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Black v. Metso Paper USA

February 4, 2010

JAMES JEROME BLACK AND MARY ALICE BLACK, H/W, PLAINTIFFS,
v.
METSO PAPER USA, INC., SANDVIK, INC., PENNSYLVANIA EXTRUDED TUBE COMPANY, A JOINT VENTURE FORMED AS A PARTNERSHIP BETWEEN SMI EXTRUDED TUBE, INC. AND SANDVIK EXTRUDED TUBE, INC., DEFENDANTS.



The opinion of the court was delivered by: A. Richard Caputo United States District Judge

(JUDGE CAPUTO)

MEMORANDUM

Before me is Joint Motion for Final Approval of Class Action Settlement. (Doc. 122.) On January 23, 2009, I entered an order granting preliminary approval of the proposed settlement. (Doc. 114.) In August, 2009, I allowed an amendment to the Class Settlement Agreement extending the time for the Settling Defendants to opt out of the Agreement from 120 days to 210 days of the failure to reach an agreement to maintain and operate a water line had not been reached with a provider and government approvals obtained. (Doc. 117.) A fairness hearing was held on January 25, 2010. There were no objections to the settlement.

After hearing and review of the Class Settlement Agreement, I find the settlement embodied in the Class Settlement Agreement is fair, reasonable and adequate. Fed. R. Civ. P. 23(e)(2).

DISCUSSION

This case arises out of the discovery of ground water contaminated with trichloroethylene (TCE) and tetrachloroethylene (PCE) in the vicinity of the Ivy Industrial Park in Clark's Summit, Pennsylvania. Action was filed, and after a determination of Defendants' motions to dismiss, claims remained for response costs under Pennsylvania Hazardous Sites Cleanup Act (HSCA), 35 Pa. Stat. § 6020.101, et seq. and negligence. As a result of the discovery of the contamination, the Defendants installed carbon filters in some 230 homes which had test readings for one or more of the contaminants below the minimum for acceptable drinking water. In addition, testing was performed quarterly and filters replaced by Defendants where necessary to maintain acceptable levels. After four years (2005-2009), only a few new contaminated wells were discovered, so the area manifesting contamination, the flume, has proven to be stable. Testing was performed by the Pennsylvania Department of Health and the United States Department of Health and Human Services, and the conclusion of each agency was that there was no apparent public health hazard. As a result, there was no recommendation of a medical monitoring program or regimen. Ultimately, a determination was made to assure an absolute solution to any potential future problem of contamination by the installation of a water line which would service any of the properties in the "Affected Area", which is essentially the outerlimit within which any contaminant was discovered. Indeed, an agreement has been reached with Pennsylvania American Water Company, the water provider, to utilize one of its sources of water to service the line. The line will be constructed by the Defendants at a cost in excess of twenty million dollars. Moreover, under the terms of the Class Action Settlement Agreement, the Defendants bear the expense of the individual properties owned by class members hooking up to the line.

In addition to the foregoing, the proposed Settlement Agreement includes the following payments to those properties in the Affected Area that had a functioning well at any time since August 1, 2005:

CATEGORY SETTLEMENT PAYMENT

i) Any property partially or fully within the $16,000 plus 5% of most recent Tax Affected Area at which TCE and/or PCE Assessment Value as of 5/1/08 to the has ever been detected in its well water owner (or if multiple owners, collectively at concentration of 5 ppb or higher, to all of the owners) and $100 to each non-owner person who has resided at the property for at least 365 days in total prior to installation of activated carbon filter systems on the water supply system at the property

ii) Any property partially or fully within the $8,000 plus 5% of most recent Tax Affected Area at which TCE and/or PCE Assessment Value as of 5/1/08 to the has ever been detected in its well water owner (or if multiple owners, collectively at concentration of 5 ppb or higher, to all of the owners) and $100 to each non-owner person who has resided at the property for at least 365 days in total prior to installation of activated carbon filter systems on the water supply system at the property

iii) Any property partially or fully within $4,000 plus 5% of most recent Tax the Affected Area which has never had a Assessment Value as of 5/1/08 to the detection of TCE or PCE in its well water. owner (or if multiple owners, collectively to all of the owners).

It should also be noted that attorneys' fees will not come out of the foregoing payments but shall be in addition to any sums paid to the class members.

There are a total of 500 properties, the owners of which comprise the class. Gersh v. Jepson, 521 F.2d 153, 157 (3d Cir. 1975) lists nine factors as to whether a class action settlement is fair, reasonable and adequate, namely 1) the complexity, expense and likely duration of the litigation; 2) the reaction of the class to the settlement; 3) the stage of the proceedings and the amount of discovery completed; 4) the risk of establishing liability; 5) the risk of establishing damages; 6) the risk of maintaining the class action through trial; 7) the ability of the defendants to withstand a greater judgment; 8) the range of reasonableness of the settlement ...


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