LISBON - Columbiana County Health Board vice chairman Jack Amato was among four defendants who admitted to leasing property to A & L Salvage, but denied the rest of the claims made by the state in a civil case against the landfill.
"These defendants did not proximately and/or directly cause the damages being complained of by (Ohio Attorney General Richard Cordray)," the document filed this week in Common Pleas Court said.
Attorney Thomas Loepp of Stow filed the answer on behalf of Amato, Amato Properties, the Amato Family Trust and Jeffrey Aldrich in the case which named them as defendants.
Ronald Alexander, of Munroe Falls, was also listed as their attorney. Alexander performed legal work for the county health board at the same time A & L Salvage was trying to secure its original license to operate. Amato was a member of the board at the time.
Other affirmative defenses outlined in the answer for the Amato defendants included a claim that the plaintiff failed to mitigate the damages, and that the claims should be barred due to the doctrine of unclean hands. The doctrine of unclean hands means a party filing a lawsuit can't get relief if they've engaged in misconduct or acted in bad faith related to the complaint.
As for the landfill itself, the attorney representing A & L Salvage filed a document against the state's request for a preliminary injunction over the "rotten egg odors" at the site.
The memorandum claims the preliminary injunction will only delay what's necessary to fix the problem: properly closing and capping the facility located on state Route 45 outside Lisbon.
Judge C. Ashley Pike will hear testimony on the injunction at 1:30 p.m. Thursday.
Cordray's office filed the 20-count complaint on March 10 at the request of the Ohio Environmental Protection Agency. The construction and demolition debris landfill has been considered a nuisance by area residents for years because of the hydrogen sulfide smell and the dust and dirt left behind by trucks transporting materials into the site.
The landfill closed over a year ago. Up until then, the state had been working with the company in an effort to reach a settlement regarding numerous complaints and violations over their operation. Since then, they've been working to finalize a plan for the final closure and capping.
Through the preliminary injunction, the state wants A & L Salvage to cover the 42-acre dump site with an additional 12 inches of soil over what they've already used for cover in an effort to alleviate the smell. They want the action completed within six weeks of the order being issued.
That's a tall order, according to the memorandum filed by attorney Paul Coval of Columbus, who's representing A & L Salvage with attorney Kristin Watt. "Virtually impossible" was how he described the task in the six weeks requested.
He estimated it would take about 70,000 cubic yards of dirt to cover the 42 acres to a depth of 12 inches. Assuming a dump truck bringing the dirt from off-site can carry about 15 to 20 cubic yards, he said it would take 3,500 loads, assuming ideal weather and a five-day work week. He said it equates to "...at least 116 loads per day, more than 14 loads every hour, and more than one load every five minutes."
If enough dirt was found on the property, with an off-highway truck capable of carrying 31 cubic yards of dirt, the task would require more than 2,250 loads. Again assuming ideal weather and a five-day work week, the memorandum said "this equates to excavating, loading and hauling at least 75 loads per day, more than 10 loads every hour, and more than one load every six minutes."
He also pointed out the dirt would have to be graded and compacted, with Ohio's spring weather conditions sure to play a part.
"Moreover, if the landfill is wet and muddy, hauling and placing dirt on the landfill with heavy equipment could do more harm than potential good, particularly with respect to controlling gas emissions (e.g. creating ruts and disturbing areas that otherwise present no problems, which could lead to erosion or other problems)," the document said.
In the memorandum, Coval argued the company has taken numerous steps in an effort to stop the odors, including routine inspections, covering potential areas for smells with additional soil and removing leachate from the site. Leachate is the liquid which drains from the site.
"Properly closing and capping the facility (with the planned inclusion of a gas collection system and landfill gas combustion flare), is the best way to eliminate the alleged odor problem," the memorandum said.
The memorandum also questioned the claims of nuisance and danger to public health, referring to a 1997 class action nuisance lawsuit filed by neighboring property owners against Waste Technologies Industries over dust, odors and intangible substances from the site located in East Liverpool. WTI won the case, with the judge ruling no substantive evidence was presented to support the claim that the emissions posed a threat to the public.
The memorandum said no evidence has been submitted in the A & L case to support the claim that the odors are a threat to public health.
Mary Ann Greier can be reached at mgreier@salemnews.net
