PITTSBURGH – Counsel for a steel slag processing facility accused in a class action lawsuit of releasing damaging, fugitive dust and air particulates onto the properties of local homeowners object to the action, arguing it is only based in private nuisance, and no other claims of trespass, public nuisance and negligence.
Donna Frederick (on behalf of herself and all others similarly-situated) of Natrona Heights first filed suit in the Allegheny County Court of Common Pleas on Oct. 28 versus Harsco Corporation, also of Natrona Heights.
“Steel slag, a glass-like byproduct of steel making, is produced during the separation of the molten steel from impurities in steelmaking furnaces. The slag occurs as a molten liquid melt and is a complex solution of silicates and oxides that solidifies upon cooling. Processed steel slag is commonly used to cover driveways, to fill potholes and is also used by homeowners as a landscaping stone in back yards around a pool area or patio,” the suit said.
“Over the past several years, fugitive dust and air particulates from defendant’s slag processing operations at the slag facility [in Natrona Heights] have been deposited throughout the surrounding neighborhoods. The fugitive dust and air particulates which entered plaintiffs’ property originated from defendant’s facility, where they are generated as a result of defendant’s slag processing operations. The fugitive dust and air particulate emissions caused by the slag facility have been and continue to be dispersed across all public and private land in the class area.”
The plaintiff said she and others have been harmed in the form of diminished property values and/or loss of use and enjoyment of their private property.
“Members of the public, including but not limited to, businesses, employees, commuters, tourists, visitors, minors, customers, clients and students, have experienced and been harmed by the fugitive dust and air particulates emitted from the slag facility into public spaces,” the suit stated.
“However, unlike plaintiffs and the class, members of the public who are outside of the class definition have not suffered damages of the same kind, in the form of diminished property values and/or loss of use and enjoyment of their private property.”
The plaintiffs said the defendant “intentionally, recklessly, willfully, wantonly, maliciously, grossly and/or negligently failed to properly maintain, operate and/or construct the slag facility and caused the invasion of plaintiffs’ properties by fugitive dust and air particulates on intermittent and reoccurring dates too numerous to individually recount.”
UPDATE
Attorneys for Harsco Corporation filed preliminary objections to the case on Jan. 6, believing that the claims brought by the plaintiffs exclusively sound in private nuisance.
“All four of plaintiffs’ causes of action are based on the same alleged conduct. The gravamen of plaintiffs’ complaint is that dust emissions and air particulates from the slag facility have entered allegedly plaintiffs’ properties, interfered with their use and enjoyment of their properties and caused unspecified property damages. This is a textbook claim for private nuisance,” the objections stated.
“In Pennsylvania, a plaintiff can plead a cause of action for private nuisance by alleging that another has interfered with the use of their property by engaging in conduct that is (1) Intentional and unreasonable; (2) Negligent or reckless; or (3) The result of abnormally dangerous conditions or activities. Although Harsco disputes that plaintiffs’ claims have merit or that they are entitled to any damages from Harsco, the only cause of action under which they can theoretically recover is the private nuisance claim.”
The defendant added that, in their view, the plaintiffs have unnecessarily asserted additional claims for trespass, public nuisance and negligence.
“These additional causes of action are not only redundant, but barred by settled Pennsylvania law, where the complaint’s averments make it clear that the underlying issue is one of private nuisance,” the objections said.
Furthermore, the defendant seeks to strike the plaintiffs’ claims for attorney’s fees, punitive damages and injunctive relief.
For counts of trespass by fugitive dust and air particulates, private nuisance, public nuisance and negligence, the plaintiffs are seeking judgment in favor of the plaintiffs and the class members and against the defendant, compensatory and punitive damages, attorney’s fees, costs, pre- and post-judgment interest, an order that a nuisance was committed, injunctive relief in accordance with state and federal regulatory obligations and such further relief as the Court deems just and proper.
The plaintiffs are represented by James DePasquale in Pittsburgh, plus Steven D. Liddle, Nicholas Coulson and Matthew Z. Robb of Liddle & Dubin, in Detroit, Mich.
The defendant is represented by Dennis St. J. Mulvihill, Bruce E. Rende, Joshua R. Guthridge and Samantha D. Farrell, of Robb Leonard Mulvihill, also in Pittsburgh.
Allegheny County Court of Common Pleas case GD-20-011140
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com