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McElmurray v. Augusta-Richmond County7/11/2005
Through their family corporation, the McElmurrays own and operate a dairy and crop farming business in Richmond County. In February 2001, they brought this suit against Augusta-Richmond County, successor by consolidation to the City of Augusta, complaining that from 1979 until 1990 they had permitted the city to use their farm land as a disposal site for sewage sludge generated at the city's Messerly Wastewater Treatment Plant based on misrepresentations by the city that the sludge constituted a safe and beneficial fertilizer. The McElmurrays claim that the sludge contained metals and toxic constituents at concentrations high enough to be classified as hazardous waste in violation of state and federal environmental laws, and that application of the sludge damaged their crop lands and killed their cows.
In their multi-count complaint, the McElmurrays sought recovery of damages on theories of inverse condemnation, breach of contract, fraud, strict tort liability, negligence, products liability, nuisance, trespass, conversion, and violation of the Georgia Hazardous Site Response Act (HSRA). The trial court dismissed the inverse condemnation count for failure to state a claim for relief, awarded summary judgment to Augusta-Richmond County on the breach of contract count, and dismissed the remaining counts on the ground of sovereign immunity. For reasons which follow, we affirm in part and reverse in part.
In the late 1970's, the city developed a land application program as a means of disposing of sewage sludge from the Messerly treatment plant onto private farm land. The city contacted farmers, including the McElmurrays, to promote application of sewage sludge as a fertilizer. Beginning in 1979, the McElmurrays entered into a series of agreements under which they granted the city temporary licenses and easements for the spreading of sewage sludge upon described tracts of land. The city applied millions of gallons of sewage sludge on certain of the McElmurrays' fields beginning in 1979. Under the agreements, the city agreed to monitor sludge applications by testing the sludge for heavy metals and other constituents on a monthly basis and by recording the amount of sludge and levels of constituents applied to each field. In the late 1980's, the McElmurrays began experiencing significant problems with crop growth and production on their lands. Also, the McElmurrays' dairy cattle developed an immune system deficiency and, according to the McElmurrays, began dying in excessive numbers. As a result, the McElmurrays ceased participation in the land application program in 1990.
In their complaint, the McElmurrays alleged that from reviewing documents produced by the city in 1998 and 1999 during the pendency of federal litigation between the parties, they discovered that the city had concealed high concentrations of metals in sludge applications, and had misrepresented the quantity and quality of sludge applied to their lands in reports to them and to state environmental authorities. The McElmurrays further alleged that the city had let the sewage sludge become contaminated by allowing industrial wastes to be dumped into the sewer system.
In September 2001, the court entered an order dismissing the McElmurrays' claims against the city for inverse condemnation and for the various torts. As to the McElmurrays' inverse condemnation claim, the trial court was persuaded by the decision of the United States Claims Court in Janowsky v. United States, and by a comparison of Georgia Supreme Court and Court of Appeals decisions in Knight v. Dept. of Transp. and Bray v. Houston County with the Georgia Court of Appeals decision in Shealy v. Unified Govt. of Athens-Clarke County, that an inver
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