Bristol, VA, sued by Bristol, TN, over municipal landfill

Where the City of Bristol (Tennessee) alleged that the City of Bristol (Virginia)’s operation of a municipal landfill supported a claim for public nuisance, Bristol Virginia’s motion to dismiss was denied. Although the Virginia city argued the common-law claim had been abrogated by statute, the court disagreed.

Background

The City of Bristol, Tennessee has sued its neighboring City of Bristol, Virginia, stemming from Bristol Virginia’s operation of a municipal landfill. Bristol Virginia has moved to dismiss the Virginia common law public nuisance claim.

Analysis

Bristol Virginia contends that the Virginia Waste Management Act, or VWMA, abrogates the common law. It notes that the Supreme Court of Virginia has opined that VWMA’s coverage is “specific and all-embracing” and that the statute “extensively govern[s] the operation of a solid waste disposal facility and impose[s] requirements designed . . . to prevent seepage of leachate and landfill gas.” Based on this reasoning, that court has concluded that landfill seepage is “to be governed exclusively by the VWMA.”

But when the court concluded as such, it was because it had been tasked with determining whether Virginia’s Oil Discharge Law applied to contaminated, landfill-derived groundwater. The court came to its conclusion by examining the two different statutory schemes at issue, and not by analyzing Virginia’s approach to common-law abrogation. Thus I do not find that decision to be dispositive here.

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 “plainly manifested” its intent to abrogate such common claims. I disagree. 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.

Noticeably absent from the VWMA is any guaranteed process for persons damaged by landfill operations. The VWMA’s regulations certainly suggest that citizens can submit complaints to Department of Environmental Quality, or DEQ, and that DEQ will investigate and respond. But citizens cannot force DEQ’s hand, as is demonstrated by the fact that no enforcement action has been filed here, nor does the statute create an administrative complaint or hearing process for injured persons. Furthermore, the civil penalties provided by the statute are not compensatory in nature but are penalties payable to the commonwealth for deposit in a state fund.

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 statute and regulations create inconsistencies with the common law.

Bristol Virginia also argues that the legislature manifested its intent to abrogate by omitting an express savings clause and the express private right of action found within VWMA’s litter-control provisions. 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, I do not find such intent here considering  presumption against common law abrogation.

Moreover, the VWMA states that the issuance of a permit does not “authorize any injury to private property or any invasion of personal rights or any infringement of federal, state, or local law or regulation.” This language further supports the conclusion that common law has not been abrogated.

Defendant’s partial motion to dismiss denied.

The City of Bristol, Tennessee v. The City of Bristol, Virginia, Case No. 1:22-cv-00023, Dec. 21, 2022. WDVA at Abingdon (Jones). VLW 022-3-554. 14 pp.