ORDER AND OPINION [Re: Motion at Docket 66].

JOHN W. SEDWICK, Senior District 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. Sw. 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:

The potential for migration was sufficient to support denying summary judgment, even without direct evidence.

Similar to the facts in 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 200536 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 In 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:

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 to a private action existing for an injury or loss of a person as well as property.

The court then noted that amendments in 1989 and 1991 retained the same private cause of action:

The court illustrates that the private cause of action under AS 46.03.822 for both injuries to person and property is present throughout the legislative history. In fact, the Alaska Supreme Court highlighted in a footnote that "the definition of damages does not expressly include cleanup costs" before finding that the inclusion of cleanup costs in the definition "furthers the legislative purpose."67 Defendant's conclusion that a private right of action is only available for cleanup costs is inconsistent with the decision by the Alaska Supreme Court in Laidlaw. Finally, the court notes, "In sum, this history strongly suggests that the legislature originally contemplated a private cause of action against parties who release hazardous substances."68 It is clear from a close reading of the Alaska Supreme Court's decision in Laidlaw and the legislative history it discusses, that AS 46.03.822 provides a private right of action for personal injury.69

E. Punitive Damages

Defendant contends that the alleged conduct does not rise to the level of conduct required for punitive damages. AS 09.17.020(b) provides that a "fact finder may make an award of punitive damages only if the plaintiff proves by clear and convincing evidence that the defendant's conduct: (1) was outrageous, including acts done with malice or bad motives; or (2) evidenced reckless indifference to the interest of another person." Thus, either malice or recklessness can support a claim of punitive damages. "A showing of malice is not required. It is sufficient to show that the defendant's conduct amounted to reckless indifference to the rights of others, and conscious action in deliberate disregard of those rights."70 "In deciding what conduct amount to `reckless indifference' the Alaska Supreme Court stated that it is `persuaded by the comments to the Restatement (Second) of Torts § 500, which define reckless disregard of safety.'"71 The comments to the Restatement (Second) of Torts § 500 explain: "Conduct cannot be in reckless disregard of the safety of others unless the act or omission is itself intended, notwithstanding that the actor knows of facts which would lead any reasonable man to realize the extreme risk to which it subjects the safety of others."

On October 16, 2014, Defendant's employees discharged several hundred tons of blended dry cement consisting of Portland Cement and other materials.72 Defendant's personnel used a pressure operated system to blow the product onto the back of Defendant's property.73 The Material Safety Data Sheet for the cement described skin and respiratory irritation from exposure to the material. Defendant acknowledged that forming a cement pad was an afterthought, "So during the entire event, as the guys are blowing the material out onto the ground, one of them decided they would go — I wouldn't say one of them . . . But they decided to spray water on the pile in order to try to get it to set up."74 AEDC determined that the dumping was not an environmental threat but did pose an air quality issue.75 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."76 This evidence, taken with all reasonable inferences in favor of the non-movant, is sufficient for the punitive damages claim to survive summary judgment.

V. CONCLUSION

For the reasons above, Defendant's motion for summary judgment at docket 66 is DENIED.