The City of Bristol, Tennessee v. The City of Bristol, Virginia, No. 1:2022cv00023 - Document 58 (W.D. Va. 2022)
Court Description: OPINION AND ORDER denying 21 Motion to Dismiss for Failure to State a Claim. Signed by Senior Judge James P. Jones on 12/21/2022. (lml)
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The City of Bristol, Tennessee v. The City of Bristol, Virginia Case 1:22-cv-00023-JPJ-PMS Document 58 Filed 12/21/22 Page 1 of 14 Pageid#: 1882 Doc. 58 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA ABINGDON DIVISION THE CITY OF BRISTOL, TENNESSEE, ) ) Plaintiff, ) ) v. ) ) THE CITY OF BRISTOL, VIRGINIA, ) ) Defendant. ) Case No. 1:22CV00023 OPINION AND ORDER JUDGE JAMES P. JONES Michael E. Lacy and Andrea W. Wortzel, TROUTMAN PEPPER HAMILTON SANDERS LLP, Richmond, Virginia, and E. Lynn Dougherty, Bristol, Tennessee, for Plaintiff; Erin B. Ashwell, John D. Adams, and Justin D. Howard, M CGUIREWOODS LLP, Richmond, Virginia, for Defendant. The City of Bristol, Tennessee (Bristol Tennessee) has sued its neighboring operation of a municipal landfill. Bristol Virginia has moved to dismiss Count Three of the Complaint, the Virginia common law public nuisance claim. For the reasons Partial Motion to Dismiss. I. The Complaint alleges the following facts, which I must accept as true at this point in the case for the sole purpose of deciding the Motion to Dismiss. Bristol Virginia owns and operates a Virginia Department of Environmental Quality (DEQ)- Dockets.Justia.com Case 1:22-cv-00023-JPJ-PMS Document 58 Filed 12/21/22 Page 2 of 14 Pageid#: 1883 permitted solid waste landfill.1 The landfill is located in an abandoned rock quarry approximately 1,000 feet from Bristol Tennessee. Since late 2020, noxious odors have emanated from the landfill, which has caused living and working in parts of Bristol, Tennessee, l. 1, ECF No. 1. The Id. ¶ 121. Over the past two years, these to provide services to its residents. Staff and firefighters at two Bristol Tennessee fire stations located near the landfill have complained of nosebleeds, headaches, and nausea. Firefighters have asked to transfer to other stations. Teachers and students at several Bristol, Tennessee, schools have experienced health issues, as well as employees and citizens at a municipal community center. As a result, Bristol Tennessee has spent thousands of dollars on air purifiers for the affected fire stations, community center, and schools in an attempt to mitigate the odors. The city has also spent $30,000 on an air purifier assistance program and over $5,000 on air testing at schools. Moreover, city employees have been forced to dedicate time to address landfill issues. 1 The federal Environmental Protection Agency has delegated authority to DEQ to issue permits to Virginia landfills and enforce permits and associated solid waste and air emissions regulations. Compl. ¶ 18, ECF No. 1. -2- Case 1:22-cv-00023-JPJ-PMS Document 58 Filed 12/21/22 Page 3 of 14 Pageid#: 1884 businesses and residents. A local real estate developer stated that the odors need to be resolved before they would consider developing property in the city. The municipality has earned Id. ¶ 140. In recent months, thousands of odor complaints have been logged through the website, to DEQ, to the Tennessee Department of Environment and Conservation, and on community pages. Id. ¶¶ 86, 122. Bristol Virginia received 2,147 complaints in November 2021 alone. Id. ¶ 86. Those affected have reported experiencing migraines, respiratory irritation, nausea, fatigue, and other health conditions. DEQ first began noticing an uptick of odor complaints in the fall of 2020. In February 2021, after finding recordkeeping violations, DEQ issued its first notice of violation to Bristol Virginia. Since then, DEQ has issued several more notices, citing various , including elevated gas wellhead temperatures, excess oxygen concentrations in gas wellheads, positive pressure in gas wellheads, and repeated failures to monitor the wellheads and the DEQ has also issued multiple warning letters, and a local utility failure to comply with discharge limits. However, neither DEQ nor any other regulator has initiated legal proceedings against Bristol Virginia. -3- Case 1:22-cv-00023-JPJ-PMS Document 58 Filed 12/21/22 Page 4 of 14 Pageid#: 1885 In March 2022, the DEQ convened an expert panel, Landfill, and develop plans for closing the L Id. at 2 3. That panel issued its report in April 2022, in which it recommended that Bristol Virginia take certain immediately should not accept any more waste at the landfill. Id. Because Bristol Virginia had id., Bristol Tennessee filed the instant action in May 2022, alleging that Bristol Virginia had violated and is continuing to violate the Clean Air Act, 42 U.S.C. §§ 7401 7671q, the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 6992k, and Virginia common law by creating a public nuisance because of the odors.2 Bristol Virginia has partially moved to dismiss the Complaint, arguing that the common law nuisance claim is abrogated by state statute. The Partial Motion to Dismiss has been argued and fully briefed and is now ripe for decision. II. 8(a)(2). A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of a complaint 2 In June 2022, the parties consented to the entry of a Preliminary Injunction Order, which requires Bristol Virginia to meet certain prescribed deadlines in an attempt to mitigate the problem. Prelim. Inj. Order, ECF No. 8. -4- Case 1:22-cv-00023-JPJ-PMS Document 58 Filed 12/21/22 Page 5 of 14 Pageid#: 1886 to determine whether the plaintiff has properly stated a claim. Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). To survive a motion to dismiss, the Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). In evaluating a pleading, the court accepts as true all well-pled facts. Id. A complaint does not need detailed factual allegations to survive a motion to dismiss. However, it must have more than labels and conclusions or a recitation of the elements of the cause of action. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 rovide the framework of a complaint, they Iqbal, 556 U.S. at 679. III. I begin with a brief overview of common law public nuisance and the Virginia Waste Management Act (Act or VWMA), Va. Code Ann. § 10.1-1400 1458. A. Common Law Nuisance and the VWMA. [N]uisance includes everything that endangers life or health, or obstructs the Collett v. Cordovana, 772 S.E.2d 584, 587 (Va. 2015).3 The term encompasses offensive and excessive odors. See G.L. 3 I have omitted internal quotation marks, citations, and alterations throughout this opinion, unless otherwise noted. -5- Case 1:22-cv-00023-JPJ-PMS Document 58 Filed 12/21/22 Page 6 of 14 Pageid#: 1887 Webster Co. v. Steelman, 1 S.E.2d 305, 311 (Va. 1939). A public nuisance is a Taylor v. City of Charlottesville, 397 S.E.2d 832, 835 (Va. 1990). I person in the community [ annoyance [ ] City of Va. Beach v. Murphy, 389 S.E.2d 462, 463 64 (Va. 1990). Turning to the statute at issue, the VWMA governs Virginia landfill operations. Va. Code Ann. § 10.1-1408.1. The Act establishes the Waste Management Board (Board), which is authorized to, inter alia and mulgate and enforce regulations as applicable to the operation of landfills. Id. § 10.1-1402(1), (11). It requires landfills to be permitted, and expressly provides that the issuance of a permit does not authorize any injury to private property, invasion of personal rights, or infringement of federal, state, or local law. Id. § 10.1-1408.1(F). The Act also specifies certain remedies for violations of its provisions, the accompanying regulations, and permit conditions. For example, it gives the Attorney General authority to bring a civil action in an appropriate circuit court, which may result in civil penalties which are paid into a state emergency response fund. Id. § 10.11455(A). -6- Case 1:22-cv-00023-JPJ-PMS Document 58 Filed 12/21/22 Page 7 of 14 Pageid#: 1888 to a nuisance as an activity that unreasonably interferes it interferes with the rights of 9 Va. Admin. Code § 2081-10. For example, the Board has the power to rds and nuisances dangerous to public health, safety or the environment, both emergency and otherwise, created by the improper disposal, treatment, storage, transportation or management of substances within the jurisdiction of the Board, including solid waste. Va. Code Ann. § 10.1-1402(21). And the Board requires landfill operators a. Admin. Code § 20-81-140(A)(10). B. Abrogation of Common Law. Bristol Virginia does not contend that Bristol Tennessee has failed to allege sufficient facts to support a public nuisance cause of action, but rather that the VWMA abrogates the common law. Graham v. Dhar, 33 F.4th 178, 182 (4th Cir. 2022). As highlighted by the defendant, the Supreme Court of Virginia has interpreted the VWMA. In fact, that court has -7- Case 1:22-cv-00023-JPJ-PMS Document 58 Filed 12/21/22 Page 8 of 14 Pageid#: 1889 [s] the operation of a solid waste disposal facility and impose[s] Campbell Cnty. v. Royal, 720 S.E.2d 90, 99 (Va. 2012). Based on this reasoning, it has concluded that landfill seepage is Id. But when the court concluded as such, it was because it had been tasked with contaminated, landfill-derived groundwater. Id. at 99 100. The court came to its conclusion by examining the two different statutory schemes at issue, id. at 100, not by analyzing Vi -law abrogation. Thus, I do not find the language from the Campbell County decision to be dispositive here. Accordingly, I will rely on established principles of statutory interpretation in Virginia. Graham, 33 F.4th federal courts must apply principles of statutory interpretation); Thompson v. Ciox Health, LLC It is wellas it is not repugnant to the principles of the Bill of Rights and Constitution of this Commonwealth, shall continue in full force within the same, and be the rule of decision, exce -200. Accordingly, Virginia statutes in derogation of the common law must be strictly -8- Case 1:22-cv-00023-JPJ-PMS Document 58 Filed 12/21/22 Page 9 of 14 Pageid#: 1890 construed. Cherry v. Lawson Realty Corp., 812 S.E. 2d 775, 779 (Va. 2018). A nge the common law unless the legislative intent to as Id. That is because it is presumed that the legislature did not intend to abrogate common law. Id. entire subject covered by the common law, it abrogates the common-law rule only Id. at 377. It is undisputed that the VWMA does not expressly state that it abrogates common law nuisance actions. Rather, Bristol Virginia contends that the VWMA fully encompasses the entire subject and that the legislature has such common claims Mem. Supp. 5 6, ECF No. 22. I disagree. The VWMA and the applicable regulations certainly give the Board authority to abate nuisances, and direct landfill operators to effectively control odors so as not to create nuisances. Va. Code Ann. § 10.1-1402(21); 9 Va. Admin. Code § 20-81140(10). Read along with the enforcement section, that means the Attorney General has the authority to institute civil actions in the name of the Commonwealth for conduct that may involve the nuisances, Va. Code Ann. § 10.1-1455(A), and under certain circumstances, the Board has a -9- Case 1:22-cv-00023-JPJ-PMS Document 58 Filed 12/21/22 Page 10 of 14 Pageid#: 1891 creating a nuisance, id. § 10.1-1409. But the existence of these provisions does not automatically mean public nuisance is subsumed by the statute. Cf. Crosby v. ALG Trustee, LLC, 822 S.E.2d 185, 191 (Va. 2018) (noting that extensive regulation . The provisions create authority for Board and Attorney General action that might otherwise be absent and define the standards under which Virginia landfills must operate, but I find that they do not occupy the entire field of common law public nuisance. Cf. Res. Conservation Mgmt., Inc. v. Bd. of Supervisors, 380 S.E.2d 879, 884 (Va. 1989) General Assembly intends to preempt a field, it knows how to express its its i solely through enforcement action by the Mem. Supp. 6, ECF No. 22. But noticeably absent from the VWMA is any guaranteed process for persons damaged by landfill operations. The suggest that citizens can submit complaints to DEQ and that DEQ will investigate and respond. 9 Va. Admin. Code § 20-81-70(D). But citizens no enforcement action has been filed here, nor does the Act create an administrative complaint or hearing process for injured persons. Furthermore, the civil penalties provided by the Act are not compensatory in nature but are penalties payable to the Commonwealth -10- Case 1:22-cv-00023-JPJ-PMS Document 58 Filed 12/21/22 Page 11 of 14 Pageid#: 1892 for deposit in a state fund. Va. Code Ann. § 10.1-1455. Thus, this is not a scenario ts. See Schlegel v. Bank of Am., N.A., 628 S.E.2d 362, 366 68 (Va. 2006) (finding that the statutory provision at issue provided the injured person a remedy for a particular wrongdoing). In other words, I do not find that the common law claim fits with . Id. at 368. The fact that the legislature has provided a statutory remedy for a state entity to enforce its permitting authority does not necessarily manifest a clear intent to create an exclusive remedy and rid injured persons of common law established redress. And this is not a case in which the Act and regulations create inconsistencies with the common law, as was the issue in Collins v. Commonwealth, 720 S.E.2d 530 (Va. 2012). There, the Supreme Court of Virginia concluded that the General Assembly plainly manifested its intent to abrogate the common law rule granting unlicensed, out-of-state bondsmen arresting authority in Virginia. The court cited to the fact that the legislature had adopted a statute that required nonresident bondsmen seeking a license to satisfy resident licensure requirements. Id. at 533. on in-state bondsman but not out-of-state bondsmen. Id. Here, common law public -11- Case 1:22-cv-00023-JPJ-PMS Document 58 Filed 12/21/22 Page 12 of 14 Pageid#: 1893 nuisance claims do not conflict with the ability of the Board to enforce statutory landfill permit requirements. Bristol Virginia also argues that the legislature manifested its intent to abrogate by omitting an express savings clause, such as that applicable to the Air Pollution Control Board, Va. Code Ann. § 10.1be construed to abridge, limit, impair, create, enlarge or otherwise affect substantively or procedurally the right of any person to damages or other relief on and the express private right of action found within , id. § 10.1- of real estate in this Commonwealth, including the Commonwealth or any political subdivision thereof, upon whose property a person improperly disposes of solid waste without the landowner's permission, shall be entitled to bring a civil action for such improper dis What Bristol Virginia is asking me to do is to transform silence and an absence of irreconcilable conflict into manifest intent based on other portions of the Virginia Code. Though the omission of language present in other statutes can manifest a contrary intent, JSR Mechanical, Inc. v. Aireco Supply, Inc., 786 S.E.2d 144, 147 (Va. 2016), I do not find such intent here considering esumption against common law abrogation. -12- Case 1:22-cv-00023-JPJ-PMS Document 58 Filed 12/21/22 Page 13 of 14 Pageid#: 1894 Moreover, the VWMA states that the issuance of a any injury to private property or any invasion of personal rights or any infringement of federal, -1408.1(F). This language further supports the conclusion that common law has not been abrogated. Cf. Country Vintner, Inc. v. Louis Latour, Inc., 634 S.E.2d 745, 752 (Va. 2006) (citing to language in the Wine Franchise Act establishing conditions for wine and reasoning that this language supported the conclusion that the statute did not abrogate common law). * ** I emphasize that I only decide is legally sufficient to survive the present motion. The case will proceed, and I make no prediction on its ultimate resolution. Ray v. Roane, 948 F.3d 222, 226 (4th Cir. It is important for the public interest that it be resolved as soon as reasonably possible, and I urge the parties to cooperate to that end. IV. For the foregoing reasons, it is ORDERED Motion to Dismiss, ECF No. 21, is DENIED. -13- Partial Case 1:22-cv-00023-JPJ-PMS Document 58 Filed 12/21/22 Page 14 of 14 Pageid#: 1895 ENTER: December 21, 2022 /s/ JAMES P. JONES Senior United States District Judge -14-
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