Southeast Arkansas Landfill, Inc. v. State, 92-1360

• Decision Date: 05 July 1993
• Docket Number: No. 92-1360,92-1360
• Citation: 313 Ark. 669,858 S.W.2d 665
• Parties: SOUTHEAST ARKANSAS LANDFILL, INC., Arkansas County Waste Services, Inc., and Gray Varnadore, Appellants, v. STATE of Arkansas, Department of Pollution Control and Ecology, Appellees.
• Court: Arkansas Supreme Court

Page 665

858 S.W.2d 665

313 Ark. 669

SOUTHEAST ARKANSAS LANDFILL, INC., Arkansas County Waste Services, Inc., and Gray Varnadore, Appellants, v. STATE of Arkansas, Department of Pollution Control and Ecology, Appellees.

No. 92-1360.

Supreme Court of Arkansas.

July 5, 1993.

Charles S. Gibson, C.S. "Chuck" Gibson II, Gibson Law Office, Dermott, for appellants.

Charles L. Moulton, Asst. Atty. Gen., Little Rock, for appellees.

HAYS, Justice.

Appellants Arkansas County Waste, Inc., and Southeast Arkansas Landfill, Inc., (SEAL) are Arkansas corporations owned by Appellant Gray Varnadore and by Lester Pinkus and several family members. Arkansas County Waste is a hauling company operating primarily from a rail spur near Stuttgart. Baled waste was received by rail car from Brooklyn, New York, and was off-loaded onto trucks and transported to SEAL where the bales were broken and landfilled with local trash.

In response to concerns over the environmental integrity of SEAL's landfill operation, and to numerous complaints regarding odors coming from the rail spur, the Attorney General and the Arkansas Department of Pollution Control and Ecology (ADPC & E) (Appellees) filed suit against SEAL on April 23, 1992. The complaint alleged that the defendant had violated provisions of the Arkansas Solid Waste Management Act, Ark.Code Ann. §§ 8-6-201--221 (Supp.1991), and regulations promulgated thereunder, by failing to inform the ADPC & E of SEAL's agreement to sell an existing portion of its outstanding stock to a third party, by failing to inform the ADPC & E that SEAL had substantially increased the volume of waste SEAL was disposing of in its landfill in violation of its permit, by failing to properly characterize its waste stream, by failing to properly monitor and protect the State's groundwater, and by storing its waste stream in such a manner as to constitute a public nuisance.

On April 28, 1992, the prosecuting attorney for Arkansas County, responding to complaints of noxious odors, filed suit against Arkansas County Waste, Inc., requesting emergency injunctive relief to abate the nuisance caused by Arkansas County Waste, Inc.'s operations. The trial judge temporarily enjoined Arkansas County Waste from operating the rail spur. No notice of the emergency relief was given to appellants, nor was bond required for the injunction.

Appellants answered, generally denying the allegations as to permit, regulatory and statutory violations and affirmatively alleging a denial of equal protection as mandated by the United States Constitution. Appellants pled that other landfills created greater hazards and that appellants were being singled out because they were receiving out-of-state waste.

The two cases were consolidated and heard together on May 13, 1992. After testimony was presented and exhibits were introduced, the trial court found that SEAL was not in compliance with its permit and that the off-loading operation constituted a nuisance and potential health hazard. The trial court enjoined the operation for a period of 110 days so ADPC & E could investigate, test and assess the landfill. The court also ordered Arkansas County Waste's off-loading facility in Stuttgart closed, all boxcars removed and the site cleaned up by June 1. The injunction was granted without requiring the appellee to post bond. The results of the additional testing showed no contamination, and the test that showed the initial problem was found to contain error.

On appeal, appellants argue four points for reversal, none of which are persuasive.

I The Trial Court Abused Its Discretion In Finding That The Off-Loading Site Constituted A Nuisance And A Potential Health Hazard

The trial court found "that the off-loading facility, as located and operated, constitutes a nuisance and a potential health hazard." Appellants argue that the trial court abused its discretion in making such a finding.

It is well settled that this court reviews chancery cases de novo on appeal and will not reverse the chancellor's findings unless clearly erroneous. Clark v. Bank of Bentonville, 308 Ark. 241, 824 S.W.2d 358 (1992); Dudley v. Little River County, 305 Ark. 102, 805 S.W.2d 645 (1991). We also give due regard to the chancellor's opportunity to judge the credibility of witnesses. Nunley v. Orsburn, 312 Ark. 147, 847 S.W.2d 702 (1993).

The granting or denying of an injunction is a matter falling within the sound discretion of the trial court and its decision will not be reversed on appeal unless it is clearly erroneous. Warren v. Robinson, 288 Ark. 249, 704 S.W.2d 614 (1986); Bassett v. City of Fayetteville, 282 Ark. 395, 669 S.W.2d 1 (1984). Such orders will not be disturbed on appeal unless they are contrary to some rule of equity, or the result of improvident exercise of judicial power. Mills v. Patton, 233 Ark. 755, 346 S.W.2d 689 (1961).

Nuisance is defined as conduct by one landowner which unreasonably interferes with the use and enjoyment of the lands of another and includes conduct on property which disturbs the peaceful, quiet, and undisturbed use and enjoyment of nearby property. Milligan v. General Oil Co., 293 Ark. 401, 738 S.W.2d 404 (1987); City of Newport v. Emery et al., 262 Ark. 591, 559 S.W.2d 707 (1977). Equity clearly will enjoin conduct that culminates in a private or public nuisance where the resulting injury to the nearby property and residents is certain, substantial and beyond speculation and conjecture. See Higgs v. Anderson, 14 Ark.App. 113, 685 S.W.2d 521 (1985); Ark. Release Guidance Foundation v. Needler, 252 Ark. 194, 477 S.W.2d 821 (1972). The general rule is that in order to constitute a nuisance, the intrusion must result in physical harm (as distinguished from unfounded fear of harm) which must be proven to be certain, substantial, and beyond speculation and conjecture. Miller v. Jasinski, 17 Ark.App. 131, 705 S.W.2d 442 (1986).

The central issue is whether the evidence supported the trial court's finding that the rail spur off-loading constituted a nuisance because of its offensive odors from the site. Appellants claim the testimony does not support the trial court's finding and that only slight odor and inconvenience were proven. Appellants cite Thiel v. Cernin, 224 Ark. 854, 276 S.W.2d 677, 678 (1955) for the proposition that the operation of a business may be a nuisance in one locality and not in another. Appellants argue their activity was consistent with the character of the locale and must be conducted somewhere.

The appellees contend the appellants apply the wrong standard in this case and that they violate Ark.Sup.Ct.R. 9(d) by summarizing the testimony inadequately. Appellees also note that it is well established that objectionable odors can constitute a nuisance and that a permanent decree enjoining the operation of certain facilities because of noxious odors is not too broad a remedy. For example, in Ozark Bi-Products, Inc. v. Bohannon, 224 Ark. 17, 271 S.W.2d 354 (1954), the trial court enjoined the operation of a rendering plant which processed and disposed of the offal of slaughtered chickens because the residents living near the plant claimed the plant emitted odors, attracted flies and was generally a nuisance. On appeal, this court held that the plant was not a nuisance per se, but was a nuisance because of the manner of operation. In the present case, although the off-loading of waste may not constitute a nuisance per se, the evidence indicates the appellants' method at the off-loading site rose to the level of a nuisance.

In Flippin v. McCabe, 228 Ark. 495, 308 S.W.2d 824 (1958), the chancellor enjoined the operation of four charcoal kilns after plaintiffs filed suit and a hearing was held. In affirming the chancellor's decision, we noted although the testimony of the numerous witnesses was highly conflicting, we could not say the chancellor's findings were against the preponderance of the evidence.

As in Flippin, there were conflicts in the testimony. Several witnesses testified regarding the character and classification of the waste and its odor, including nearby residents, appellants' employees, others who worked in the area, health department and ADPC & E personnel. There was testimony that boxcars of waste were being stored in the open for several days prior to being off-loaded at the SEAL landfill. There was evidence that this storage resulted in obnoxious odors at the site which, depending upon the direction of the wind, directly affected the surrounding community, businesses, residences located to the west, a residential subdivision located to the east, and especially a trailer park located approximately 75 feet from the rail spur. Notably, Kenny Burlison, an employee of appellants,...