Posted by: Patricia Salkin | August 14, 2018

GA Appeals Court Holds Right to Farm Law Applies to Recycled Paper Mill

This post was authored by Amy Lavine, Esq.

A Georgia court held in March that a recycled paper mill constituted an “agricultural support facility” covered by the state’s right to farm law. The case arose when several nearby property owners filed a nuisance claim against Georgia Pacific, the operator of a recycled paper mill, which they claimed had interfered with the use and enjoyment of their homes. The paper mill was built and began operating prior to the construction of the plaintiffs’ homes, however, and because the court found that the paper mill was covered by the state’s right to farm law, the plaintiffs’ nuisance claims were barred. Georgia Pacific Consumer Prods. v. Ratner, 345 Ga. App. 434 (3/8/18).

The paper mill facility was built in 1986 and converted waste paper products into recycled tissue, towels, and napkins using mixed amounts of recycled and virgin fibers. The property also included a 130-acre sludge disposal site, which produced hydrogen sulfide gas. After the plaintiffs’ homes were built nearby in the early 2000s, they began complaining about the smell of the hydrogen sulfide as well as its corrosive effect on metal components on their property. The paper mill attempted to remediate the emissions and began paying to have the sludge removed from its property, but the plaintiffs nevertheless commenced this lawsuit.

Although the plaintiffs owned homes that were built across the street from a pre-existing paper mill, the court noted that Georgia generally doesn’t recognize the defense of “coming to the nuisance” as a complete bar to nuisance liability. Rather, the state’s “right to farm law” codified the “coming to the nuisance” defense for a limited class of agricultural land uses. The statute provided this protection, in particular, to “agricultural support facilities,” and so the question was whether or not this term included the paper mill property. Relevant to this issue, the term “agricultural support facility” was defined to include “forest products processing plants,” which was further defined as “a commercial operation that manufactures, packages, labels, distributes, or stores any forest product.” The court found that these terms could reasonably be interpreted to include the recycled paper mill. Moreover, protecting the mill from nuisance liability by finding that it was a “forest products processing plant” was consistent with the purpose of the right to farm law. As the court explained, “encouraging recycling conserves forest land and enables continued development of additional markets for distributing products made from wood fibers. Stated otherwise, recycling extends the useful life of wood fibers, which has both economic and conservation benefits that advance the stated purpose of the “right to farm” statute.”

The court next considered whether the paper mill was operated in manner that might have excluded it from the protection of the right to farm law, which specified that it would not apply to negligently or illegally operated facilities. Although the plaintiffs contended that the paper mill was operating in a negligent manner because of its hydrogen sulfide emissions, the court did not agree and found that the record failed to demonstrate any improper operation of the mill. As the court noted, no permits were necessary for the paper mill’s hydrogen sulfide emissions, and thus it was not in violation of any environmental regulations or permitting requirements. The paper mill had also undertaken numerous mitigation measures in excess of anything it was required to do by law, and its expert testified that there was nothing else it could have done to reduce the impacts of its hydrogen sulfide emissions.

The court also dismissed the plaintiffs’ trespass claims because they failed to show that the injuries to their property had resulted from any unlawful operation of the paper mill. As the court explained, “any relevant injuries to the Plaintiffs are the consequences that flow from an act that is not wrongful in and of itself, i.e., a nuisance and not a trespass.” And because the paper mill was exempt from nuisance liability under the right to farm law, the plaintiffs’ attempt to rephrase their nuisance claims as actions for trespass necessarily failed.

Georgia Pacific Consumer Prods. v. Ratner, 345 Ga. App. 434 (3/8/18).

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