Part 1

Cold Creek Compost On Trial

by Roanne Withers

Sour garbage. Urine. Rotten eggs. Outhouse. Rotten fish. Stagnant water. Rotten tobacco. Kitty litter box. Sewage. Spoiled food...

For 108 random Potter Valley days every year — over the last decade — the five plaintiffs in Preserve Country Neighborhoods vs. Martin Mileck and Buck Guntly have been subjected to "offensive, foul, putrid odors, stench, dust and noise" emanating from Martin Mileck's Cold Creek compost facility.

The large commercial compost operation is located between Potter Valley Road and Highway 20 on top of a ridge in the middle of several thousand acres of rangeland owned by Buck Guntly. Guntly subdivided his ranch 30 years ago, creating the numerous 2 to 40 acre parcels which the complaining neighbors now own. He runs cattle and sheep on the rest of his land.

The lawsuit against Mileck and Guntly was filed in 1998. The nuisance and damages portion of the case is being heard by a 12-member jury at Ukiah Superior Court March 8 through the 18th. (The deficient Environmental Impact Report portion of the case was tried and lost by Preserve Country Neighborhoods about three years ago. This decision is waiting in the wings to be appealed when a decision is reached in this portion of the lawsuit.)

Janet Meaders, one of the complainants, is a trim, plainly dressed, soft-spoken woman in her late 40s who radiates good health and simple, clean beauty. She has worked as a secretary at the Potter Valley elementary school since 1982. Mrs. Meaders and her husband purchased 18 acres high on a ridge-top near Potter Valley Road in 1976 when their first child, a daughter, was four months old. The young couple left LA for a better life in Mendocino County with little more than a hope and prayer. They struggled financially, started a small trucking business, eventually divorced. But over two decades they were able to raise their children and build a three-bedroom home, shop, playhouse and an extensive garden. Mrs. Meaders also boards horses and mules along with some sheep to help make ends meet.

"My whole life is this home. It's my dream home, my sanctuary. I don't want to sell. Where would I go? I can't start over now. I don't have a degree. I'm a secretary. Where can I get a job? I've put everything into my home. I know how to sew and grow flowers. Everyone in Potter Valley knows my flowers."

Mrs. Meaders went on to testify that there have been countless days over the last ten years (she has kept a journal since 1994) that the stench wafting over the canyon from the compost facility located on the next ridge-top over from hers was so bad that it has often made her gag, or throw-up, or makes her throat ache, or has given her headaches. She cannot enjoy, nor work, in her beloved garden. She has to go inside, shut her windows and burn incense, or leave altogether to get away from the smell.

The stench fouls the otherwise perfectly still country air mostly in the early evenings of spring, summer and fall. Often it comes after she has put in a hard day at the school and would like to relax and unwind with her flowers. Her women friends, who used to come over to sew with her in the evenings, were forced to leave because the smell was so bad. Mrs. Meaders can never plan when to leave to escape the smell or when to have company. The putrid odors come and go on their own unpredictable schedule. Sometimes they last only a few minutes. Sometimes the overwhelming stench lasts for hours. It comes in the mornings, the evenings and in the middle of the night.

"For nearly eight years I was treated by the county staff like I was a crazy person when I called to complain about the stench. It's humiliating to be treated this way for so long." She wrote out of frustration one night in her journal, "I want to puke on everyone for making me smell shit!" She wept on the stand over the indignity of reliving her extreme frustration in public.

Starting in 1994, Mrs. Meaders first called the County Building and Planning office about the smell. She was told to call Air Quality to complain. Then she was told Air Quality was not the right agency to complain to, that she should call Environmental Health. She documented the bureaucratic run around in her journal which she had started in order to keep track of all the names and phone numbers of the agencies that she tried to get some response from. Someone would drive out the next day, or a few days later, or not at all, and then write in reports that no odor was detected. Finally in 2000 (two years after she joined together with other impacted neighbors and filed the subject lawsuit), the County Environmental Health division gave her a pager number of a staff person who lived in Redwood Valley who was assigned to drive up to her house day or night to verify her reports of the smell.

Testimony from county staff verified Mrs. Meaders' complaints of the horrific odor. Extensively, thoroughly and completely for over two years. Martin Mileck was informed each time the odor was verified by county staff but was never asked or required to do anything about it. In 2003, Mrs. Meaders was told to stop calling. No further complaints would be verified.

On cross examination by Frank Bacik, one of the Mileck-Guntly attorneys defending them against the lawsuit, Mrs. Meaders was accused of smelling the manure of her own horses, mules and sheep, and her own compost pile. She was also berated for not driving over to the compost facility to make sure that was where the odor was coming from. How did she know for a fact that the odor was not her next door neighbor's leaking septic tank, or a dead deer? Implied in Bacik's tone was that Mrs. Meaders was an utter crack-pot. She isn't. Her testimony was clear; her claims substantiated in the official files.

It was a big mistake by Jared Carter's law firm to have Bacik work over Mrs. Meaders. He's hugely overweight, with a surly, curled Dick-Cheney lip. His questioning style is to whine, degrade and humiliate witnesses. (On the other hand, Jenny Chandler, lead counsel for Mileck-Guntly is pleasant and dignified.) Mrs. Meaders serenely held her own with the repulsive, villainous Bacik.

So far, the jury has also learned through a day-and-a-half of questioning of Pam Townsend (the county planner in charge of the Cold Creek compost facility permits since the beginning) by plaintiffs' co-counsel, Rod Jones, that the County required Mileck to produce an Odor Management Plan, but did nothing, absolutely nothing, to make sure that it was implemented, even after Mrs. Meaders' odor complaints had been verified.

The jury also learned that the County, for over a decade, has shirked and ducked every obligation it has to enforce its basic land-use laws in terms of the compost facility, even though Ms. Townsend and other staff eventually recommended the permit be revoked a couple of years ago for non-compliance with several of its terms and conditions. Townsend's excuse for the look-the-other-way orders that clearly came from Planning and Building Director Ray Hall was, "The project is evolving."

Preserve Country Neighborhoods' lead attorney, Pano Stephens, a Ukiah-based personal injury attorney and compost facility neighbor himself, called several neighbors to the stand over the next four days who are not party to the lawsuit. All testified of unbearably nauseating, revolting, repulsive, eye-watering, throat-gagging dead animal and fecal matter smells coming from the Mileck enterprise. These were an eclectic group representing the wide range of types we all live with in Mendocino county — a hippy woman, a Latina, the operations manager of Plowshares, and Dr. Richard McClintock, a widely respected dermatologist with degrees from Harvard and Dartmouth — all Potter Valley residents for two to three decades. Several of these witnesses added complaints about the semi-truck traffic jake brake noise as the vehicles wind their way down the long curvy road from the top of the compost site to Potter Valley Road on weekends, nights and holidays. The truck trips are supposed to be limited in the permit to weekday business hours.

The other primary aggrieved neighbor the jury heard from last week, Lulu Miller, is not as bothered by the smell as Mrs. Meaders. The location of the 2.5 acres she and her husband bought and built their retirement home on 29 years ago is located lower down the canyon side from Mrs. Meaders' property. Mrs. Miller worked as a waitress at a country club for 21 years. Her husband of 58 years was a Bay area chemical plant manager, retiring in 1975 from Chevron. Mrs. Miller's main complaint is about dust coming from the road up to the compost facility as the feedstock delivery trucks come and go 40 times a day. She said the dust was so bad at times one couldn't see the sky. Mileck is suppose to have a water truck working on the road to keep the dust down every day. He waters only sporadically.

Mrs. Miller has 22 towels that she places on the floor throughout her house to keep the dust from covering and ruining her carpet. Every day she picks up all the towels and shakes them outside. She launders them once a week. She used to lay sheets on the floor, but now, in her advanced years, the sheets are too cumbersome to manage. Her husband has to hose their deck off before they can use it. All the couple's plants and trees are perpetually covered in dust. The fish pond fills up with fine mud every day. They try to have their morning coffee on the deck before the trucks start, otherwise they are imprisoned in their home with the windows shut.

Buck Guntly, the old-timer owner of thousands of acres throughout Potter Valley, and the owner of compost facility site, will not be attending the trial. Mr. Mileck sits in court every day all alone listening to the plaintiffs' decade of suffering. He squirms and laughs occasionally. His usual facial expression is a portrait in Stan Laurel idiocy.

Mileck spent a total of $65,000 for an Odor Assessment Report for the trial and for testimony from a nationwide soils and compost facility expert, Elliot Epstein, Ph.D. Most of Epstein's testimony and report actually favored those suing Mileck. But Dr. Epstein clearly had an ideological ax to grind. He kept repeating over and over, "If people perceive that something will make them ill, this will prevent projects from going forward." He was straining to make the junk-science point that when your nose smells something that makes you sick, this should not be taken as a warning that you might be in danger and should get away, but that you are nuts and shouldn't be allowed to stop economic progress. Epstein is much in demand as an "expert witness." Want to do something nasty in a residential neighborhood? Dr. Epstein is available if the money's right.

Mr. Stephens, a dapper, silver-haired old-school gentleman is the antithesis of the sleazy personal injury attorney who advertises on TV. Stephens is mannerly and soft-spoken. The jury really likes him and several openly laughed as he quietly and smoothly eviscerated Mileck's odor expert on Thursday, the fourth day of the eight day trial.

The list of odors at the beginning of this article are those noted by Dr. Epstein's EPA certified odor panel — 12 independent individuals who were asked to described the 16 sample smells taken from various areas of the Cold Creek compost facility by Dr. Epstein's staff. None of the recommendations made in Epstein's (Tetra Tech) 2002 report to alleviate these odors have been implemented by Mileck.

The tone of the trial and the bias of the judge was set early on during the first day of jury selection. Judge Leonard La Casse conducted a sloppy voir dire (questioning for bias, or personal acquaintance with the parties involved) of the potential jurors. Usually a judge will start the voir dire by asking the basics: name, occupation, knowledge of the case, and so forth. Then the attorneys will probe the jurors with further, more revealing questions in order to get a sense of how the jurors might perceive the case as it proceeds through trial.

But, La Casse failed to ask the basic questions at the beginning and then chastised Pano Stephens for taking up too much time in his questioning. (The defense gets the benefit of asking its questions last.) La Casse was clearly irritated with Stephens which could have given the jury the impression that he thinks the lawsuit is frivolous. However, as the trial has proceeded La Casse seems to have come to the understanding that it is anything but.

The jury is comprised of six women and six men, They're the kind of solid people anyone would want as a jury. Most of them are making big sacrifices to hear the case. Many potential and actual jurors complained about not being able to make the mortgage or rent if they lost two week's wages on being selected. Only two potential jurors out of twenty-five admitted ever writing a letter to the editor about a particular issue they cared about. Another two admitted they had read about the issue in the paper. No potential juror had ever purchased Agri-Grow, the name of the compost made by Mileck, even though most were gardeners and had purchased compost at one time or another.

Several of the prospective jurors, in answers to the attorneys' questions, used their strongly unfavorable opinions about the compost facility and defense witnesses to get themselves bumped off the jury. A Redwood Valley teacher said he, "had trouble with Mike Sweeney." Another said, "There is no way I'd believe anything Michael Sweeney has to say." And yet another said, "When the powers that be want something done, it gets done regardless of how the average person feels about it." These three did not make it to the final jury, but the seated jurors heard it all.

Mike Sweeney, a witness for the defense next week, is the long-time, and highly controversial, head of the County's recycling program. His job is to reduce the county's garbage that would otherwise go into landfills. He orchestrated a $500,000 low-interest public money loan for Mileck to build the compost facility in the mid-90s before Mileck had obtained the required permits.

Sweeney has his job insurance and Mileck's neighbors have ruined lives, homes, stink, noise and dust — all at taxpayer expense.

~ end of Part 1 ~

Part 2

A Rare Win for the People

by Roanne Withers

"Mr. Mileck, are you aware that there have been numerous complaints of offensive, putrid odors coming from your compost facility?" asked Pano Stephens, attorney for Mileck's long-suffering Potter Valley neighbors.

Mileck responded, "Yes."

Stephens: "Did you attend meetings with County officials regarding these verified odor complaints?"

Mileck: "Yes."

Stephens: "Did you ever document what you did to address the verified odor complaints?"

Mileck: "I don't recall."

Stephens: "Did you ever use any biofilters, scrubbers, indoor enclosures, odor neutralizers or deodorizers to minimize the odor as recommended by County staff?"

Mileck: "No. I thought about putting in a pig farm to mask the smell."

Mileck wasn't kidding, and he was the only person laughing.

So began the second week of the two-week jury trial of Preserve County Neighborhoods versus Martin Mileck and Charles "Buck" Guntly.

Mileck was called to the stand — to his surprise — first thing Monday morning as a witness for those suing him for monetary damages for causing a major nuisance to their lives and homes with the stench, dust and noise emanating from his Potter Valley compost operation.

Throughout his questioning by Stephens, Mileck not only expressed antagonism towards his neighbors, he expressed derision for government regulations and staff. "They don't know what they are doing," Mileck declared.

It also appeared that Mileck didn't know very much about his compost business either, although he admitted visiting it regularly in his Corvette.

Mileck told the jury that he had made compost at various locations in and outside of Mendocino County over many years before starting Cold Creek in 1994, adding that he often read composting periodicals but did not have any formal training in the industry and hadn't attended any institutional compost classes or workshops.

Cross examination by Mileck's attorney, Jenny Chandler, revealed that it costs Mileck nearly $1 million a year to operate the compost facility above the Russian River. $240,000 of this is labor cost. No mention of his net profit, however, but it would seem to be very large.

The jury also learned that Mileck imported chicken manure, wine grape pumice, and other raw, smelly "feedstocks" from Lake, Napa, Humboldt, and Sonoma counties, all of which is ground up to make his Agri-Grow compost product.

In an attempt to portray her client as a helpless victim of rabid obstructionists and dithering government bureaucrats, Chandler asked Mileck to detail his $300,000 in legal costs previous to this trial. But what Mileck didn't tell the jury was that in 1995 the Ukiah-based Mendocino Environment Center and some of the neighbors had prevailed in a lawsuit that required Mendocino County to withdraw its approval of Mileck's facility until Mileck had completed an Environmental Impact Report (EIR) for it.

Unreasonable? Only if one assumes that an industrial composting operation plunked down in an area zoned for agriculture and a smattering of rural residences is reasonable.

At issue in the 1995 case against Mileck was Mileck's desire to compost human excrement, aka biosolids, and a variety of other types of highly toxic refuse with little or no pollution controls. Mileck was allowed by the judge ruling in this case to continue operating the compost facility without the additional toxic feedstocks until the EIR was completed; both it and a new permit were eventually approved by the Mendocino County Board of Supervisors.

Early on, Mileck had signed an Indemnification Agreement with the County, meaning that he had to defend the first lawsuit even though it was against the County for ignoring state law requirements when the County approved Mileck's compost operation. When he lost the '95 suit, Mileck had to pay his and the other side's court costs and attorney fees. He also had to pay for the court ordered EIR. Moreover, in this first 1995 round of litigation involving the absence of an environmental impact report, Mileck had to pay $300,000 for his objection to putting any effort into getting along with his rural neighbors and for the County's elected officials' willingness to go along with Mileck's boorishness. The supervisors and Mileck essentially said Mileck could befoul the neighborhood without doing anything to mitigate the foulness of his composting operation. Mileck should have learned his lesson about getting along with his neighbors and the environment he and they both inhabit.

Mileck told the jury that he fancies himself more of an entrepreneur than a composter. Throughout the trial Mileck was casually dressed in various shades of white. Usually a defendant sits with his attorneys at their table. Not Mileck. This may have been because the contrast between Mileck's diminutive size and his co-counsel Frank Bacik's six foot plus, 4-X bulging hulk would have been just too visually jarring, a little man in virginal white posted next to a great big bag of Big Macs. Still, Mileck should have been told by his high priced attorneys to sit in the audience where the jury could see him and, perhaps, advised him to look victimized. Instead, Mileck sat way off to the side of the large room where the jury had to strain to see him. Attorneys often try to hide unruly or repugnant clients from the jury in this way, and they seem to have assumed that Mileck's clean white sartorial presentation wasn't enough to offset his arrogant demeanor.

Several more witnesses were called by both sides in the ensuing three days. Mostly, the jury heard from several neighbors called by Mileck's defense who testified that they had never smelled any odor, never heard any noise from the facility, never noticed any dust whatsoever except from their own yards and the summer dust from the neighborhood's dirt roads.

But under cross examination by Stephens, it became apparent that all of the sightless, deaf and odor-oblivious neighbors had been organized by the non-testifying husband of one of the witnesses because, "People were trying to shut down Cold Creek Compost." (Which is almost an exact quote of the 1998 Press Democrat's headline regarding the filing of this lawsuit.) None of the witnesses knew that the facility's off-site stench, dust and noise had been verified by several different regulatory authorities. It was speculated outside court that the conveniently undisturbed neighbors were long-time friends of Buck Guntly, the Potter Valley rancher on whose property sits Mileck's lucrative lease, Cold Creek Compost.

Preserve County Neighborhoods complainant Gary Rasche took the stand on Monday just after Mileck. Mr. Rasche owns 1600 acres and a 10-bedroom ranch house built in 1879 (and purchased by his grandfather in 1919). Rasche's land borders Mileck's site. A section of it sits just downhill from the dozens of football field long windrow piles of raw manure, or rotting food, or decomposing plant debris, and from mixed-together windrows of cooking or completed compost. Whenever it rains, the "leachate" — water laden with whatever is in each of the windrows — runs in stinking rivulets onto Rasche's land.

Mr. Rasche lives in Santa Rosa and spends three or four days a week on the ranch in the summer months. He leases out acreage for hay farming, and donates the use of his land, and the recently refurbished home, to groups of deer- and elk-hunters, and horseback riders. In his mid-60s, Mr. Rasche obviously relishes the role of grand host and is a generous donor of his land and grandfather's home for a myriad of civic fund-raisers. He also likes to hunt. He said that four days out of seven in the summer his land (to various degrees depending on how close one comes to the compost site) smells like "the cut open stomach of a deer," or "when you pop the lid to the septic tank." The first time he smelled the odor, in 1993, he took a walk up to the compost site in the late afternoon after the weather had cooled down. There he saw piles of remains from a slaughterhouse baking in the sun, wood with nails in it, grass and sticks. In 2003, the Sonoma County Trailblazer horseback riding group had to cancel its annual rodeo mid-event and send its 300 members home because the smell combined with the heat was so bad.

In order to educate the jury about what the actual range of monetary damage to property and rental values that had occurred to plaintiffs Jan Meaders, Mr. and Mrs. Miller, Marjorie Belts, and Gary Rasche, real-estate appraisers were put on the stand by both sides. Gilbert Kuhm, Preserve County Neighborhoods' appraiser, stated that he was hired to "evaluate the minimal impact from a nuisance and quantify it." The example he used was to take the jury through the process of how an appraiser determines the "value diminution" of a home located in a high traffic volume area. He showed exactly how and why it will sell for 2-12% less than a comparable home located in a quiet, residential neighborhood. In the case of the nuisance being a cattle feedlot or dairy, the range is 30-60% less. He could find no examples of any homes located near compost facilities with which to conduct this value diminution review. Kuhm also reviewed property value loss due to "stigma" — a haunted house, or a property where a notorious murder took place devalues because of publicity and public perception.

Kuhm concluded that the plaintiffs' property value and stigma loss due to the stench, noise and dust was somewhere between 10 and 25%. In addition to this devaluation, Dick Selzer, of Selzer Realty World, also testified that he had visited the plaintiffs' homes and calculated the comparable rental values of each, taking into account that the stench, noise and dust was sporadic. Selzer concluded the rental values had diminished over 50%.

Mendocino Coast appraiser Chet Boddy appeared for Mileck for a $5,000 fee to dispute Kuhm's property value loss estimate. In the end, after prolonged questioning by the attorneys, Boddy could not swear that Kuhm's work was inaccurate, just that Kuhm had failed to provide a written report (from his notes and backup information which Boddy admitted he was given to review). Several jurors slept through this part of the testimony.

Nor did defense attorney Chandler wake up the jury by putting a droning noise expert and more government regulatory staff on the stand. Jurors eyes popped open, however, when Stephens was able to get Chandler's extremely defiant and defense-friendly Air Quality staffer to admit that after nine years of verified complaints, Air Quality was still "in discussions" about what to do about Mileck ignoring his two miles of dusty road and odor suppression permit requirements. Also, this staff person finally admitted that Mileck's dust suppression water truck had caught fire and burned up in 2002.

Michael Sweeney, the general manager of the Mendocino County Solid Waste Management Authority since 1994 (and a consultant to it for three years before that) told the jury that he was part of a task force that "reviewed sites for the Mileck compost facility."

But as a witness for Mileck, Sweeney "didn't remember what the task force ultimately decided." (You can safely bet it wasn't the compost facility's current site.) Sweeney also "may have been, but didn't recall, if he was personally acquainted with Mileck." Sweeney said he "may have lobbied elected officials" and "may have written letters in support" of Mileck's $500,000-plus low interest public money loan application to the state's Solid Integrated Waste Management Board, but he "didn't remember doing so."

(Everyone involved in the "garbage issue" in the early to mid-90s, including myself, not only recall but possess documents showing Sweeney turned himself inside out to get the state loan for Mileck, as did Luke Breit, Wes Chesbro, and other Democratic Party stalwarts.)

Sweeney went on to say during his very brief time on the stand that he had checked landfill diversion figures for Mileck's operation. According to Sweeney, Mileck took in 28,000 tons of feedstock ,which amounted to diverting 30% of the entire County's garbage load from going into shrinking landfills.

What Sweeney didn't know, or pretended not to know, was that Mileck had testified earlier that he imported waste from other counties. Therefore, Mileck's in-coming feedstock loads couldn't legitimately be attributed to Mendocino County landfill diversion figures. What Sweeney also didn't know was that County planner Pam Townsend had explained the week before: prior to the installation of Mileck's Potter Valley compost operation, most farmers composted their manure and plant waste on their own farms. Mileck's and Sweeney's tax-dollar-paid hobgoblin has gotten away with this type of Enron accounting for nearly 15 years! Sweeney stays employed because he's well connected to the inland liberal-Democrat politicos, notably Supervisor Richard Shoemaker and, by extension, the rest of the Mendocino County Board of Supervisors.

Chandler and Bacik tried every unscrupulous trick in the book to influence the jury the second week of the trial. Stephens and Jones were finally driven to complain to the court clerk that Chandler, Bacik, and Mileck were continually huddled and talking loudly right next to the jurors waiting in the hall during the breaks. Just before the jurors were to be dismissed for the day on the seventh day of the eight-day trial, Chandler loudly made two motions for "non-suit" (meaning the lawsuit should be thrown out by the judge because plaintiffs had not proven their case). Motions are supposed to be made out of the jury's presence.

Judge Leonard LaCasse dismissed the jury and then chastised all the attorneys equally for Jenny Chandler's "inexperience in a jury trial." (Chandler seemed competent enough, but would have come across to the jury much better if she had left Frank Bacik under his rock.) LaCasse ruled that plaintiffs did not have enough evidence to prove the compost facility was a public nuisance. On Chandler's second non-suit motion, he ruled that enough evidence had been submitted by Stephens and Jones, so it was up to the jury to decide if the neighbors had been impacted or not.

Then LaCasse addressed Chandler's first-day motion for the jurors to visit the compost site. LaCasse said he wanted the jurors to not only visit the compost site, he wanted them to visit all the complaining neighbors' homes the next morning as well (at Mileck's expense for the MTA bus). LaCasse waited to see which attorney would balk at his surprise proposal. Pano Stephens and Rod Jones were delighted. Jenny Chandler had no idea what she had stepped into because neither she nor Bacik had visited the complaining neighbors' areas. All agreed to the jury field trip.

Upon the jurors return to the courtroom, closing statements from both sides were heard. After a half day of deliberation on Thursday, and a half day on Friday, the jury found in favor of Preserve Country Neighborhoods.

The jurors agreed that all five plaintiffs had been harmed by the compost operation's odor, dust and noise. They awarded all the plaintiffs a total of $150,000 in individual awards ranging from $18,000 for the least harmed (Gary Rasche) to $48,000 for the most harmed (Jan Meaders). They also awarded the plaintiffs all their attorney fees and court costs.

The victory over the arrogant Mileck and his supporting cabal of local officials was brought about by attorneys Pano Stephens and Rod Jones for the "average person" in Mendocino County.

It is a very sweet victory indeed!