PITTSBURGH – A class action, nuisance-based lawsuit from a group of Westmoreland County residents against a Belle Vernon landfill, which charged the facility produces noxious odors and has negatively impacted their quality of life, was recently settled.
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 said.
“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 explained 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 added 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 stated.
“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, 2022 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.”
In a Nov. 2, 2022 amended answer to the complaint, the defendant denied the plaintiffs’ claims in their entirety as conclusions of law to which no responses were required and provided an additional 35 separate defenses.
“Plaintiffs’ claims are barred, in whole or in part, due to the fact that they fail to allege facts sufficient to state a claim upon which relief can be granted. To the extent plaintiffs’ claims are based on acts that occurred before any applicable statute of limitations, such claims are time-barred. Laches likewise bars plaintiffs’ unreasonably delayed claims. This Court lacks subject matter jurisdiction over any claims to which plaintiffs failed to exhaust their administrative remedies and/or failed to comply with any such procedural prerequisites prior to bringing their claims. Plaintiffs’ claims are barred in whole or in part because plaintiffs have not suffered any cognizable, ascertainable or measurable injuries or damages. Any interference, damage or injury allegedly suffered by plaintiffs was insubstantial, temporary, nonphysical, speculative and/or reversible. Plaintiffs lack standing due to no particularized and concrete injury,” the defenses read, in part.
“Plaintiffs’ claims are barred in whole or in part because WSL owes no specific or general duty to plaintiffs. Plaintiffs’ claims are barred in whole or in part because WSL was not the proximate or actual cause of the damages claimed by plaintiffs. Plaintiffs’ damages, if any, were sustained as a result of intervening or superseding causes, including but not limited to the acts of third parties, such as prior owners, and cannot be attributed to WSL because, among other things, they were not reasonably foreseeable by WSL or otherwise. Plaintiffs’ negligence claim is barred in whole or in part due to plaintiffs’ alleged injuries and damages being caused by plaintiffs’ own comparative fault and/or comparative negligence. To the extent plaintiffs failed to mitigate their alleged damages, plaintiffs’ recovery, if any, must be reduced accordingly.”
UPDATE
After sustained discovery conducted over the following 16 months, the parties reached a settlement at a Jan. 16 conference. Terms of the settlement were not disclosed.
“The Court has been advised that the above captioned action has been settled, and the only matters remaining are the execution of the settlement document(s) and compliance with the terms of the settlement agreement. It appears that there is no further action required by the Court at this time,” Bissoon said in an order issued the next day, Jan. 17.
“It is, accordingly, hereby ordered that the above-captioned case has been marked closed; that nothing contained in this order shall be considered a dismissal or disposition of this action; and that, should further proceedings therein become necessary or desirable, any party may initiate the same in the identical manner as if this order had not been entered. Further, the Court expressly retains jurisdiction in this matter to consider any issue arising during the period when settlement is being finalized, including, but not limited to, enforcing settlement.”
The plaintiffs were represented by James E. DePasquale in Pittsburgh, plus Nicholas A. Coulson and Steven D. Liddle of Liddle Sheets Coulson, in Detroit, Mich.
The defendant was represented by Stanley Yorsz, William J. Moorhead Jr. and Robert John Murdoch 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