W.Va. State Univ. Bd. of Governors ex rel. W.Va. State Univ. v. Dow Chem. Co., Civil Action No. 2:17-cv-3558
| Decision Date | 01 June 2020 |
| Docket Number | Civil Action No. 2:17-cv-3558 |
| Parties | WEST VIRGINIA STATE UNIVERSITY BOARD OF GOVERNORS, for and on behalf of West Virginia State University, Plaintiff, v. THE DOW CHEMICAL COMPANY, and UNION CARBIDE CORPORATION, and BAYER CORPORATION, and BAYER CROPSCIENCE LP, and BAYER CROPSCIENCE HOLDING INC., and RHONE-POULENC INC., and RHONE-POULENC AG COMPANY, and RHONE-POULENC AG COMPANY, INC., and AVENTIS CROPSCIENCE USA LP, Defendants. |
| Court | U.S. District Court — Southern District of West Virginia |
Pending is a motion to remand this case to the Circuit Court of Kanawha County filed by plaintiff West Virginia State University Board of Governors, for and on behalf of West Virginia State University ("WVSU" or "the University"), on August 7, 2017. As will be noted, defendants have filed supplemental submissions that they offer, as impacting the motion to remand, on each July 18, 2018, November 6, 2018, and March 5, 2019.
This case arises from the contamination of groundwater beneath land owned by WVSU and adjacent to a 433-acre industrial park in Institute, West Virginia owned or operated by all defendants at times relevant to this action ("the facility"). First Amended Compl. ("Am. Compl.") ¶¶ 15-20; Notice of Removal ( ) ¶¶ 7-8; Pl.'s Mem. Supp. Mot. Remand ("Pl.'s Mem.") at 3. The facility consists of two distinct areas: a chemical manufacturing plant and wastewater treatment unit. Not. Rem. ¶ 8.
WVSU is a university founded by land-grant and under the authority of the West Virginia State University Board of Governors. Am. Compl. ¶ 2; W. Va. Code § 18B-2A-1(b). In or about 1947, Union Carbide Corporation ("UCC") purchased the facility and began manufacturing various hydrocarbon and agricultural products at the chemical plant. Am. Compl. ¶ 15; Not. Rem. ¶ 9. At that time, WVSU was separated from the chemical plant by less than a quarter mile, with the West Virginia Rehabilitation Center ("Rehabilitation Center") occupying the land between them. Am. Compl. ¶ 15. In or about 2014, WVSU acquired the former Rehabilitation Center land, extending their property to be immediately adjacent to the facility. Id. ¶ 18. UCC, now a subsidiary of Dow ChemicalCompany, reacquired the facility in 2015. Id. ¶ 19; Not. Rem. ¶ 9.
Because the facility treats, stores, and disposes of potentially hazardous wastes, it is subject to Subtitle C of the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. §§ 6921-6939g, which created "a comprehensive cradle-to-grave regulatory program for hazardous waste management."1 See RCRA Orientation Manual at I-5, Ex. 8 to Notice of Removal; Notice of Removal ( ) ¶¶ 1-3; Pl.'s Mem. at 4.
In 1984, the United States Environmental Protection Agency ("EPA") initiated a corrective permitting action to identify and remediate onsite Solid Waste Management Units ("SWMUs"). Not. Rem. ¶ 11. The EPA issued a preliminary RCRA corrective action permit, also referred to as a RCRA CA Permit, in 1988 to Rhone-Poulenc — which purchased the facility in 1986. Id. In December 1990, the EPA issued a revised final RCRA CA Permit, which was effective January 1991 to January 2001, and subsequently extended until the effective date of any newcorrective action permit issued by the EPA. Id.; Permit for Corrective Action ("RCRA CA Permit"), Ex. 18 to Not. Rem; Corrective Measures Proposal at 6, Ex. 15 to Not. Rem.2
Though the EPA issued the RCRA CA Permit, it delegated authority to the West Virginia Department of Environmental Protection ("WVDEP") to separately issue a Hazardous Waste Management Permit ("Waste Permit") under the state's Hazardous Waste Management Act. See 42 U.S.C. § 6926(b); W. Va. Code §§ 22-18-4, 22-18-8; 40 C.F.R. § 270.51.3 The current Waste Permit was renewed by the WVDEP in 2014, effective until 2024.4 See Waste Permit at 3-4, 9-11, Ex. B to Pl.'s Mot Remand.5 Inasmuch as the EPA authorized West Virginia's hazardous waste program to implement corrective action, including corrective action permitting responsibilities under RCRA sections 3004(u) and (v), the EPA requested that the WVDEP incorporate therequirements of the RCRA CA Permit into the renewed 2014 Waste Permit, which WVDEP did. See Waste Permit at 37, Ex. B to Pl.'s Mot Remand; see also West Virginia: Final Authorization of State Hazardous Waste Management Program Revisions, 78 Fed. Reg. 70,225, 70,229 (Nov. 25, 2013) (); West Virginia: Final Authorization of State Hazardous Waste Management Program Revision, 68 Fed. Reg. 59,542 (Oct. 16, 2003) ().
Nonetheless, the EPA remained the lead agency for implementing the RCRA CA Permit, and the WVDEP and EPA agreed in 2011 that the corrective measures for the wastewater treatment unit would be addressed by the RCRA CA permit issued for the main chemical plant. Corrective Measures Proposal at 6, Ex. 15 to Not. Rem.
Since the EPA issued the RCRA CA Permit, the facility has undergone dozens of investigations, permitting cycles, and remediation activities with the oversight of the EPA and WVDEP. Not. Rem. ¶¶ 11-12, 14; see Corrective Measures Proposal at Table 1-1, Investigation, Permitting, and Remedial Action Timeline, Ex. 15 to Not. Rem., Ex. F to Pl.'s Mem.; W. Va. Code § 22-18-4. Throughout the relevant period, and continuing today, certain contaminants were released from the facility into the groundwater that has migrated onto WVSU property. Am.Compl. ¶¶ 26; Pl.'s Mem. at 4. These contaminants include 1,4 dioxane, 1,1 dichloroethane, and chloroform which are volatile and semivolatile organic compounds that can migrate upward through soil and vaporize into the air. Am. Compl. ¶ 21; Pl.'s Mem. at 4. All three of these contaminants have been classified by the EPA as probable human carcinogens. Am. Compl. ¶ 23; Pl.'s Mem. at 4.
Despite the nature of these chemicals, testing conducted in 2013 concluded that the contaminated groundwater poses no current risk to human health on the WVSU property, though these conclusions were based on the fact that there are no drinking water wells on the WVSU property and no occupied buildings in the area investigated on the WVSU property. Pl.'s Mem. at 5; Not. Rem. ¶¶ 25-26, 28; Aug. 5, 2013 Ch2M Technical Memorandum at 6-7, Ex. C to Pl.'s Mem. In 2014, the EPA approved a UCC report summarizing the 2013 investigation of the WVSU property, which included the recommendation of placing an environmental covenant on WVSU property prohibiting the use of groundwater, requiring a vapor barrier for new buildings constructed on the property, and prohibiting "residential reuse" of the property. See Email from William Wentworth, Ex. 30 to Not. Rem.; Aug. 5, 2013 Ch2M Technical Memorandum at 8, Ex. C to Pl.'s Mem. The environmental covenant recommendation was alsoincluded in a 2016 report submitted to the EPA summarizing subsequent investigations of the WVSU property and, in July 2016, the EPA stated that it "agree[d] with the conclusions presented in that report" as well. Not. Rem. ¶¶ 31-32; April 16, 2016 Ch2M Technical Memorandum at 14, Ex. 31 to Not. Rem.; July 18, 2016 Letter from William Wentworth, Ex. 32 to Not. Rem.
The RCRA CA Permit issued by the EPA in 1990 provides that, pursuant to § 3004(u) of RCRA and 40 C.F.R. § 264.101, operators of the facility must take corrective action as necessary to protect human health and the environment for release of hazardous waste or hazardous constituents from any solid waste management unit ("SMWUs") at the facility. 42 U.S.C. § 6924(u); 40 C.F.R. § 264.101(a); RCRA CA Permit at 11, Ex. 18 to Not. Rem; see also Waste Permit at 37-38. The RCRA CA Permit requires the permittee to follow a corrective action process that starts with conducting an initial Verification Investigation and, if necessary, a RCRA Facility Investigation ("RFI") for suspected releases from specific SWMUs identified in the permit, and a Corrective Measures Study. RCRA CA Permit at 11, Ex. 18 to Not. Rem. If the EPA approves the Corrective Measures Study Report and finds that corrective measures are necessary, it will propose a major permit modification,including the opportunity for a public notice period. Id. at 11, 27; 42 U.S.C. § 6925(c); 40 C.F.R. § 270.41.
With respect to the proposed environmental covenant, although facility owners or operators must take corrective action "beyond the facility boundary where necessary to protect human health and the environment," they may only do so with the consent of the off-site property owner. 42 U.S.C. § 6924(v), 40 C.F.R. § 264.101(c).
UCC submitted a Corrective Measures Proposal ("Proposal") dated December 2016, addressing the contaminated groundwater, to the EPA for review and approval. See Not. Rem. ¶ 34; Letter to Bill Wentworth, dated Jan. 6, 2017, Ex. 15 to Not. Rem.; Proposal, Ex. 15 to Not. Rem. The Proposal recommended that WVSU sign an environmental covenant "that prohibits the construction of occupied structures over areas of identified [vapor intrusion] risk, unless a [vapor intrusion] mitigation is completed, and that restricts groundwater extraction except for remediation purposes or to support subsurface construction." Proposal at 5, 10-11. The Proposal made no mention of compensation to WVSU for the impact on its property. See id.
On April 10, 2017, the EPA informed defendants that the Proposal did not meet the requirements of the facility'scorrective action permit insofar as it only contained some of the necessary elements of a Corrective Measures Study. Email from Eric Weissbart, Ex. A to Pl.'s Reply. For instance, the Proposal did not reference an EPA-approved RFI process, include a comprehensive current status of the facility, or include numeric media cleanup standards. Id. In May 2017, a meeting was held between representatives of the EPA, WVDEP, and defendants. See Meeting Summary, prepared June 8, 2017, Ex. 6 to Not. Rem. At that...
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