Hammond v. City of Warner Robins
| Decision Date | 17 February 1997 |
| Docket Number | No. A96A2123,A96A2123 |
| Citation | 482 S.E.2d 422,224 Ga.App. 684 |
| Parties | , 97 FCDR 728 HAMMOND v. CITY OF WARNER ROBINS. |
| Court | Georgia Court of Appeals |
Decker & Hallman, F. Edwin Hallman, Jr., David C. Moss, Atlanta, Pamela M. Richards-Greenway, Warner Robins, for appellant.
Jones, Cork & Miller, Hubert C. Lovein, Jr., Robert C. Norman, Jr., Macon, for appellee.
Kilpatrick & Cody, Edward A. Kazmarek, Troutman Sanders, John H. Johnson, Jr., Hollister A. Hill, Walter E. Sumner, Atlanta, Susan M. Pruett, Lawrenceville, James F. Grubiak, Atlanta, amici curiae.
Appellant brought an action against the City of Warner Robins in nuisance, trespass, and inverse condemnation. From 1972 until 1976, Warner Robins operated a sanitary landfill.
There exists a three-foot layer of soil as a ground covering for the landfill; beneath this layer, household garbage exists from a depth of three feet to thirty feet.
Most sanitary landfills contain organic waste, such as household garbage, which decays with time. The rate of decay varies with time at a rate which can be represented by a bell curve. However, since there exists no uniformity in content of the landfill or time and depth of a waste deposit, then there exist multiple rates of decay which would be represented by overlapping bell curves for each layer of waste. Anaerobic decay, in the absence of air, produces methane gas and water.
Methane gas is an odorless, colorless, organic compound that is lighter than air so that it has a tendency to migrate to an environment where it will be under less pressure. If ventilated vertically to the ground surface, methane gas will dissipate into the atmosphere. Methane seeks the course of least resistance through the soil; it will migrate vertically through decaying waste if there exists no clay cap as a barrier or will migrate laterally under normal conditions, depending upon the geological composition of the soil. Methane generation or water saturation can increase the pressure buildup that, along with an impervious soil condition, such as clay, can cause a downward and lateral movement of the gas along porous soil. Methane gas will collect in voids in the soil, cracks in rocks, or areas beneath structures, such as crawl spaces. When the ground surface dries out and cracks, methane gas can seep out of the ground through such opening. The gas can move laterally through gravel, silt, sand, and geological faults, seeking to escape to the atmosphere. This means that methane can move along and above groundwater tables, because the soil is porous enough to allow water collection and flow; during droughts, when the water level falls, these voids become empty, allowing the invasion of methane gas. When methane gas concentrations reach five percentage or greater, which is 50,000 ppm, the gas becomes explosive if ignited. At higher concentrations, it can be harmful to human health; often vegetation near escaping methane gas dies.
Landfills often contain other organic chemicals, such as cleaning fluids, paint, paint remover, and industrial solvents, which may settle into ground water or decompose into organic gases. Many of these organic compounds are either toxic to tissue, carcinogenic, or both.
Springwood Subdivision was built next to the landfill after it closed in 1976. Some lots abutted the east boundary line of the landfill, which exists at a higher elevation than the subdivision. Since the landfill sits at a higher elevation and extends to a depth of 30 feet, the bottom of the landfill lies close to the level of the ground water table in the subdivision.
Appellant bought her house in the subdivision at 102 Prado Court in 1985 for $80,000. Prado Court lies parallel to the east side of the landfill, approximately 150 feet away from the landfill. Appellant's property is approximately 175 feet east of the landfill across Prado Court. Mr. Holt's property, 103 Prado Court, lies between Prado Court and the landfill, across from appellant. 1
Appellant lived in the house at 102 Prado Court for approximately one year prior to her marriage, when she moved out. She has leased out the property ever since. In 1988, appellant sought to refinance the property loan, but the lender declined to make the loan because of the risk of methane gas. From this loan rejection, appellant first learned of the potential methane problem. Since then, she has been unable to sell the property. While refinancing has been a problem, a factual dispute exists as to whether the property can be refinanced or not.
Methane gas was detected at 103 Prado Court (Mr. Holt's property) by the Georgia Department of Natural Resources, Environmental Protection Division, but the gas was not found at 102 Prado Court. Tests conducted by engineers retained by the city have been unable to find methane gas on appellant's property, but the test hole went only to a depth of two and one-half feet.
After testing, the City of Warner Robins engaged in a methane gas abatement program along Prado Court and Springwood Drive; a drainage swale was constructed with a 12-foot trench at the bottom filled with clay to form a passive barrier; methane gas vents to a depth of 15 feet were installed and a line of gas monitor holes were dug along Prado Court to the same depth.
Appellant joined with three other litigants in the subdivision to pay $16,000 for deep test wells to be drilled at 103 Prado Court, Mr. Holt's property, below the ground water table. Such wells went five feet below the water table, to a depth of between 35 and 40 feet. Tests at these depths showed high concentrations of methane gas where the soil was either moist silt or very moist sand that provided a good porous soil condition for lateral migration. The test well at MW-3 was approximately 130 feet from 102 Prado Court and was the closest well to this address. The report showed test results in methane gas present in parts per million (ppm): no gas present at 5 and 10 feet; 4 ppm at 15 feet; 8,990 ppm at 20 feet; and more than 10,000 ppm at 25 through 35 feet. The water table was determined to lie at MW-1 at 36.86 feet; at MW-2 at 33.53 feet at MW-3 at 29.47 feet; and at MW-4 at 32.67 feet.
Appellant's expert, Dr. Ronald Huggins, interpreted the test results to show that methane gas had migrated from the landfill through the porous zone of soil at and above the water table in high concentrations. In Dr. Huggins' opinion, the methane gas migrated beyond the test wells along the course of least resistance and under appellant's property. The existence of high concentrations of methane gas presented not only a physical hazard but also a potential health hazard, although Dr. Huggins admitted on cross-examination that the levels of methane found at 102 Prado Court in June 1994 were not physically dangerous at that time, but its presence posed a health risk. He also opined that the testing methodology employed by Warner Robins' experts was deficient in that it did not drill deep enough, and that the passive barrier, methane vents, and monitor holes at a depth of 15 feet or less allowed methane gas to migrate underneath these installations without detection. He concluded that the methane gas came from the landfill.
Appellee's expert, Mr. Hodges, stated in contradiction that, in his opinion, the methane gas detected at 103 Prado Court was either caused by construction debris from the subdivision or by the decay of such materials providing a pathway for methane gas to migrate from the landfill. In his opinion, it would be highly improbable that methane gas could migrate from the landfill to 102 Prado Court. Mr. Hodges also had a problem with the methodology used by Dr. Huggins. However, the only test done on appellant's property by appellee's experts was at a depth of two and one-half feet.
During May and June of 1994, appellant and the three other litigants spent another $16,000 to actually drill test wells on their own property to provide direct evidence of the subsoil presence of methane gas from the landfill. The test wells at OW-2 and OW-4 were on the north and south property lines of 102 Prado Court, appellant's property.
The June 30, 1994 test report showed methane gas concentrations (in parts per million) at the test depths:
Depth in feet OW"2 Soil Type OW"4 Soil Type
3 to 5 10 ppm clay 9.5 ppm clay
8 to 10 15 ppm silt 25 ppm silt
13 to 15 18 ppm silt 12 ppm silt
18 to 20 8 ppm silt 12 ppm silt
20 to 25 95 ppm moist silt 13 ppm silt
28 to 30 40 ppm very moist 12 ppm moist silt
33 to 35 N/A sand 26 ppm moist silt
38 to 40 N/A 15 ppm very moist clay
In addition, measurable amounts of other organic gases were found, including: dichlorodifluoromethane; tetrachloroethane; tridecane; chloroform; methylene chloride; eicosane,10-methyl-; and styrene.
Appellant's real estate appraiser gave an appraisal that the property had an $82,000 fair market value, but that it should be discounted 40 percent to reflect the effect of contamination on the market price, so that the actual fair market value was $48,840. Appellee's real estate expert agreed as to the fair market value without the discount, and questioned the use of the 40 percent figure.
The trial court denied appellee's initial motion for summary judgment; upon the renewed motion for summary judgment before a senior judge, the motion was granted.
Appellee's expert witnesses testified that methane gas and other organic compounds were stopped by the passive clay barrier on 103 Prado Court, and that, because of such barriers, it was highly improbable that methane gas could migrate from the...
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