The Courtland Co. v. Union Carbide Corp., Civil Action 2:18-cv-01230
| Court | United States District Courts. 4th Circuit. Southern District of West Virginia |
| Writing for the Court | John T. Copenhaver, Jr. Senior United States District Judge |
| Parties | THE COURTLAND COMPANY, INC., Plaintiff, v. UNION CARBIDE CORPORATION, Defendant. |
| Docket Number | Civil Action 2:18-cv-01230,2:19-cv-00894 |
| Decision Date | 01 July 2022 |
THE COURTLAND COMPANY, INC., Plaintiff,
v.
UNION CARBIDE CORPORATION, Defendant.
Civil Action Nos. 2:18-cv-01230, 2:19-cv-00894
United States District Court, S.D. West Virginia, Charleston
July 1, 2022
MEMORANDUM OPINION AND ORDER
John T. Copenhaver, Jr. Senior United States District Judge
Pending in Civil Action Numbers 2:18-cv-01230 (“Courtland I”) and 2:19-cv-00894 (“Courtland II”) are (1) Plaintiff The Courtland Company, Inc.'s (“Courtland”) consolidated motion for summary judgment (ECF Nos. 299, 288), filed October 8, 2021; and (2) Defendant Union Carbide Corporation's (“UCC”) motion for summary judgment (ECF Nos. 301, 296), filed October 8, 2021. Also pending in Courtland II is Courtland's motion for summary judgment as to counterclaimant UCC's counterclaims (ECF 359), filed March 14, 2022.
TABLE OF CONTENTS
I. Background………………………………………………………………………………………………………………………… 2
A. The UCC Tech Park………………………………………………………………………………………… 6
B. Filmont and Massey Railyard……………………………………………………………… 14
C. The Courtland Property…………………………………………………………………………… 31
D. Completed Environmental Testing…………………………………………………… 33
1. August 2017 Sampling by Courtland………………………………… 34
2. November 2019 Sampling by Courtland…………………………… 35
3. September 2020 Sampling by Courtland………………………… 36
4. December 2020 Sampling by UCC…………………………………………… 40
5. June-July 2021 Sampling by Courtland………………………… 41
E. Current Litigation……………………………………………………………………………………… 43
II. Governing Standard…………………………………………………………………………………………………… 44
III. Discussion………………………………………………………………………………………………………………………… 46
A. CERCLA Claims…………………………………………………………………………………………………… 46
1. UCC's Motion for Summary Judgment: Standing……… 47
i. Injury In Fact……………………………………………………………………… 50
ii. Fairly Traceable Injury……………………………………………… 65
2. Courtland's Motion for Summary Judgment: Prima Facie Case……………………………………………………………………………………………… 73
i. PRP and Facility………………………………………………………………… 74
ii. Releases of Hazardous Substances……………………… 76
iii. Incurrence of Response Costs………………………………… 79
3. Courtland's Motion for Summary Judgment: UCC's CERCLA Counterclaims…………………………………………………………………… 90
B. UCC's Negligence Counterclaim……………………………………………………… 107
C. RCRA Claims……………………………………………………………………………………………………… 111
1. Section 6972(a)(1)(A) Claim: The Tech Park……… 116
2. Section 6972(a)(1)(B) Claim: The Tech Park……… 128
3. Section 6972(a)(1)(A) Claim: Filmont/Massey…… 138
i. RCRA Subtitle C………………………………………………………………… 142
ii. RCRA Subtitle D………………………………………………………………… 156
4. Section 6972(a)(1)(B) Claim: Filmont/Massey…… 165
D. Remaining State Law Claims……………………………………………………………… 169
IV. Conclusion……………………………………………………………………………………………………………………… 170
I. Background
Plaintiff, The Courtland Company, Inc., (“Courtland”), and defendant, Union Carbide Corporation (“UCC”), own nearby parcels of real property adjoining on or near Davis Creek in Kanawha County, West Virginia.
In these actions, Courtland contends that UCC has over the years conducted activities on the UCC properties that have polluted both UCC's property and Courtland's property. UCC counterclaims that Courtland's property and UCC's property have been polluted by Courtland's own activities.
The properties are displayed on the map below which depicts Courtland's property and three UCC properties labeled Technical Center (“Tech Park”), Massey (“Massey Railyard”), and Filmont.[1] Of the three UCC properties, Tech Park is the larger tract outlined by a black line and is separated from the other properties (Courtland, Massey, and Filmont) by the CSX Railroad. Tech Park includes the Greenhouse Area near the Courtland
Property as well as Ward Hollow and the three landfill area named Ward A Landfill, Ward B Landfill, and Lower Ward Landfill.
Image Omitted
Davis Creek is not well depicted on the above map but is located near the left or western edge of the map. Davis Creek runs in a northerly direction as it descends, in sequence, from near the western line of the Tech Park and continuing on the western line of Courtland and Filmont on its way to the Kanawha River. Correspondingly, the terrain generally slopes downward from the Greenhouse Area of Tech Park to Courtland to Filmont, with Massey Railyard situated between Tech Park and Filmont. Courtland contends that hazardous waste from UCC
properties has, inter alia, found its way by groundwater to the Courtland Property.
Courtland filed Courtland I in 2018 against UCC with respect to Tech Park. Courtland filed Courtland II in 2019 against UCC with respect to Filmont and the Massey Railyard. These two actions remain grounded on similar causes of action as follows: (1) recovery of response costs and declaratory relief under the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. §§ 9607(a), 9613(g); (2) citizen suit relief for violations of § 702(a)(1)(A) of the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6972(a)(1)(A), and the West Virginia Hazardous Waste Management Act; (3) citizen suit relief for judicial abatement of an imminent and substantial endangerment under § 7002(a)(1)(B) of RCRA, 42 U.S.C. § 6972(a)(1)(B); (4) judicial abatement of a public nuisance; (5) relief from a private nuisance; (6) negligence; (7) gross negligence; and (8) strict liability.[2] In Courtland II only, Courtland brings an additional claim against UCC for judicial abatement of a public nuisance per se.
On October 22, 2021, the court granted UCC's motion in Courtland II seeking leave to file an amended answer and re-alleged counterclaims. See ECF 302 (Courtland II). UCC alleges that the historical and current use of the Courtland Property, and UCC's 2020 soil investigation thereon, indicate that Courtland is a source of the impacts to Courtland's groundwater and is thus at least partially responsible for the environmental impacts on the Courtland Property and potentially the UCC property. UCC asserts the following counterclaims in Courtland II: (1) contribution from Courtland under Section 113(f) of CERCLA, 42 U.S.C. § 9613(f); (2) declaratory relief under Section 113(g) of CERCLA, 42 U.S.C. § 9613(g); (3) negligence; (4) declaratory relief under W.Va. Code § 55-13-11; and (5) equitable indemnity.[3]
The relevant facts respecting these two actions are as follows.[4]
A. The UCC Tech Park
Between 1947 and 1974, UCC acquired the land on which the Tech Park now sits. ECF 1 (Courtland I) ¶ 14. Three inactive landfills are located on the Tech Park property: the Lower Ward Landfill, Ward A Landfill, and Ward B Landfill, as well as a historical botanical research area known as the “Greenhouse Area.” Id. ¶ 18; see also ECF 382 at 5. The area of the Tech Park adjacent to the Lower Ward Landfill is referred to as “Ward Hollow.” The landfills were utilized for the disposal of fly ash, oxide tails, and municipal sludge from publicly owned treatment works. Id.; see also ECF 290-2 at 8. Use of the Tech Park landfills was discontinued in 1973. Id. It is undisputed that in the past, on certain occasions, wastes containing arsenic, 2-butatone, acetone, di-n-butyl phthalate, barium, cadmium, chromium, lead, and selenium were generated at the Tech Park. ECF 291 at 6; see also ECF 288-2 at 25-30. Each of these substances are deemed Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”) hazardous substances.[5] See 40 C.F.R. § 302.4. The parties do not dispute
that hazardous substances have been released, on certain occasions, from certain locations at the Tech Park and the three landfills thereon into the environment. Id. at 5; see also ECF 288-2 at 39-40, 77-78. It is likewise undisputed that the groundwater underlying the Tech Park is hydraulically connected to the Davis Creek watershed. See ECF 21 (Courtland I) at ¶ 43.
In 1990, UCC entered into a Facility Lead Agreement with the USEPA in order to conduct corrective action in regard to contamination at the Tech Park with the USEPA's oversight. Id. ¶ 23. Between 1990 and 2010, UCC conducted and completed multiple investigations to determine the nature and scope of the
contamination at the Tech Park. Id. Such investigations included several RCRA Facility Investigations (“RFI”), designed and based on individual Solid Waste Management Units (“SWMUs”) existing on the Tech Park property. Id. ¶¶ 22, 25, 26. RFIs were conducted in 2001 and 2005 at multiple SWMUs at the Tech Park to investigate the extent of contamination in soil, groundwater, surface water, sediment, and waste material. Id.
As part of the 2001 RFI, the Greenhouse Area of the Tech Park was recommended for “No Further Action,” and the USEPA approved this recommendation in 2006. ECF 290-2 at 9-10. According to UCC, while low levels of metals, semi-volatile organic compounds (“SVOCs”), and volatile organic compounds (“VOCs”) were found in the Greenhouse Area, only chlorinated solvents were observed in the groundwater at above a risk-based screening level (“RSL”) or Maximum Contaminant Limit (“MCL”).[6]ECF 382 at 7 (citing 290-2 at 10-11, Table 1, Figs. 6-14). Thus, according to UCC, based on “the decreasing levels of the specific VOCs detected, the chlorinated solvents, the presence of unimpacted wells on the Tech Park between impacted wells and the property line, and demonstrated lack of exposure[,] [the]
[US]EPA concurred that such VOCs, in addition to metals and SVOCs, did not rise to the level of concern that would warrant further delineation” in areas of the Tech Park outside of Ward Hollow. Id. (citing ECF 290-2 at 10-11; ECF 290-6 at 7-13). The source of the Greenhouse Area contamination is unknown. See ECF 288-8 at 69.
The 2005 RFI concluded that groundwater contamination was primarily present in the Ward Hollow area, the sources of which include the three nearby landfills and...
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