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Kemblesville Hhmo Center,LLC, et al v. Landhope Realty Company

July 27, 2011

KEMBLESVILLE HHMO CENTER,LLC, ET AL., PLAINTIFFS,
v.
LANDHOPE REALTY COMPANY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Jones, II, U.S.D.J.

MEMORANDUM

Before the Court is Plaintiffs' Motion to Certify Class (Docket No. 32); Defendants' Response (Docket No. 36); Plaintiffs' Reply (Docket No. 40); Defendants' Sur-Reply (Docket No. 41); Plaintiffs' Supplemental Memorandum (Docket No. 50); and Defendants' Supplemental Response (Docket No. 51). The Court heard testimony and argument at a hearing held on December 1, 2010 (Hrg. Tr. at Docket No. 55).

I. Background and Relevant Facts

Since 1978, the site at 1762 New London Road in Kemblesville, Pennsylvania ("NLR Sunoco") has been used by multiple unaffiliated owners as a convenience store and retail gasoline service station. The NLR Sunoco and properties proximate to it obtain water from private supply wells. Those wells are neither uniform nor reach similar depths. There are approximately 179 properties whose boundaries are completely within 2,500 feet of the NLR Sunoco. These properties are at different distances and in different directions from the NLR Sunoco; some are up-gradient, some cross-gradient, and some down-gradient. Furthermore, these properties consist of a variety of zoning types, including commercial, residential, farm, utilities, exempt, and vacant.

Methyl tertiary butyl ether ("MTBE") is a chemical compound that is created by the chemical reaction of methanol and isobutylene. MTBE is a colorless liquid that dissolves in water and can be challenging to remove therefrom. MTBE has been, although it is no longer, used as a fuel additive in gasoline. Releases from underground storage tanks containing MTBE-treated gasoline can be a source of groundwater contamination. However, MTBE contamination can arise from other sources, including automobile accidents, improper disposal of used motor oil, heating oil, septic systems, above-ground storage tanks, storm water runoff, and the atmosphere. The Pennsylvania Department of Environmental Protection ("PDEP") has set 20 g/L as the aesthetically acceptable medium-specific concentration of MTBE in potable groundwater -- i.e., PDEP uses the limit of a 20 g/L medium-specific concentration to determine the adequacy of MTBE cleanups performed under Pennsylvania law.

Groundwater containing MTBE was first found at the NLR Sunoco site in 1998 during an investigation undertaken in connection with the sale of the NLR Sunoco by Defendant Landhope to Sunoco. The investigation was eventually overseen by PDEP. PDEP's efforts included the installation and ongoing review of monitoring wells. In 2005, after evaluating the results of subsequent environmental testing in connection with another sale of the NLR Sunoco, Sunoco's environmental engineering consultants discovered an elevated concentration of MTBE in one of its monitoring wells. Thereafter, Sunoco filed a notice of reportable release with PDEP and installed additional monitoring wells on and adjacent to the NLR Sunoco. Sunoco performed groundwater remediation efforts from 2006 onward, including high-vacuum extractions of groundwater as well as operation of both soil vapor extraction and pump and treat systems. Sunoco submitted periodic site characterization reports to PDEP detailing the impact of these efforts, and Sunoco also filed the results of subsequent rounds of testing.

In May 2006, Sunoco's environmental consultants sent surveys to property owners within a quarter-mile of the NLR Sunoco seeking information on their wells. Many did not reply. Sunoco then sent letters seeking access to groundwater at relevant properties for the purpose of sampling and testing. Forty-three property owners responded and allowed testing to proceed under the oversight of PDEP. Testing in 2009 revealed that two properties located up-gradient from the NLR Sunoco tested in excess of 20 g/L of MTBE. In total, test results revealed that 10 of the 43 private wells tested positive for any presence of MTBE, eight of which were located within 750 feet of the NLR Sunoco. These properties were dispersed among many properties with wells that did not test positive for MTBE. Several of those wells subsequently tested at lower levels (or no level at all). The most recent round of testing (third quarter 2010) revealed a similarly small number of properties that tested positive for MTBE, with only three properties testing in excess of 20 g/L and many at only 2 g/L or below. In total, only 17 properties tested positive for any MTBE from 2006 to 2010, and only three of those properties ever tested in excess of 20 g/L.*fn1 Pl's Ex. 1; Def's Ex's 1-4; Hrg. Tr. at 45, 65, 75, 95. All properties that ever tested positive for MTBE were located within 1500 feet of the NLR Sunoco, and the majority were located within 750 feet of that site. See Hrg. Tr. at 75.

PDEP did not ask Sunoco to expand its sampling program, and PDEP is now working with Sunoco to end the remediation programs. Hrg. Tr. at 60-61, 77. Plaintiffs' hydrogeologist has testified that Sunoco "effectively remediated the impacts on site." Id. at 53.

In the instant lawsuit, Plaintiffs are property owners who are bringing claims under the Pennsylvania Storage Tank and Spill Prevention Act, 35 PA. CONS. STAT. § 6021.101 et seq. (1989) ("Tank Act"), as well as Pennsylvania common law.*fn2 Defendants are former owners or current franchisors/operators of the NLR Sunoco. Essentially, Plaintiffs contend that: (1) the NLR Sunoco is the source of the MTBE detected in groundwater at the properties which tested positive for MTBE; (2) an alleged MTBE "plume" has spread and will continue to spread to nearby properties; and (3) as a result nearby properties have suffered damages. Defendants maintain that the initial and subsequent MTBE levels are the result of a limited release and remediation, and that any MTBE "plume" is small and will continue to shrink with time. Defendants further contend that Plaintiffs have advanced no credible evidence or theory of a uniform spread of MTBE, as evidenced by MTBE-free properties being interspersed among MTBE-positive properties as well as the lack of sufficient expert opinions.

II. Legal Standard

The class-action device was designed as "an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only." Califano v. Yamasaki, 442 U.S. 682, 700-01 (1979). Class relief is "peculiarly appropriate" when the "issues involved are common to the class as a whole" and when they "turn on questions of law applicable in the same manner to each member of the class." Id. at 701. The class action device is appropriate in cases where it "saves the resources of both the courts and the parties by permitting an issue potentially affecting every [class member] to be litigated in an economical fashion under Rule 23." Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147, 155 (1982) (quoting Califano, 442 U.S. at 701).

"The district court has a good deal of discretion in determining whether or not to certify a class." Mazus v. Dep't of Transp., 629 F.2d 870, 876 (3d Cir. 1980); see also Gulf Oil Co. v. Bernard, 452 U.S. 89, 100 (1981). As the Honorable Gene E.K. Pratter of this District has observed, this broad discretion "often produces wholly different results in actually or ostensibly similar situations." Gates v. Rohm & Haas Co., 265 F.R.D. 208, 213 n.9 (E.D. Pa. 2010) (citing In re Welding Fume Prods. Liab. Litig., 245 F.R.D. 279, 304 (N.D. Ohio 2007) ("It is easy to find cases . . . where a court granted class certification to plaintiffs . . ., and just as easy to find cases where a court denied certification under similar conditions -- and there is no obvious or simple way to reconcile the two different results.")).

Plaintiffs who seek class certification bear the burden of proving that all of the requirements for class certification are met. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614 (1997). As a threshold matter, the proposed class must be sufficiently defined. In re Sch. Asbestos Litig., 56 F.3d 515, 519 (3d Cir. 1995). In addition to satisfying that prerequisite, plaintiffs must also satisfy the requirements of Federal Rule of Civil Procedure 23. Fed. R. Civ. P. 23; Johnston v. HBO Film Mgmt., Inc., 265 F.3d 178, 183-84 (3d Cir. 2001).*fn3 "The requirements set out in Rule 23 are not mere pleading rules." In re Hydrogen Peroxide, 552 F.3d 305, 311 (3d Cir. 2008). Although courts have discretion in Rule 23 matters, the law requires that each Rule 23 component be satisfied or a class cannot be certified. Id. at 316-17 n.15. A request for class certification ...


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