Lovejoy v. Amcox Oil & Gas, LLC

• Decision Date: 09 December 2022
• Docket Number: Civil Action 2:20-cv-00537
• Parties: RITA LOVEJOY, Plaintiff, v. AMCOX OIL AND GAS, LLC, Defendant.
• Court: U.S. District Court — Southern District of West Virginia

RITA LOVEJOY, Plaintiff,
v.
AMCOX OIL AND GAS, LLC, Defendant.

Civil Action No. 2:20-cv-00537

United States District Court, S.D. West Virginia, Charleston Division

December 9, 2022

MEMORANDUM OPINION AND ORDER

JOSEPH R. GOODWIN, UNITED STATES DISTRICT JUDGE

Pending before the court are the cross-motions for summary judgment of Plaintiff Rita Lovejoy and Defendant Amcox Oil and Gas, LLC (“Amcox”). Because the motions raise substantially similar arguments in favor of summary judgment, I will dispose of them together. For the following reasons, Ms. Lovejoy's Motions for Summary Judgment, Entry of Lump-Sum Judgment, Declaratory Judgment, and for Entry of Appropriate Permanent Injunctive Relief [ECF No. 102] are DENIED; and Amcox's Motion for Summary Judgment [ECF No. 106] is GRANTED in part and DENIED in part.

I. Background

Plaintiff Rita Lovejoy owns property located along Palermo Road near the Upper Mud River in Lincoln County, West Virginia. [ECF No. 103 at 2]. Ms. Lovejoy complains that Amcox is the current owner of a natural gas well and pipeline that sit on her property (collectively, the “Facility”). [ECF No. 1 ¶ 1]. The Facility includes a

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device known as a “drip line” used for the periodic removal of condensate that may flow through the pipeline and obstruct the flow of gas, as well as a barrel located next to that device that was presumably used for storage of the removed condensate. [ECF No. 105 at 2].

In 2018, Ms. Lovejoy became concerned that certain hazardous or solid wastes from the Facility had migrated onto her property. [ECF No. 103 at 2]. Ms. Lovejoy commissioned an environmental investigation which took place on October 16, 2018 and revealed the presence of several “contaminants of concern” in the groundwater and in the soil. Id. at 2-3. Namely, Ms. Lovejoy alleges that the organic compound Bis(2-ethylhexyl)phthalate (“DEHP”), a known carcinogen, was discovered in the groundwater and in the soil adjacent to the Facility. This compound does not naturally occur in groundwater or soil and is considered a “priority pollutant” under the Clean Water Act (“CWA”) and the Resource Conservation and Recovery Act (“RCRA”). Additional compounds were detected in soil samples taken from the area adjacent to the Facility; these include Benzo(a)anthracene, Benzo(b)fluoranthene, Benzo(k)fluoranthene, Chrysene, Fluoranthene, Phenanthrene, and Pyrene. [ECF No. 39 ¶¶ 15-16, 79].

Ms. Lovejoy's evidence centers on the testimony of her expert witness, Dr. David Scott Simonton, who conducted the initial testing on her property. When performing that testing, Dr. Simonton detected a petroleum odor and observed staining on the Facility and the surrounding soil. [ECF No. 102-1 at 7]. Based on

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those physical observations, Dr. Simonton selected locations for collecting samples, which revealed the presence of contaminants. [ECF No. 105-4 at 88]. In response to Dr. Simonton's findings, Plaintiff ceased her commercial activities on the property and filed the instant lawsuit. According to Dr. Simonton, the Facility is the only plausible source of the contaminants because no other industrial operations have historically existed on the property. [ECF No. 102-1 at 7]. He also cites three publications showing that some of the contaminants have been found in studies of certain oil and gas processes. Id. at 7-8 nn.2-4.

In August 2019, Dr. Simonton returned to the Lovejoy Property with Adam Wilson, a contractor retained by Defendant Jackson Resources Company (“Jackson”). Mr. Wilson collected soil samples from the same locations as Dr. Simonton (RL1 and RL2) and from a third location farther away from the Facility (RL3). [ECF No. 105 at 6]. During the visit, Mr. Wilson did not observe any staining, odors, or dead vegetation in the vicinity of the Facility. [ECF No. 105-13 ¶ 6]. Mr. Wilson's testing confirmed the presence of the contaminants identified by Dr. Simonton, although many contaminants were found at higher concentrations in the sample collected farther from the Facility. [ECF No. 105 at 16 n.68].

Defendant's expert, Dr. Gregory Cotten, opines that the contaminants are commonly associated with plastics or with the incomplete combustion of organic materials, and should not be attributed to Defendant's operations. [ECF No. 105-16, at 18 t.3].

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Dr. Cotten's analysis demonstrates that all contaminants were found well within acceptable levels. [ECF No. 105 at 19].

Ms. Lovejoy brought seven claims against Defendants Jackson and Amcox^[1]: recovery of response costs associated with a contaminated site and declaratory judgment that Jackson and Amcox are liable for response costs under Section 107 of the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) (Count I); citizen suit relief from permitting violations under 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 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).

Prior to reaching a settlement agreement with Plaintiff, Defendant Jackson moved to dismiss the claims. [ECF No. 14]. I denied the motion in part and granted it in part, dismissing Counts II, IV, and VII against Jackson. [ECF No. 56]. Amcox moves for summary judgment on the remaining claims.^[2] [ECF No. 106]. In her

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response, Ms. Lovejoy agrees that the court should grant Amcox summary judgment as to Counts IV and VII, leaving the following five claims against Amcox: recovery of response costs associated with a contaminated site and declaratory judgment that Amcox is liable for response costs under CERCLA (Count I); citizen suit relief from permitting violations under RCRA and the WVHWMA (Count II); citizen suit relief for judicial abatement of an imminent and substantial endangerment under RCRA (Count III); relief for a private nuisance (Count V); and negligence (Count VI). [ECF No. 56; ECF No. 111 at 6].

Ms. Lovejoy moves for Partial Summary Judgment, Permanent Injunction, and Entry of Appropriate Declaratory and Permanent Injunctive Relief on Counts I, II, and III. [ECF No. 102]. I address each of the parties' respective arguments for each claim in turn.

II. Legal Standard

To obtain summary judgment, the moving party must show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). “Facts are ‘material' when they might affect the outcome of the case, and a ‘genuine issue' exists when the evidence would allow a reasonable jury to return a verdict for the nonmoving party.” News & Observer Publ. Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010). The moving party may meet its burden of showing that no genuine issue of material fact exists by use of “depositions, answers to interrogatories, answers to

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requests for admission, and various documents submitted under request for production.” Barwick v. Celotex Corp., 736 F.2d 946, 958 (4th Cir. 1984). In considering a motion for summary judgment, the court will not “weigh the evidence and determine the truth of the matter.” Anderson v. Liberty Lobby, 477 U.S. 242, 249 (1986). Rather, the court will draw any permissible inference from the underlying facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986).

Summary judgment is appropriate when the nonmoving party has the burden of proof on an essential element of her case and does not make, after adequate time for discovery, a showing sufficient to establish that element. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The nonmoving party must offer some “concrete evidence from which a reasonable juror could return a verdict in [her] favor” and must “set forth specific facts” that offer more than a “scintilla of evidence” in support of her position. Anderson, 477 U.S. at 252, 256. Conclusory allegations or unsupported speculation, without more, are insufficient to preclude the granting of a summary judgment motion. See Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987).

“When faced with cross-motions for summary judgment, the court must review each motion separately on its own merits to determine whether either of the parties deserves judgment as a matter of law.” Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003) (internal quotation omitted). “When considering each individual motion,

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the court must take care to resolve all factual disputes and any competing, rational inferences in the light most favorable to the party opposing that motion.” Id.

III. Discussion

I address each party's respective arguments as to each claim on summary judgment.

A. CERCLA (Count I)

Section 107 of CERCLA provides for strict liability for responsible parties. See United States v. Monsanto, 858 F.2d 160, 167 (4th Cir. 1988). “Congress enacted CERCLA to address the increasing environmental and health problems associated with inactive hazardous waste sites.” Nurad, Inc. v. William E. Hooper & Sons Co., 966 F.2d 837, 841 (4th Cir. 1992). The statute encourages private cleanup of such hazards by providing a cause of action for the recovery of costs incurred in responding to a “release” of hazardous substances at any “facility.” 42 U.S.C. § 9607. A person who incurs such cleanup costs is entitled to recover from anyone who qualifies as a “responsible person” under the statute. Id. Responsible persons include the current “owner” or “operator” of the facility or any person who “owned” or “operated” the facility at the time of “disposal.” Id. § 9607(a)(2).

To succeed on a cost recovery claim under Section 107(a) of CERCLA, a plaintiff must establish...