United States District Court, E.D. Virginia, Richmond Division
A. Gibney, Jr. United States District Judge
class action, the plaintiffs seek redress for wood dust that
escapes from the defendants' paper mill and wood chip
mill in West Point, Virginia, resulting in a dusty invasion
of the plaintiffs' land, homes, and cars. The plaintiffs
allege that the wood dust amounts to nuisance and trespass
under Virginia law, entitling them to compensatory damages.
They also seek an injunction prohibiting future wood dust
from escaping the paper mill and chip mill.
defendants have moved for summary judgment, arguing that the
statute of limitations bars the plaintiffs' claims. The
defendants contend that the escaping wood dust gives rise to
a claim for permanent nuisance and trespass, so the five-year
limitations period began to run when the plaintiffs first
noticed the effects of the wood dust over ten years ago. The
Court agrees that the statute of limitations bars the
plaintiffs' damages claims, and thus will grant in part
the motion for summary judgment. The Court, however, will
deny in part the motion because the limitations period is not
a barrier to the plaintiffs' request for injunctive
CP, LLC ("WestRock"), has been operating a paper
mill in West Point for one hundred years. This litigation
concerns the wood chip storage yards at the paper mill.
WestRock's supply of wood chips begins with tree
deliveries to a chip mill run by West Point Chips, Inc.
("West Point Chips"), which is located next to the
paper mill. West Point Chips debarks and chips the trees, and
then sends the stripped bark and solid wood chips to
WestRock's paper mill by a conveyance system. WestRock
temporarily stores the solid wood chips in a wood yard.
WestRock has stored wood chips in the wood yard for forty
years. The paper mill and chip mill shut down annually for
maintenance, typically for nine to fourteen days.
plaintiffs, Ashton Bell, Delilah Bell, Lucy Edwards, Clarence
Burrell, Sheila Burrell, and Linda White,  have sued
WestRock and West Point Chips. They allege that the wood dust
that escapes from WestRock's wood yard and West Point
Chips' wood piles rains down on their homes and
properties in West Point, preventing them from enjoying the
outdoors and requiring constant cleaning.
to the plaintiffs, the wood dust is "pervasive, . . .
inescapable[, ] . . . regular, [and] intense, " and
"affects [their] property every day." (Dk. Nos.
120-11, at 5; 120-12, at 5; 120-13, at 5; 120-14, at 5;
120-15, at 5; 120-18, at 5.) Notwithstanding the perpetual
issues with the wood dust, the plaintiffs say that the
problem has worsened since 2012 or 2013.
than Edwards, the plaintiffs all say that they first noticed
the wood dust problem in the early 2000s. Edwards first
noticed the wood dust in 2007. Two plaintiffs-Edwards and
Ashton Bell-sent a letter in February, 2006, addressed to
"The Owners of the West Point Chip Mill." (Dk. No.
99-22, at 2.) Edwards and Bell complained of wood dust
"enter[ing] [their] house[s] when the windows and doors
are closed." (Id.)
their amended complaint, the plaintiffs contend that the
escaping wood dust amounts to nuisance and trespass under
Virginia law, entitling them to compensatory damages "in
an amount no less than $25, 000 per property." (Dk. No.
65, at 11.) The plaintiffs characterize the wood dust as a
temporary nuisance and trespass: "[T]he emission of the
fugitive dust is intermittent and can [be] remediated by,
among other things, reducing the size of the wood chip piles,
removing the wood chip piles, enclosing the conveyer belts,
using 'misters, ' reactive agents, and training
facility personnel." (Id. at ¶38.) In
addition to compensatory damages, the plaintiffs "seek
an injunction prohibiting any future migration of dust from
the wood piles or the wood chip piles onto their
properties." (Id. at ¶ 5.) On April 26,
2019, the Court certified this case as a class action with
respect to the defendants' liability for nuisance and
defendants have now moved for summary judgment, arguing that
Virginia's five-year statute of limitations bars the
plaintiffs' damages claims. The defendants argue that the
plaintiffs assert claims for permanent nuisance and
trespass, so the limitations period began to run when the
plaintiffs first noticed problems with the wood dust in the
2000s. The plaintiffs insist that their claims are for
temporary nuisance and trespass, so the statute of
limitations begins running anew with each alleged harm.
Claims for Damages
Virginia law, a five-year limitations period applies to
nuisance and trespass claims. See Va. Code Ann.
§ 8.01-243(B). Courts apply "substantially the
same" analysis "for statute-of-limitations
purposes" when evaluating nuisance and trespass claims.
Forest Lakes Cmty. Ass'n, Inc. v. United Land Corp.
of Am., 293 Va. 113, 125 n.9 (2017).
Supreme Court of Virginia has "adopted the prevailing
view that a cause of action involving an injury of a
'permanent character, resulting from a permanent
structure' accrue[s] when the injury was first
sustained . . . even though 'the injury constantly and
regularly recurs' over time." Id. at 126
(internal citations omitted). In other words, "when the
recurring injuries, 'in the normal course of things, will
continue indefinitely, ... the entire damage suffered, both
past and future, must be recovered in that action, ' and
as a result, 'the right to recover will be barred unless
it is brought within the ...