Subscribe to our Daily Headlines newsletter.

The Winston Weaver Co. fertilizer plant on Cherry Street continues to burn, Wednesday, Feb. 2, 2022, about 40 hours after the fire started. (Walt Unks/Winston-Salem Journal)

At least two lawsuits filed on behalf of neighbors impacted by a Jan. 31 fire that destroyed the Winston Weaver Co. fertilizer plant will incorporate claims commonly used by communities to fight hog farms, strip clubs and other “nuisances.”

And one legal expert who has followed the blaze and its aftermath says that’s likely the most effective approach.

Multiple suits argue that negligence by the company led to the potentially explosive fire that burned for days and prompted the city to declare a voluntary evacuation within a one-mile radius of the facility at 4440 N. Cherry St. But a pair of lawsuits also include claims that the fire’s harmful impact on nearby residents and businesses turned the factory into a “public nuisance.”

That’s because unlike straight negligence claims, which focus on whether actions by the company resulted in distress and hardship for those most affected by the fire, a public nuisance approach focuses on the blaze’s impact itself, explained Tom Wilmoth, a Winston-Salem-based attorney at the Law Offices of James Scott Farrin, which is representing clients in a class-action suit against Winston Weaver.

Class actions are filed on behalf of individuals but allow others to join as plaintiffs.

“The public nuisance claim offers unique advantages over many other types of claims in both the elements of proof and the relief the court has the authority to order,” Wilmoth said, adding that North Carolina courts have found that whatever tends to endanger life, generate disease or affect the health of the community is generally considered a public nuisance. “The advantage here is that showing a particular situation is a public nuisance can be proven without the need for extensive investigation into the defendant’s conduct.”

The sun sets at the site of the Winston Weaver Co. fertilizer plant fire on Friday, Feb. 4, 2022.

Jonathan Cardi, a professor at Wake Forest University Law School, called public nuisance claims the “best approach” for success in legal action against Winston Weaver.

“It’s just a general question: Does the way you use your land do harm to the public?” he explained. “And so it gives judges pretty wide discretion to find that perhaps the racial impact, perhaps the environmental impact of the use of this land does harm to the public.”

Race and the notion of environmental justice already have been themes in reaction to the fire.

The sun sets at the site of the Winston Weaver Co. fertilizer plant fire on Friday, Feb. 4, 2022.

Nearly 6,000 residents live in the three U.S. Census tracts that touch the plant property. People of color make up between 81% and 85% of the population in those sections, with 70.6% to 90.6% considered low-income.

In the tract that includes the plant itself, there are 1,778 residents, 93% of whom are people of color, and 40% are considered low-income.

Many of those people living near the site had to find alternative housing for days as the fire continued to smolder and shroud the area in smoke that the Environmental Protection Agency said contained hazardous levels of inhalable particulates released by the blaze.

The city also issued a voluntary evacuation within a one-mile radius of the plant, where 600 tons of ammonium nitrate, a common ingredient in commercial fertilizer, threatened to trigger “one of the worst explosions in U.S. history,” according to Winston-Salem Fire Chief Trey Mayo.

Water runoff from the site also contaminated creeks.

Those and other factors related to the fire and its aftermath, more than actions or inaction by the company, are the crux of a public nuisance claim.

“The nuisance is shown by its effect on the public.,” said Wilmoth, the lawyer from the firm that filed one of the lawsuits. “In this instance, the fire and subsequent discovery that the Weaver plant was housing almost 600 tons of highly explosive chemicals in the middle of a residential community is evidence that strongly supports this claim.”

Winston Weaver was permitted to have ammonium nitrate on its property, which is zoned for industrial use but is flanked by residential neighborhoods. The factory opened in 1940, before the area became part of Winston-Salem and subject to its zoning. Most nearby homes were built after the facility began operating.

Those factors will offer little insulation with a public nuisance claim, Wilmoth said.

“The elements to prove that a public nuisance exists are significantly different than those needed to prove claims based on negligence or intentional misconduct,” he added.

The lawsuit filed by Wilmoth’s firm also suggests the ordeal experienced by neighbors of the plant isn’t necessarily over. Nearby residents “face an ongoing risk of another fire and explosion,” the complaint says.

But any potential for future catastrophe should inspire more than a demand of compensation for residents affected by the fire or employees of businesses near the factory who missed work, said Cardi, the Wake Forest law professor.

“They should ask the court to force the company to cease operations or at least operate in a different way” that doesn’t pose a threat to the community, he explained. “It isn’t just about the plaintiffs, it’s about the public. They ought to amend the complaint, in my view.”

Winston Weaver has not indicated whether it will replace the destroyed facility, either on the current site or elsewhere.

Wilmoth noted that convincing the court to order an “abatement” forbidding the company from resuming operations at the site is difficult and that they typically only cover a certain period of time.

“At this juncture, we have not asked the court for an abatement,” he added. “However, we have left the door open to add such a demand by including, among other things, a public nuisance claim. We will reassess whether abatement is appropriate as the lawsuit progresses.”

John Deem covers climate change and the environment in the Triad and Northwest North Carolina. His work is funded by a grant from the 1Earth Fund and the Z. Smith Reynolds Foundation.

Subscribe to our Daily Headlines newsletter.

Email notifications are only sent once a day, and only if there are new matching items.

The sun sets at the site of the Winston Weaver Co. fertilizer plant fire on Friday, Feb. 4, 2022.

The Winston Weaver Co. fertilizer plant on Cherry Street continues to burn, Wednesday, Feb. 2, 2022, about 40 hours after the fire started. (Walt Unks/Winston-Salem Journal)

Get up-to-the-minute news sent straight to your device.