The legal claim by the owner of a White County septic waste disposal facility that he has a constitutional right to spray his property with human waste is "laughable," county officials said in court filings this week.
The facility’s owner, meanwhile, claims the county’s efforts to regulate his business locally is pre-empted by state regulation already in place.
White County commissioners on Monday submitted a motion to dismiss a federal lawsuit brought by LHR Farms owner John Hulsey. Hulsey is suing the county over a pair of ordinances passed earlier this year that would see local officials regulate the locations of human waste applications and require businesses to get "non-conforming use permits" from White County.
LHR Farms sprays a combination of treated human and commercial waste over a 350-acre farm near Cleveland off U.S. 129, near the Hall County line. In operation since 1996, the business has come under increased criticism in recent years from nearby residents who claim it produces a foul odor.
White County commissioners passed the ordinance to give the local government regulatory control over current and future waste application areas, partly in response to constituent complaints and plans for another waste disposal business in the county.
Hulsey believes the ordinances could cripple his operations if he can’t meet the county’s subjective standards and is part of a conspiracy by White County commissioners to "drive LHR out of business."
Both sides agreed to a temporary injunction earlier this month that prevents enforcement of the ordinances until the legal dispute is settled.
In a motion filed in U.S. District Court this week, attorneys for White County cited a case in which a federal appeals court judge wrote that "disposition of waste is a highly regulated industry. A claim that the Constitution protects this industry from public control ... would bring nothing but belly laughs."
Currently the state Environmental Protection Division regulates waste disposal in Georgia. The EPD is preparing to advertise a notice on its draft permit for LHR Farms this week.
County officials maintain that the ordinances are within their "police powers" to protect the health and safety of White County residents.
Attorneys for Hulsey claim that without zoning in White County, the local ordinances regulating waste disposal is "worthless."
The lawsuit states that LHR "does not land-apply human waste; instead, it spray irrigates treated effluent derived from the treatment of commercial waste. Because this activity is regulated by the EPD, the ordinance is also pre-empted by state law."
Plaintiff’s attorney Barbara Gallo of the Atlanta law firm of Krevolin and Horst said the fact that EPD already regulates her client’s business is the central argument of his case. Any regulation by White County "has no objective standards by which LHR could know how it would meet the requirements," she said.
If the business didn’t have a county permit after 150 days, it would be in violation and be shut down, Gallo said. After a month out of operation, it would not qualify for an EPD permit, she said.
On Tuesday, LHR farms submitted a motion asking U.S. District Court Judge William C. O’Kelley to find the county ordinance invalid.
Kevin Morris, the attorney representing White County, said all counties are authorized to pass local legislation that would protect their citizens.
"We believe counties maintain the right to look after the heath, welfare and safety of its citizens, and this board of commissioners is intent on doing that," Morris said. "That’s what we think was done with this ordinance."