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LLC v. Mullane

United States District Court, E.D. Virginia, Norfolk Division

October 30, 2015

307 CAMPOSTELLA, LLC, Plaintiff,
v.
TIMOTHY J. MULLANE, SIX M, LLC, AMERICAN MARINE GROUP, INC., AMERICAN MARINE GROUP, LLC, DOMINION MARINE GROUP, LTD., MULLANE BROS MARINE TRANSPORTATION, LLC, Defendants

         Decided October 29, 2015.

Page 408

          For 307 Campostella, LLC, Plaintiff: James Thompson Lang, LEAD ATTORNEY, Pender & Coward PC, Virginia Beach, VA.

         For Timothy J. Mullane, American Marine Group, Inc., American Marine Group, LLC, Dominion Marine Group, Ltd., Mullane Bros Marine Transportation, LLC, Defendants: Bryan Karl Meals, Davey & Brogan PC, Norfolk, VA.

         For Six M, LLC, Defendant: Patrick Michael Brogan, LEAD ATTORNEY, Bryan Karl Meals, Philip Norton Davey, Davey & Brogan PC, Norfolk, VA.

Page 409

         OPINION & ORDER

         Henry Coke Morgan, Jr., Senior United States District Judge.

         This matter is before the Court pursuant to a Motion to Dismiss (" Motion" ) filed by Defendants Timothy J. Mullane,[1] American Marine Group, Inc., American Marine Group, LLC. Dominion Marine Group, Ltd., and Mullane Bros Marine Transportation, LLC (" Defendants" ), Doc. 12.[2] For the reasons stated herein, the Court, ruling from the bench, DENIED the Motion as to Counts IV-VII and as to the first part of Count III, which alleges claims under 42 U.S.C. § 6972(a)(1)(A). The Court GRANTED the Motion WITH LEAVE TO AMEND the Complaint as to Count VIII and as to the claims under 42 U.S.C. § 6972(a)(1)(B) in Count III.

         I. BACKGROUND

         A. Factual Allegations[3]

         This action arises out of Defendants' alleged introduction of " unseaworthy vessels" and an " unlicensed pier/storage facility" to the Elizabeth River, which creates overcrowded conditions, interferes with and obstructs navigation in the navigable waterway adjacent to Plaintiff's property, causes pollution, and creates blight. Compl. ¶ ¶ 1, 15, 16. Plaintiff contacted Defendant Mullane in 2013 and 2014, asking him to reduce the number of vessels in the river and to clean up the river; however, Mullane refused. Compl. ¶ ¶ 2, 3, 4. Plaintiff has brought this action asking the Court to stop Defendants' uncontrolled release of pollution into the river and to remove Defendants' obstructions in the river. Compl. ¶ ¶ 1, 4.

         Plaintiff owns a 6.8 acre parcel of waterfront land, and " [t]he part of the river fronting the [P]laintiff's property is a one

Page 410

quarter mile long waterway in the shape of a 'cul-de-sac' oriented north and south, with the mouth of the 'cul-de-sac' at the north end where it joins the Eastern Branch of the Elizabeth River." Compl. ¶ 7. " The navigable waterway adjoining the [P]laintiff's property belongs to the public." Compl. ¶ 87.

         Plaintiff alleges that Defendant Mullane, acting on his own or through others, including, but not limited to the other Defendants, " has overcrowded the waterway with unseaworthy hulks of former vessels, many 60-70 years old, many of them sitting idly for years, many of them aground for years, rusting and having little or no use." Compl. ¶ 11. According to Plaintiff, Defendant Mullane owns and controls the entities that are the Co-Defendants. Compl. ¶ 6. Plaintiff avers that Defendants " berth an unreasonably large number of vessels at an unlicensed pier/storage facility, on the west side of the waterway, approximately 200' from (and immediately in front of) [P]laintiff's property." Compl. ¶ 13. Defendants have not obtained permits for the facility from the Army Corps of Engineers or from the Virginia Marine Resources Commission. Compl. ¶ 13. Plaintiff describes this facility as a two hundred by fifty foot structure, formerly a Hopper Barge, but no longer a vessel, and it notes that the structure " is pushed up into wetlands on shoreline owned by City of Norfolk." Compl. ¶ 14.

         Plaintiff contends that Defendant Mullane previously had been found guilty or liable for violations relating to his activities at this location, including

a civil penalty and restoration order imposed by the Norfolk Wetlands Board in 2007 for destruction of wetlands; a criminal conviction in the Norfolk General District Court in 2010 for release of hazardous substances into the Elizabeth River; a criminal conviction in the Norfolk General District Court in 2010 for unlawful accumulation of solid waste; a criminal conviction in the Norfolk General District Court in 2010 for failure to notify fire official of release of hazardous waste; a civil penalty imposed by the State Water Control Board in 2010 for release of diesel fuel into the Elizabeth River from a vessel; a civil penalty and restoration order imposed by the Norfolk Wetlands Board in 2012 for destruction of wetlands; and, a civil penalty imposed by the State Water Control Board in 2014 for discharging industrial stormwater into the Elizabeth River without a permit.

Compl. ¶ 3-4.

         Plaintiff claims that Defendants' actions have " created an impenetrable barrier around [the unlicensed pier/storage] facility" and that the facility has " been continuously in place for several years." Compl. ¶ 25. The vessels berthed at the unlicensed pier/storage facility " obstruct more than half the channel at all times" in front of Plaintiff's property. Compl. ¶ 30. They also " occupy at least 64% of the channel directly in front of the plaintiff's bulkhead at all times." Compl. ¶ 35. Plaintiff notes that Defendants' " vessels and those of its business invitees[] occupy 50% or more of the channel at the [P]laintiff's non-bulkhead property at all times. They occupy so much of the navigable channel, and their occupation is of such duration, as to impede and/or interfere with the navigation of other vessels in the waterway." Compl. ¶ 41.

         According to Plaintiff, " there is an extremely large inner cavity in the [D]efendants' unlicensed pier/storage facility - approximately 4,000 cubic yards - that is filled with hundreds of discarded creosote soaked timbers, discarded mechanical and electrical equipment, discarded paint cans, discarded drums, trash, rubbish, and other nonputrescible wastes." Compl. ¶ 44.

Page 411

Plaintiff alleges that the exposure to the elements " is causing the wastes in the unlicensed pier/storage facility to deteriorate such that pollution and contamination is carried away by wind, rain, and other forces of nature after which the pollution and contamination is released into the waterway, and hence into the Elizabeth River and the surrounding environment." Compl. ¶ 46. Additionally, " there are large holes in the outer wall of the facility through which . . . contaminated rainwater and contaminated leachate escape into the Elizabeth River." Compl. ¶ 47. Indeed, " there have been at least 180 dates in the last 5 years when a storm event at this location generated rainwater runoff from the many tons of solid waste in Defendants' unlicensed solid waste management facility." Compl. ¶ 49.

         Defendants' unlicensed pier/storage facility is " aground, partly in tidal wetlands, and partly in navigable waters," and their other vessels are " aground in nearly all tidal conditions, except for high tide." Compl. ¶ ¶ 55, 61, 68. Plaintiff alleges that these vessels change the bottom elevation of the waterway. Compl. ¶ ¶ 56, 62, 69. Additionally, the fact that the vessels are aground creates an " adverse impact to benthic organisms and other aquatic life." Compl. ¶ 71. The vessels' presence in the waterway also causes " a degradation to the physical, chemical and/or biological properties of the waters of the inlet." Compl. ¶ 71.

         Rainwater flows off of the vessels and " discharges pollutants into the waterway adjacent to [P]laintiff's property." Compl. ¶ 76. " Water that enters the interior of these vessels collects in the bilges and must be periodically removed." Compl. ¶ 80. Additionally, the vessels " have anti-fouling hull coatings that leach, thus discharging pollution into the waterway adjacent to the [P]laintiff's property, and hence into the Elizabeth River. The [D]efendants' failure to properly ...


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