Lovejoy v. Jackson Resources Company

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

CHARLESTON DIVISION

RITA LOVEJOY,

Plaintiff,

v. CIVIL ACTION NO. 2:20-cv-00537

AMCOX OIL AND GAS, LLC,

Defendant.

MEMORANDUM OPINION AND ORDER

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

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. 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. 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,

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at 18 t.3]. 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 Amcox1:

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

1 Ms. Lovejoy initially named only Jackson as a defendant, but I granted her motion to amend her

complaint, and she pleaded all of her claims against both Jackson and Amcox, who was joined as a

necessary party pursuant to Federal Rule of Civil Procedure 19. [ECF Nos. 1; 29; 38; 39, at 29

(“Plaintiff incorporates Defendant AMCOX, as a Defendant, along with Jackson, into Counts I-VII of

this Proposed Amended Complaint and all preceding paragraphs.”)].

2 Amcox also joins in Jackson’s Motion for Summary Judgment, [ECF No. 105], as well as Jackson’s

Response in Opposition to Plaintiff’s Motion for Summary Judgment, [ECF No. 113], and incorporates

other relevant memoranda of law. Amcox has not joined in Jackson’s Motion to Strike Exhibit 4 of

Plaintiff’s Motions for Summary Judgment, [ECF No. 112], and since Jackson has been dismissed as

a defendant, I do not address that Motion here.

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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.”

, 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.” , 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.” , 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.

., 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. ,

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. , 477 U.S. at 252, 256. Conclusory allegations or unsupported

speculation, without more, are insufficient to preclude the granting of a summary

judgment motion. , 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.” , 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.”

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.

, 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.” ,

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. . 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.” § 9607(a)(2).

To succeed on a cost recovery claim under Section 107(a) of CERCLA, a

plaintiff must establish that (1) the defendant is a potentially responsible person

(“PRP”); (2) a CERCLA “facility” exists; (3) a hazardous substance has been released

or threatens to be released from the defendant’s facility; and (4) the release or

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threatened release has caused the plaintiff to incur response costs that are

“necessary” and “consistent with the National Contingency Plan” (“NCP”).

, 714 F.3d 161, 167–68 (4th Cir. 2013).

A claim for response costs may “be established entirely through circumstantial

evidence.” , 216 F.3d 886, 892 (10th Cir. 2000) (noting that

requiring direct evidence relating to disposal that occurred in the past is

inappropriate). The plaintiff need not “prove its case with mathematical precision . .

. or scientific certainty.” , 355 F.3d

574, 590 (6th Cir. 2004); , 191 F.3d 69, 76 (1st Cir.

1999) (CERCLA does not “cast the plaintiff in the impossible role of tracing particular

waste to particular sources . . . a task that is often technologically infeasible due to

the fluctuating quantity and varied nature of the pollution at a site over the course

of many years.”). Nevertheless, the plaintiff must present “sufficient evidence from

which a reasonable and rational approximation of each defendant’s individual

contribution to the contamination can be made.” , 3 F.3d

889, 903 (5th Cir 1993).

Ms. Lovejoy alleges that the substances detected in soil and groundwater

samples from her property are “solid wastes” within the meaning of 40 C.F.R. § 261.1

and “hazardous wastes” within the meaning of 40 C.F.R. Part 261 and Title 33, Series

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20, of the West Virginia Code of State Rules, and that the pipeline is a “facility” under

CERCLA. 3

Both parties move for summary judgment on this claim. Amcox argues that it

is entitled to summary judgment because Ms. Lovejoy cannot show that there has

been a “release” from the Facility, and because Ms. Lovejoy has not incurred

“response costs” recoverable through CERCLA.

i. “Release” of hazardous substances

The parties dispute whether there has been a “release or threatened release”

of hazardous substances from the Facility. It is well established that “release” is

defined broadly and includes passive conduct such as “leaking,” “escaping,” and

“leaching.” 42 U.S.C. § 9601(22);

, 66 F.3d 669, 680 (4th Cir. 1995).

Less established, however, is the amount of evidence needed for a plaintiff to

prove her case. “CERCLA is not a paradigm of clarity or precision. It has

been criticized frequently for inartful drafting and numerous ambiguities

attributable to its precipitous passage. Problems of interpretation have arisen from

the Act’s use of inadequately defined terms, a difficulty particularly apparent in the

3 “The term ‘facility’ means (A) any building, structure, installation, equipment, pipe or pipeline

(including any pipe into a sewer or publicly owned treatment works), well, pit, pond, lagoon,

impoundment, ditch, landfill, storage container, motor vehicle, rolling stock, or aircraft, or (B) any site

or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise

come to be located; but does not include any consumer product in consumer use or any vessel.” 42

U.S.C. § 9601(9). The Facility consists of a “pipeline” and other “equipment” expressly included in the

definition of “facility” under CERCLA. Moreover, if Ms. Lovejoy can establish a release of hazardous

substances from the Amcox Facility, then the “facility” element of her CERCLA claim is also met.

[ECF No. 113 at 8].

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response costs area.” , 851 F.2d 643,

648 (3d Cir. 1988). As courts routinely recognize, “scientific certainty . . . is not always

a realistic goal in environmental science,” , 99 F.3d 505, 526

(2d Cir. 1996), ,

352 F.3d 682 (2d Cir. 2003), and requiring a plaintiff to prove actual contamination

by the defendant’s waste “would thus eviscerate section 107.” , 659 F.

Supp. 1269, 1282 (D. Del. 1987), , 851 F.2d 643. Accordingly, the United States

Court of Appeals for the Fourth Circuit has held that to establish a release, the

plaintiff must show “only that contaminants which were once in the custody of the

defendant could have travelled onto the plaintiff’s land, and that subsequent

contaminants (chemically similar to the contaminants once existing in defendant’s

custody) on the plaintiff’s land caused the plaintiff to incur cleanup costs.” ,

66 F.3d at 681 (citing , 858 F.2d at 169). The presence of “any detectable

amount” of a hazardous substance, without regard to concentration, is sufficient.

, 823 F. Supp. 318, 340 (D. Md. 1993);

, 889 F.2d 664, 669 (5th Cir. 1989). A CERCLA plaintiff

need not prove that contaminants on her property actually migrated from the

defendant’s property, but she must “demonstrate that the defendant has deposited

hazardous waste.” , 985 F.2d 168, 174 (4th Cir. 1993).

Once a plaintiff has made her showing of a release, the burden shifts to

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the defendant to show that the release was caused “solely by an act of God, an act of

war or by a third party.” 41 U.S.C. § 9607(b).

Amcox argues that Ms. Lovejoy cannot show that hazardous substances were

ever in Defendant’s possession because there is no direct evidence of contamination

at the Facility and because Ms. Lovejoy has failed to show that the contaminants

originate, derive, or occur as a component or byproduct of the natural gas processes

of the Facility.

Ms. Lovejoy’s expert witness, Dr. Simonton, testifies that he observed staining

on Amcox’s equipment and on the surrounding soil, and he noted a petroleum smell

in the area. [ECF No. 102-1 at 7]. He also opines that the contaminants found on Ms.

Lovejoy’s property are “associated with oil and gas” and therefore can be attributed

to Amcox’s operations on the property. As evidence of this association, Dr.

Simonton cites three publications discussing the contaminants found in studies of oil

and gas operations. at 7–8.

Amcox disputes the relevance of the publications cited by Dr. Simonton,

pointing to differences between the settings of those studies and the setting at issue

here. [ECF No. 105 at 16–17]. Amcox also argues that the contaminants more likely

originated from sources other than oil and gas operations, including from Plaintiff’s

own plastic materials. [ECF No. 104 at 2–3]. Defendant’s expert, Mr. Wilson, denies

detecting any odors or staining around the Facility. [ECF No. 105-13 ¶ 6]. Mr.

Wilson’s testing found higher concentrations of contaminants in sample RL3 than in

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the samples collected closer to the Facility. [ECF No. 105 at 16]. Dr. Simonton notes,

however, that RL3 is inappropriate as a “background” sample due to its location

“immediately down gradient” of the area of concern. [ECF No. 105-4 at 112; ECF No.

105-23 ¶ 12].

Amcox points out that the publications cited by Dr. Simonton do not name most

of the contaminants found in the samples from Ms. Lovejoy’s property. [ECF No. 105

at 16–17]. It is undisputed that DEHP—the one contaminant found in all three

publications and in every sample from the Lovejoy Property—is used mainly as a

plasticizer, added to polyvinyl chloride (“PVC”) plastics to make them flexible. [ECF

No. 105-16 at 18; ECF No. 102-1 ¶ 27 n.1]. The parties do not dispute that Amcox’s

Facility is unrelated to PVC or other plastics. Nor do they dispute the presence of

plastic materials on the property which cannot be attributed to the Facility.4 But

merely identifying a plausible alternate source does not foreclose a finding that

hazardous substances were released or threaten release from the Facility, and Amcox

does not offer independent evidence that no hazardous substances are present at the

Facility. , 659 F. Supp. at 1281–82 (“Mere expert opinion as to the

weight of the moving party’s evidence, without an offer of independent facts by the

nonmoving party, cannot under the facts of this case be permitted to defeat summary

judgment.”).

4 Without factual support, I am not required to accept Dr. Simonton’s conclusory opinion that “no other

source [of the contaminants] reasonably exists.” [ECF No. 102-1 at 8].

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Amcox also states incorrectly that none of the papers cited by Dr. Simonton

identifies any of the other contaminants. [ECF No. 113 at 6]. The Groundwater

Protection Council report mentions fluoranthene, mercury, phenanthrene, and

pyrene, in addition to DEHP. [ECF No. 105-22 at 10, 22]. Defendant’s own expert, Dr.

Cotten, opines that two of these compounds—fluoranthene and pyrene—are “found

in coal, oil, and gas.” [ECF No. 105-16 at 19 t.3].

Amcox emphasizes that Ms. Lovejoy relies on inference to establish a release.

Defendant stresses that no one has seen any liquid physically flowing from the

Facility and that nothing in the record directly links the contaminants to the

processes of the Facility. [ECF No. 105 at 15–16]. But CERCLA permits a private

plaintiff to rely on inference; “only minimal thresholds are necessary to demonstrate

a release.” , No. 2:19-cv-00894, 2021 WL

4944038, at *5 (S.D. W. Va. Oct. 22, 2021) (citing ,

833 F. Supp. 1163, 1178 (D.S.C. 1992)); , 216 F.3d at 892 (“CERCLA liability

may be inferred from the totality of the circumstances; it need not be proven by direct

evidence.”). Plaintiffs often seek inferences with respect to the pathway by which

contaminants could have migrated between properties; and courts typically grant

those inferences given that “[c]ontrary to the rule followed in most areas of law, the

burden of proof as to causation in a CERCLA case lies with the defendant.” ,

66 F.3d at 681. But, recognizing the difficulties of proof throughout the CERCLA

framework, courts have extended this generosity of inference to the plaintiff’s burden

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of showing the defendant’s custody over contaminants. , , 659

F. Supp. 1269 (finding a “release” where toxic wastes were present near the

defendant’s landfill, even though no samples were taken within the landfill’s

boundaries, the plaintiff “offered no evidence that hazardous substances were

actually disposed of” at the landfill, and the contaminants could easily have come

from another nearby landfill); , 21 F. Supp. 3d 784 (W.D.

Tex. 2014). As an example, the plaintiff in relied on inference to attribute

arsenic contamination to a nearby property on which a cement plant had previously

operated. 21 F. Supp. 3d at 809. The parties generally agreed that surface water

patterns would allow for contaminants to migrate from the plant to the relevant

property; at issue was whether arsenic had ever been used at the plant such that it

could have traveled along that established contamination pathway. The plaintiff

relied on a 1989 report, commissioned by a potential purchaser at the time, which

detailed heavy dust accumulation throughout the plant property. The parties’ experts

agreed that cement kiln dust (“CKD”) contains arsenic, but they disputed whether

the dust noted in the report “was indeed CKD rather than other, potentially less

hazardous, dust byproducts of the cement-making process.” at 794. Testing had

not been performed at the plant to confirm the presence of arsenic or CKD, but the

report suggested that some limited sampling revealed chemical properties consistent

with CKD, such as elevated pH. at 795. Following a bench trial, the court found

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for the plaintiff, concluding that at least some of the dust on the plant property likely

was CKD. at 809.

CERCLA does not, however, grant a plaintiff unlimited latitude. She must still

produce evidence from which a release can be rationally inferred, and the burden of

proof as to causation does not shift to the defendant until the plaintiff proves her

case. For example, in , an

EPA survey revealed the presence of organic chemicals on the plaintiff homeowners’

properties. 805 F. Supp. 1120, 1123 (D. Del. 1992). The homeowners instituted a

CERCLA action against a real estate developer who buried “site preparation and

construction debris” within a right-of-way running through the subdivision. at

1130. The court granted summary judgment to the defendant developer, finding no

evidence of hazardous substances linked to the discarded debris, which included tree

stumps, wood, plywood, and empty paint cans.

This case is incredibly close, but I find that Ms. Lovejoy’s evidence is minimally

capable of establishing Amcox’s liability. Dr. Simonton testifies to odors and staining

around the Facility; those facts, if true, support an inference that fluid leaked from

the Facility onto Ms. Lovejoy’s property. Dr. Simonton also cites publications

indicating that at least some oil and gas operations are linked to hazardous

substances, which may include the contaminants found on Ms. Lovejoy’s property.

Given that CERCLA creates liability for “threatened” releases in addition to actual

releases, Ms. Lovejoy presents more—though not much more—than a “scintilla of

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evidence” in support of her claim.5 Defendant cogently criticizes Ms. Lovejoy’s chain

of evidence, but those arguments are best resolved at trial, where I expect effective

examination of expert witnesses to bring clarity to this matter. At this stage, I find

summary judgment for either party inappropriate.

ii. Response costs

Amcox next argues that Ms. Lovejoy has not incurred any costs in responding

to the alleged release. In the alternative, Amcox argues that any costs incurred were

not “necessary” or “consistent with the National Contingency Plan.”

1. Incurrence of costs

Amcox argues that even if Ms. Lovejoy can establish a “release,” she has not

actually incurred any costs in response. Ms. Lovejoy contends that she paid her

lawyer a $10,000 retainer, from which Dr. Simonton was paid a $2,000 retainer, 6 and

that Dr. Simonton has billed additional time relevant to his response actions. [ECF

No. 110 at 6; ECF No. 105-4 at 186]. Amcox counters that the record lacks

documentation supporting the claim that Dr. Simonton’s retainer was paid out of the

retainer to Ms. Lovejoy’s attorney. [ECF No. 116 at 9]. Amcox also points out that Dr.

Simonton has not submitted an invoice for his work, so Ms. Lovejoy has not

compensated him for anything.

5 In reaching this conclusion, I also consider CERCLA’s remedial objectives and the broader principles

evinced by its burden-shifting framework. These considerations weigh in favor of permitting the case

to proceed to trial. , 866 F. Supp. 1481, 1497 (“[A]n inference that

the waste found at the site came from that defendant is permissible and is sufficient to defeat a

summary judgment motion, even if it would not ultimately be sufficient to persuade the trier of fact.”).

6 Attorney fees are generally not recoverable under CERCLA, but certain fees paid to expert

consultants can be recovered. , 511 U.S. 809 (1994).

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I first address Amcox’s legal argument that Ms. Lovejoy cannot recover the

costs of Dr. Simonton’s uninvoiced services because CERCLA limits recovery to costs

actually “‘incurred’—not ‘to be incurred.’” , 951 F.2d 246,

249 (9th Cir. 1991) (quoting CERCLA § 9607(a)(4)(B)). Amcox relies on just one case,

, in which the Ninth Circuit denied recovery for “nothing but

bare assertions” that the defendant “will perform future cleanup.” at 250 (“This

case provides no occasion for defining what ‘incurred’ means—only what it does not

mean.”). The facts of this case are very different. This case involves completed actions

not yet invoiced. The parties do not dispute that Dr. Simonton performed services for

which Ms. Lovejoy accrued liability. Actual payment is not required for costs to have

been “incurred” where a legal obligation has accrued. , 232

F.3d 946, 958 (8th Cir. 2000),

, 545 U.S. 546 (2005).

Having concluded that unpaid liabilities constitute costs “incurred,” I also find

that Ms. Lovejoy’s evidence shows she has incurred costs. Triable issues remain as to

the extent of Ms. Lovejoy’s expenses, and, as I discuss below, whether they qualify as

“response costs” recoverable under CERCLA.

2. Necessary response costs

While CERCLA provides plaintiffs with a generous liability framework, their

recovery is limited to the necessary costs of responding to a reasonable threat. Thus,

a plaintiff may be able to show the minimal release required to establish her

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case, but “it is the nature of the costs for which relief is sought that dictates the

extent to which the plaintiff must show the effects of releases or threatened releases

from the defendant’s facility on the environment.” Kim Kochner,

Dedham Water Co.

v. Cumberland Farms Dairy, Inc., 3 Vill. Env’t L.J. 225, 243 (1992). Response costs

are “necessary” when “an actual and real threat to human health or the environment

exists” and “the response action is addressed to that threat.”

, 270 F.3d 863, 871–72 (9th Cir. 2001).

Ms. Lovejoy claims $11,420.20 in response costs, which she expended on initial

monitoring and investigation. [ECF No. 102 at 11]. To recover her costs under

CERCLA, Ms. Lovejoy must show that she acted in response to a perceived threat,

and that her response was reasonable in light of the facts known to her while she

expended response costs.

As discussed above, the parties dispute the existence of a release or threatened

release from the Facility. The parties also dispute how Ms. Lovejoy became concerned

about potential contamination on her property. Ms. Lovejoy claims that sludge in her

irrigation system led her to investigate, and that staining and odors around the

Facility prompted laboratory testing. [ECF No. 105-3 at 112; ECF No. 105-4 at 69–

70]. Amcox argues that Ms. Lovejoy responded to unfounded suggestions from her

attorney and expert witness, rather than to any reasonably perceived threat. [ECF

No. 113 at 2–3; ECF No. 105-3 at 123–24]. Amcox argues further that even if Ms.

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Lovejoy had legitimate cause for concern, her “biased” environmental investigation

was an unreasonable response to the perceived threat. [ECF No. 107 at 3].

Reasonableness is an inherently factual inquiry most appropriately

determined by a trier of fact. Moreover, the parties’ conflicting evidence creates

genuine issues of material fact. Neither party is entitled to summary judgment on

this issue.

3. Response consistent with the NCP

Amcox further argues that any response costs incurred by Ms. Lovejoy are

inconsistent with the National Contingency Plan. The NCP is established under

CERCLA § 105, 42 U.S.C. § 9605, and “sets forth an array of requirements ‘potentially

applicable to private party response actions’ regarding, , worker health and

safety; documentation and cost recovery; permit requirements; reports of releases to

the National Response Center (‘NRC’); removal site evaluation and actions; remedial

site evaluation; selection of a remedy; and providing an opportunity for public

comment concerning the selection of a response action.” , 2022 WL

2400038, at *19 (citing 40 C.F.R. § 300.700(c)(5)–(6)). A private party’s response

action is considered “consistent with the NCP” if the action, “when evaluated as a

whole, is in substantial compliance with the applicable requirements” set forth in

paragraphs (5) and (6) of 40 C.F.R. § 300.700(c), and “results in a CERCLA-quality

cleanup.” 40 C.F.R. § 300.700(c)(3)(i).

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Amcox argues that Dr. Simonton’s investigation falls short of the NCP’s

standards for a remedial site investigation. Although Dr. Simonton concedes his

assessment was not a true site investigation, Ms. Lovejoy maintains that any

deviations are “immaterial or insubstantial” and therefore the investigation is “not

inconsistent” with the NCP. [ECF No. 110 at 6]; 40 C.F.R. § 300.700(c)(4).

Compliance with the NCP is a factual question more appropriately resolved at

trial. But Ms. Lovejoy also argues that a court need not assess NCP-compliance for a

plaintiff to recover preliminary monitoring and investigation costs.

Although there is divided authority, “many courts have held that initial

investigation, site-assessment, and monitoring costs are recoverable under § 107(a)

of CERCLA irrespective of compliance with NCP requirements.” , 2022 WL

2400038, at *20 (quoting , 863 F. Supp.

2d 793, 809 (E.D. Wis. 2012) (collecting cases)). As recognized by these courts, “[t]he

bulk of the NCP guidelines appear to apply to actual removal and remedial

procedures but do not logically appear applicable to the initial assessment aspects of

a cleanup.” at *20 (quoting , 771 F. Supp. 1406,

1414 (D. Md. 1991)). Accordingly, plaintiffs can recover expenditures for investigatory

procedures, instituted in response to a release or threatened release, even when that

investigation indicates that no contamination took place. , 851

F.2d at 651. Other courts, however, have concluded that preliminary costs are

recoverable only when there is “‘some nexus’ between the alleged response cost and

20

‘an of hazardous releases.’” at *19 (quoting ,

394 F.3d 858, 864 (10th Cir. 2005) (emphasis in original)).

I am persuaded by the weight of authority that investigatory sampling costs

incurred in direct response to concerns of contamination constitute “necessary” costs

of response “that are consistent with the NCP, irrespective of any literal compliance

therewith.” at *20. It is well established that CERCLA must be viewed broadly to

achieve its legislative goals. , 882

F.2d 862, 867 (4th Cir. 1989). Those goals include the discovery and removal of

hazardous substances. , 823 F. Supp. at 345. Given this context, “

investigation which could lead to the discovery of hazardous substances at a site, or

the extent to which the site is polluted, could be considered ‘necessary’ in order to

accomplish the goals of the statute.” (emphasis in original).

Ms. Lovejoy need not show NCP-compliance to recover the costs of her

preliminary investigation, but she must still establish that the investigation was

“precipitated by a release of a hazardous substance and necessary to the remediation

thereof.” , 431 F. Supp. 2d 755, 765 (W.D.

Mich. 2006) (quoting , 926 F. Supp. 199, 203 (D.D.C. 1996)).

Amcox is liable for Ms. Lovejoy’s preliminary costs only if there was “a reasonable

risk” of contamination, and if “the monitoring and evaluation expenses were incurred

by the plaintiff in a reasonable manner.”

, 4 F.3d 1209, 1219 (3d Cir. 1993). As discussed above, there are triable

21

issues of fact regarding any staining, odor, or plant discoloration observed on the

Lovejoy Property. If those issues are resolved in Ms. Lovejoy’s favor, a jury could also

find that her investigation was reasonable. On the CERCLA claim, therefore, both

parties’ motions for summary judgment are DENIED.

B. RCRA 42 U.S.C. § 6972(a)(1)(A) and WVHWMA Permitting Violation

(Count II)

RCRA is a comprehensive environmental statute that governs the treatment,

storage, and disposal of solid and hazardous waste. , 2022 WL 2400038, at

*38. The primary purpose of RCRA is “to reduce the generation of hazardous waste

and to ensure the proper treatment, storage, and disposal of that waste which is

nonetheless generated, so as to minimize the present and future threat to human

health and the environment.” (quoting , 516 U.S 479, 483

(1996)). The Environmental Protection Agency (“EPA”) Administrator and the

Secretary of the West Virginia Department of Environmental Protection are

responsible for developing and promulgating criteria for identifying the

characteristics of hazardous waste, as well as permit requirements for its storage,

treatment, and disposal. 42 U.S.C. § 6921(a); W. Va. Code § 22-18-6(a)(2).

Both Ms. Lovejoy and Amcox move for summary judgment on this claim. Ms.

Lovejoy alleges in Count II that Amcox has violated the statutory provisions and the

hazardous waste permitting regulations promulgated by the EPA under RCRA

Subchapter III, or Subtitle C, 42 U.S.C. §§ 6921–6939, and by the state of West

Virginia under its Hazardous Waste Management Act, W. Va. Code §§ 22-18-1–22-

22

18-25. Those statutes and regulations prohibit the treatment, storage, or disposal of

hazardous wastes that are listed in EPA regulations without a hazardous waste

permit authorizing such activities. 42 U.S.C. § 6928; W. Va. Code § 22-18-8(a). Ms.

Lovejoy alleges that Amcox has no such permit, yet sampling of the groundwater and

soil near the Facility detected various contaminants that are “solid waste,” within the

meaning of 40 C.F.R. § 261.2 and “hazardous waste” under 40 C.F.R. Part 261, as

well as Title 33, Series 20, of the West Virginia Code of State Rules. [ECF No. 111 at

5]. RCRA authorizes suit “against any person . . . who is alleged to be in violation of

any permit, standard, regulation, condition, requirement, prohibition, or order which

has become effective pursuant to this chapter . . . .” 42 U.S.C. § 6972(a)(1)(A).

RCRA defines “hazardous waste” as:

[A] solid waste, or combination of solid wastes, which

because of its quantity, concentration, or physical,

chemical, or infectious characteristics may -- (A) cause, or

significantly contribute to an increase in mortality or an

increase in serious irreversible, or incapacitating

reversible, illness; or (B) pose a substantial present or

potential hazard to human health or the environment

when improperly treated, stored, transported, or disposed

of, or otherwise managed.

42 U.S.C. § 6903(5).

Amcox does not dispute that it lacks a permit for handling hazardous wastes

but argues that such a permit is unnecessary because Amcox never handled the

contaminants found on Ms. Lovejoy’s property. Amcox denies the release of any

relevant substances in connection with its operations on the subject property and

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argues that Ms. Lovejoy has not been able to show any evidence that these substances

originated from the Facility. [ECF No. 107 at 9]. And even if Ms. Lovejoy can show a

release, Amcox argues that she failed to provide proper notice of her citizen suit, and

that the Facility is exempt from RCRA’s coverage.

i. Notice

Amcox first argues that Ms. Lovejoy failed to provide notice required by RCRA.

RCRA provides that before filing a lawsuit under § 6972(a)(1), a plaintiff must provide

the defendant with a notice of intent to sue at least 60 days before filing a suit for

permitting violations under subsection (a)(1)(A) or 90 days before filing suit pursuant

to subsection (a)(1)(B). 42 U.S.C. § 6972(b)(2)(A). Failure to do so is grounds for

dismissal of a RCRA claim. , 229 F. Supp. 3d

714, 722 (N.D. Ill. 2017). “A notice of intent to sue must be ‘sufficiently specific to

inform the alleged violator about what it is doing wrong, so that it will know what

corrective actions will avert a lawsuit.’” I have already ruled, however, that the

notice provided to Jackson, the owner of the Facility at the time, was sufficient. [ECF

No. 56 at 10]. Amcox purchased the Facility which had been provided notice and

Amcox made its purchase subject to such notice. I find dismissal inappropriate on

this ground.

ii. Bentsen Amendment

Amcox next argues that its activities on the Lovejoy Property are exempt from

regulation under the “Bentsen Amendment” to RCRA, which states that “drilling

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fluids, produced waters, and other wastes associated with the exploration,

development, and production of crude oil or natural gas or geothermal energy shall

be subject only to existing State or Federal regulatory programs in lieu of Subtitle C.”

42 U.S.C. § 6921(b)(2)(A). Ms. Lovejoy argues that this exemption is expressly limited

to wastes generated by activities “uniquely associated with the exploration,

development or production of crude oil or natural gas at primary field operations”

(i.e., wastes from down hole or wastes that have otherwise been generated by contact

with the production stream during the removal of produced water or other

contaminants from the product). [ECF No. 111 at 2–4].

The Bentsen Amendment exempts only waste materials “intrinsically derived

from primary field operations.” [ECF No. 111-1 at 6]. That language “is intended to

distinguish exploration, development, and production operations from transportation

and manufacturing operations.” EPA guidance directly addresses whether natural

gas condensate, or “drip gas,” is exempt from RCRA permitting requirements,

clarifying that drip gas collected from lines associated with the movement of natural

gas “on-site (i.e., the exploration, development, or production site)” is exempt from

classification as hazardous waste. U.S. Env’t Prot. Agency, RO 13253,

(1989); U.S. Env’t Prot. Agency, RO 13617,

(1993). On the other hand, “if the drip gas is collected

from lines that are used for the off-site movement of natural gas, the drip gas is not

excluded.” . EPA illustrates this distinction by way of example,

25

comparing “drip gas from gathering lines on the production site that lead to an on-

site central storage tank,” which would be exempt, to “drip gas collected from lines

used to transport natural gas from the production site to an off-site distribution

center,” which would be regulated. As Ms. Lovejoy notes, “[s]imilar wastes

generated by activities other than E&P operations are not covered by the exemption.”

[ECF No. 111 at 3 (quoting ECF No. 111-1 at 9)].

Amcox argues that Ms. Lovejoy’s claim must fail because the alleged release of

hazardous substances originated from a transmission line, which is “fundamentally

related to the development of natural gas.” [ECF No. 114 at 8]. Amcox does not

address the distinction between processes associated with exploration, development,

and production of natural gas and those associated with transportation or

manufacturing. Nothing in the record suggests that the transmission line carries gas

between a production site and another on-site area. Even if the plugged gas well and

its surroundings are considered a production site, the pipeline extends beyond that

area, traversing property that cannot be characterized as “on-site.” Because Amcox

has not shown that the Facility involves “primary field operations” exempt under the

Bentsen Amendment, summary judgment for Amcox on this ground is unwarranted.

iii. Hazardous waste

Although Amcox’s activities are not categorically exempt from the permitting

requirements, Ms. Lovejoy must still show that Amcox engages in activities for which

26

permits are required, i.e., that Amcox is involved in the “treatment, storage, or

disposal” of hazardous waste. 42 U.S.C. § 6925(a).

As discussed with respect to Count I, the parties dispute whether any

contaminants are “leaking,” “escaping,” or “leaching” from the Facility, which would

constitute “disposal” within the meanings of RCRA and WVHWMA. Given this

genuine issue of material fact, both parties’ motions for summary judgment on Count

II are DENIED.

C. Citizen suit relief for judicial abatement of an imminent and substantial

endangerment under RCRA (Count III)

RCRA permits citizen suits to be commenced against “any past or present

generator, past or present transporter, or past or present owner or operator of a

treatment, storage, or disposal facility, who has contributed or is contributing to the

past or present handling, storage, treatment, or disposal of any solid or hazardous

waste which may present an imminent and substantial endangerment to health or

the environment.” § 6972(a)(1)(B). “In contrast to claims brought under subsection

(a)(1)(A), claims under subsection (a)(1)(B) may be brought regardless of whether the

plaintiff can demonstrate that the defendant’s actions violated a specific RCRA-based

permit.” , 791 F.3d 500, 505 (4th Cir. 2015).

The district court may restrain any person who has “contributed or who is

contributing to the past or present handling, storage, treatment, transportation, or

disposal of any solid or hazardous waste.” 42 U.S.C. § 6972(a)(1)(B). And, to remedy

a violation of either subsection, the court has authority “to order [a defendant] to take

27

such other action as may be necessary.” § 6972(a). “Disposal” is defined as “the

discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste

into air or water[,] such that solid waste or any constituent thereof may enter the

environment or be emitted into the air or discharged into any waters, including

ground waters.” § 6903(3).

Both parties move for summary judgment on this claim. Ms. Lovejoy alleges

first that Amcox is a person who has “contributed . . . to the past or present handling,

storage, treatment, transportation, or disposal of any solid or hazardous waste.” [ECF

No. 39 ¶ 48]. Ms. Lovejoy identifies the substances that were revealed during the

environmental investigation as “solid wastes” within the meaning of 42 U.S.C. §

6903(27) and “hazardous waste” within the meaning of 42 U.S.C. § 6903(5). Ms.

Lovejoy alleges that these contaminants have “been shown to cause or significantly

contribute to an increase in mortality or an increase in serious irreversible . . . illness,

and each poses a substantial present or potential hazard to human health or the

environment when improperly treated, stored, transported, or disposed of, or

otherwise managed.” [ECF No. 39 ¶47]. The statute clearly authorizes enforcement

against past handlers who may have allowed hazardous substances to leak or spill

out of their industrial property.

Amcox argues that Ms. Lovejoy has failed to demonstrate the potential for

immediate and substantial harm because contaminants were not found at “elevated

levels.” [ECF No. 105 at 25]. Amcox further argues that Ms. Lovejoy has failed to

28

show a causal connection between Amcox and any contamination, because the

contaminants found are not “associated with oil and gas” and because no “release”

from the Facility has occurred.

Despite Ms. Lovejoy’s insistence that contaminants were found at “elevated

levels,” the undisputed facts show that no contaminants were found at harmful

concentrations. [ECF No. 102-2 at 4–5]. Ms. Lovejoy stresses that RCRA provides

relief from a disposal that “may” present an imminent and substantial

endangerment. She emphasizes that “endangerment” means “a threatened or

potential harm and does not require proof of actual harm” and that “imminent” means

that there is a present threat now, “although the impact of the threat may not be felt

until later.” , 39 F.3d 1011, 1019 (9th Cir. 1994). As both parties

agree, an endangerment is “substantial” when there is “reasonable cause for concern

that someone or something may be exposed to risk of harm by a release or threatened

release of hazardous substances in the event remedial action is not taken.”

, 505 F.3d 1013, 1021 (10th Cir. 2007).

Ms. Lovejoy relies entirely on Dr. Simonton’s testimony to establish

“reasonable cause for concern.” [ECF No. 115 at 8]. But nothing in Dr. Simonton’s

testimony—nor anything else in the record—allows a jury to find a reasonable

prospect of future harm that is “near-term and potentially serious.”

, 575 F.3d 199, 212 (2d Cir. 2009). The Complaint identifies

health risks associated with the compounds found on Ms. Lovejoy’s property. [ECF

29

No. 39 ¶16]. But the record is devoid of factual support for these risks,

notwithstanding Dr. Simonton’s vague conclusions. [ECF No. 115 at 8–9]. And

even assuming each contaminant is associated with identifiable health risks, there is

no evidence of the particular risks presented by those contaminants on the Lovejoy

Property. The “mere presence” of contaminants, even at high concentrations, is “alone

not enough to constitute an imminent and substantial endangerment.”

, 471 F.3d 277, 282 (1st Cir. 2006) (endorsing the

district court’s use of data to determine the specific risks associated with high

mercury concentrations in river sediment); , 575 F.3d at 211–12

(affirming summary judgment for defendant because plaintiff’s sole evidence of an

“imminent and substantial endangerment” was “the mere fact that some samples

taken from the [defendant’s] site may exceed [state] standards.”). Ms. Lovejoy

presents even less evidence of an endangerment. Conceding that all contaminants

were found at safe levels, Dr. Simonton simply opines, without factual support, that

any detectable concentration of contaminants constitutes an “imminent and

substantial endangerment.” [ECF No. 115 at 8–9; ECF No. 105-4 at 107–08].

Accepting Dr. Simonton’s conclusion would impermissibly enlarge the scope of RCRA

to include any speculative prospect of future harm, thereby effectively eliminating

the requirement that an endangerment be “imminent and substantial.”

Moreover, the very nature of the relief sought in this case suggests that a

finding of an imminent and substantial endangerment would be, at best, premature.

30

Ms. Lovejoy asks the court to compel Amcox to perform a formal site investigation

and determine the need for remediation. [ECF No. 102]. Dr. Simonton admits that

“no one knows what risk these contaminants pose” based on the existing sample

results, [ECF No. 102-2 at 3]; he repeatedly testifies that the only remedial action he

can currently recommend is a full site assessment, [ECF No. 102-2 at 3; ECF No. 105-

4 at 61, 108]; and he acknowledges that EPA would likely find that no action is

required, [ECF No. 105-4 at 139]. , 575 F.3d at 212 (noting plaintiff’s

report concluded “that evaluation of the degree of such risk would require a further

risk assessment”).

Because no reasonable jury could find that Ms. Lovejoy’s evidence indicates an

“imminent and substantial endangerment,” Amcox’s motion for summary judgment

is GRANTED as to Count III, and Ms. Lovejoy’s motion is DENIED.

D. Relief for a private nuisance (Count V)

Amcox moves for summary judgment on Count V, arguing that Plaintiff cannot

identify an act or omission that would render it liable for private nuisance. “A private

nuisance is a substantial and unreasonable interference with the private use and

enjoyment of another’s land.” Syl. Pt. 1, , 380 S.E.2d 198, 199

(W. Va. 1989). In order for an interference to be “substantial,” the interference must

be a “real and appreciable invasion of the plaintiff's interests,” which means “more

than slight inconvenience or petty annoyance.” , 575 S.E.2d

342, 347 (W. Va. 2002) (quoting Restatement (Second) of Torts § 821F(c) (1979)). An

31

interference is “unreasonable” “when the gravity of the harm outweighs the social

value of the activity alleged to cause the harm.” Syl. Pt. 2, , 380 S.E.2d at

199.

Even if Ms. Lovejoy can establish interference with the use and enjoyment of

her property, nothing in the record supports finding that interference “substantial

and unreasonable.” The undisputed facts are that none of the identified contaminants

rose to levels of toxicological concern, and no one has experienced negative health

effects from residing on the property or consuming substances originating from it.

Accordingly, any economic losses suffered by Ms. Lovejoy are the result of

independent decisions and cannot be causally attributed to Defendant.7

contamination levels do not constitute a nuisance, , 52 F.3d 499,

503 (4th Cir. 1995), nor do well-founded fears that harmful contamination levels

exist, , 575 S.E.2d at 347.

As noted above, Ms. Lovejoy presents just enough evidence to survive summary

judgment under the relaxed burdens imposed by CERCLA. Congress expressly

enacted CERCLA to encourage private cleanups and to allocate cleanup costs among

potentially responsible parties. In pursuit of those ends, CERCLA requires minimal

showings of injury and causation before imposing liability on a defendant responsible

for releasing hazardous substances. Private nuisance, by contrast, is “a species of tort

liability” which requires a more definite showing of harm. , 575 S.E.2d at 347.

7 Because Ms. Lovejoy’s nuisance claim fails as a matter of law, I do not analyze her alleged economic

losses, but I note that evidence of such losses is lacking.

32

Because Ms. Lovejoy cannot show that the alleged contamination substantially

or unreasonably interfered with the use and enjoyment of her property, Amcox’s

motion for summary judgment on Count V is GRANTED, and Ms. Lovejoy’s motion

is DENIED.

E. Negligence (Count VI)

Amcox moves for summary judgment on Ms. Lovejoy’s negligence claim. To

prevail, Ms. Lovejoy must demonstrate, by a preponderance of the evidence, that (1)

Amcox owed her a duty; (2) Amcox breached that duty by an act or omission; and (3)

the breach of the duty proximately caused the injuries that she suffered.

, 787 S.E.2d 546, 551 (W. Va. 2016). I found that

Jackson—as past owner of the natural gas pipeline that transverses the land in

question––did owe Ms. Lovejoy a duty of care. Imposing a duty of care on Jackson for

the time it owned and operated the pipeline is consistent with public policy and

federal and state environmental regulatory law. [ECF No. 56 at 20 (“It is reasonably

foreseeable that hazardous chemicals moving in a pipeline will, if not properly stored

or managed, leak, spill, seep, or otherwise emit from the pipeline and create an

endangerment to the property on which the pipeline sits and to the owner of that

property.”)]. I hold Amcox to the same duty of care, as the same principles apply to it

as current owner of the natural gas pipeline.

Amcox argues that Ms. Lovejoy has not established breach, causation, or

injury. Amcox reiterates that Ms. Lovejoy has not yet been able to name the act or

33

omission that proximately caused the harm described in the Amended Complaint.

Amcox maintains that Ms. Lovejoy has failed to show that Amcox ever handled,

transported, or stored contaminants in the first place. Ms. Lovejoy instead relies on

the previously discussed inference that the Facility is the only plausible source of

contamination.

Like her claim for private nuisance, Ms. Lovejoy’s negligence claim must fail

for lack of an injury recognized in tort law. The presence of contaminants, “standing

alone, cannot establish harm or injury for purposes of proving a negligence claim

under West Virginia law. In such situations, a plaintiff also must produce evidence

of a detrimental effect to the plaintiff[’]s[] health that actually has occurred or is

reasonably certain to occur due to a present harm.”

, 636 F.3d 88, 95 (4th Cir. 2011) (citing , 607 S.E.2d 459,

464 (W. Va. 2004)). Defendant Amcox’s motion for summary judgment is GRANTED.

IV. Conclusion

For the foregoing 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; Amcox’s Motion for

Summary Judgment [ECF No. 106] is GRANTED as it pertains to Counts III, V, and

VI, and DENIED as it pertains to Counts I and II. The remaining claims—for

response costs under CERCLA (Count I) and for relief from permitting violations

under RCRA and the WVHWMA (Count II)—involve questions of fact that, while

34

material, do not appear to be substantial. The issues remaining for trial should be

viewed by the parties as more readily susceptible to private resolution.

The court DIRECTS the Clerk to send a copy of this Order to counsel of record

and any unrepresented party.

ENTER: December 9, 2022

OSEPH R. GOODWIN

/ UNITED STATES DISTRICT JUDGE

35