United States District Court, D. Alaska
ORDER AND OPINION [RE: MOTION AT DOCKET 66]
JOHN
W. SEDWICK SENIOR JUDGE.
I.
MOTION PRESENTED
At
docket 66, Defendant Baker Hughes Oil Field Operations, Inc.
(“Defendant”) filed a Fed.R.Civ.P. Rule 56 Motion
for Summary Judgment. Plaintiffs Kenneth and Jennifer Baker
(“Plaintiffs”) filed a response at docket 76.
Defendant filed a reply at docket 85.
Oral
argument was not requested
II.
BACKGROUND
Defendant
owns and operates a cement blending plant in Nikiski and
accepted legal responsibility for any discharge of hazardous
waste by its predecessor at the site, BJ Services Company
U.S.A. LLC.[1] Defendant held a blended dry cement
consisting of Portland Cement and other materials in large
silos on the cement blending plant property.[2] Defendant
required additional space to accommodate a new customer's
order, so Defendant's personnel decided to empty one or
more of its storage silos by using a pressure operated system
to blow the product onto the back of Defendant's
property.[3]
Plaintiffs
own a house on the south side of Defendant's cement
blending property. Plaintiffs seek damages for diminution of
the value of their property and Mrs. Baker's health
problems resulting from Trespass, Landowner
Liability/Negligence, Strict Liability pursuant to
Alaska's pollution statute, AS 46.03.822, .824 (which
provides for strict liability for damage to property or
person due to pollution, AS 46.03.824), and Nuisance, all
stemming from the discharge of the storage silos. Plaintiffs
have also requested an award of punitive damages.
III.
STANDARD OF REVIEW
Summary
judgment is appropriate where “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”[4] The materiality requirement
ensures that “[o]nly disputes over facts that might
affect the outcome of the suit under the governing law will
properly preclude the entry of summary
judgment.”[5] Ultimately, “summary judgment will
not lie if the . . . evidence is such that a reasonable jury
could return a verdict for the nonmoving
party.”[6] However, summary judgment is mandated
“against a party who fails to make a showing sufficient
to establish the existence of an element essential to that
party's case, and on which that party will bear the
burden of proof at trial.”[7]
The
moving party has the burden of showing that there is no
genuine dispute as to any material fact.[8] Where the
nonmoving party will bear the burden of proof at trial on a
dispositive issue, the moving party need not present evidence
to show that summary judgment is warranted; it need only
point out the lack of any genuine dispute as to material
fact.[9] Once the moving party has met this burden,
the nonmoving party must set forth evidence of specific facts
showing the existence of a genuine issue for
trial.[10]All evidence presented by the non-movant
must be believed for purposes of summary judgment, and all
justifiable inferences must be drawn in favor of the
non-movant.[11]However, the non-moving party may not
rest upon mere allegations or denials, but must show that
there is sufficient evidence supporting the claimed factual
dispute to require a fact-finder to resolve the parties'
differing versions of the truth at trial.[12]
IV.
DISCUSSION
The
consistent error in the Motion for Summary Judgment is that
Defendant draws all inferences in favor of the moving party
rather than the non-moving party. Conversely, Plaintiff often
provides scant support for its positions.
A.
Trespass
Alaska
recognizes that, “Trespass is an unauthorized intrusion
or invasion of another's land.”[13] The Alaska
Supreme Court also notes that the definition includes
“subsurface areas, ” citing to the Restatement
(Second) of Torts § 159 (1965).[14] The Restatement specifies
that “a trespass may be committed on, beneath, or above
the surface of the earth.”[15] Comment (f) to the
Restatement clarifies that “an unprivileged intrusion
into the space above the surface of the earth, at whatever
height above the surface, is a trespass.” Damages are
not necessary for a trespass claim. “A plaintiff
alleging trespass need not demonstrate actual
damage.”[16]
In
Hill v. S w. Energy Co., the 8th Circuit examined a
case involving discharge of fracking material that
potentially migrated across to the neighboring
property.[17] The plaintiffs in the case did not
present direct evidence that the material migrated.
Nonetheless, the court held that the plaintiffs presented:
[E]vidence that could support a reasonable inference that the
fracking waste migrated across their property line. These
facts, while thin, enable a jury to draw a reasonable
inference that 7.6 million barrels of waste, poured into an
area capable of holding no more than 1.1 million barrels,
migrated 180 feet to cross the property line. This reasonable
inference creates a genuine issue of material fact,
precluding summary judgment.[18]
The
potential for migration was sufficient to support denying
summary judgment, even without direct evidence.
Similar
to the facts i n Hill, this case deals with the
potential migration of material across a property line. The
primary distinction is that the migration occurred in the
air, rather than underground. On October 16, 2014,
Defendant's employees discharged several hundred tons of
blended dry cement consisting of Portland Cement and other
materials.[19] Defendant's personnel used a
pressure operated system to blow the product onto the back of
the Defendant's property.[20]
Golder
Associates was first on Defendant's property to observe
the discharged waste on October 28, 2014.[21] By the time
Golder Associates observed the waste, “Water had come
in contact with the material causing the cement to harden and
form a crust over most of the disposal
area.”[22] Golder Associates was retained by
Defendant to “provide field oversight and documentation
of the waste removal.”[23]
Emerald
Alaska, Inc. (“Emerald”) conducted the waste
removal starting on November 4, 2014.[24] “A
minimal amount of water was used to control dust during the
waste removal.”[25] In addition to solid waste, “4
[cubic yards] of silica sand and 15 [cubic yards] of cement
powder were collected and placed in super
sacs.”[26] Air sampling occurred at six stations on
days when Emerald disturbed material.[27] Forty-seven
total samples were analyzed, and one contained quartz silica
at a level below permissible exposure limits.[28]
On June
3, 2015, the Alaska Department of Environmental Conservation,
based on an October 23, 2014 site visit, a November 2, 2014
follow up visit, and the testing results provided by
Defendant, determined that the dumping was not an
environmental threat but did pose an air quality
issue.[29] Mr. Baker noted that dust from the
cement was blown through the air and into their
home.[30] Mrs. Baker remembers seeing a small
amount of cement dust on her vehicle and on the
ground.[31] Defendant did not make any effort to
remove cement dust from surrounding trees, bushes, and
structures.[32] The evidence is sufficient to allow a
reasonable jury to draw an inference that some amount of
several hundred tons of blended dry cement drifted by air
when blasted out on the back of Defendant's property
between October 16 and October 28, 2014 (the first date the
cement was categorized as crusted over) or November 2, 2014,
when AEDC determined that Defendant's dumping presented
an air quality issue or November 4, 2014, the earliest date
an air sample could have been taken.
Defendant
further claims that Plaintiff cannot demonstrate actual
damages.[33] As noted above, trespass does not
necessarily require a finding of damage. Nonetheless,
Plaintiffs have presented evidence of potential damages.
Barbra
Belluomini is presented as Plaintiffs' expert witness as
to damages from trespass. Ms. Belluomini is a resident of
Soldotna.[34] She worked at Derry & Associates in
Kenai from 2005 to 2016 where she was trained and worked as a
real estate appraiser.[35] She has been a member of the
Appraisal Institute since 2005[36] and became a certified real
estate appraiser in 2008.[37] She has worked at Reliant, LLC
since February 2017.[38]
Ms.
Belluomini did some research on stigma in the Kenai
Peninsula, [39]reviewed research by three associates
based on contaminated properties in the Seattle area,
[40]
reviewed an analysis of a contaminated property in Anchorage,
[41]
reviewed the Appraisal of Real Estate 14th
Edition, [42] and researched deed
restrictions.[43] The scope and conclusion of the expert
report she helped produce was limited to “any property
that has past contamination or [ ] remediat[ion] may have a
diminution in value associated with it regardless of
location.”[44] Ms. Belluomini then conducted additional
research specific to Alaska, determining that contaminated
and remediated properties have a wide range of diminution of
value.[45] Her testimony speaks specifically to the
diminution of value from public perceptions of health risks
and stigma associated with potentially contaminated land and
thus is admissible. Ms. Belluomini presents sufficient
evidence that there is some diminution of value when a
property is stigmatized by proximity to a hazard or hazardous
event.
B.
Nuisance
Defendant
claims that Plaintiffs cannot demonstrate that cement dust
found on the Plaintiffs' property was from
Defendant's cement dumping. As outlined above, there is
sufficient reason to believe that a jury can make a
reasonable inference that cement dust was blown onto the
Plaintiffs' property from Defendant's cement dumping.
The reasonable inference, even if thin, is sufficient to
create a genuine issue of material fact, precluding summary
judgment.[46]
Defendant
claims that Plaintiffs must demonstrate that it was
specifically the source of the cement dust found on
Plaintiffs' property. In support of this assertion,
Defendant cites two cases, Satterfield v. J.M. Huber
Corp.[47]and Layton v. Yankee Caithness
Joint Venture, L.P..[48] But, both of these cases dealt
with the very real possibility that sources other than the
defendant caused the nuisance. In Satterfield, the
court outlined a number of potential sources including:
“(1) second-hand cigarette smoke from plaintiff Johnny
Satterfield's smoking habit, (2) dust from the formerly
unpaved road in front of plaintiffs' residence, and (3)
five active chicken houses within sight of plaintiffs'
residence. Also, there is a Goldkist plant, a Toyota plant
and a junkyard.”[49] I n Layton, the court noted,
“It is well-established that the Pleasant
Valley-Steamboat Springs area contains dozens of natural hot
springs which emit hydrogen sulfide.”[50] Defendant has
not presented any evidence that any other party may have
created the cement dust that is the subject of this nuisance
claim.
C.
Mrs. Baker's Personal Injury Claim
“To
survive summary judgment on a toxic tort claim for physical
injuries, [plaintiff] ha[s] to show that he was exposed to
chemicals that could have caused the physical injuries he
complains about (general causation), and that his exposure
did in fact result in those injuries (specific
causation).”[51] Defendant claims that Plaintiff presents
no expert witness on causation, thus, Defendant focuses
entirely on the evidence of its own expert, Delno Malzhan.
But, this ignores the hybrid fact and expert testimony of
Plaintiffs' treating physician and expert, Dr.
Carlson.[52]
Dr.
Carlson is certified in “functional medicine, ”
which includes training in toxicology.[53] Dr. Carlson
started seeing Jennifer Baker on May 17, 2016.[54] He took a
history and did an examination.[55] He examined a chemical
analysis performed by SGS for Tauriainen Engineering of the
contaminated discharge located behind Defendant's plant
and spoke with an SGS engineer about soil and water
testing.[56] He also examined the Material Safety
Data Sheet for Portland Cement.[57] Dr. Carlson reviewed a
National Institute for Occupational Safety and Health paper
on identifying health effects of exposure to crystalline
silica, an ingredient of Class G cement.[58] Dr. Carlson
indicated that Class G cement contains “five different
substances that can cause harm, ” and Mrs. Baker
“was setup to react to substances in the
environment.”[59] Dr. Carlson has identified a number of
Mrs. Baker's medical problems and offers to
“explain the pathology of any or all of these problems,
and how they were caused or exasperated by her toxicant
exposure.”[60] Dr. Carlson explained that some of the
symptoms Mrs. Baker experiences were related to the hazardous
nature of the cement product.[61]
Dr.
Carlson's testimony as a treating physician and hybrid
fact and expert witness presents sufficient evidence to
present a genuine dispute as the material fact of causation.
D.
Mini-CERCLA claim AS 46.03.822
Defendant
claims that AS 46.03.822 does not provide for a private cause
of action for personal injury claims. In support of this
proposition, Defendant explains that the Alaska Supreme Court
has only held that there is a private cause of action for
cleanup.[62] But a close reading of Fed. Deposit
Ins. Corp. v. Laidlaw Transit, Inc., indicates that a
private right of action also exists for personal
injury.[63] The Alaska Supreme Court conducted a
legislative history analysis to determine the existence of a
private right of action. The court noted:
The
original version of AS 46.03.822, enacted in 1972, created a
cause of action imposing strict liability on polluters who
damaged private property:
To the extent not otherwise preempted by federal law, a
person owning or having control over a hazardous substance
which enters in or upon the waters, surface or subsurface
lands of the state is strictly liable, without regard to
fault, for the damages to persons or property,
public or private, caused by the
entry...[64]
Thus,
the Alaska Supreme Court recognized that the private right of
action under AS 46.03.822 was meant to apply to both damage
to the persons and to the property and not just to the
property as Defendant now claims.
The
court went on to note that, “The act defined
‘damages' to include ‘injury to or loss of
persons or property, real or personal, loss of income, loss
of the means of producing income, or the loss of an economic
benefit.'”[65] The legislative history once more points
...