PENLAND V. REDWOOD SANITARY SEWER SERV. DISTRICT 965 P.2d 433 (1998) CASE BRIEF

PENLAND V. REDWOOD SANITARY SEWER SERV. DISTRICT

965 P.2d 433 (1998)

NATURE OF THE CASE: Penland's (P) nuisance action against Redwood (D) was back before the court on remand from the Oregon Supreme Court who had reversed the decision that D was immune from liability for nuisance and could not have been enjoined.

FACTS: D operates sewage-related facilities, including a sewage treatment plant, in rural Josephine County. D instituted a composting operation at the treatment plant. Sludge is solidified by being poured into an outdoor levee, or 'drying ring,' which is exposed to the open air. After about two weeks, the material loses enough moisture to be mixed with organic material for composting. The reduced sludge, or bio-solids, is then mixed with organic materials, such as wood, animal bedding, including animal waste, and yard waste, provided by local residents and businesses. The bacteria in the sludge break down the mixture. In order for the bacteria to decompose the sludge, the mixture must be exposed to air. Thus, the mixture is placed in a large pile, approximately nine feet high, 20 feet wide, and 100 hundred feet long, and exposed to the open air. The composted material is first piled over a perforated pipe for aeration. After two to three weeks, the pile is removed from the pipe and is turned every two weeks for aeration. There are normally seven piles at one time, each in a different stage of the composting process. D uses heavy equipment to move the piles as they decompose and to load the finished product. If the sludge mixture is not aerated, it becomes anaerobic and, as a result, generates hydrogen sulfide. Hydrogen sulfide can cause headaches, nausea, and throat problems, and its odor is akin to that of rotten eggs. Hydrogen sulfide is generally released whenever a compost pile or the sludge pool is disturbed, but some level of hydrogen sulfide is always present as a result of the composting operation. Ps are landowners and homeowners who live in rural Josephine County near the plant and composting operation. The closest Ps, the Penlands (P), live about 180 feet from the property where the composting activities take place. Ps noticed the operation in October 1991 and in February 1992 complained to D that, because of the odor and noise they ascribed to the plant, they were unable to enjoy outdoor activities, such as gardening, sitting on their porches, and barbequing. Ps filed this action seeking to enjoin the continuation of the composting operation in that the operation created a nuisance in that it created excessive odor, noise, and dust and interfered with the reasonable use of their properties. Whether a condition constitutes a nuisance depends on its effect on 'an ordinarily reasonable [person], a normal person of ordinary habits and sensibilities. The trial court refused the injunctive relief and Ps appealed. The Supreme Court reversed and remanded as D was not immune from liability for a nuisance.

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LEGAL ANALYSIS:

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