A significant number of Ohio landfills are or were formerly operated political subdivisions such as counties, cities, and regional waste authorities. A recent decision has expanded the potential liability for not only current municipal landfill operators, but also for municipalities who operated landfills years ago.
The Ohio First District Court of Appeals analyzed the extent to which municipal landfill operators are entitled to immunity in the case of Barge v. City of St. Bernard (2011), 195 Ohio App. 3d 28, 2001 Ohio 3573. The City of St. Bernard had ceased operating a landfill in 1995. However, 25 years later, a class action lawsuit was brought alleging that dangerous levels of methane and volatile compounds continue to emanate from the former landfill property, endangering the nearby homeowners. The City of St. Bernard filed a motion to dismiss arguing that the operation of a solid-waste disposal facility is an immune governmental function under R.C. 2744.01(C)(2)(k). The plaintiffs however alleged that the City had lost its immunity because it had accepted certain hazardous, demolition, and liquid wastes for burial.
The trial court denied the City’s motion to dismiss and the Court the Appeals affirmed, finding that the City was not immune from liability because only the operation of a “solid waste” landfill is considered to be an immune governmental function. The operation of a landfill which accepts hazardous, liquid and demolition wastes is considered to be a proprietary function for which no immunity applies.
Perhaps the most troubling aspect of this decision is that the court implicitly recognized that a lawsuit could be maintained even though the City of St. Bernard had ceased accepting new waste 25 years ago. Ohio has numerous landfills which stopped operations due to the lack of space for new solid waste. The decision illustrates that class action lawsuits may be brought against municipal landfill operators who ceased active operations many years ago. Plaintiff class action lawyers can defeat a motion to dismiss premised on the grounds of immunity just by alleging that the landfill accepted some forms of waste which would cause the operation of the landfill to be deemed a proprietary as opposed to a governmental function. It remains to be seen whether the decision in the St. Bernard case will lead to other class action lawsuits against other current and former municipal landfill operators.
Should you have any questions regarding this decision, or any other issue of municipal or governmental liability, please contact any of our Governmental and Public Entity Practice Group Members.
