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Bell v. Westrock CP, LLC

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

July 20, 2018

ASHTON BELL, et al, Petitioners,
v.
WESTROCK CP, LLC, et al, Defendants.

          OPINION

          John A. Gibney, Jr. United States District Judge.

         The named plaintiffs-Ashton Bell, Delilah Bell, and Lucy Edwards-live in downtown West Point, Virginia, near WestRock CP, LLC's ("WestRock") paper mill. As anyone who has driven by a paper mill might imagine, the WestRock paper mill is not a model neighbor. In their complaint, the plaintiffs allege that large amounts of wood dust from WestRock's property invade their land, homes, and cars. The dust dirties clothing, accumulates so quickly that it is useless to clean, and deters the plaintiffs from opening the windows of their homes and cars. The plaintiffs bring three counts in their complaint: (1) nuisance, (2) trespass, and (3) injunctive relief.

         WestRock, the company that operates the paper mill, and West Point Chips, Inc. ("West Point Chips"), the company that chips wood for the paper mill, now move to dismiss for a failure to state a claim and because the Clean Air Act ("CAA") preempts the plaintiffs' state tort claims. The defendants say that the Court should also dismiss Count Three because injunctive relief is a remedy, not an independent cause of action.

         The Court denies the motions as to Counts One and Two because the CAA does not preempt the state law claims and because the plaintiffs have alleged viable causes of action for both trespass and nuisance. The Court grants the motions as to Count Three because injunctive relief is a remedy, not a cause of action.

         I. BACKGROUND

         In downtown West Point, Virginia, WestRock operates a paper mill. On a WestRock-owned lot next to the mill, West Point Chips uses a wood chipper to turn hundreds of logs into wood chips each day. West Point Chips maintains large piles of wood logs and chips on this lot.

         The plaintiffs live within 100 feet of these piles. From time to time-depending on the weather and the condition of the piles-large amounts of wood dust blow from these piles onto surrounding properties, including those of the plaintiffs. The plaintiffs allege that the dust invades their properties with such frequency and to such an extent that cleaning has become futile. Despite keeping the windows of their homes and cars closed, the dust still enters and dirties their clothing. Although the plaintiffs have complained to WestRock about the situation, the invasion of dust continues unabated.

         II. DISCUSSION[1]

         The plaintiffs bring three counts. In Count One, the plaintiffs bring a nuisance claim based on the "intermittent emission of fugitive dust" that interferes with the "reasonable and comfortable use of their homes and property." (Compl. ¶ 36.) Count Two alleges that the dust trespasses onto the plaintiffs' properties "without right, authority or invitation." (Id. ¶ 40.) Finally, Count Three requests "an injunction against the Defendants prohibiting them from allowing the release of the fugitive dust." (Id. ¶ 46.) Sitting in diversity, the Court applies Virginia law to resolve claims brought under the state's common law. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938) ("Except in matters governed by the Federal Constitution or by acts of Congress, the law to be applied in any case is the law of the state.").

         A. Preemption

         The CAA[2] does not preempt the plaintiffs' state law tort claims in Counts One and Two. Although the CAA preempts federal common law claims and interstate pollution claims, the same cannot be said for intrastate pollution. Am. Elec. Power Co. v. Connecticut, 564 U.S. 410, 424 (2011) (finding that the CAA preempts federal common law claims); see TVA, 615 F.3d at 303 (noting the "potential mischief of allowing common law claims to proceed again an out-of- state polluter). In Int'l Paper Co. v. Ouellette, the Supreme Court held that the Clean Water Act ("CWA") does not "bar[ ]aggrieved individuals" from state tort claims brought against in-state polluters. 479 U.S. 481, 497 (1987). Courts have found "no meaningful difference between the Clean Water Act and the Clean Air Act for the purposes of. . . preemption analysis." Bell v. Cheswick Generating Station, 734 F.3d 188, 196-97 (3d Cir. 2013) (applying Ouellette and holding that "the Clean Air Act does not preempt state common law claims"); see Merrick v. Diageo Ams. Supply, Inc., 805 F.3d 685, 695 (6th Cir. 2015) ("What was true for the Clean Water Act holds true for the Clean Air Act."). The Fourth Circuit noted in TVA that "[w]hile Ouellette involved a nuisance suit against a source regulated under the Clean Water Act, all parties agree its holding is equally applicable to the Clean Air Act." 615 F.3d at 306. Because the plaintiffs pursue Virginia common law claims against the defendants for emissions alleged to have occurred within Virginia's borders, this Court finds that these claims may proceed despite the defendants' undisputed compliance with the CAA.

         B. Nuisance

         The plaintiffs state a plausible claim for nuisance. Virginia law recognizes two types of nuisance: public and private. 307 Campostella, L.L.C. v. Mullane, 143 F.Supp.3d 407, 418 (E.D. Va. 2015). The plaintiffs' complaint fails to specify which type of nuisance they intend to pursue, but their opposition brief clarifies their intention to plead only private nuisance. This Court, therefore, construes their nuisance claim accordingly.

         Under Virginia law, "a private nuisance is an activity which unreasonably interferes with the use and enjoyment of another's property." City of Newport News v. Hertzler,221 S.E.2d 146, 150 (Va. 1976). "Such interference may be accomplished by substantially impairing the occupant's comfort, convenience, and enjoyment of the property, causing a material disturbance or annoyance in use of the realty." Nat'l Energy Corp. v. O'Quinn,286 S.E.2d 181, 182 (Va. 1982). In the present case, the plaintiffs allege that wood dust "settles and accumulates" on their properties so frequently that it is "useless" to clean the dust. (Compl. ...


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