United States District Court, E.D. Virginia, Richmond Division
A. Gibney, Jr. United States District Judge.
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.
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.
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.
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.
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.
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
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.
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.
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.