Lovejoy v. Jackson Res. Co.

RITA LOVEJOY, Plaintiff, v. JACKSON RESOURCES COMPANY, Defendant.

CIVIL ACTION NO. 2:20-cv-00537

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA CHARLESTON DIVISION

July 15, 2021

MEMORANDUM OPINION & ORDER

Before the court is Defendant Jackson Resources Company's ("Jackson") Motion to Dismiss [ECF No. 14]. The parties have fully briefed the issues raised in the Motion to Dismiss and the Motion is ripe for decision. [ECF No's. 22, 26]. I will also address Jackson's unopposed Motion to Strike Exhibit A [ECF No. 23]. Since the filing of this Motion to Dismiss, Plaintiff Rita Lovejoy ("Lovejoy") has moved for leave to amend her complaint. [ECF No. 29]. I granted that motion. [ECF No. 38]. Jackson has now answered the amended complaint and incorporated within that answer their motion to dismiss the original complaint. For the reasons contained in this memorandum opinion, the Motion [ECF No. 14] is DENIED IN PART and GRANTED IN PART.

I. BACKGROUND

Lovejoy is the owner of property located at Upper Mud River and Palermo Road in Lincoln County, West Virginia. [ECF No. 22 at 2]. Lovejoy complains that Jackson is the past owner of a natural gas well and pipeline facility (the "Jackson facility") that sits on her property. [ECF No. 1, ¶1]. In 2018, Lovejoy became concerned that certain hazardous or solid wastes from the Jackson facility had migrated or were threatening to migrate onto the property. [ECF No. 22 at 2]. Lovejoy commissioned an environmental investigation of the soil surrounding the Jackson facility. That investigation took place on October 16, 2018 and revealed the presence of a host of "contaminants of concern" at elevated levels in the groundwater and in the soil. Namely, Lovejoy alleges that the organic compound Bis(2-ethylhexyl)phthalate, a known carcinogen, was discovered in the groundwater and in the soil adjacent to the Jackson facility. This compound does not naturally occur in groundwater or soil and is considered a "priority pollutant" under the Clean Water Act and the Resource Conservation and Recovery Act.

Environmental sampling also revealed the presence of several other compounds in the area adjacent to the Jackson facility: Benzo(a)anthracene, Benzo(b)fluoranthene, Benzo(k)fluoranthene, Chrysene, Fluoranthene, Phenanthrene, and Pyrene. Id. Lovejoy alleges that each of the contaminants that have been discovered near the Jackson facility are "solid wastes" within the meaning of 40 C.F.R. § 261.2. Lovejoy alleges that no other industrial operations have been "historically conducted at the Lovejoy Property." [ECF No. 39, at ¶ 22]. Accordingly, Lovejoy claims that the Jackson facility is the only operation or apparatus that could have contributed to the presence of the contaminants.

Lovejoy brings seven claims arising out of this nexus of fact: recovery of response costs associated with a contaminated site and declaratory judgment thatJackson is liable for response costs under Section 107, 42 U.S.C. §§ 9607(a) and 9613(g) of the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA") (count I); citizen suit relief from permitting violations under the Resource Conservation and Recovery Act ("RCRA") and the West Virginia Hazardous Waste Management Act ("WVHWMA") (count II); citizen suit relief for judicial abatement of an imminent and substantial endangerment under the RCRA (count III); judicial abatement of a public nuisance under West Virginia law (count IV); relief for a private nuisance (count V); negligence (count VI); and strict liability (count VII).

Jackson moves to dismiss these claims pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). First, Jackson argues that Lovejoy's CERCLA claim has failed to "identify with sufficiently meaningful detail the conduct of Jackson that forms the basis for her action." [ECF No. 14 at 1]. Jackson states that Lovejoy has made conclusory allegations which do little more than make formulaic recitations of the elements of a cause of action. Id. Jackson further argues that Lovejoy fails to state a claim for relief under the RCRA and the WVHWMA because: (i) Jackson is not a present owner or operator of the facility on the Lovejoy property; (ii) the RCRA and WVHWMA exclude the regulation of natural gas from the definition of hazardous waste for purposes of permitting violations; (iii) under Fed. R. Civ. P. 12(b)(1), this court does not have jurisdiction over the RCRA claims contained in counts II and III because Lovejoy did not provide sufficient notice to Jackson of alleged violations as required under 42 U.S.C. § 6972 and 40 C.F.R. § 254.3; and (iv) Lovejoy has failed to state a claim upon which relief can be granted because she has not pled sufficientfacts to support her allegations of an imminent and substantial harm to health or the environment under 42 U.S.C. § 6972(a)(1)(B).

As to Lovejoy's West Virginia common law claims, Jackson argues that Lovejoy has failed to identify the special injury that is needed to establish a public nuisance claim; that Lovejoy has not alleged a substantial interference with the use and enjoyment of her land, such that her private nuisance claim is viable; and that her strict liability claim fails because Lovejoy has not alleged that Jackson was engaged in any abnormally dangerous activity. [ECF No. 14 at 2].

II. STANDARD OF REVIEW

A motion to dismiss filed under Rule 12(b)(6) tests the legal sufficiency of a complaint or pleading. Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008). A pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). This standard "does not require 'detailed factual allegations,' but it demands more than an unadorned, 'the-defendant-unlawfully-harmed-me' accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). To survive a motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570). To achieve facial plausibility, the plaintiff must plead facts allowing the court to draw the reasonable inference that the defendant is liable, moving the claim beyond the realm of mere possibility. Id. Mere "labels and conclusions" or "formulaic recitation[s] of the elements of a cause of action" are insufficient. Twombly, 550 U.S. at 555.

Federal Rule of Civil Procedure 12(b)(1) allows a defendant to move for dismissal when the court lacks jurisdiction over the subject matter of the action. Fed. R. Civ. P. 12(b)(1). In considering a Rule 12(b)(1) motion to dismiss, the burden is on the plaintiff to prove that federal subject matter jurisdiction is proper. See United States v. Hays, 515 U.S. 737, 743 (1995); Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). There are two ways in which a defendant may present a 12(b)(1) motion. First, a defendant may attack the complaint on its face when the complaint "fails to allege facts upon which subject matter jurisdiction may be based." Adams, 697 F.2d at 1219. In such a case, all facts as alleged by the plaintiff are assumed to be true. Alternatively, a Rule 12(b)(1) motion to dismiss may attack the existence of subject matter jurisdiction over the case apart from the pleadings. See Williams v. United States, 50 F.3d 299, 304 (4th Cir. 1995). In such a case, the trial court's "very power to hear the case" is at issue. Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). The district court is then free to weigh the evidence to determine the existence of jurisdiction. Adams, 697 F.2d at 1219. "No presumptive truthfulness attaches to the plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Mortensen, 549 F.2d at 891. Where a complaint invoking federal question jurisdiction "is not colorable," it should be dismissed under Rule 12(b)(1). Arbaugh v. Y&H Corp., 546 U.S. 500, 513 n.10, 126 S. Ct. 1235, 163 L. Ed. 2d 1097 (2006).

Related to my ruling on this Motion is whether I may properly consider Lovejoy's Exhibit A, attached to her response to the Motion to Dismiss. [ECF No. 22]. Exhibit A is an EPA pamphlet containing information about the Bentsen Amendmentto RCRA. As a general principle, the District Court may not rely on materials found outside of the complaint unless such material is clearly integral to the Complaint. See Blankenship v. Manchin, 471 F.3d. 523, 526 n.1 (4th Cir. 2016). The EPA pamphlet that Lovejoy attached to her responsive brief was not submitted as part of the Amended Complaint, nor is it integral to the Amended Complaint. I will not consider it for purposes of ruling on this Motion. Jackson's Motion to Strike Exhibit A [ECF No. 23] is GRANTED.

III. DISCUSSION

A. CERCLA (COUNT I)

The primary basis of Jackson's motion to dismiss the CERCLA claim in Count I is that Lovejoy's pleading fails to rise above the level of conclusory allegations. Jackson argues that Lovejoy "makes no effort to describe when or how hazardous substances came to be located on the Lovejoy property and provides no factual allegation linking the disposal of such substances to the time period in which Jackson owned or operated the Jackson facility." [ECF No. 15 at 12]. Jackson states that Lovejoy is unable to point to any conduct on the part of Jackson that caused the contaminants to be released, and she has failed to state facts that support the idea that the contaminants are related to the production and transportation of natural gas. [ECF No. 26 at 3].

Section 107 of CERCLA provides for strict liability for responsible parties. See United States v. Monsanto, 858 F.2d 160, 167 (1988). "Congress enacted CERCLA to address the increasing environmental and health problems associated with inactive hazardous waste...