Try 1 month for 99¢

A Scott County jury will hear arguments at a trial July 9 over the class action lawsuit against Grain Process Corporation in Muscatine. More than 14,000 individuals are included in the class, arguing the plant's emissions are a nuisance.

MUSCATINE — A Scott County District Court judge considered Thursday whether Grain Processing Corporation in Muscatine is allowed to release emissions onto neighboring properties if it has claimed the right to do so for 75 years.

Over several hours Thursday, Judge John Telleen heard arguments in the class action lawsuit against GPC over its Oregon Street plant’s emissions. Last month, the case was moved to the Scott County Courthouse. The first trial date is scheduled for July 9.

More than 14,000 individuals are included, arguing the plant's emissions are a nuisance. The Iowa Supreme Court certified the class action last spring.

Attorney representing GPC, Mike Reck, asked the judge for a summary judgement to dismiss the nuisance, negligence and trespassing claims. He argued residents do not have a right to sue now, when the emissions have existed since GPC began operating its plant in the 1940s.

"Parties can't sit on their hands for literally, literally, three-quarters of a century and do nothing," Reck said. "They sat on their hands and allowed GPC to invest millions of dollars ... It's simply not law in Iowa that you can sit on your hands for 70 years and then claim something is a nuisance."

Reck claims GPC operates under a prescriptive easement, allowing the plant to discharge emissions onto neighboring properties, because it has done so since 1943, when it was established to assist in World War II defense efforts.

In Iowa, a party claiming prescriptive easement must prove it has used another party's property for at least 10 years, open and notoriously, hostilely and under an expressed claim of right, according to court documents.

Both Reck and class action counsel, led by Attorney Sarah Siskind, agree GPC has operated for more than 10 years, "open and notoriously." Both parties pointed to a line quoted in the Supreme Court opinion stating residents would have been "living under a rock" if they did not know about GPC's emissions.

The main argument is whether GPC has claimed the right to emit on neighboring properties, plus whether residents were notified of its right to do so.

Reck argued GPC has a claim of right because it has invested millions into its facilities and acted as it had the right to emit on neighboring properties. Siskind said the question is not whether GPC has the right to operate its plant or release emissions, but whether it has a right to do so "unnecessarily" or "unreasonably."

She said by granting the summary judgement, the judge would be granting GPC a prescriptive easement, giving them the authority to release emissions at historic levels.

"GPC is asking the court to grant it thousands of easements, running with the land in perpetuity ... There's no dispute GPC has been using these properties to dispose of its noxious waste for years," Siskind said. "But GPC never asserted it had an easement. The grant of an easement would be unprecedented. No Iowa court has ever granted an Iowa company the right to pollute on a neighbor's property."

Judge Telleen said there is little case law in Iowa to offer guidance on prescriptive easements regarding emissions. Most cases deal with drainage districts or driveway disputes, he said.

In questioning both arguments, the judge said he was mostly thinking about the future of GPC's emissions and the lasting impact on the area. He also asked several questions about how the prescriptive easement debate may affect jury instruction this summer.

If the current motion for summary judgement is denied, Reck said GPC plans to request further summary judgments before the July trial.