Lovejoy v. Jackson Resources Company
Filing
56
MEMORANDUM OPINION AND ORDER granting 23 MOTION to Strike Exhibit A and granting 14 MOTION to Dismiss only as it pertains to Counts II, IV, and VII and denied as it pertains to Counts I, III, V, VI. Signed by Judge Joseph R. Goodwin on 7/15/2021. (cc: counsel of record; any unrepresented party) (lca)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
RITA LOVEJOY,
Plaintiff,
v.
CIVIL ACTION NO. 2:20-cv-00537
JACKSON RESOURCES COMPANY,
Defendant.
MEMORANDUM OPINION & ORDER
Before the court is Defendant Jackson Resources Company’s (“Jackson”)
Motion to Dismiss [ECF No. 14]. The parties have fully briefed the issues raised in
the Motion to Dismiss and the Motion is ripe for decision. [ECF No’s. 22, 26]. I will
also address Jackson’s unopposed Motion to Strike Exhibit A [ECF No. 23]. Since the
filing of this Motion to Dismiss, Plaintiff Rita Lovejoy (“Lovejoy”) has moved for leave
to amend her complaint. [ECF No. 29]. I granted that motion. [ECF No. 38]. Jackson
has now answered the amended complaint and incorporated within that answer their
motion to dismiss the original complaint. For the reasons contained in this
memorandum opinion, the Motion [ECF No. 14] is DENIED IN PART and GRANTED
IN PART.
I.
BACKGROUND
Lovejoy is the owner of property located at Upper Mud River and Palermo Road
in Lincoln County, West Virginia. [ECF No. 22 at 2]. Lovejoy complains that Jackson
1
is the past owner of a natural gas well and pipeline facility (the “Jackson facility”)
that sits on her property. [ECF No. 1, ¶1]. In 2018, Lovejoy became concerned that
certain hazardous or solid wastes from the Jackson facility had migrated or were
threatening to migrate onto the property. [ECF No. 22 at 2]. Lovejoy commissioned
an environmental investigation of the soil surrounding the Jackson facility. That
investigation took place on October 16, 2018 and revealed the presence of a host of
“contaminants of concern” at elevated levels in the groundwater and in the soil.
Namely, Lovejoy alleges that the organic compound Bis(2-ethylhexyl)phthalate, a
known carcinogen, was discovered in the groundwater and in the soil adjacent to the
Jackson facility. This compound does not naturally occur in groundwater or soil and
is considered a “priority pollutant” under the Clean Water Act and the Resource
Conservation and Recovery Act.
Environmental sampling also revealed the presence of several other
compounds in the area adjacent to the Jackson facility: Benzo(a)anthracene,
Benzo(b)fluoranthene,
Benzo(k)fluoranthene,
Chrysene,
Fluoranthene,
Phenanthrene, and Pyrene. Id. Lovejoy alleges that each of the contaminants that
have been discovered near the Jackson facility are “solid wastes” within the meaning
of 40 C.F.R. § 261.2. Lovejoy alleges that no other industrial operations have been
“historically conducted at the Lovejoy Property.” [ECF No. 39, at ¶ 22]. Accordingly,
Lovejoy claims that the Jackson facility is the only operation or apparatus that could
have contributed to the presence of the contaminants.
Lovejoy brings seven claims arising out of this nexus of fact: recovery of
response costs associated with a contaminated site and declaratory judgment that
2
Jackson is liable for response costs under Section 107, 42 U.S.C. §§ 9607(a) and
9613(g) of the Comprehensive Environmental Response, Compensation, and Liability
Act (“CERCLA”) (count I); citizen suit relief from permitting violations under the
Resource Conservation and Recovery Act (“RCRA”) and the West Virginia Hazardous
Waste Management Act (“WVHWMA”) (count II); citizen suit relief for judicial
abatement of an imminent and substantial endangerment under the RCRA (count
III); judicial abatement of a public nuisance under West Virginia law (count IV); relief
for a private nuisance (count V); negligence (count VI); and strict liability (count VII).
Jackson moves to dismiss these claims pursuant to Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6). First, Jackson argues that Lovejoy’s CERCLA claim
has failed to “identify with sufficiently meaningful detail the conduct of Jackson that
forms the basis for her action.” [ECF No. 14 at 1]. Jackson states that Lovejoy has
made conclusory allegations which do little more than make formulaic recitations of
the elements of a cause of action. Id. Jackson further argues that Lovejoy fails to state
a claim for relief under the RCRA and the WVHWMA because: (i) Jackson is not a
present owner or operator of the facility on the Lovejoy property; (ii) the RCRA and
WVHWMA exclude the regulation of natural gas from the definition of hazardous
waste for purposes of permitting violations; (iii) under Fed. R. Civ. P. 12(b)(1), this
court does not have jurisdiction over the RCRA claims contained in counts II and III
because Lovejoy did not provide sufficient notice to Jackson of alleged violations as
required under 42 U.S.C. § 6972 and 40 C.F.R. § 254.3; and (iv) Lovejoy has failed to
state a claim upon which relief can be granted because she has not pled sufficient
3
facts to support her allegations of an imminent and substantial harm to health or the
environment under 42 U.S.C. § 6972(a)(1)(B).
As to Lovejoy’s West Virginia common law claims, Jackson argues that Lovejoy
has failed to identify the special injury that is needed to establish a public nuisance
claim; that Lovejoy has not alleged a substantial interference with the use and
enjoyment of her land, such that her private nuisance claim is viable; and that her
strict liability claim fails because Lovejoy has not alleged that Jackson was engaged
in any abnormally dangerous activity. [ECF No. 14 at 2].
II.
STANDARD OF REVIEW
A motion to dismiss filed under Rule 12(b)(6) tests the legal sufficiency of a
complaint or pleading. Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008). A
pleading must contain a “short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This standard “does not require
‘detailed factual allegations,’ but it demands more than an unadorned, ‘thedefendant-unlawfully-harmed-me’ accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). To survive a
motion to dismiss, “a complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting Twombly, 550
U.S. at 570). To achieve facial plausibility, the plaintiff must plead facts allowing the
court to draw the reasonable inference that the defendant is liable, moving the claim
beyond the realm of mere possibility. Id. Mere “labels and conclusions” or “formulaic
recitation[s] of the elements of a cause of action” are insufficient. Twombly, 550 U.S.
at 555.
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Federal Rule of Civil Procedure 12(b)(1) allows a defendant to move for
dismissal when the court lacks jurisdiction over the subject matter of the action. Fed.
R. Civ. P. 12(b)(1). In considering a Rule 12(b)(1) motion to dismiss, the burden is on
the plaintiff to prove that federal subject matter jurisdiction is proper. See United
States v. Hays, 515 U.S. 737, 743 (1995); Adams v. Bain, 697 F.2d 1213, 1219 (4th
Cir. 1982). There are two ways in which a defendant may present a 12(b)(1) motion.
First, a defendant may attack the complaint on its face when the complaint “fails to
allege facts upon which subject matter jurisdiction may be based.” Adams, 697 F.2d
at 1219. In such a case, all facts as alleged by the plaintiff are assumed to be true.
Alternatively, a Rule 12(b)(1) motion to dismiss may attack the existence of subject
matter jurisdiction over the case apart from the pleadings. See Williams v. United
States, 50 F.3d 299, 304 (4th Cir. 1995). In such a case, the trial court's “very power
to hear the case” is at issue. Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884,
891 (3d Cir. 1977). The district court is then free to weigh the evidence to determine
the existence of jurisdiction. Adams, 697 F.2d at 1219. “No presumptive truthfulness
attaches to the plaintiff's allegations, and the existence of disputed material facts will
not preclude the trial court from evaluating for itself the merits of jurisdictional
claims.” Mortensen, 549 F.2d at 891. Where a complaint invoking federal question
jurisdiction “is not colorable,” it should be dismissed under Rule 12(b)(1). Arbaugh v.
Y&H Corp., 546 U.S. 500, 513 n.10, 126 S. Ct. 1235, 163 L. Ed. 2d 1097 (2006).
Related to my ruling on this Motion is whether I may properly consider
Lovejoy’s Exhibit A, attached to her response to the Motion to Dismiss. [ECF No. 22].
Exhibit A is an EPA pamphlet containing information about the Bentsen Amendment
5
to RCRA. As a general principle, the District Court may not rely on materials found
outside of the complaint unless such material is clearly integral to the Complaint. See
Blankenship v. Manchin, 471 F.3d. 523, 526 n.1 (4th Cir. 2016). The EPA pamphlet
that Lovejoy attached to her responsive brief was not submitted as part of the
Amended Complaint, nor is it integral to the Amended Complaint. I will not consider
it for purposes of ruling on this Motion. Jackson’s Motion to Strike Exhibit A [ECF
No. 23] is GRANTED.
III.
DISCUSSION
A. CERCLA (COUNT I)
The primary basis of Jackson’s motion to dismiss the CERCLA claim in Count
I is that Lovejoy’s pleading fails to rise above the level of conclusory allegations.
Jackson argues that Lovejoy “makes no effort to describe when or how hazardous
substances came to be located on the Lovejoy property and provides no factual
allegation linking the disposal of such substances to the time period in which Jackson
owned or operated the Jackson facility.” [ECF No. 15 at 12]. Jackson states that
Lovejoy is unable to point to any conduct on the part of Jackson that caused the
contaminants to be released, and she has failed to state facts that support the idea
that the contaminants are related to the production and transportation of natural
gas. [ECF No. 26 at 3].
Section 107 of CERCLA provides for strict liability for responsible parties. See
United States v. Monsanto, 858 F.2d 160, 167 (1988). “Congress enacted CERCLA to
address the increasing environmental and health problems associated with inactive
hazardous waste sites.” Nurad, Inc. v. William E. Hooper & Sons Co., 966 F.2d 837,
6
841 (4th Cir. 1992). The statute encourages private cleanup of such hazards by
providing a cause of action for the recovery of costs incurred in responding to a
“release” of hazardous substances at any “facility.” 42 U.S.C. § 9607. Under CERCLA,
a person who incurs such cleanup costs is entitled to recover from anyone who
qualifies as a “responsible person” under the statute. Id. Responsible persons include
the current “owner” or “operator” of the facility or any person who “owned” or
“operated” the facility at the time of “disposal,” id. at § 9607(a)(2); any person who
“arranged for disposal or treatment” of hazardous substances at the facility, id. at §
9607(a)(3); and any person who accepts hazardous substances “for transport to
disposal or treatment facilities, incineration vessels or sites,” id. at § 9607(a)(4). To
recover response costs, the plaintiff need not “prove its case with mathematical
precision . . . or scientific certainty.” Kalamazoo River Study Group v. Rockwell Int’l
Corp., 355 F.3d 574, 590 (6th Cir. 2004). Moreover, a claim for response costs may “be
established entirely through circumstantial evidence.” Tosco Corp. v. Koch
Industries, 216 F.3d 886, 892 (10th Cir. 2000) (noting that requiring direct evidence
relating to disposal that occurred in the past is inappropriate). CERCLA does not
“cast the plaintiff in the impossible role of tracing particular waste to particular
sources . . . a task that is often technologically infeasible due to the fluctuating
quantity and varied nature of the pollution at a site over the course of many years.”
Acushnet v. Mohasco Corp., 191 F.3d 69, 76 (1st Cir. 1999). Nevertheless, the plaintiff
must present sufficient evidence from which a reasonable and rational approximation
of each defendant’s individual contribution to the contamination can be made.” In re
Bell Petroleum Servs., 3 F.3d 889, 903 (5th Cir 1993).
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Lovejoy’s complaint certainly relies on inference that the substances identified
in the soil and groundwater are attributable to the Jackson facility:
Since no operation historically conducted at the Lovejoy Property could
have contributed the presence of these contaminants to the
environment, the sole plausible source of these contaminants on the
Lovejoy Property, within environmental media underlying that
property, and in the vicinity thereof is the migration of such
contaminants found at, under and in the vicinity of the Jackson Facility
reasonably exists.
[ECF No. 39, at ¶22]. While Jackson argues that Lovejoy has been unable to
point to any affirmative act that led to the contamination, it is “well established in
the Fourth Circuit that the term ‘disposal’ includes passive migration [from the
source].” SPS Ltd. P’ship, LLLP v. Sevestral Sparrows Poing, LLC, 808 F. Supp. 2d
794, 805 (D. Md., July 5, 2011) (discussing Nurad, Inc. v. William E. Hooper & Sons
Co., 966 F.2d 837, 845 (4th Cir. 1992)). In Nurad, the court held that a former owner
of a manufacturing facility could be held liable under CERCLA for passive migration
of hazardous substances, even where the former owner took no active role in
managing the processes that lead to the leaking of hazardous substances. 966 F.2d
at 844–47.
I find that at the Rule 12 stage of this case, the inference that Lovejoy raises
in Paragraph 22 plausibly states a claim for liability under Section 107––even if does
so only by the narrowest of margins. Lovejoy complains that the substances identified
by the October 16, 2018 sampling are “solid wastes” within the meaning of 40 C.F.R.
§ 261.2 and “hazardous wastes” within the meaning of 40 C.F.R. Part 261 and Title
33, Series 20, of the West Virginia Code of State Rules, that the pipeline is a “facility”
under CERCLA, and that the compounds detected are at unusually elevated levels in
8
the soil and groundwater. What Lovejoy has not done, however, is allege that any of
the compounds that were detected in her soil and groundwater somehow originate,
derive, or occur as a component or byproduct of natural gas. This strikes me as an
important omission. I am aware that the nature of environmental litigation can be
challenging for a plaintiff who often does not know the full picture of the damage she
suspects has occurred. But at the summary judgment stage, Lovejoy will have to
make a much stronger case that the compounds that turned up in her soil study are
linked to the processes of the Jackson facility. For now, I find that her allegations
plausibly state a claim to relief, and she may proceed to discovery. As it relates to
Count I, the motion to dismiss is DENIED.
B. RCRA Claims (Counts II and III)
1. Jackson’s Rule 12(b)(1) motion
Jackson first moves to dismiss Lovejoy’s RCRA claims for lack of subject matter
jurisdiction pursuant to 42 U.S.C. § 6972(b). When considering a jurisdictional
argument under Federal Rule 12(b)(1), I need not attach a presumption of truth to
the allegations contained in the complaint. See Chesapeake Bay Found., Inc. v.
Severstal Sparrows Point, LLC, 794 F. Supp. 2d 602, 611 (D. Md. July 5, 2011).
Moreover, when reviewing a factual attack on the court’s subject matter jurisdiction,
I am free to consider matters outside the pleadings without converting the
defendant’s motion to a motion for summary judgment. Id.
RCRA provides that before filing a lawsuit under § 6972(a)(1), a plaintiff must
provide the defendant with a notice of intent to sue at least 60 days before filing a
suit for permitting violations under § (a)(1)(A) or 90 days before filing suit pursuant
9
to § (a)(1)(B). 42 U.S.C. § 6972(b)(2)(A). Failure to do so is grounds for dismissal of a
RCRA claim. See City of Evanston v. N. Ill. Gas Co., 229 F. Supp. 3d 714, 722 (N.D.
Ill., Jan. 17, 2017). “A notice of intent to sue must be ‘sufficiently specific to inform
the alleged violator about what it is doing wrong, so that it will know what corrective
actions will avert a lawsuit.’” Id.
Here, Jackson argues that Lovejoy’s notice of intent to sue was deficient
because “Lovejoy merely asserted that there are contaminants on her property;” that
the notice stated only that the Jackson facility is the “most likely” source of the
contaminants; that the notice failed to provide Jackson with a description of the
activity that constituted the violations; and that the notice does not identify the date
of the alleged violations. [ECF No. 15, at 17].
I find that the notice contains sufficient factual specificity to put Jackson on
notice that the natural gas well they formerly operated was potentially leaking or
spilling certain chemical pollutants. The notice states the exact location of the
pipeline facility including reference numbers for the line and well. Lovejoy compiled
comprehensive list of the chemicals that the survey conducted on the Lovejoy
property detected. [ECF No. 15, Ex. A.]. The notice states the date of the survey
conducted and the legal and factual bases for Lovejoy’s assertion that Jackson is in
violation of RCRA. Accordingly, the motion to dismiss the RCRA claims under Rule
12(b)(1) is DENIED.
2. Jackson’s motion to dismiss for failure to state a claim
RCRA is a comprehensive environmental statute that governs the treatment,
storage, and disposal of solid and hazardous waste. Courtland Co. v. Union Carbide.,
10
2020 U.S. Dist. LEXIS 155019 (S.D. W. Va. Aug. 26, 2020). The primary purpose of
RCRA is “to reduce the generation of hazardous waste and to ensure the proper
treatment, storage, and disposal of that waste which is nonetheless generated, so as
to minimize the present and future threat to human health and the environment.” Id.
(quoting Meghrig v. KFC W., Inc., 516 U.S 479, 483 (1996)).
Subchapter III, or Subtitle C, of RCRA concerns the management of hazardous
waste and directs the federal Environmental Protection Agency (“EPA”) to
promulgate federal standards and permit requirements for its storage, treatment,
and disposal. See 42 U.S.C. §§ 6921-6934. RCRA defines “hazardous waste” as:
[A] solid waste, or combination of solid wastes, which
because of its quantity, concentration, or physical,
chemical, or infectious characteristics may -- (A) cause, or
significantly contribute to an increase in mortality or an
increase in serious irreversible, or incapacitating
reversible, illness; or (B) pose a substantial present or
potential hazard to human health or the environment
when improperly treated, stored, transported, or disposed
of, or otherwise managed.
42 U.S.C. § 6903(5); The EPA Administrator and the Secretary of the West Virginia
Department of Environmental Protection are responsible for developing and
promulgating criteria for identifying the characteristics of hazardous waste, and for
listing such hazardous waste. See 42 U.S.C. § 6921(a); W. Va. Code § 22-18-6(a)(2).
Within this regulatory scheme are a set of twin citizen suit mechanisms. The
first authorizes suit “against any person . . . who is alleged to be in violation of any
permit, standard, regulation, condition, requirement, prohibition, or order which has
become effective pursuant to this chapter. . . .” 42 U.S.C. § 6972(a)(1)(A). The second
provision permits citizen suits to be commenced “against any person, including the
11
United States and any other governmental instrumentality or agency . . . including
any past or present generator, past or present transporter, or past or present owner
or operator of a treatment, storage, or disposal facility, who has contributed or is
contributing to the past or present handling, storage, treatment, or disposal of any
solid or hazardous waste which may present an imminent and substantial
endangerment to health or the environment.” 42 U.S.C. § 6972(a)(1)(B).
i.
42 U.S.C. § 6972(a)(1)(A) “permitting” violation claim (Count II)
Lovejoy alleges in Count II that Jackson has violated the statutory provisions
and the hazardous waste permitting regulations promulgated by the EPA under
RCRA Subtitle III (42 U.S.C. §§ 6921-6939) and by the state of West Virginia under
its Hazardous Waste Management Act, W. Va. Code §22-18-1, et seq. Those statutes
and regulations prohibit the treatment, storage, or disposal of hazardous wastes that
are listed in EPA regulations without a hazardous waste permit authorizing such
activities. 42 U.S.C. §6928, W.Va. Code § 22-18-8(a).
Jackson moves to dismiss Count II because “the statements in Count II
essentially comprise a ‘formulaic recitation of the elements of a cause of action’ within
the meaning of Twombly¸ rather than factual allegations.” [ECF No. 15 at 9]. Jackson
also argues that Lovejoy does not identify or make any effort to describe specific acts
or omissions of Jackson that constitute the treatment, storage, or disposal of
hazardous waste. Id. Jackson also directs the Court to the “Bentsen Amendment” to
RCRA, which states that “drilling fluids, produced waters, and other wastes
associated with the exploration, development, and production of crude oil or natural
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gas or geothermal energy shall be subject only to existing State or Federal regulatory
programs in lieu of Subtitle C.” 42 U.S.C. § 6921(b)(2)(A).
However, Jackson’s primary defense to Lovejoy’s § 6972(a)(1)(A) claim is that
it is no longer an owner or operator of the Jackson facility. Lovejoy now acknowledges
this crucial point. [ECF No. 22 at 8] (“Lovejoy concedes that Jackson no longer owns
or operates the Jackson facility and therefore has no liability for failing to have a
current permit[.]).” Nevertheless, Lovejoy attempts to revive this claim by asserting
that Jackson is in violation of its closure obligations under 40 C.F.R. Part 264—an
allegation that does not appear in the Amended Complaint. Lovejoy cites Goldfarb v.
Mayor & City Council of Baltimore, 791 F. 3d 500 (4th Cir. 2015) for the proposition
that the failure to satisfy closing obligations can be an ongoing violation within the
meaning of the permitting provision, § 6972(a)(1)(A). However, in Goldfarb, the
defendant still owned the facility in question. In Goldfarb, the Fourth Circuit Court
of Appeals vacated the dismissal of the plaintiff’s complaint which, the Court held,
adequately alleged that the Defendant was a present owner or operator who was
responsible for an ongoing violation of “any permit, standard, regulation, condition,
requirement, prohibition, or order.” Id. at 513. That is not so here. Lovejoy admits
that Jackson is only a past owner and has not pleaded facts to demonstrate a present,
ongoing permitting type of violation.
I note, as the parties have thoroughly briefed the issue, that there is divided
authority as to the question of whether past conduct can satisfy the “to be in violation”
standard of the RCRA permitting section, 6972(a)(1)(A). The Supreme Court
considered this question in the context of a Clean Water Act claim and concluded that
13
the citizen suit permitting violation of that law was meant to encompass only present
day violations. See Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc.,
484 U.S. 49, 57 (1987) (“the most natural reading of to be in violation is a requirement
that citizen-plaintiffs allege a state of continuous or intermittent violations—that is,
a reasonable likelihood that a past polluter will continue to pollute in the future.”).
Lovejoy is unable to point the Court to a decision from this circuit or, indeed, a single
Court of Appeals decision from any circuit which has held that a past owner can be
held liable for present permitting violations under § 6972(a)(1)(A). Such a result
would seem to contradict Gwaltney and the natural reading of the statute. I find it
hard to reckon with the basic logic of how a past owner or operator would be able to
bring itself into regulatory compliance with regards to a site or facility that it no
longer controls. Allowing this claim to proceed would also ignore the fact that with
RCRA’s other citizen suit provision, § 6972(a)(1)(B), Congress has provided a
remedial cause of action against any “past or present owner or operator that
contributed to the handling, storage, treatment, transportation or disposal of any
solid or hazardous waste that may present an imminent and substantial
endangerment to health or the environment.”
Because Jackson is a past owner without liability under § 6972(a)(1)(A), I need
not rule on Jackson’s argument that as a natural gas producer, it is exempt from
RCRA regulation after passage of the Bentsen Amendment. Finally, Jackson
correctly points out that Goldfarb is unrelated to the closure obligations under Part
264 that Lovejoy now raises in an attempt to revitalize Count II. For the foregoing
14
reasons, the motion to dismiss as it pertains to Lovejoy’s claims under the citizen suit
provision provided for in 42 U.S.C. § 6972(a)(1)(A) is GRANTED.
ii.
Lovejoy’s 42 U.S.C. § 6972(a)(1)(B) imminent and substantial
endangerment claim (Count III)
Jackson moves to dismiss Count III for failure to state sufficient facts to
support an allegation of an imminent and substantial endangerment. “In contrast to
claims brought under subsection (a)(1)(A), claims under subsection (a)(1)(B) may be
brought regardless of whether the plaintiff can demonstrate that the defendant’s
actions violated a specific RCRA-based permit.” Goldfarb, 791 F.3d at 505. The
district may restrain any person who has “contributed or who is contributing to the
past or present handling, storage, treatment, transportation, or disposal of any solid
or hazardous waste.” 42 U.S.C. § 6972(a)(1)(B). And, to remedy a violation of either
subsection, the district court has authority “to order [a defendant] to take such other
action as may be necessary.” 42 U.S.C. § 6972(a). “Disposal” is defined as “the
discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste
into air or water[,] such that solid waste or any constituent thereof may enter the
environment or be emitted into the air or discharged into any waters, including
ground waters.” 42 U.S.C. § 6903(3).
Jackson argues that Lovejoy has failed to demonstrate the potential for
immediate and substantial harm. As with her CERCLA claim, I find that Lovejoy has
pleaded this claim with the bare minimum level of adequate specificity to survive a
Rule 12(b)(6) motion, even if the Amended Complaint falls short of scientific or
mechanical certainty.
15
Lovejoy alleges first that Jackson is a person who has “contributed . . . to the
past or present handling, storage, treatment, transportation, or disposal of any solid
or hazardous waste.” [ECF No. 39 at ¶48]. Lovejoy identifies the substances that were
revealed during the environmental investigation as “solid wastes” within the
meaning of 42 U.S.C. § 6903(27) and “hazardous waste” within the meaning of 42
U.S.C. § 6903(5). Lovejoy complains that these contaminants have “been shown to
cause or significantly contribute to an increase in mortality or an increase in serious
irreversible . . . illness, and each poses a substantial present or potential hazard to
human health or the environment when improperly treated, stored, transported, or
disposed of, or otherwise managed.” [ECF No. 39 at ¶47]. The statute clearly
authorizes enforcement against past handlers who may have allowed hazardous
substances to leak or spill out of their industrial property.
Again, I am wary of Lovejoy’s pleading which has not specifically alleged that
the compounds detected in her soil and groundwater are related to the natural gas
industry. However, as in her CERCLA claim in Count I, I find that this claim is
sufficiently plausible to develop in discovery. I reiterate that at the summary
judgment stage, Lovejoy will need to present a more definitive link between her soil
contamination and the Jackson facility. Accordingly, I DENY the motion to dismiss
Count III.
C. West Virginia State Law Claims
i.
Public nuisance (Count IV)
“A public nuisance is an act or condition that unlawfully operates to hurt or
inconvenience an indefinite number of persons.” Hark v. Mountain Fork Lumber Co.,
16
34 S.E.2d 348, 354 (W. Va. 1945). A public nuisance tends to affect an indeterminate
number of people among the general public, while a private nuisance injures only one
or a limited, definite number of individuals. Id. “A public nuisance action usually
seeks to have some harm which affects the public health and safety abated.” State ex
rel. Smith v. Kermit Lumber & Pressure Treating Co., 488 S.E.2d 901, 925 (W. Va.
1997). A private individual cannot maintain a suit to abate a public nuisance unless
such individual suffers a “special injury” that differs “not only in degree, but in
character” from the injury inflicted upon the general public. See Hark, 34 S.E.2d at
354; Int'l Shoe Co. v. Heatwole, 30 S.E.2d 537, 540 (W. Va. 1944); Curry v. Boone
Timber Co., 105 S.E. 263, 264 (W. Va. 1920). The injury must be “serious and
permanent” and affect “the substance and value of their property.” Curry, 105 S.E. at
264; see also Hark, 34 S.E.2d at 354 (requiring “substantial permanent damages
[that] cannot be fully compensated in an action at law”).
Lovejoy alleges that the presence of contaminants far exceeds any background
level and that these contaminants threaten health and human safety, impede
Lovejoy’s ability to have the full use and enjoyment of her property, and threaten to
contaminate a waterway, the Mud River. Such contamination could theoretically be
harmful to the public, but Lovejoy has not made any non-speculative allegations that
there is an ongoing threat to public health and safety. The Amended Complaint
merely suggests that the Lovejoy property’s adjacency to the Mud River is indicative
of widespread contamination that could injure the public. This is insufficient as a
matter of law to state a claim for abatement of a public nuisance. Accordingly, the
Motion to Dismiss Count IV is GRANTED.
17
ii.
Private nuisance (Count V)
Jackson further submits that Lovejoy is unable to identify an act or omission
that would render Jackson liable for the private nuisance claim she advances in
Count V. “A private nuisance is a substantial and unreasonable interference with the
private use and enjoyment of another's land.” Syl. Pt. 1, Hendricks v. Stalnaker, 380
S.E.2d 198, 199 (W. Va. 1989). In order for an interference to be “substantial,” the
interference must “involv[e] more than slight inconvenience or petty annoyance[,] . .
. [and] there must be a real and appreciable invasion of the plaintiff's interests.”
Carter v. Monsanto Co., 575 S.E.2d 342, 347 (W. Va. 2002) (quoting Restatement
(Second) of Torts § 821F(c) (1979)). An interference is “unreasonable” “when the
gravity of the harm outweighs the social value of the activity alleged to cause the
harm.” Syl. Pt. 2, Hendricks, 380 S.E.2d at 199.
Lovejoy has plausibly alleged a private nuisance. Lovejoy claims that by some
act or omission, Jackson has caused the release of toxic, noxious, harmful, and
hazardous contaminants on her property. The contaminants, she pleads, are “not only
an invasion” of the “right to the customary safe and comfortable use and enjoyment
of her property” but also constitute “a condition that both presents and may present
an imminent and substantial danger to human health and the environment.” [ECF
No. 39 at 2]. Taking the allegations as true, I find that the contaminants that are
alleged to originate from the Jackson facility unreasonably and substantially
interfere with the beneficial use and enjoyment of her land and water. The Motion to
Dismiss as it pertains to Count V is also DENIED.
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iii.
Negligence (Count VI)
Lovejoy pleads that Jackson, through its acts or omissions, breached its duties
of reasonable care through its supposed failure to handle, treat, store, or properly
dispose of contaminants emanating from the Jackson facility. Jackson’s response to
this claim is that Lovejoy has failed to adequately plead that Jackson ever handled,
transported, or stored contaminants in the first place. Lovejoy instead relies on the
previously discussed inference that the pipeline is the only plausible source of
contamination.
To prevail on a claim of negligence in this state, a plaintiff must demonstrate,
by a preponderance of the evidence, that (1) the defendant owes a duty to the plaintiff;
(2) the defendant breached that duty by an act or omission; and (3) that the breach of
the duty proximately caused the injuries that the plaintiff suffered. Wheeling Park
Comm'n v. Dattoli, 787 S.E.2d 546, 551 (W. Va. 2016). The determination of whether
the defendant owes a duty is not a factual one; rather the determination of whether
a plaintiff is owed a duty of care by the defendant must be rendered as a matter of
law. Syl. Pt. 4, Jack v. Fritts, 457 S.E.2d 431, 431–32 (W. Va. 1995). Specifically,
The ultimate test of the existence of a duty to use care is
found in the foreseeability that harm may result if it is not
exercised. The test is, would the ordinary man in the
defendant's position, knowing what he knew or should
have known, anticipate that harm of the general nature of
that suffered was likely to result?
Sewell v. Gregory, 371 S.E.2d 82 (1988). “The obligation to refrain from particular
conduct is owed only to those who are foreseeably endangered by the conduct and only
with respect to those risks or hazards whose likelihood made the conduct
19
unreasonable.” Id. (quoting 2 F. Harper & F. James, The Law of Torts § 18.2 (1956)
(footnote omitted)).
Lovejoy has pled that Jackson owed her a duty of reasonable care to “handle,
treat, store, and dispose” of the hazardous substances “in a manner which would not
cause or result in the release” of those substances into the soil and groundwater on
her property and the surrounding environment. [ECF No. 3 at 25–26]. Taking the
facts in the Amended Complaint as true, I find that Jackson—as past owner of the
natural gas pipeline that transverses the land in question––did owe Lovejoy a duty
of care. It is reasonably foreseeable that hazardous chemicals moving in a pipeline
will, if not properly stored or managed, leak, spill, seep, or otherwise emit from the
pipeline and create an endangerment to the property on which the pipeline sits and
to the owner of that property.
Jackson reiterates that Lovejoy has not yet been able to name the act or
omission that proximately caused the harm described in the Amended Complaint. I
find, however, that it is sufficient for the purposes of a motion to dismiss that Lovejoy
has described Jackson as the suspect pipeline’s prior owner (a fact which is
undisputed) and that some failure on Jackson’s part is the reason for the damage she
has sustained to the property. Imposing a duty of care on Jackson for the time it
owned and operated the pipeline is consistent with public policy and federal and state
environmental regulatory law. The arguments about the exact nature of Jackson’s
acts or omissions are best left to be sorted out at the summary judgment stage or at
trial. The Motion to Dismiss Count VI is therefore DENIED.
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iv.
Strict Liability (Count VII)
Jackson argues that the transportation of natural gas is not a strict liability
activity in West Virginia as a matter of law. See Foster v. City of Keyser, 501 S.E. 2d
165 (W. Va. 1997). In her response to the Motion to Dismiss [ECF No. 22], Lovejoy
concurs with this proposition of law but nevertheless retained the strict liability claim
in a later filed Amended Complaint [ECF No. 39]. I agree with the parties that the
transportation of natural gas is not an abnormally dangerous activity under West
Virginia law and order that Count VII be DISMISSED.
IV.
CONCLUSION
For the reasons stated in the foregoing opinion, the Motion to Strike Exhibit A
[ECF No. 23] is GRANTED. The Motion to Dismiss [ECF No. 14] is GRANTED only
as it pertains to Counts II, IV, and VII and DENIED as it pertains to Counts I, III,
V, and VI.
The court DIRECTS the Clerk to send a copy of this Order to counsel of record
and any unrepresented party.
ENTER:
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July 15, 2021
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