Courtland Co. v. Union Carbide Corp.

• Decision Date: 01 July 2022
• Docket Number: Civil Action 2:21-cv-00101,2:21-cv-00487
• Parties: THE COURTLAND COMPANY, INC., Plaintiff, v. UNION CARBIDE CORPORATION, Defendant.
• Court: United States District Courts. 4th Circuit. Southern District of West Virginia

THE COURTLAND COMPANY, INC., Plaintiff,
v.
UNION CARBIDE CORPORATION, Defendant.

Civil Action Nos. 2:21-cv-00101, 2:21-cv-00487

United States District Court, S.D. West Virginia

July 1, 2022

MEMORANDUM OPINION AND ORDER

John T. Copenhaver, Jr. Senior United States District Judge

Pending in Civil Action Nos. 2:21-cv-00101 (“Courtland III”) and 2:21-cv-00487 (“Courtland IV”) is defendant Union Carbide Corporation's (“UCC”) consolidated motion for summary judgment. ECF No. 152 (Courtland III); ECF No. 68 (Courtland IV). Inasmuch as Courtland III and Courtland IV have been consolidated, all docket numbers hereinafter shall be made in reference to Courtland III unless otherwise stated.

I. Background

A thorough factual background of Courtland III and Courtland IV, including the parties' competing versions of events, can be found in the court's order concerning the parties' summary judgment motions filed in the related actions,

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Courtland I (Civil Action No. 2:18-cv-01230) and Courtland II (Civil Action No. 2:19-cv-00894). The court need not repeat them here and incorporates that background herein.

For reference in this memorandum opinion and order, the court recounts the following. The parties are corporations owning adjoining parcels of real property near Davis Creek in Kanawha County, West Virginia. Plaintiff The Courtland Company, Inc. (“Courtland”), is the owner of one of the parcels (the “Courtland Property”). UCC is the owner of two of the sites at issue in these two consolidated matters: the Filmont Landfill (“Filmont” or “Filmont Site”) and the Massey Railyard, which are separate sites but share the same parcel.

The image below, provided to the court by the parties, sets forth the relevant positioning of Filmont, Massey Railyard, and the Courtland Property. It is noted that Davis Creek flows generally south to north and into the Kanawha River. The Southern Drainage Ditch is a tributary of Davis Creek. The Northern Drainage Ditch is a tributary of Ward Brach, which is a tributary of Davis Creek.

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(IMAGE OMITTED)

On February 9, 2021, Courtland instituted Courtland III by filing a complaint alleging that pollutants at Filmont and the Massey Railyard discharge, without a required federal or state permit, from seeps into the waters of the United States and West Virginia, namely, Davis Creek and its tributary, Ward Branch. Courtland further alleged that seepage and untreated stormwater collected at Filmont and the Massey Railyard discharge directly or indirectly into Davis Creek and that such discharges have been continuously occurring for over thirty (30) years without a permit said to have been required by federal statute and regulation.

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Based on these allegations, Courtland asserts two claims for citizen-suit relief pursuant to Section 505 of the Clean Water Act, 33 U.S.C. § 1365 (“Clean Water Act” or the “Act”). Specifically, Count I (the north prong) in Courtland III seeks relief based on UCC's alleged ongoing unpermitted discharges of pollutants from Filmont into nearby navigable waters in violation of Sections 301 and 402 of the Clean Water Act, and Count II (the south prong) seeks relief based on UCC's alleged unpermitted discharges of pollutants from Filmont and the Massey Railyard into nearby navigable waters in violation of Sections 301 and 402 of the Clean Water Act.

The day after instituting Courtland III, Courtland filed an application for a temporary restraining order (“TRO”) on February 10, 2021, in Courtland III. The court held a three-day hearing on the matter on February 26, 2021, March 1, 2021, and March 2, 2021. UCC subsequently moved to dismiss the complaint in Courtland III on March 5, 2021.

On April 5, 2021, following the three-day TRO hearing, the court denied Courtland's TRO application inasmuch as Courtland had failed to show that it was likely to succeed on

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the merits.^[1] The court concluded, inter alia, that Courtland had failed to demonstrate “standing to bring its claims insofar as (1) its [Count I] claims relate to discharges from the Filmont Site into Ward Branch and the [N]orthern [D]rainage [D]itch; [and] (2) its [Count II] claims related to the [Massey] Railyard;” and the court also denied relief in the form of an order requiring UCC to apply for a discharge permit. ECF No. 32 at 53.

The court further concluded that while it was satisfied that Courtland had provided sufficient pre-suit notice respecting the alleged seep-related discharges associated with Ward Branch and the Northern Drainage Ditch, Courtland had failed to satisfy the pre-suit notice requirement with respect to seep-related discharges associated with the Southern Drainage Ditch and alleged stormwater discharge. See id. at 62, 67.

On May 13, 2021, the court granted UCC's motion to dismiss the complaint in Courtland III for lack of pre-suit notice insofar as it sought “dismissal of [Courtland's Count II] claims to the extent they concern stormwater discharges and discharges associated with the [S]outhern [D]rainage [D]itch”

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and denied the motion otherwise. ECF No. 44 at 21-22. Thereafter, on June 25, 2021, Courtland sought leave to file an amended complaint in Courtland III, which purportedly cured the pre-suit notice deficiencies outlined in the court's opinion respecting UCC's motion to dismiss.

Before the court was able to address the motion, however, Courtland filed an entirely separate action, Courtland IV, on September 1, 2021. The claims asserted in Courtland IV are nearly identical to the claims set forth in Courtland III but are based upon the June 16, 2021, Notice of Violation issued by Courtland to UCC. Count I (north) seeks relief based on UCC's alleged ongoing unpermitted discharges of pollutants from Filmont into nearby navigable waters, and Count II (south) seeks relief based on UCC's alleged unpermitted discharges of seeps and stormwater associated with industrial activity from Filmont and the Massey Railyard into nearby navigable waters in violation of Sections 301(a) and 402(p) of the Clean Water Act.

On March 30, 2022, UCC filed its consolidated motion for summary judgment as to all of Courtland's outstanding claims pursuant to the Clean Water Act asserted in Courtland III and Courtland IV. UCC Consol. Mot. Summ. J., ECF No. 152. Broadly speaking, UCC argues that (1) Courtland lacks standing to bring its Clean Water Act claims, (2) Courtland's Clean Water Act

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claims are time-barred by the five-year limitations period set forth in the applicable statute of limitations, and (3) Courtland has failed to support various aspects of its Clean Water Act claims on evidentiary grounds. See id. Courtland filed a response on April 13, 2022.^[2] Courtland Resp., ECF No. 176.

II. Governing Standard

Federal Rule of Civil Procedure 56 provides that summary judgment is proper where “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The burden is on the nonmoving party to show that there is a genuine issue of material fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “The nonmoving party must do so by offering ‘sufficient proof in the form of admissible evidence' rather than relying solely on the allegations of her pleadings.” Guessous v. Fairview Prop. Invs., LLC, 828 F.3d 208, 216 (4th Cir. 2016) (quoting Mitchell v. Data Gen. Corp., 12 F.3d 1310, 1316 (4th Cir. 1993)). The

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Court must “view the evidence in the light most favorable to the [nonmoving] party.” Tolan v. Cotton, 572 U.S. 650, 657 (2014) (internal quotation marks omitted); Variety Stores, Inc. v. WalMart Stores, Inc., 888 F.3d 651, 659 (4th Cir. 2018).

III. Discussion

“The Clean Water Act . . . created a comprehensive scheme to ‘restore and maintain the chemical, physical, and biological integrity of the Nation's waters.'” Sanitary Bd. of City of Charleston v. Wheeler, 918 F.3d 324, 328 (4th Cir. 2019) (quoting 33 U.S.C. § 1251 (2012)). “Although the primary responsibility for enforcement [of the Clean Water Act] rests with the state and federal governments,” the Clean Water Act also authorizes private citizens to file citizen suits against persons or entities in violation of the Act. The Piney Run Preservation Ass'n v. The Cnty. Comm'rs of Carroll Cnty., 523 F.3d 453, 456 (4th Cir. 2008). The court considers UCC's summary judgment arguments in turn.

A. Standing

“Article III of the Constitution restricts the federal courts to the adjudication of ‘cases' and ‘controversies,'” that

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is, a plaintiff must have standing to sue. Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149, 153 (4th Cir. 2000) (en banc). In addition to Article III, a plaintiff “must also satisfy any statutory requirements for standing before bringing suit.” Id. at 155. Because the Clean Water Act's citizen standing provision is coextensive with Article III, standing to bring a citizen suit is analyzed under the framework for testing Article III standing. See id.; see also 33 U.S.C. § 1365(g) (defining “citizen”).

The Fourth Circuit, in its seminal environmental standing case, sets forth the Article III standing framework as follows:

To meet the constitutional minimum for standing, “[a] plaintiff must allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief.” This formula includes three elements: (1) injury in fact; (2) traceability; and (3) redressability. The injury in fact prong requires that a plaintiff suffer an invasion of a legally protected interest which is concrete and particularized, as well as actual or imminent. The traceability prong means it must be likely that the injury was caused by the conduct complained of and not by the independent action of some third party not before the court. Finally, the

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