from making investments in agricultural support facilities or farm improvements or adopting new related technology or methods. It is the purpose of this Code section to reduce losses of the state’s agricultural and forest land resources by limiting the circumstances under which agricultural facilities and operations or agricultural support facilities may be deemed to be a nuisance.⁵

So as to effectuate this stated policy, the statute provides that

[n]o ... agricultural support facility , or any operation at an agricultural support facility shall be or shall become a nuisance , either public or private, as a result of changed conditions in or around the locality of such facility or operation if the facility or operation has been in operation for one year or more. The provisions of this subsection shall not apply when a nuisance results from the negligent, improper, or illegal operation of any such facility or operation.⁶

As is relevant to this case, the term "agricultural support facility" is defined as "any food processing plant or forest products processing plant together with all related or ancillary activities ...."⁷ The statute further defines "forest products processing plant" as "a commercial operation that manufactures, packages, labels, distributes, or stores any forest product ...."⁸ The term "forest product" is not defined by statute. Consequently, we must determine in the first instance whether recycled paper is a "forest product" as contemplated by the statute to determine if the Mill constitutes a "forest products processing plant" that is part of an "agricultural support facility" that is immune from nuisance liability under the "right to farm" statute.

"We consider questions of statutory construction under a de novo standard of review."⁹

In construing a statute, our goal is to determine its legislative purpose. In this regard, a court must first focus on the statute’s text. In order to discern the meaning of the words

of a statute, the reader must look at the context in which the statute was written, remembering at all times that the meaning of a sentence may be more than that of the separate words, as a melody is more than the notes. If the words of

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