Lloyd v. Covanta Plymouth Renewable Energy, LLC

585 F.Supp.3d 646

Holly LLOYD

v.COVANTA PLYMOUTH RENEWABLE ENERGY, LLC

CIVIL ACTION NO. 20-4330

United States District Court, E.D. Pennsylvania.

Filed February 10, 2022

Matthew Z. Robb, Steven D. Liddle, Nicholas A. Coulson, Liddle & Dubin PC, Detroit, MI, Kevin S. Riechelson, Kamensky, Cohen & Riechelson, Trenton, NJ, for Holly Lloyd.

Collin Gannon, Beveridge & Diamond, P.C., Baltimore, MD, James B. Slaughter, Beveridge & Diamond, P.C., Washington, DC, Katrina M. Krebs, Michael G. Murphy, Beveridge & Diamond, P.C., New York, NY, Robert Michael Donchez, Robert A. Freedberg, Florio Perrucci Steinhardt Cappelli Tipton & Taylor LLC, Bethlehem, PA, for Covanta Plymouth Renewable Energy, LLC.

MEMORANDUM

Bartle, District Judge Plaintiff Holly Lloyd has sued defendant Covanta Plymouth Renewable Energy, LLC in this putative class action for damages under Pennsylvania law for creating a private and public nuisance. Lloyd alleges Covanta's municipal waste incinerator in Conshohocken, Pennsylvania emits noxious odors into her nearby residential neighborhood, thereby interfering with Lloyd and her neighbors’ use and enjoyment of their properties and causing loss of property value. Before the court is Lloyd's motion to certify under Rule 23(b)(3) of the Federal Rules of Civil Procedure a class consisting of "all owner/occupants and renters of residential property within a 1.5-mile radius" of Covanta's facility.

I

The facts alleged in the complaint are as follows. Covanta operates a municipal waste incinerator facility that converts over 1,200 tons of municipal solid waste per day into energy that it sells. Household waste from nearby communities is trucked to the facility and placed into incinerators where it is combusted at high temperatures. Waste byproducts from the combustion are released into the ambient air through emission stacks.

Covanta operates its incinerator under permit from the Pennsylvania Department of Environmental Protection ("DEP"). Covanta's permit prohibits "the emission into the outdoor atmosphere of any malodorous air contaminants from any source in such manner that the malodors are detectable outside the property of the person on whose land the source is being operated." To prevent fugitive air emissions, Covanta must maintain a temperature of 1800 degrees Fahrenheit within the combustion chambers and employ air pollution control equipment and operational practices.

Lloyd alleges Covanta's emission control processes are inadequate because they have allowed noxious odors to escape and pervade nearby residential areas. Covanta's incinerator is located in a primarily industrial area bounded to the west by the Schuylkill River, to the north by Interstate 276, and to the south by Interstate 476. Lloyd owns and resides in a home located in the primarily residential neighborhood on the opposite side of Interstate 476. She reports frequent, pervasive odors outside her home early in the morning and late at night. She describes the odors as akin to "plastic," "chemical," and "hospital waste."

In reports to Lloyd's counsel, her neighbors have said they have also experienced odors. Twenty-nine Conshohocken residents returned responses to a survey her counsel mailed out in which they indicated that they have been impacted by noxious odors from Covanta's facility. In their responses, some claimed that the odors have been so offensive that they prevent them from opening their windows, doing yard work, walking their dogs, and entertaining guests in their backyards.

Between 2016 and 2020, the DEP received approximately 200 complaints about the noxious odors. In this period, the DEP cited Covanta with Notices of Violation seven times over malodor. Over forty individuals signed a June 2020 letter to the DEP demanding Covanta's voluntary cessation of its operation and opposing its application for a permit renewal. In addition, roughly 800 individuals have joined a Facebook Group entitled "Covanta Plymouth Trash Incinerator – Community Information and Action." Lloyd claims these individuals participate in the group to discuss Covanta's odor emissions.

II

Lloyd, as noted above, brings two claims against Covanta under Pennsylvania law, one for private nuisance and one for public nuisance.

The Supreme Court of Pennsylvania has adopted the Restatement (Second) of Torts § 822 for private nuisance suits. Karpiak v. Russo, 450 Pa.Super. 471, 676 A.2d 270, 272 (1996) (citing Waschak v. Moffat, 379 Pa. 441, 109 A.2d 310 (1954) ). Section 822 provides as follows:

One is subject to liability for a private nuisance if, but only if, his conduct is a legal cause of an invasion of another's interest in the private use and enjoyment of land, and the invasion is either

(a) intentional and unreasonable, or

(b) unintentional and otherwise actionable under the rules controlling liability for negligent or reckless conduct, or for abnormally dangerous conditions or activities.

For an invasion to be actionable, it must cause "significant harm," which is harm "of a kind that would be suffered by a normal person in the community or by property in normal condition and used for a normal purpose." Restatement (Second) of Torts § 821F (1979). "If normal persons living in the community would regard the invasion in question as definitely offensive, seriously annoying or intolerable, then the invasion is significant." § 821F cmt. c.

Pennsylvania courts also apply the Restatement (Second) of Torts to public nuisance claims. E.g., Machipongo Land & Coal Co. v. Dep't of Env't Prot., 569 Pa. 3, 799 A.2d 751, 773 (2002). Section 821B sets out these elements:

(1) A public nuisance is an unreasonable interference with a right common to the general public.

(2) Circumstances that may sustain a holding that an interference with a public right is unreasonable include the following:

(a) Whether the conduct involves a significant interference with the public health, the public safety, the public peace, the public comfort or the public convenience, or

(b) whether the conduct is proscribed by a statute, ordinance or administrative regulation, or

(c) whether the conduct is of a continuing nature or has produced a permanent or long-lasting effect, and, as the actor knows or has reason to know, has a significant effect upon the public right.

III

A class may be certified only if the plaintiff can satisfy the four requirements of Rule 23(a) of the Federal Rules of Civil Procedure :

(1) the class is so numerous that joinder of all members is impracticable;

(2) there are questions of law or fact common to the class;

(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and

(4) the representative parties will fairly and adequately protect the interests of the class.

The elements of this four-part test are known as numerosity, commonality, typicality, and adequacy of representation. See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 613, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997).

In addition to the prerequisites of Rule 23(a), Lloyd must also satisfy one of the requirements under Rule 23(b). She seeks to certify a class only under Rule 23(b)(3), which permits class certification if "the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy."

The party seeking certification bears the burden of establishing each element of Rule 23 by a preponderance of the evidence. In re Modafinil Antitrust Litig., 837 F.3d 238, 248 (3d Cir. 2016). To determine if the requirements of Rule 23 have been satisfied, a district court must conduct a "rigorous analysis" that requires it to look beyond the pleadings. Id. at 248–49. To conduct this analysis the court "may have to venture into the territory of a claim's merits and evaluate the nature of the evidence." Landsman & Funk PC v. Skinder-Strauss Assocs., 640 F.3d 72, 93 (3d Cir. 2011), opinion reinstated in part, No. 09-3105, 2012 WL 2052685 (3d Cir. Apr. 17, 2012).

IV

Before analyzing Rule 23 factors, the court must determine whether the proposed class is ascertainable. See Byrd v. Aaron's Inc., 784 F.3d 154, 163 (3d Cir. 2015). To be ascertainable, the class must be "defined with reference to objective criteria," and there must be "a reliable and administratively feasible mechanism for determining whether putative class members fall within the class definition." Id.

Covanta contends that Lloyd's proposed class is not ascertainable because Lloyd has not proven that all within the 1.5 mile radius experienced odor impact. Covanta essentially argues that the proposed class is overly broad. Although a class's overbreadth may warrant denial of certification under Rule 23 factors, our Court of Appeals has warned that it is not a valid consideration in analyzing ascertainability. See id. at 167–69 ; Kelly v. RealPage, Inc., 338 F.R.D. 19, 29–30 (E.D. Pa. 2020), appeal filed (April 7, 2021) (No. 21-1672).

Lloyd defines her proposed class by reference to objective criteria because the identity of owners and renters of the properties within a 1.5-mile radius of the Covanta facility is verifiable. There is also a feasible method of determining whether an individual fits within this definition--one would only need a map to discern whether a property is located within this radius. Accordingly, the court finds that Lloyd's proposed class is ascertainable.

V

The court now turns to the Rule 23 factors for determining whether a class should be certified.

A. Numerosity

As stated above, Rule 23(a)(1) provides that numerosity is established when "the class is so numerous that joinder of all members is impracticable." There is no fixed minimum number of plaintiffs needed to satisfy the numerosity requirement. In re Modafinil, 837 F.3d at 249. The general rule is that a class of more than forty members is numerous, while a class of fewer...