Virginia Lawyers Weekly VA Lawyers Weekly
West Point residents stated viable nuisance and trespass claims against a paper mill near their properties. The plaintiffs alleged that wood dust invades the air in their homes and cars, even with windows closed.
Background
In downtown West Point, Virginia, Defendant WestRock operates a paper mill. Each day, it turns hundreds of logs into wood chips, maintaining large piles of logs and chips.
The Plaintiffs live within 100 feet of these piles. From time to time, due to weather and the condition of the piles, large amounts of wood dust blow from these piles onto the Plaintiffs’ properties. They 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. The Plaintiffs have raised this situation with WestRock, but the invasion of dust continues unabated.
The Plaintiffs initiated this action for nuisance and trespass. WestRock has moved to dismiss.
No pre-emption
Contrary to WestRock’s contention, the Clean Air Act does not pre-empt the Plaintiffs’ state tort claims. While the federal statute does pre-empt interstate pollution claims, the same cannot be said for intrastate pollution. Because the Plaintiffs pursue Virginia common-law claims against WestRock for emissions alleged to have occurred within Virginia’s borders, these claims may proceed despite WestRock’s undisputed compliance with the Clean Air Act.
Nuisance
The Plaintiffs state a plausible claim for private nuisance, where the defendant’s activity unreasonably interferes with the use and enjoyment of another’s property. Virginia courts have found that the invasion of dust can substantiate nuisance claims. Based on the significant amount of dust alleged to enter the Plaintiffs’ properties, they have asserted a plausible nuisance.
Trespass
The Plaintiffs have also asserted a valid claim for trespass. It is undisputed that the Plaintiffs possess the land they allege WestRock has invaded; the controversy concerns whether the alleged wood dust is substantial enough to interfere with their right of exclusive possession and whether the dust is the direct result of WestRock’s actions.
While invasions of dust and other intangible particulates generally do not infringe upon a landowner’s right of exclusive possession, significant deposits can constitute trespass. Here, the complaint does not specify the size of the wood dust particulates or the amount of wood dust that accumulates on the Plaintiffs’ properties. Discovery will bring out facts necessary to determine whether the dust is substantial enough to find in the Plaintiffs’ favor.
As to causation, a third party creates and maintains wood piles on WestRock’s property, and the wind carries dust from those piles onto the Plaintiffs’ properties. Virginia does not require a direct act by the defendant to sustain a trespass claim. Accordingly, the court declines to dismiss the Plaintiffs’ trespass claim.
However, the court will dismiss Plaintiffs’ “count three” for injunctive relief, which is a remedy and not a cause of action. Such relief may be granted if the Plaintiffs ultimately prevail on their nuisance and/or trespass claims.
Motions to dismiss granted in part and denied in part.
Bell v. WestRock CP LLC, Case No. 3:17cv829, July 20, 2018. EDVA at Richmond (Gibney). VLW No. 018-3-292, 8 pp.
