Courtland Co. v. Union Carbide Corp.

Decision Date13 May 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 defendant's motion to dismiss the plaintiff's complaint, filed on April 9, 2021 (ECF No. 23).

I. Background

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

The plaintiff alleges that pollutants, at the Filmont Site and the UCC Railyard, discharge from seeps into two drainage ditches located at the northern and southern boundaries of the Filmont Site and then flow into nearby waters of the United States and West Virginia, namely, Davis Creek and its tributary, Ward Branch. See id. ¶¶ 21-24, 28. The plaintiff further alleges that the defendant has never had a required federal or state permit for the discharges. See id. ¶¶ 9, 28, 58. Aside from these seep-related discharges, the plaintiff also alleges that stormwater collected at the Filmont Site and the UCC Railyard is untreated and discharges directly or indirectly into Davis Creek. See id. ¶ 62-64. The plaintiff alleges that such discharges have been occurring continuously for over 30 years without a permit required by federal statute and regulation. See id. ¶¶ 63-65, 69-70, 72.

Based on these allegations, the plaintiff asserts two counts against the defendant for citizen-suit relief pursuant to § 505 of the Water Pollution Prevention and Control Act ("Clean Water Act"), 33 U.S.C. § 1365. Count I seeks relief based on the defendant's ongoing unpermitted discharges of pollutants from the Filmont Site into nearby navigable waters, and Count IIseeks relief based on the defendant's unpermitted stormwater discharges of pollutants from the Filmont Site and the UCC Railyard into nearby navigable waters. See id. ¶¶ 48-74.

In its complaint, the plaintiff states that, on November 10, 2020, it sent pre-suit notice to the defendant and applicable state and federal officials and agencies, in compliance with 33 U.S.C. § 1365(b)(1). See id. ¶ 5; ECF No. 1-1; see also 33 U.S.C. § 1365(b)(1)(A) ("No [citizen-suit] action may be commenced . . . under [§ 1365(a)(1)] . . . prior to sixty days after the plaintiff has given notice of the alleged violation (i) to the Administrator [of the Environmental Protection Agency], (ii) to the State in which the alleged violation occurs, and (iii) to any alleged violator . . . ."). The plaintiff alleges that the required sixty-day period has elapsed since the notice was sent without any state or federal agency commencing an action in a court under § 1365(b)(1)(B). See ECF No. 1 ¶ 6-7.

On February 10, 2021, the plaintiff filed an application for a temporary restraining order ("TRO"). See ECF No. 5. In response, the defendant devoted much of its briefing to non-merits-based attacks on the plaintiff's application. Specifically, the defendant argued that the plaintiff lacks standing to pursue its Clean Water Act claims; that theplaintiff is prevented by the Clean Water Act's diligent-prosecution bars from pursuing the claims in a citizen suit in this court because of administrative proceedings pending before the West Virginia Department of Environmental Protection ("WVDEP") and the Environmental Quality Board (the "Board"); that the claims are not ripe because of the administrative proceedings; and that the plaintiff failed to provide sufficient pre-suit notice before commencing the action. See ECF No. 7 at 5-16. The court held a three-day hearing on the TRO application on February 26, March 1, and March 2, 2021. See ECF No. 20; ECF No. 21; ECF No. 22.

By an April 5, 2021 memorandum opinion and order, the court denied the plaintiff's application for a TRO. See ECF No. 32. The court determined that the plaintiff failed to show that it was likely to succeed on the merits. See id. at 28. In reaching this determination, the court rejected the defendant's argument that, due to the state administrative proceedings, the plaintiff's claims are not ripe or are barred by the Clean Water Act's diligent-prosecution bars. See id. at 68-77. However, the court concluded that the plaintiff had failed to demonstrate standing with respect to alleged discharges from the UCC Railyard and from the Filmont Site into the northern drainage ditch and Ward Branch and that its pre-suit notice wasinsufficient with respect to stormwater discharges and seep-related discharges into the southern drainage ditch. See id. at 28-67, 78.

On March 5, 2021, while the plaintiff's application for a TRO was still pending, the defendant filed the current motion to dismiss the plaintiff's complaint. See ECF No. 23. As in its briefing on the application for a TRO, the defendant argues that the plaintiff lacks standing to pursue its Clean Water Act claims, that the claims are not ripe or are barred under the Clean Water Act's diligent-prosecution bars due to the state administrative proceedings, and that the plaintiff's pre-suit notice is insufficient. See ECF No. 24 at 4-17; ECF No. 27 at 2-5. Additionally, the defendant argues that the plaintiff's claims, which are based on ongoing Clean Water Act violations alleged to have commenced in 1990, see ECF No. 1 ¶¶ 28, 64; ECF No. 1-1 at 11, 13, are subject to a five-year statute of limitations, see ECF No. 24 at 17-19; ECF No. 27 at 5-7. The motion has been fully briefed and is ready for disposition.

II. Discussion
A. Standing

The defendant first argues that the plaintiff lacks standing to bring its Clean Water Act claims. Federal district courts are courts of limited subject-matter jurisdiction, possessing "only the jurisdiction authorized them by the United States Constitution and by federal statute." United States ex rel. Vuyyuru v. Jadhav, 555 F.3d 337, 347 (4th Cir. 2008). As such, "there is no presumption that the court has jurisdiction." Pinkley, Inc. v. City of Frederick, 191 F.3d 394, 399 (4th Cir. 1999). Indeed, when the existence of subject matter jurisdiction is challenged, "[t]he plaintiff has the burden of proving that subject matter jurisdiction exists." Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999); see also Richmond, Fredericksburg, & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991).

At the motion-to-dismiss stage, "[a] defendant may challenge subject-matter jurisdiction in one of two ways: facially or factually." Beck v. McDonald, 848 F.3d 262, 270 (4th Cir. 2017) (citing Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009)). "In a facial challenge, the defendant contends 'that a complaint simply fails to allege facts uponwhich subject matter jurisdiction can be based,'" and "the plaintiff is 'afforded the same procedural protection as [it] would receive under a [Fed. R. Civ. P.] 12(b)(6) consideration,' wherein 'the facts alleged in the complaint are taken as true,' and the defendant's challenge 'must be denied if the complaint alleges sufficient facts to invoke subject matter jurisdiction.'" Id. (quoting Kerns, 585 F.3d at 192).1

"The standing doctrine derives from 'the Constitution's limitation on Article III courts' power to adjudicate cases and controversies'" and thus "implicates the court's subject matter jurisdiction." South Carolina v. United States, 912 F.3d 720, 726 (4th Cir. 2019) (quoting Frank Krasner Enters. v. Montgomery Cty., 401 F.3d 230, 234 (4th Cir. 2005))."To establish Article III standing, 'a plaintiff must show (1) it has suffered an injury in fact . . . ; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.'" Id. (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000)).2

The defendant argues that the plaintiff has not sufficiently alleged a cognizable injury to its property or business interests. However, the complaint alleges contaminants that are discharged from the defendant's properties are being deposited onto the plaintiff's property. See ECF No. 1 ¶¶ 23-24. As the court noted in the TRO proceedings, the depositing of contaminants onto the plaintiff's property itself constitutes a sufficiently concrete and particularized injury, and there is no requirement that the plaintiff allege some sort of additional business or impedimentary harm to establish an injury for CleanWater Act standing. See ECF No. 32 at 33 n.16 (citing, inter alia, Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149, 154 (4th Cir. 2000) (en banc)).

The defendant also seems to argue that the court should not credit the complaint's allegations that contaminants from the defendant's properties are being deposited onto the plaintiff's property. The defendant's argument in this regard chiefly concerns contaminants alleged to be discharging from the Filmont Site into Ward Branch and the northern drainage ditch. The complaint alleges that these contaminants flow into Davis Creek and are then deposited on the plaintiff's property when, at certain times, Davis Creek flows southward, toward the plaintiff's property, instead of maintaining its normal flow northward, away from the plaintiff's property. See ECF No. 1 ¶ 24. The defendant argues the allegations that contaminants are travelling upstream in Davis Creek to reach the...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT