lawsuit filed against cedar grove composting
DESCRIPTION
EverettTRANSCRIPT
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413 Eighth Street
Hoquiam, WA 98550 ST RITM ATT ER KE SSL E R WHE L AN COL UCCI O Tel: 360-533-2710
ALEX JEFFREY, A SINGLE MAN; ERIC JEFFREY, A SINGLE MAN; ALAN SIMMONS, A SINGLE MAN; STEPHANIE JUNOT, A SINGLE WOMAN; JEFFREY KING AND ALISA KING, HUSBAND AND WIFE; BRIANNE KING, MINOR, BY AND THROUGH ALISA KING; RONALD KIRKPATRICK AND MARYLAND KIRKPATRICK, HUSBAND AND WIFE; RONALD LAMBERT, A SINGLE MAN; SCOTT LARSON, A SINGLE MAN; CAROL OLSON, A SINGLE WOMAN; HANNAH OLSON, MINOR, BY AND THROUGH SCOTT LARSON; RIELLY PABLO, MINOR, BY AND THROUGH CAROL OLSON; SIERRA PABLO, MINOR, BY AND THROUGH CAROL OLSON;WILLARD LARSON AND ESTHER LARSON, HUSBAND AND WIFE; JOAN LJUNGQUIST, A SINGLE WOMAN; SLAWOMIR LOBROW AND LIDIA LOBROW, HUSBAND AND WIFE; DEAN MAAS AND JILL MAAS, HUSBAND AND WIFE; BRUCE MACAULAY AND DEBORAH MACAULAY, HUSBAND AND WIFE; JERRY MANSFIELD AND LISA MANSFIELD, HUSBAND AND WIFE; WENDY MCKENNA, A SINGLE WOMAN; RICHARD WEAVER, A SINGLE MAN; TERENCE MIRANDA AND PATRICIA MIRANDA, HUSBAND AND WIFE; JAMES MOFFAT AND GAYLE MOFFAT, HUSBAND AND WIFE; BYRON MUCK AND KIM MUCK, HUSBAND AND WIFE; LENORE OLSEN, A SINGLE WOMAN; PAUL OLSON, A SINGLE MAN; ROBERT PERIGARD AND FRANCES PERIGARD, HUSBAND AND WIFE; ELIZABETH PETERSEN, A SINGLE WOMAN; RUSSELL R. PETERSEN, A SINGLE MAN; RUSSELL L. PETERSEN, A SINGLE MAN; ANTHONY AND DENISE PONTRANTOLFI, HUSBAND AND
COMPLAINT - 3
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WIFE; ZACKARY PONTRANTOLFI, A SINGLE MAN; KRISTIAN POULSEN AND MARY POULSEN, HUSBAND AND WIFE; AND PHIL REEVES AND JUDY REEVES, HUSBAND AND WIFE,
Plaintiffs, v. CEDAR GROVE COMPOSTING, INC., A CORPORATION, Defendant.
I. INTRODUCTION
1. Plaintiffs are individuals with property and possessory interests and are residents of
Snohomish County, Washington.
2. Plaintiffs bring this action for monetary damages against Cedar Grove Composting, Inc.
(hereafter referred to as “Cedar Grove”) arising out of Cedar Grove’s tortious conduct
and operation of its commercial composting facility (hereafter referred to as “Cedar
Grove Facility”) located in Everett, Snohomish County, Washington.
3. Cedar Grove’s operations have created a nuisance through the recurrent off-site
emissions of noxious odors. As a proximate consequence of Cedar Grove’s tortious
conduct, Plaintiffs have suffered, and will continue to suffer, damages including, but not
limited to: (1) the loss of use and enjoyment of their properties; (2) substantial and
unreasonable interference with the quiet use and enjoyment of their property; and, (3)
annoyance, inconvenience and substantial personal discomfort.
COMPLAINT - 4
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II. PARTIES
4. Plaintiff Michael Boggess, a single man, owns and resides at property located at 9018
44th Place NE in Marysville, Snohomish County, Washington.
5. Plaintiffs Steve Britsch and Melissa Britsch, husband and wife, own and reside at
property located at 5810 77th Avenue NE in Marysville, Snohomish County, Washington.
6. Plaintiff Betty Campbell, a single woman, owns and resides at property located at 5404
60th Place NE in Marysville, Snohomish County, Washington.
7. Plaintiff Michael Cockrum, a single man, owns and resides at property located at 7008
78th Drive NE in Marysville, Snohomish County, Washington.
8. Plaintiffs Michael Davis and Julie Davis, husband and wife, own and reside at property
located at 6917 70th Avenue NE in Marysville, Snohomish County, Washington.
9. Plaintiffs Michael Deskins and Marilyn Deskins, husband and wife, Plaintiff Danielle
Deskins, a single woman, and Minor Plaintiff Nicole Deskins, by and through Michael
Deskins, own and reside at property located at 5016 85th Place NE in Marysville,
Snohomish County, Washington.
10. Plaintiffs John Goldsbury and Kelli Goldsbury, husband and wife, own and reside at
property located at 4723 68th Drive NE in Marysville, Snohomish County, Washington.
11. Plaintiffs Steve Grimsley and Kelly Grimsley, husband and wife, Plaintiff Kaitlyn
Grimsley, a single woman, and Plaintiff Emily Grimsley, a single woman, own and reside
at property located at 4313 58th Drive NE in Marysville, Snohomish County, Washington.
12. Plaintiffs Cody Hankins and Alicia Hankins, husband and wife, and Minor Plaintiffs
Bailey Hankins, Tristan Hankins, and Sean Hankins, by and through Cody Hankins, own
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and reside at property located at 6706 84th Drive NE in Marysville, Snohomish County,
Washington.
13. Plaintiffs Anthony Ivanjack and Juanita Ivanjack, husband and wife, own and reside at
property located at 7614 80th Avenue NE in Marysville, Snohomish County, Washington.
14. Plaintiff Sara Jeffers-Atchley, a single woman, owns and resides at property located at
3416 68th Drive NE in Marysville, Snohomish County, Washington.
15. Plaintiffs Gary Jeffrey and Mary Jeffrey, husband and wife, Plaintiff Alex Jeffrey, a
single man, and Plaintiff Eric Jeffrey, a single man, own and reside at property located at
4722 68th Drive NE in Marysville, Snohomish County, Washington.
16. Plaintiff Alex Simmons, a single man, and Plaintiff Stephanie Junot, a single woman,
own and reside at property located at 5902 46th Street NE in Marysville, Snohomish
County, Washington.
17. Plaintiffs Jeffrey King and Alisa King, husband and wife, and Minor Plaintiff Brianne
King, by and through Alisa King, own and reside at property located at 5714 67th Street
NE in Marysville, Snohomish County, Washington.
18. Plaintiffs Ronald Kirkpatrick and Maryland Kirkpatrick, husband and wife, own and
reside at property located at 5415 59th Place NE in Marysville, Snohomish County,
Washington.
19. Plaintiff Ronald Lambert, a single man, owns and resides at property located at 5900 64th
Street NE, Space 76, in Marysville, Snohomish County, Washington.
20. Plaintiff Scott Larson, a single man, Plaintiff Carol Olson, a single woman, Minor
Plaintiff, Hannah Larson, by and through Scott Larson, and Minor Plaintiffs Rielly Pablo
and Sierra Pablo, by and through Carol Olson, own and reside at property located at 6320
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56th Drive NE in Marysville, Snohomish County, Washington.
21. Plaintiffs Willard Larson and Esther Larson, husband and wife, own and reside at
property located at 5220 61st Street NE in Marysville, Snohomish County, Washington.
22. Plaintiff Joan Ljungquist, a single woman, owns and resides at property located at 1001
East Marine View Drive Apartment E-25 in Everett, King County, Washington.
23. Plaintiffs Slawomir Lobrow and Lidia Lobrow, husband and wife, own and reside at
property located at 4412 58th Drive NE in Marysville, Snohomish County, Washington.
24. Plaintiffs Dean Maas and Jill Maas, husband and wife, own and reside at property located
at 4621 71st Drive NE in Marysville, Snohomish County, Washington.
25. Plaintiffs Bruce Macaulay and Deborah Macaulay, husband and wife, own and reside at
property located at 6747 71st Street NE in Marysville, Snohomish County, Washington.
26. Plaintiffs Jerry Mansfield and Lisa Mansfield, husband and wife, own and reside at
property located at 4404 58th Drive NE in Marysville, Snohomish County, Washington.
27. Plaintiff Wendy McKenna, a single woman, and Plaintiff Richard Weaver, a single man,
own and reside at property located at 6908 78th Drive NE in Marysville, Snohomish
County, Washington.
28. Plaintiffs Terence Miranda and Patricia Miranda, husband and wife, own and reside at
property located at 6904 78th Drive NE in Marysville, Snohomish County, Washington.
29. Plaintiffs James Moffat and Gayle Moffat, husband and wife, own and reside at property
located at 5915 52nd Avenue NE in Marysville, Snohomish County, Washington.
30. Plaintiffs Byron Muck and Kim Muck, husband and wife, own and reside at property
located at 6010 44th Place NE in Marysville, Snohomish County, Washington.
COMPLAINT - 7
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31. Plaintiff Lenore Olsen, a single woman, owns and resides at property located at 6720 57th
Drive NE in Marysville, Snohomish County, Washington.
32. Plaintiff Paul Olson, a single man, owns and resides at property located at 6924 70th
Avenue NE in Marysville, Snohomish County, Washington.
33. Plaintiffs Robert Perigard and Frances Perigard, husband and wife, own and reside at
property located at 4307 59th Drive NE in Marysville, Snohomish County, Washington.
34. Plaintiff Elizabeth Petersen, a single woman, Plaintiff Russell R. Petersen, a single man,
and Plaintiff Russell L. Petersen, a single man, own and reside at property located at 1526
1st Street in Marysville, Snohomish County, Washington.
35. Plaintiffs Anthony Pontrantolfi and Denise Pontrantolfi, husband and wife, and Plaintiff
Zackary Pontrantolfi, a single man, own and reside at property located at 6502 66th Drive
NE in Marysville, Snohomish County, Washington.
36. Plaintiffs Kristian Poulsen and Mary Poulsen, husband and wife, own and reside at
property located at 6620 Sunnyside Boulevard in Marysville, Snohomish County,
Washington.
37. Plaintiffs Phil Reeves and Judy Reeves, husband and wife, own and reside at property
located at 7109 78th Drive NE in Marysville, Snohomish County, Washington.
38. Defendant Cedar Grove Composting, Inc., is a Washington corporation with its principal
place of business in King County located at 7343 E. Marginal Way South, Seattle,
Washington, 98108. Cedar Grove owns and operates the Cedar Grove Facility located at
3620 36th Place Northeast, Everett, Snohomish County, Washington, which is the source
of the harm.
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39. Motions to appoint Guardian Ad Litems for all minor Plaintiffs will be filed within thirty
(30) days of the filing of this Complaint.
III. JURISDICTION AND VENUE
40. This Court has jurisdiction pursuant to RCW 3.66.020. The damages sought by each
individual Plaintiff, are less than $75,000.00, the jurisdictional maximum limit of this
court.
41. Venue is proper pursuant to RCW 3.66.040. Plaintiffs reside in Snohomish County.
Defendant’s Cedar Grove Facility, which is the source of the harm and where Cedar
Grove maintains an office, is located in Snohomish County.
IV. THE FACTS
42. Plaintiffs, as a direct result of Cedar Grove’s tortious conduct, have been, and continue to
be, exposed to noxious odors emanating from the Cedar Grove Facility.
43. The nuisance suffered by Plaintiffs is a temporary nuisance in that it is abatable.
44. The nuisance suffered by Plaintiffs is continuous in that Cedar Grove’s tortious conduct
is recurrent. The noxious odors are being released on a recurrent basis and without a
permanent cessation of such releases and, by its conduct, Cedar Grove continues to have
new violations of the statutes and common law of the State of Washington.
45. The Cedar Grove Facility is a commercial composting facility which processes, through
biological degradation, up to 228,000 tons per year of organic waste including, but not
limited to, food waste.
46. The degradation process produces off-gases, including malodorous gases.
47. Malodorous gases, when released by composting operations, mix with the ambient air
and can be carried to surrounding areas.
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48. The manner by which Cedar Grove operates it commercial composting facility
accelerates the degradation process which, as a result, accelerates the production of off-
gases, including malodorous gases.
49. Cedar Grove has had knowledge that malodorous gases, have been, and continue to be,
released into the ambient air from the Cedar Grove Facility and has continued to allow
the malodorous gases to escape from the Cedar Grove Facility and reach Plaintiffs’
homes and properties.
50. Cedar Grove has failed to control and contain the volumes of malodorous gas generated
during its commercial composting operations.
51. Cedar Grove has failed to implement feasible and readily available off-gas collection
and treatment systems, and/or improved operating procedures, and/or reduce its feedstock
intake all of which would, if implemented properly, prevent the emission of malodorous
gases onto and around Plaintiffs’ properties.
CEDAR GROVE’S REGULATORY VIOLATIONS
52. Residents from the neighborhoods near the Cedar Grove Facility have continually and
frequently complained of the odors emanating from the Cedar Grove Facility and have
described the odors as, for example, rancid, repugnant, nauseating, obnoxious, absolutely
horrendous and rotten compost stench.
53. In 2011 the Puget Sound Clean Air Agency (“PSCAA”) performed 584 odor complaint
evaluations relating to complaints about odors emanating from the Cedar Grove Facility.
PSCAA inspectors’ evaluations confirmed that obnoxious odors emanating from the
Cedar Grove Facility were detectable at the homes of complainants. For example, on
COMPLAINT - 10
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Hoquiam, WA 98550 ST RITM ATT ER KE SSL E R WHE L AN COL UCCI O Tel: 360-533-2710
June 20, 2011, a PSCAA inspector found that the odor detected near the complainant’s
property was identical to the odor detected at the Cedar Grove Facility.
54. In 2012 the PSCAA performed over 600 odor complaint evaluations relating to
complaints about odors emanating from the Cedar Grove Facility. PSCAA inspectors’
evaluations included, on July 6, 2012, for example, that the PSCAA inspector noted a
strong odor of commercial compost, which he further described as a putrid odor, coming
from the Cedar Grove Facility.
55. PSCAA Regulation I, §9.11(a), provides that:
It shall be unlawful for any person to cause or allow the emission of any air contaminant in sufficient quantities and of such characteristics and duration as is, or is likely to be, injurious to human health, plant or animal life, or property, or which unreasonably interferes with enjoyment of life and property.
56. In just 2011 and 2012 the PSCAA has issued at least (7) seven Written Warnings to
Cedar Grove for violation of PSCAA Regulation I, §9.11(a).
57. The PSCAA has issued at least three (3) Notices of Violation to Cedar Grove for
failure to control odors from the Cedar Grove Facility citing violations of PSCAA
Regulation I, §9.11(a).
58. On July 14, 2012, The State of Washington Pollution Control Hearings Board
addressed Cedar Grove’s commercial composting operations in Everett and Maple
Valley. The Pollution Control Hearings Board noted, in part, that: “[T]here have been a
large number of odor complaints associated with Cedar Grove’s composting facilities.
The odors emanating from the facilities have interfered with the reasonable enjoyment of
life and property of a large number of surrounding residents.” Cedar Grove Composting,
Inc. v. Puget Sound Clean Air Agency, Findings of Fact, Conclusions of Law, and Order,
COMPLAINT - 11
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PHB NOS. 10-044, 10,045, 10-120, 10-130, 10-131, 10-132, 10-147, 10-148, 10-149, 10-
150 & 10-154, p65, (July 14, 2012).
59. Cedar Grove has violated WAC 173-350-220(4)(a), which provides, in part, that “The
owner or operator of a composting facility shall operate the facility to control dust,
nuisance odors, and other contaminants to prevent migration of air contamination beyond
property boundaries.”
V. CAUSES OF ACTION CAUSE ONE
(PUBLIC NUISANCE) 60. Plaintiffs adopt the allegations of paragraphs 1 through 59 as though fully set forth
herein.
61. RCWA 7.48.010 defines an actionable nuisance, in pertinent part, as:
…whatever is injurious to health or indecent or offensive to the senses, or an obstruction to the free use of property, so as to essentially interfere with the comfortable enjoyment of the life and property, is a nuisance and the subject of an action for damages and other further relief.
62. “Such action may be brought by any person whose property is, or whose patrons or
employees are, injuriously affected or whose personal enjoyment is lessened by the
nuisance.” RCWA 7.48.020.
63. A public nuisance is one which affects equally the rights of an entire community or
neighborhood, although the extent of the damage may be unequal. RCWA 7.48.130.
64. It is a public nuisance to “erect, continue, or use any building, or other place, for the
exercise of any trade, employment, or manufacture, which by occasioning obnoxious
exhalations, offensive smells, or otherwise is offensive or dangerous to the health of
individuals or of the public.” RCW 7.48.140(7).
COMPLAINT - 12
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65. As a proximate consequence of Cedar Grove’s tortious conduct, Cedar Grove has
maintained a public nuisance.
66. As a proximate consequence of Cedar Grove’s tortious conduct, Plaintiffs have
incurred and will continue to incur an infringement of their private rights not common to
the general public.
67. “A private person may maintain a civil action for public nuisance, if it is specially
injurious to himself or herself but not otherwise.” RCWA 7.48.210.
68. Cedar Grove has acted unlawfully and/or omitted to perform a duty.
69. Cedar Grove’s unlawful act and/or its omission to perform a duty, annoyed, injured, or
endangered the comfort, repose, health or safety of each Plaintiff and was specially
injurious to each Plaintiff.
70. Cedar Grove’s act and/or omission was a proximate cause of the injury to Plaintiffs or
damage to Plaintiffs’ properties, has caused a substantial and unreasonable interference
with Plaintiffs’ interest in the private use and enjoyment of land and was specially
injurious to each Plaintiff.
71. As a proximate consequence of Cedar Grove’s tortious conduct, Plaintiffs have
incurred and will continue to incur damages, including, but not limited to, the following:
a) Annoyance, inconvenience and substantial personal discomfort;
b) Loss of use and enjoyment of their property; and,
c) Plaintiffs have been otherwise injured and damaged.
CAUSE TWO (PRIVATE NUISANCE)
72. In the alternative, Plaintiffs claim private nuisance.
COMPLAINT - 13
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Hoquiam, WA 98550 ST RITM ATT ER KE SSL E R WHE L AN COL UCCI O Tel: 360-533-2710
73. Plaintiffs adopt the allegations of paragraphs 1 through 59 as though fully set forth
herein.
74. RCWA 7.48.010 defines an actionable nuisance, in pertinent part, as:
…whatever is injurious to health or indecent or offensive to the senses, or an obstruction to the free use of property, so as to essentially interfere with the comfortable enjoyment of the life and property, is a nuisance and the subject of an action for damages and other further relief.
75. “Such action may be brought by any person whose property is, or whose patrons or
employees are, injuriously affected or whose personal enjoyment is lessened by the
nuisance.” RCWA 7.48.020.
76. A private nuisance is every nuisance not included in the definition of RCW 7.48.130.
RCWA 7.48.150.
77. Cedar Grove has acted unlawfully and/or omitted to perform a duty.
78. Cedar Grove’s unlawful act and/or its omission to perform a duty, annoyed, injured, or
endangered the comfort, repose, health or safety of each Plaintiff.
79. Cedar Grove’s act and/or omission was a proximate cause of the injury to Plaintiffs or
damage to Plaintiffs’ properties and has caused a substantial and unreasonable
interference with each Plaintiffs’ interest in the private use and enjoyment of land.
80. As a proximate consequence of the private nuisance created by the Cedar Grove
Facility, Plaintiffs have incurred and will continue to incur damages, including, but not
limited to, the following:
a) Annoyance, inconvenience and substantial personal discomfort;
b) Loss of use and enjoyment of their property; and,
c) Plaintiffs have been otherwise injured and damaged.
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PRAYER FOR RELIEF
WHEREFORE, Plaintiffs pray for judgment as follows:
1) An award of annoyance, inconvenience and discomfort damages to each individual
Plaintiff, in an amount to be proved at trial;
2) An award of loss of use and enjoyment of their property damages, in an amount to be
proved at trial;
3) An award of the costs and disbursements of this action and such other and further
relief as to the Court may deem just and proper; and,
4) Each individual Plaintiff seeks damages less than $75,000.
VI. JURY DEMAND
81. Plaintiffs demand a trial by jury on all issues triable to a jury by law.
DATED: January 23, 2013.
Paul L. Stritmatter, WSBA #4532 Brad J. Moore, WSBA #21802 413 8th Street Hoquiam, WA 98550 Phone: (360) 533-2710 Fax: (360) 532-8032 [email protected] [email protected] Todd S. Hageman (Pro Hac Vice to be filed shortly) The Simon Law Firm, P.C. 800 Market Street, Ste. 1700 St. Louis, Missouri 63101 Phone: (314) 241-2929 Fax: (314) 241-2029 [email protected]
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Zakariah Johnson (Pro Hac Vice to be filed shortly) Zakariah Johnson, PLLC PO Box 600017 Jacksonville, Florida 32260 Phone: (904) 553-7193
Fax: (904) 371-3645 [email protected]
Anthony Z. Roisman, (Pro Hac Vice to be filed shortly) National Legal Scholars Law Firm, P.C. 241 Poverty Lane - Unit 1 Lebanon, New Hampshire 03766 Phone: (603) 443-4162 Fax: (603) 443-4175 [email protected] Attorneys for Plaintiffs