Courtland Co. v. Union Carbide Corp., Civil Action No. 2:21-cv-00101

Decision Date05 April 2021
Docket NumberCivil Action No. 2:21-cv-00101
CourtU.S. District Court — Southern District of West Virginia
PartiesTHE COURTLAND COMPANY, INC., a West Virginia Business Corporation, Plaintiff, v. UNION CARBIDE CORPORATION, a New York Corporation, Defendant.

Pending is the plaintiff's application for a temporary restraining order, filed on February 10, 2021 (ECF No. 5).

I. Background
A. The complaint

The plaintiff initiated this action by filing a complaint on February 9, 2021. See ECF No. 1. The complaint alleges the following. The plaintiff is a corporation that owns a parcel of real property abutting Davis Creek in Kanawha County, West Virginia. See id. ¶ 8. The defendant is a corporation that owns two adjoining parcels of real property, both adjacent to the plaintiff's property. See id. ¶ 9. The first, referred to as the Filmont Site,1 lies roughly northeast of the plaintiff's property and also abuts Davis Creek. See id. ¶¶ 9, 12-13, 18. The second, referred to as the UCC Railyard,2 lies roughly east of the plaintiff's property. See id. ¶¶ 12-13.

Beginning no later than the 1950s and continuing through the 1980s, the defendant received and disposed of solid wastes and hazardous wastes and substances at the Filmont Site. See id. ¶¶ 9, 13-14. Some of these wastes were received from two coal-burning power plants and a chemical plant operated by the defendant, as well as from a wastewater treatment plant. See id. ¶¶ 15, 61. The wastes included unknown wastes associated with the manufacture of Dynel, a fiber made fromvinyl chloride and acrylonitrile; bottom-ash from the coal-burning power plants; wastewater treatment grit containing biphenyl, 2,6-di-tert-butyl-p-cresol, isophorone, phenyl ether, arsenic, chrome, lead, and mercury; mercury batteries; 1,4-dioxane; and other unknown wastes and ethers. See id. ¶¶ 13, 15-16. Additionally, broken concrete, iron rebar, and other construction debris are found in the portion of the Filmont Site that forms the eastern bank of Davis Creek. See id. ¶ 18.

Because the Filmont Site was not designed to contain these wastes in a manner that protects public health and the environment, leachates containing pollutants have seeped and continue to seep from it and have discharged into nearby navigable waters, either directly from point sources or through groundwater. See id. ¶ 9, 13, 22. Further, in constructing the Filmont Site, the defendant covered and filled-in the natural channels or branches connected to Davis Creek, including much of Ward Branch,3 near the northern boundary of the defendant's property. See id. ¶¶ 19, 25-26. The plaintiff alleges that, since being filled-in, these channels have become the pointsource for discharging pollutants into nearby navigable waters within the Davis Creek watershed. See id. ¶ 19, 26-27.

Specifically, materials from the Filmont Site discharge from seeps into a drainage ditch located at its northern boundary and then flow into Ward Branch. See id. ¶ 21. Materials containing contaminated sediments also discharge from seeps into a second drainage ditch near the southern boundary and are ultimately discharged into Davis Creek. See id. ¶¶ 23-24. Another discharge consists of materials flowing directly from a seep into Ward Branch, and the plaintiff alleges on information and belief that additional seeps and discharges are also present. See id. ¶ 21. The discharged materials include 1,4-dioxane, 2-butanone, acetone, arsenic, barium, beryllium, cadmium, chromium, copper, di-n-butyl phthalate, iron, lead, manganese, mercury, nickel, selenium, and zinc. See id. ¶ 22.

These discharges began no later than January 1, 1990, and they have continued to the present date. See id. ¶ 28. The defendant has never had a federal or state permit for the discharges, though some kind of permit has been required since at least the early 1970s. See id. ¶¶ 9, 28, 58.

Besides discharges from seeps, the plaintiff also alleges that the Filmont Site and the UCC Railyard have stormwater collection systems that discharge directly into DavisCreek and its channels or into the drainage ditches at the northern and southern boundaries of the Filmont Site. See id. ¶ 62-64. The stormwater captured by the system is not treated before it is discharged. See id. ¶¶ 63-64, 69-70. These discharges have been ongoing for over 30 years without a permit required by federal statute and regulation. See id. 64-65, 72.

The plaintiff alleges that, as part of a related case discussed below, its expert, Dr. D. Scott Simonton, on September 11, 2020, inspected portions of Davis Creek near the Filmont Site, sampled discharges from the Filmont Site and nearby deposits of orange sludge, tested the samples, and reported the results.4 See id. ¶¶ 29-32; see also ECF No. 1-2; ECF No. 1-3; ECF No. 1-4. His tests showed the discharges contained aluminum, arsenic, beryllium, cadmium, chromium, copper, iron, manganese, nickel, selenium, and zinc and that the sludge contained arsenic, copper, cadmium, iron, lead, mercury, nickel, selenium, and zinc. See ECF No. 1 ¶¶ 32-33. The plaintiff alleges that the contaminants discharging from the Filmont Site that it has identified are pollutants under applicable federal statute and regulation. See id. ¶ 34.

The plaintiff alleges that, sometime shortly before 2012, the defendant discovered 1,4-dioxane and other pollutants in monitoring wells it maintains on the western bank of Davis Creek opposite the Filmont Site. See id. ¶ 13, 35. The defendant also detected 1,4-dioxane at nearby properties it owns, including the UCC Railyard. See id. ¶¶ 36-39. The defendant has further detected numerous other pollutants in surface water, groundwater, sediment, or soil at or near the Filmont Site and the UCC Railyard. See id. ¶¶ 40-45.

The plaintiff also alleges that on or about October 28, 2020, the West Virginia Department of Environmental Protection ("WVDEP"), after reviewing Dr. Simonton's declaration, issued a notice of violation of the West Virginia Water Pollution Control Act to the defendant, noting that the defendant was allowing wastes to discharge directly and indirectly from seeps and pipes into Ward Branch without the required permit. See id. ¶ 46 (quoting ECF No. 1-5).

Although, generally, materials discharged from the Filmont Site into Davis Creek flow downstream (i.e., northward), away from the plaintiff's property, the plaintiff alleges that the flow is sometimes southward so that contaminated sediment from the discharges deposit on the plaintiff's property, interfering with its use and adversely impacting its value. Seeid. ¶¶ 23-24. The plaintiff also alleges that materials from the Filmont Site have migrated to its property through groundwater that flows onto it. See id. ¶ 20. The plaintiff further alleges that stormwater and seep-related discharges into the Filmont Site's southern drainage ditch deposit contaminated sediment on the plaintiff's property, as the ditch travels across the plaintiff's property on its way to Davis Creek. See id. ¶ 66-67.

Based on these allegations, the plaintiff asserts two counts against the defendant. In Count I, the plaintiff seeks citizen-suit relief pursuant to § 505 of the Water Pollution Prevention and Control Act ("Clean Water Act"), 33 U.S.C. § 1365, based on the defendant's ongoing unpermitted discharges of pollutants from the Filmont Site into nearby navigable waters and the continuing adverse impacts on nearby navigable waters resulting from the defendant's past Clean Water Act violations. See id. ¶¶ 48-59. In Count II, the plaintiff also seeks citizen-suit relief under § 505 of the Clean Water Act based on the defendant's unpermitted stormwater discharges of pollutants into nearby navigable waters and the continuing adverse impacts on nearby navigable waters resulting from the defendant's past stormwater discharges in violation of the Clean Water Act. See id. ¶¶ 60-74.

The plaintiff seeks a permanent injunction requiring the defendant to (1) cease its illegal discharges of pollutants and stormwater from the Filmont Site into nearby navigable waters without the permits required by the Clean Water Act and (2) investigate and abate its ongoing endangerments to nearby navigable waters resulting from illegal discharges of pollutants and stormwater from the Filmont Site. See id. at 33 (prayer for relief A). The plaintiff also seeks an award of civil penalties to the United States for all violations of the Clean Water Act relating to the Filmont Site and the UCC Railyard, pursuant to 33 U.S.C. §§ 1319(d) and 1365(a). See id. at 33-34 (prayer for relief B). Lastly, the plaintiff seeks an award of reasonable attorney's fees and costs. See id. at 34 (prayer for relief C).

B. Pre-suit notice for Clean Water Act citizen-suit

This case is not the first one in which the plaintiff has pursued these claims in this court. In Courtland Co. Inc. v. Union Carbide Corp. ("Courtland II"), No. 2:19-cv-00894 (S.D.W. Va.), the plaintiff filed suit against the defendant asserting three federal claims under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA") and the Resource Conservation and Recovery Act of 1976 ("RCRA") and seven state-law claims, based on pollutants and other materials allegedly disposed of at the Filmont Siteand the UCC Railyard. See Courtland II, No. 2:19-cv-00894, 2020 WL 6265080, at *1 (S.D.W. Va. Oct. 23, 2020).5 The plaintiff's complaint did not assert any Clean Water Act claims. See id.

The plaintiff thereafter sought leave to file a supplemental complaint in order to include a Clean Water Act claim, nearly identical to the Clean Water Act claims asserted in this action. Id. at *2. The court denied the plaintiff's motion for leave to file the supplemental complaint on the ground that the pre-suit notice required by 33 U.S.C. § 1365(b)(1) that the plaintiff had provided was inadequate. See id. at *6-7; see also 33 U.S.C. § 1365(b)(1)(A) ("No [citizen...

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