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MEST v. CABOT CORPORATION

May 14, 2004.

MERRILL MEST et al., Plaintiffs
v.
CABOT CORPORATION et al., Defendants



The opinion of the court was delivered by: CYNTHIA RUFE, District Judge

MEMORANDUM OPINION AND ORDER

By Order dated April 29, 2004, the Court granted summary judgment in favor of Defendants on statute of limitations grounds with respect to Plaintiffs' claims arising from Defendants' conduct prior to November 10, 1998. However, the Court reserved judgment on Plaintiffs' Motion for Partial Summary Judgment and on the additional arguments raised in Defendants' Motion for Summary Judgment. For the reasons set forth below, Defendants' Motion is granted in part and denied in part, and Plaintiffs' Motion is denied.

I. FACTUAL BACKGROUND*fn1

  The Court previously set forth a detailed recitation of the factual background in its April 29, 2004 Order, and we incorporate those facts as if stated herein.*fn2 For the sake of clarity, however, a limited synopsis of those facts follows.

  Plaintiffs Wayne and Suzanne Hallowell (the "Hallowells") own and operate two non-contiguous dairy farms, one at 1150 Congo Road, Gilbertsville, Montgomery County, Pennsylvania (the "Congo Road Farm"), and the other at 176 Washington Road, Bechtelsville, Berks County, Pennsylvania (the "Washington Road Farm") (collectively referred to as the "Hallowell Farms").*fn3 The Hallowells and their family have farmed their land for over thirty years, and the land has been in the Hallowell family since approximately 1950.

  Plaintiffs Merrill and Betty Mest (the "Mests") own and operate a dairy farm located at 3059 Keyser Road, Schwenksville, Montgomery County, Pennsylvania (the "Mest Farm"). The Mests have farmed their land for at least forty years. Both the Mests and the Hallowells also lease fields near their farms to grow forage crops for use in their dairy farm operations. Defendants Cabot Corporation and Cabot Performance Materials (collectively referred to as "Cabot") have operated a specialty metals manufacturing facility in Boyertown, Pennsylvania (the "Boyertown Facility") since 1978. The Boyertown Facility was previously owned and operated by Kawecki Berylco Industries, Inc. ("KBI"). The Congo Road Farm is located approximately one mile east of the Boyertown Facility. The Washington Road Farm is located approximately one mile northwest of the Boyertown Facility. The Mest Farm is located approximately four miles southeast of the Boyertown Facility.*fn4

  As a byproduct of its operations, the Boyertown Facility emits fluoride, which, while not harmful to humans, can cause a disease called fluorosis in cows that eat forage containing significant quantities of fluoride. Plaintiffs allege that fluoride emitted from the Boyertown Facility has been migrating by air to their farms and contaminating their vegetation, causing Plaintiffs' cows to suffer from fluorosis and exhibit resulting symptoms, including stained or "mottled" teeth, decreased milk production, and various reproductive problems.

  Since approximately 1976, numerous studies and investigations have been conducted on the Boyertown Facility's emissions and their effect on the surrounding land and Plaintiffs' dairy cows. Plaintiffs initiated some of these studies, while governmental agencies or third parties initiated others. None of the studies conducted before 1999 resulted in a diagnosis of fluorosis in Plaintiffs' cows; several specialists even ruled out fluorosis as the cause of Plaintiffs' cows' problems.

  However, in 1999, Plaintiffs' expert, Dr. Lennart Krook, investigated Plaintiffs' cows and concluded that they were suffering from fluorosis.

 II. DISCUSSION*fn5

  A. Count I — Nuisance

  The Supreme Court of Pennsylvania has adopted the Restatement (Second) of Torts as the definition of private nuisance.*fn6 As explained in Karpiak v. Russo, 676 A.2d 270, 272-73 (Pa. Super. 1996), the relevant sections of the Restatement provide: § 822. General Rule

 
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.
The Restatement indicates that a defendant is not subject to liability for an invasion unless the invasion caused significant harm, which is defined as:
§ 821F. Significant Harm
There is liability for a nuisance only to those to whom it causes significant 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.
Comment C to section 82IF further explains the meaning of significant harm:
c. Significant harm. By significant harm is meant harm of importance, involving more than slight inconvenience or petty annoyance. The law does not concern itself with trifles, and therefore there must be a real and appreciable invasion of the plaintiffs interests before he can have an action for either a public or private nuisance. . . . In the case of a private nuisance, there must be a real and appreciable interference with the plaintiff's use or enjoyment of his land before he can have a cause of action.
When [the invasion] involves only personal discomfort or annoyance, it is sometimes difficult to determine whether the invasion is significant. The standard for the determination of significant character is the standard of normal persons or property in the particular locality. 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.*fn7
  Defendants argue that "[b]ecause there is no evidence that air, soil, groundwater, or surface water at Plaintiffs' farms has ever exceeded applicable health and safety standards for fluoride, Plaintiffs cannot demonstrate that they have suffered `significant harm' necessary to support a nuisance claim."*fn8 This argument assumes that a violation of health and safety standards is necessary for a nuisance claim to succeed. However, such a violation is not a requirement for a nuisance claim.*fn9 Moreover, Defendants rely entirely on the EPA Report's conclusion that fluoride concentrations at Plaintiffs' farms were at acceptable levels and simply ignore Plaintiffs' evidence that Defendants violated environmental standards and that fluoride from the Boyertown Facility caused Plaintiffs' cow problems. Accordingly, a genuine issue of material fact exists, and summary judgment is not appropriate for this claim. B. Count IV — Negligence Per Se*fn10
  Plaintiffs base their negligence per se claims on (1) Defendants' violation of the Pennsylvania Air Pollution Control Act ("PAPCA"), 35 Pa. Stat. Ann. § 4001 et seq., and (2) on Defendants' violation of the requirements of its Nuclear Regulatory Commission License (the "NRC license"). "Negligence per se has been defined as conduct, whether of action or omission, which may be declared and treated as negligence without any argument or proof as to the particular surrounding circumstances.*fn11" To prove a claim of negligence per se, a plaintiff must prove four elements:
(1) The purpose of the statute must be, at least in part, to protect the interest of a group of individuals, as opposed to the public generally;
(2) The statute or regulation must clearly apply to the conduct of the defendant;
(3) The defendant must violate the statute or regulation;
(4) The violation of the statute or regulation must be the proximate cause of the plaintiffs injuries.*fn12
With respect to Plaintiffs' claim under PAPCA, Defendants argue that summary ...

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