PITTSBURGH – A class action, nuisance-based lawsuit from a group of Westmoreland County residents against a local landfill has survived a motion to dismiss in a Pennsylvania federal court.
David Childs, Deborah Childs and Whitney Cole (on behalf of themselves and all others similarly situated) of Monessen first filed suit in the Westmoreland County Court of Common Pleas on July 2, 2021 versus Westmoreland Sanitary Landfill, LLC, of Belle Vernon.
“The defendant, its predecessors, and/or its agents constructed or directed the construction of the landfill. The defendant exercises ownership and control of the landfill, which is on a large plot surrounded by residential properties. The plaintiffs and the putative class reside within 1.5 miles of the landfill property. The plaintiffs’ and putative class’ properties have been, and continue to be, physically invaded by fugitive noxious odors emitted from the landfill,” the suit says.
“The landfill accepts, processes, and stores substantial quantities of waste materials including, but not limited to, residential waste, municipal solid waste, construction and demolition debris, and drill cuttings and other fracking refuse. The materials deposited into the landfill decompose and generate byproducts, including leachate and landfill gas, which generally consists of hydrogen sulfide, methane, carbon dioxide, and other various compounds. These byproducts can be particularly odorous and offensive when not managed properly, giving off a characteristic ‘rotten-egg’ smell. A properly designed, operated and maintained landfill will adequately capture, process, and remove leachate and landfill gas in order to prevent it from escaping into the ambient air as fugitive emissions.”
The suit explains that the defendant “is required to control noxious odor emissions by, among other things, operating the landfill in a manner that adequately captures, controls and mitigates odor emissions so as to prevent them from escaping into the ambient air surrounding the landfill, and by implementing other reasonably available odor mitigation, elimination and control systems at the landfill.”
The suit adds that a host of complaints to the Pennsylvania Department of Environmental Protections illustrates this lack of emissions monitoring.
“The defendant has failed to use adequate odor mitigation strategies, processes, technologies and equipment to control noxious odor emissions from the landfill and prevent those odors from invading the homes and properties of the plaintiffs and putative class,” the suit states.
“The defendant’s failures to prevent off-site emissions include, but are not limited to failing to install, maintain, and operate an adequate landfill gas collection system; insufficient monitoring of the landfill; using inadequate cover and cover practices; inadequate collection, management and disposal of leachate; failing to purchase, possess and maintain appropriate equipment; improper and/or excessive processing of construction and demolition waste; engaging in excavation without adequate erosion or sedimentation controls; and the failure to use other odor mitigation and control techniques that are available.”
The defendant removed the case to the U.S. District Court for the Western District of Pennsylvania on Aug. 18, 2021, pursuant to a host of federal laws.
The defendant then filed a motion to dismiss the complaint on Sept. 19, 2021.
“First, plaintiffs cannot state a claim for negligence in Count III. Having failed to allege any cognizable physical harm to their property, plaintiffs cannot, as a matter of law, state a negligence-based claim for diminution of property value or lost enjoyment. The alleged damages here are based solely on claims of diminution of value from a temporary, non-physical, exterior condition that dissipates on its own and causes neither personal injury nor physical damage. Absent any allegation of physical property damage, claims for diminution of value and lost enjoyment must be dismissed,” per the dismissal motion.
“Second, the Court should dismiss plaintiffs’ request for punitive damages. The complaint lacks any allegation to suggest that WSL’s conduct was so outrageous as to demonstrate willful, wanton or reckless behavior. Consistent with other decisions addressing materially identical and conclusory allegations, this Court should dismiss the prayer for relief to the extent plaintiffs seek punitive damages. Third, the Court should also dismiss plaintiffs’ sole request for injunctive relief. Where regulatory agencies already are applying their discretion and technical expertise to enforce compliance requirements, courts defer to the primary jurisdiction of those agencies and refuse to permit claims for injunctive relief that could lead to conflicting obligations. In this case, an injunction would supplant the detailed and complex plan that PA DEP reviewed and approved for addressing the same violations alleged in this case.”
U.S. District Court for the Western District of Pennsylvania Judge Cathy Bissoon denied the company’s motion to dismiss in a June 9 memorandum.
“Defendant has not demonstrated entitlement to dismissal of plaintiffs’ negligence claim. The Court respectfully declines to adopt the reasoning in Lloyd, which, in the undersigned's view, reads too much into the U.S. Court of Appeals for the Third Circuit’s footnote in Baptiste v. Bethlehem Landfill Co. The Baptiste Court held that allegations of ‘landfill gas’ and other hazardous contaminants having physically invaded the plaintiffs’ property may be sufficient at the 12(b) stage; it remanded the issue; and, on remand, the District Court in Baptiste summarily rejected arguments materially analogous to the ones presented here. The developments in Baptiste appear the best indicator in this evolving area of the law, and defendant’s motion to dismiss is denied regarding negligence,” Bissoon stated.
“Next is the challenge to punitive damages. Plaintiffs have made sufficient allegations at this early stage in the proceedings. While courts will dismiss claims for punitive damages when the allegations are conclusory or clearly deficient, this is not one of those cases. Adjudication properly should be reserved until after discovery. Finally, for essentially the same reasons as stated in plaintiffs’ opposition, dismissal of the claim for injunctive relief is denied. Defendant has not cited controlling precedent regarding the specific claims and issues presented. And, as plaintiffs’ counsel highlights, the Lloyd decision (upon which defendant has relied regarding negligence) rejected a similar contention.”
For counts of private nuisance, public nuisance and negligence, the plaintiffs are seeking the following list of reliefs:
• Certification of the proposed class by order pursuant to 231 Pa. Code Section 1700;
• Designation of the plaintiffs as representatives of the proposed class and designation of their counsel as class counsel;
• Judgment in favor of the plaintiffs and the class members as against the defendant;
• An award to the plaintiffs and the class members for compensatory and punitive damages, including pre- and post-judgment interest;
• An award of attorneys’ fees and costs, including pre- and post-judgment interest;
• An order holding that the entrance of the aforementioned noxious odors upon the plaintiffs’ and class’ properties constituted a nuisance;
• An order holding that the defendant was negligent in causing noxious odors to repeatedly invade and interfere with the plaintiffs’ and class’ private residential properties;
• An award to the plaintiffs and the class members for injunctive relief not inconsistent with the defendant’s state and federal regulatory obligations; and
• Such further relief, both general and specific, that this Honorable Court deems just and proper.
The plaintiffs are represented by James E. DePasquale in Pittsburgh, plus Lance T. Spitzig, Nicholas A. Coulson and Steven D. Liddle of Liddle Sheets Coulson, in Detroit, Mich.
The defendant is represented by Stanley Yorsz and William J. Moorhead Jr. of Buchanan Ingersoll & Rooney, also in Pittsburgh.
U.S. District Court for the Western District of Pennsylvania case 2:21-cv-01100
Westmoreland County Court of Common Pleas case 2511 of 2021
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com