W. Va. State Univ. Bd. of Governors v. Dow Chem. Co.

• Decision Date: 10 January 2022
• Docket Number: No. 20-1712,20-1712
• Citation: 23 F.4th 288
• Parties: WEST VIRGINIA STATE UNIVERSITY BOARD OF GOVERNORS, Plaintiff - Appellee, v. The DOW CHEMICAL COMPANY; Union Carbide Corporation ; Bayer Corporation; Bayer CropScience LP ; Bayer CropScience Holding, Incorporated; Rhone-Poulenc, Incorporated, Rhone-Poulenc AG Company; Rhone-Poulenc AG Company, Inc.; Aventis CropScience USA, LP, Defendants - Appellants.
• Court: U.S. Court of Appeals — Fourth Circuit

23 F.4th 288

WEST VIRGINIA STATE UNIVERSITY BOARD OF GOVERNORS, Plaintiff - Appellee,

v.The DOW CHEMICAL COMPANY; Union Carbide Corporation ; Bayer Corporation; Bayer CropScience LP ; Bayer CropScience Holding, Incorporated; Rhone-Poulenc, Incorporated, Rhone-Poulenc AG Company; Rhone-Poulenc AG Company, Inc.; Aventis CropScience USA, LP, Defendants - Appellants.

No. 20-1712

United States Court of Appeals, Fourth Circuit.

Argued: September 21, 2021

Decided: January 10, 2022

ARGUED: Kasdin Miller Mitchell, KIRKLAND & ELLIS LLP, Washington, D.C., for Appellants. Benjamin James Hogan, BAILEY & GLASSER LLP, Morgantown, West Virginia, for Appellee. ON BRIEF: Douglas J. Kurtenbach, Nader R. Boulos, Daniel I. Siegfried, KIRKLAND & ELLIS LLP, Chicago, Illinois; Floyd E. Boone, Jr., BOWLES RICE, LLP, Charleston, West Virginia, for Appellants. Samuel A. Hrko, Victor S. Woods, Charleston, West Virginia, Brian A. Glasser, BAILEY & GLASSER LLP, Washington, D.C., for Appellee.

Before GREGORY, Chief Judge, NIEMEYER, and RICHARDSON, Circuit Judges.

Affirmed by published opinion. Chief Judge Gregory wrote the opinion, in which Judge Niemeyer and Judge Richardson joined.

GREGORY, Chief Judge

This case deals with groundwater contamination on land owned by West Virginia State University ("WVSU"), a historically Black university, which is adjacent to a 433-acre industrial park located in Institute, West Virginia that consists of a chemical manufacturing plant and wastewater treatment unit (the "Institute Facility"). The suit asserts several state and common law claims and seeks that Defendants adopt remedial measures, beyond those recommended by the U.S. Environmental Protection Agency ("EPA"), to address contamination on property owned by WVSU. On July 7, 2017, Defendants removed the action to federal district court invoking federal question jurisdiction, diversity jurisdiction, and federal officer jurisdiction pursuant to 28 U.S.C. §§ 1331, 1332, 1441, 1442, and 1446. On August 7, 2017, Plaintiff filed a motion to remand to state court. On June 1, 2020, the district court granted Plaintiff's motion to remand. Dow Chemical appealed. We conclude that the district court did not err in holding that neither 28 U.S.C. §§ 1442 nor 1331 confer federal jurisdiction over WVSU's claims. For the following reasons, we affirm the district court's ruling.

I.

A.

In 1890, WVSU received a land grant from the U.S. Congress. Beginning in 1943, the Institute Facility was owned by the federal government who used it as a synthetic rubber production plant during World War II. J.A. 220. Then, in 1947, the Union Carbide Corporation ("UCC") purchased the Institute Facility and began manufacturing various hydrocarbon and agricultural products. J.A. 80–81. In May 2013, the West Virginia Department of Administration ("WVDA") transferred the former West Virginia Rehabilitation Center ("Rehabilitation Center") to WVSU, which extended WVSU's property so that it was immediately adjacent to the Institute Facility. J.A. 83. The Rehabilitation Center is in the southeastern part of the campus with the Institute Facility immediately bordering it to the southwest and the Kanawha River to the south.¹ See J.A. 230; see also J.A. 270 (Map); J.A. 385 (Map). Between 1986 until 2015, the Institute Facility was owned and operated by various companies, including Rhone-Poulenc, Inc. (1986-2000), Aventis (2000-2002), and Bayer CropScience (2002-2015). J.A. 83. In 2015, Bayer CropScience returned control of the Institute Facility to UCC, which was a subsidiary of the Dow Chemical Company. Id. The Institute Facility is currently owned and operated by UCC, as a subsidiary of the Dow Chemical Company.

B.

In November 1984, UCC applied to the EPA and the West Virginia Division of Natural Resources ("WVDNR"), which is part of the West Virginia Department of Environmental Protection ("WVDEP"), for a permit to operate hazardous waste management units, pursuant to the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq. ("RCRA"). J.A. 226. In August 1984, the EPA published a report documenting environmental pollution from multiple sources located within the Kanawha Valley. See West Virginia State University Board of Governors v. The Dow Chemical Company et al. , No. 2:17-cv-3558 (S.D. W. Va. June 8, 2020), at Dkt. No. 3 at Exhibit 16 (Overview of Environmental Pollution in the Kanawha Valley, Aug. 1984).² The report described that there was "groundwater contamination at the Institute Facility." J.A. 23–24 at ¶ 10. Accordingly, "in 1984, the EPA initiated a corrective permitting action to identify and remediate solid waste management units ("SWMUs") at the facility." Id. at ¶ 11. In June 1985, UCC submitted an initial list of potential solid waste management units, which was modified in September 1986. Id. In July 1988, the EPA issued a 1-year conditional operating permit to then-owner Rhone-Poulenc, and, in November 1988, the EPA issued a final permit requiring investigation for potential migration of hazardous wastes from certain SWMUs at the facility. J.A. 24. Then in, February 1990, the EPA issued a 10-year operating permit effective until January 21, 2001. In December 1990, the EPA issued a revised final Corrective Action ("CA") permit, effective January 1991, to govern investigation and remediation activities relating to contamination emanating from the facility. J.A. 24. As the Defendants put it: "[t]he EPA's Corrective Action Permit for the Institute Facility made clear that ‘[t]he Permittee must comply with all terms and conditions of this permit’ and that ‘permit noncompliance ... is grounds for enforcement action’ against the owner of the facility." J.A. 24 (citing West Virginia State University Board of Governors v. The Dow Chemical Company et al. , No. 2:17-cv-3558 (S.D. W. Va. June 8, 2020), at Dkt. No. 3 at Exhibit 18 (USEPA Permit for Corrective Action, Dec. 18, 1990)).³

Since 1988, and as part of the permitting process, the EPA instituted various corrective actions at the Institute Facility to address groundwater contamination. See J.A. 226; see also J.A. 25 ("beginning in 1996, groundwater delineation and remediation work were performed at multiple areas at the facility").⁴ In 2014, the EPA's final permit for the Institute Facility required, among other things, submission "to EPA, for approval, documentation that the subsurface conditions and contaminant plume have been adequately characterized and the proposed corrective measures will adequately remove, contain or treat the released hazardous wastes or hazardous constituents." J.A. 241. The permit also required compliance with all its "terms and conditions" and "[a]ll plans, reports, schedules and other submissions" that the EPA approves. J.A. 257. Since 1988, the various owners of the Institute Facility have been required to comply with the corrective measures including groundwater delineation and remediation work and studies under the supervision of the EPA. See, e.g. , J.A. 226; J.A. 218 ("USEPA-approved sitewide groundwater monitoring program has been in place since 2011").

C.

In May 2010, the West Virginia Department of Education transferred the Rehabilitation Center property to the WVDA. J.A. 24.

As part of its ongoing remedial measures, beginning in January 2013, the EPA conducted five phases of testing spanning four years which evaluated whether there was any risk to the Rehabilitation Center and whether remedial measures were necessary. Phase I investigated the Rehabilitation Center, which was immediately adjacent to the Institute Facility, and owned by the WVDA at the time. J.A. 27. On January 22, 2013, UCC signed an agreement with the WVDA to allow experts at CH2M Hill, a private engineering firm, to investigate activities at the Rehabilitation Center. J.A. 265–70. In March 2013, CH2M Hill reported the results of the Phase I study to the WVDA. The Phase I study reported low levels of volatile organic compounds ("VOCs") in the groundwater running beneath the former Rehabilitation Center property and under portions of the remainder of WVSU property. J.A. 28 (citing West Virginia State University Board of Governors v. The Dow Chemical Company et al. , No. 2:17-cv-3558, at Dkt. No. 3 at Exhibit 27 (J. Cibrik letter to G. Melton)).

In May 2013, WVDA transferred the property to WVSU. See J.A. 27–28 at ¶¶ 23, 27. At the time that they acquired the property, WVSU officials knew that there was groundwater contamination. See J.A. 273 ("University officials say they learned of the contamination about four years ago, when they took ownership from the state of the former West Virginia Rehabilitation Center.").

On August 5, 2013, CH2M Hill reported to the EPA, WVDEP and WVSU the results of its investigation in a technical memorandum. See J.A. 28 (citing West Virginia State University Board of Governors v. The Dow Chemical Company et al. , No. 2:17-cv-3558, at Dkt. No. 3 at Exhibit 29 (East Property Boundary Investigation at West Virginia State University, Aug. 5, 2013)); see also J.A. 371. According to the memorandum, there were contaminants migrating from the Institute Facility onto the WVSU property via the groundwater. See J.A. 377; J.A. 386 (showing a map of the water flow of contaminants beneath the WVSU campus). Notably, the memorandum stated that there was an elevated risk of exposure to contaminants at the WVSU property via "ingestion through drinking water and inhalation through [ ] occupied buildings." Id. However, CH2M Hill concluded that because "there are no drinking water wells on the WVSU property [,] there [was] no risk associated with ingestion through drinking water." Id. Still, the memorandum identified at least three VOCs and various other contaminants in the groundwater at concentrations that pose a carcinogenic risk for residential and commercial levels. However, because as of July 11, 2013, the buildings were unoccupied and "WVSU indicated it ha[d] no plans for residential reuse at this property,"...