United States District Court, E.D. Virginia, Norfolk Division
October 29, 2015.
307 Campostella, LLC, Plaintiff: James Thompson Lang, LEAD
ATTORNEY, Pender & Coward PC, Virginia Beach, VA.
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.
M, LLC, Defendant: Patrick Michael Brogan, LEAD ATTORNEY,
Bryan Karl Meals, Philip Norton Davey, Davey & Brogan PC,
Coke Morgan, Jr., Senior United States District Judge.
matter is before the Court pursuant to a Motion to Dismiss
(" Motion" ) filed by Defendants Timothy J.
Mullane, American Marine Group, Inc., American
Marine Group, LLC. Dominion Marine Group, Ltd., and Mullane
Bros Marine Transportation, LLC (" Defendants" ),
Doc. 12. 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.
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.
owns a 6.8 acre parcel of waterfront land, and " [t]he
part of the river fronting the [P]laintiff's property is
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.
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.
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.
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.
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.
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.
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.
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 ...