The Courtland Company, Inc. v. Union Carbide Corporation (Courtland I)

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF WEST VIRGINIA

AT CHARLESTON

THE COURTLAND COMPANY, INC.,

a West Virginia Business

Corporation,

Plaintiff,

v. Civil Action No. 2:18-cv-01230

UNION CARBIDE CORPORATION,

a New York Corporation,

Defendant.

MEMORANDUM OPINION & ORDER

Pending is a motion to dismiss filed by the defendant

Union Carbide Corporation on September 28, 2018 (ECF No. 13).1

I. Background

The plaintiff and the defendant are corporations that

own adjoining parcels of real property near Davis Creek in

Kanawha County, West Virginia. See ECF No. 1 at 3–4, 8. The

plaintiff’s complaint alleges that the defendant has used its

1 The defendant’s motion to dismiss was filed jointly with then

co-defendant, Dow Chemical Company, Inc. See ECF No. 13. On

May 28, 2019, the parties filed a stipulation of dismissal of

all claims against Dow Chemical without prejudice. See ECF No.

60. Dow Chemical was terminated from this action pursuant to

the stipulation of dismissal.

property, called the “UCC Tech Center,”2 to store hazardous and

toxic materials, which have been released into the nearby

environment including the plaintiff’s property. See id. at 1–2,

8–22. Based on these allegations, the plaintiff asserts nine

federal- and state-law causes of action: (1) recovery of

response costs and declaratory relief under the Comprehensive

Environmental Response, Compensation, and Liability Act of 1980

(“CERCLA”), 42 U.S.C. §§ 9607(a), 9613(g); (2) citizen suit

relief for violations of § 7002(a)(1)(A) of the Resource

Conservation and Recovery Act of 1976 (“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) private nuisance; (6) negligence; (7)

2 In its complaint, the plaintiff refers to the property as the

“UCC Facility.” See ECF No. 1, passim. The plaintiff alleges

that the property is also sometimes called “the ‘West Virginia

Regional Technology Park,’ the ‘South Charleston Technology

Park,’ or simply the ‘Technology Park.’” Id. at 8. As

explained more fully herein, the court, in a closely related

case, addressed a motion to dismiss raising very similar

arguments to those raised in the current motion, and, in that

order, referred to the property as the “UCC Tech Center.” See

Mem. Op. & Order, Courtland Co., Inc. v. Union Carbide Corp.

(“Courtland II”), No. 2:19-cv-00894 (S.D.W. Va. Aug. 26, 2020),

ECF No. 75. For the sake of consistency in the two cases, the

court will refer to the property as the UCC Tech Center in this

memorandum opinion and order.

negligence per se; (8) gross negligence; and (9) strict

liability. See ECF No. 1 at 23–36.

II. Discussion

In a closely related case, the plaintiff filed a

similar complaint against the defendant relating to two other

parcels of real property, called the Filmont Landfill and the

UCC Railyard, owned by the defendant that are also adjacent to

the property owned by the plaintiff. See Compl., “Courtland

II”, No. 2:19-cv-00894 (2019), ECF No. 1. In that case, the

defendant also filed a motion to dismiss, raising many of the

same arguments it raises in the motion now before the court.

Compare Memo. in Supp. of Mot. to Dismiss, Courtland II, No.

2:19-cv-00894 (Jan. 8, 2020), ECF No. 10, and Reply, Courtland

II, No. 2:19-cv-00894 (Feb. 18, 2020), ECF No. 21, and Suppl.

Br., Courtland II, No. 2:19-cv-00894 (Feb. 26, 2020), ECF No.

24, with ECF No. 14, and ECF No. 28, and ECF No. 132. In an

August 26, 2020 memorandum opinion and order, the court rejected

most of the arguments the defendant raised and denied the motion

to dismiss except with respect to the plaintiff’s state-law

claim for negligence per se. See Mem. Op. & Order, Courtland

II, No. 2:19-cv-00894 (Aug. 26, 2020), ECF No. 75.

Aside from certain exceptions discussed below, the

court concludes that the allegations of the complaints and the

arguments regarding dismissal in the two cases are sufficiently

similar that the analysis set forth in the court’s memorandum

opinion and order disposing of arguments raised in the

defendant’s motion to dismiss in Courtland II applies to the

arguments raised in the current motion. Accordingly, the court

incorporates the memorandum opinion and order entered in

Courtland II herein by reference and, except to the extent

discussed below, applies its reasoning to this motion.

A. Alleged RCRA Violations

As the court has noted, there are some differences

between the complaints and arguments raised in the two cases

that must be addressed. First, the complaints allege somewhat

different RCRA violations. In the memorandum opinion and order

entered in Courtland II, the court concluded that Count II of

the complaint survived a Fed. R. Civ. P. 12(b)(6) challenge

because the complaint plausibly alleged current and ongoing

violations of RCRA, namely, that the defendant operated or

closed a facility for the treatment, storage, or disposal of

hazardous wastes without a permit and that the defendant failed

to put into place financial assurance instruments for the

closure and post-closure care of a hazardous waste disposal

facility. See Mem. Op. & Order at 19–23, Courtland II, No.

2:19-cv-00894. Likewise, the court concluded that the RCRA-

related claims survived a Fed. R. Civ. P. 12(b)(1)

jurisdictional challenge because of the allegations of “multiple

violations of Subchapter III of RCRA in [the] complaint.” See

id. at 16.

Although the complaint in this case does not allege

the same violations of RCRA that are alleged in the Courtland II

complaint, it plausibly alleges a current and ongoing violation

of RCRA Subchapter III, namely, that the defendant operated or

closed the UCC Tech Center for the treatment, storage, or

disposal of hazardous wastes without a permit. See ECF No. 1 at

25. Accordingly, the court concludes it survives the Rule 12(b)

challenges brought by the defendant, as discussed further

herein.

B. Matters Outside the Pleadings

Next, the defendant relies on certain exhibits

attached to its motion to dismiss in support of its arguments

that the RCRA-related claims should be dismissed pursuant to

Rules 12(b)(1) and (6).

1. Rule 12(b)(1) Motion to Dismiss

As the court explained in Courtland II:

Prior to commencing a citizen suit for an

alleged violation of RCRA, a plaintiff must (1)

provide notice of the alleged violation to the EPA

Administrator, the State in which the alleged

violation occurred, and the defendant alleged to have

committed the violation; and (2) observe a waiting

period of 60 days for a subsection (a)(1)(A) suit, or

90 days for a subsection (a)(1)(B) suit. . . . An

exception to the waiting period requirement exists for

actions brought under either subsection to allege

violations of Subchapter III of RCRA (i.e., management

of hazardous waste), which may be brought immediately

after the notice to the required parties.

Mem. Op. & Order, Courtland II, at 15, No. 2:19-cv-00894. In

the Fourth Circuit, RCRA’s notice-and-delay provisions for

citizen suits are considered jurisdictional. See City of

Hurricane v. Disposal Serv. Inc., 36 F. Supp 3d 692, 697 (S.D.W.

Va. 2014) (citing Beazer E., Inc. v. U.S. Navy, 111 F.3d 129,

1997 WL 173225, at *5 (4th Cir. 1997) (unpublished table

decision)).

The plaintiff acknowledges that it did not satisfy

RCRA’s notice-and-delay provisions. See ECF No. 1 at 27, 29.

As discussed above, however, the plaintiff has plausibly alleged

a violation of RCRA Subchapter III and thus asserts it was not

required to satisfy those provisions. See id. In response, the

defendant points to Exhibit 4 (ECF No. 13-4), which is attached

to its motion. The defendant asserts that Exhibit 4 is a permit

issued by the EPA, allowing the defendant to manage hazardous

waste at the UCC Tech Center in the manner prescribed by the

permit. See ECF No. 14 at 6, 14. Based on Exhibit 4, the

defendant argues that the plaintiff’s RCRA-violation claim in

Count II should be dismissed pursuant to Rule 12(b)(1) because

the complaint fails to “credibly allege any current violation”

of RCRA Subchapter III and thus is not excepted from RCRA’s

jurisdictional notice-and-delay provisions. Id. at 14.

When confronted by a factual challenge to a

complaint’s jurisdictional allegations concerning a violation of

RCRA Subchapter III, the “proper test” is to determine “whether

[the] plaintiff has sufficiently made a good faith allegation

for jurisdictional purposes,” meaning the court should ask

“‘whether it appears to be a legal certainty that the

jurisdictional fact is not satisfied.’” City of Hurricane, 36

F. Supp. 3d at 697 (emphasis added in City of Hurricane)

(quoting Ohio Valley Envtl. Coal. v. Elk Run Coal Co., Inc., 24

F. Supp. 3d 532, 538 (S.D.W. Va. 2014)). This jurisdictional

inquiry is a “low standard” that “places only a minimal burden

upon the plaintiff.” Id. at 698. And, when a defendant

challenges the veracity of jurisdictional facts alleged in the

complaint that are “inextricably intertwined” with facts central

to the complaint’s claims, jurisdiction should be assumed unless

the jurisdictional allegations are “clearly immaterial” or

“wholly unsubstantial and frivolous.” Id. (emphasis omitted)

(quoting Kerns v. United States, 585 F.3d 187, 193 (4th Cir.

2009)).

Applying this low bar here, the court concludes that,

even considering Exhibit 4, the defendant’s jurisdictional

argument must be rejected. The defendant challenges a

jurisdictional fact, i.e., that the plaintiff alleges a

violation of RCRA Subchapter III and thus need not comply with

RCRA’s notice-and-delay provisions—that the plaintiff has

alleged in its complaint. The veracity of that jurisdictional

fact is inextricably intertwined with a fact central to the

plaintiff’s complaint, i.e., that the defendant violated RCRA

Subchapter III. Thus, the court will “assume jurisdiction” and

will not “resolve the relevant factual disputes” until “after

appropriate discovery unless the jurisdictional allegations are

clearly immaterial or wholly unsubstantial and frivolous.”

Kerns, 585 F.3d at 193. The complaint’s jurisdictional

allegation, i.e., that the defendant violated RCRA Subchapter

III, is not ”clearly immaterial” or “made solely for the purpose

of obtaining jurisdiction.” Id. (quoting Bell v. Hood, 327 U.S.

678, 682 (1946)). If anything, it is “clearly” material because

it is a central claim of the complaint. Nor is the court able

to say that the plaintiff’s jurisdictional allegation is wholly

unsubstantial or frivolous. Accordingly, the court concludes

that resolving the factual dispute, inextricably intertwined

with the merits of the case, is inappropriate at this stage.

See id. (explaining that, in these circumstances, “the court

should resolve the relevant factual disputes only after

appropriate discovery”). The defendant’s motion to dismiss must

be denied to the extent it seeks to challenge Count II on

jurisdictional grounds.

2. Rule 12(b)(6) Motion to Dismiss

Next, the defendant points to Exhibit 2 (ECF No. 13-2)

and Exhibit 3 (ECF No. 13-3), also attached to its motion to

dismiss. The defendant claims Exhibit 2 contains a 1999

facility lead agreement it entered into with the U.S.

Environmental Protection Agency (“EPA”), in which the defendant

agreed to delineate releases of materials from the UCC Tech

Center into groundwater and to implement interim measures to

eliminate human exposure to, and groundwater contamination from,

hazardous waste or materials. See ECF No. 14 at 17. The

defendant claims that Exhibit 3 is a 2010 final decision from

the EPA stating that a corrective action plan relating to the

UCC Tech Center issued by the West Virginia Department of

Environmental Protection is appropriate and will be protective

of human health and the environment. See id. Based on Exhibits

2 and 3, the defendant argues that the plaintiff’s RCRA

imminent-and-substantial-engagement claim in Count III should be

dismissed pursuant to Rule 12(b)(6) because the plaintiff cannot

“credibly plead that [the defendant]’s handling of hazardous

wastes created an imminent and substantial endangerment to

health or the environment” Id. (internal quotation marks

omitted); see also ECF No. 28 at 11, 13.

“In resolving a motion pursuant to Rule 12(b)(6) . . .

, a district court cannot consider matters outside the pleadings

without converting the motion into one for summary judgment.”

Occupy Columbia v. Haley, 738 F.3d 107, 116 (4th Cir. 2013). “A

court may, however, consider . . . documents attached to the

motion to dismiss, so long as they are integral to the complaint

and authentic.” Id. (internal quotation marks and brackets

omitted) (quoting Philips v. Pitt Cnty. Mem’l Hosp., 572 F.3d

176, 180 (4th Cir. 2009)). With respect to authenticity, the

Fourth Circuit has held that, ordinarily, the court may consider

an extrinsic document “only . . . when ‘the plaintiff[] do[es]

not challenge the document’s authenticity.” Zak v. Chelsea

Therapeutics Int’l, Ltd., 780 F.3d 597, 606–07 (4th Cir. 2015)

(internal brackets omitted) (quoting Am. Chiropractic Ass’n v.

Trigon Healthcare, Inc., 367 F.3d 212, 234 (4th Cir. 2004)); see

also Goines v. Valley Comty. Servs. Bd., 822 F.3d 159, 166 (4th

Cir. 2016) (permitting courts to “consider a document submitted

by the movant . . . so long as . . . there is no dispute about

the document’s authenticity”). Although “[t]he Fourth Circuit

has not definitively set forth a standard for deciding when a

document attached to a motion to dismiss should be considered

‘integral’ to a complaint,” it has relied on Second Circuit case

law to suggest that the “relevant inquiry . . . include[s]

whether the complaint’s ‘claims turn on, or are otherwise based

on, statements contained in the document.’” United States v.

Savannah River Nuclear Sols., LLC, No. 1:16-cv-00825-JMC, 2016

WL 7104823, at *6 (D.S.C. Dec. 6, 2016) (internal brackets and

ellipses omitted) (quoting Goines, 822 F.3d at 166); see also

Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002)

(explaining that a document is “integral to the complaint”

“where the complaint relies heavily upon its terms and effect”

(internal quotation marks omitted)), cited in Goines, 822 F.3d

at 166.

The court concludes that it may not consider Exhibit 2

or Exhibit 3 under this exception. First, the plaintiff

disputes the exhibits’ authenticity. See ECF No. 25 at 20.

Although, in its reply brief,3 the defendant goes to great

lengths in an attempt to demonstrate that the exhibits are

authentic, see ECF No. 28 at 4 (citing ECF No. 28-1 at 2–3), the

fact remains that the plaintiff disputes their authenticity,

3 Notably, because the defendant attempts to demonstrate the

exhibits’ authenticity for the first time in a reply brief, the

plaintiff has been deprived of an opportunity to respond to the

defendant’s arguments.

which, under Fourth Circuit precedent, prevents the court from

considering them, see Goines, 822 F.3d at 166; Zak, 780 F.3d at

606–07; Trigon Healthcare, 367 F.3d at 234.4

Second, the exhibits are not integral to the

complaint. Although the plaintiff’s complaint references the

exhibits in passing, see ECF No. 1 at 10, Count III is not based

on and does not turn on these documents. Count III brings an

imminent-and-substantial-endangerment citizen-suit claim, which

is statutorily authorized against a defendant whose past or

present management of hazardous waste “present[s] an imminent

and substantial endangerment to health or the environment.” 42

U.S.C. § 6972(a)(1)(B). The claim thus is based on and turns on

whether the defendant’s management of hazardous waste at the UCC

Tech Center presents an imminent and substantial endangerment,

not whether an agreement with or decision from the EPA says it

does. See Goldfarb v. Mayor & City Council of Balt., 791 F.3d

500, 505 (4th Cir. 2015) (“[C]laims under subsection (a)(1)(B)

4 Citing Verrier v. Sebelius, No. CCB-09-402, 2010 WL 1222740 (D.

Md. March 23, 2010), the defendant argues that the court may

consider extrinsic documents even if the plaintiff disputes

their authenticity if the defendant demonstrates their

authenticity in a reply brief. See ECF No. 28 at 4. In

Verrier, however, the defendant submitted a motion to dismiss

or, in the alternative, for summary judgment, and the court

considered the documents under the summary judgment standard

rather than the Rule 12(b)(6) standard. See Verrier, 2010 WL

1222740, at *1, 6–7, 12.

may be brought regardless of whether the plaintiff can

demonstrate that the defendant’s actions violated a specific

RCRA-based permit. The district court has authority to restrain

any person who has ‘contributed or who is contributing to the

past or present handling, storage, treatment, transportation, or

disposal of any solid or hazardous waste.’” (internal citation

omitted) (quoting 42 U.S.C. § 6972(a)); see also Goines, 822

F.3d at 166 (“Although the complaint included a few quotes from

and references to the [document], [the plaintiff’s] claims do

not turn on, nor are they otherwise based on, statements

contained in the [document].”)5

The defendant also argues that the court may consider

Exhibit 2 and Exhibit 3 because they are in the public record.

The Fourth Circuit has “recognized a narrow exception to [the

Rule 12(b)(6)] standard, under which courts are permitted to

consider facts and documents subject to judicial notice without

converting the motion to dismiss into one for summary judgment.”

Zak, 780 F.3d at 607. If a document is otherwise subject to

5 The defendant cites to a “higher standard,” Savannah River,

2016 WL 7104823, at *6, some courts have employed to determine

whether an extrinsic document is “integral,” namely, that the

document “‘by its very existence, and not the mere information

it contains, gives rise to the legal rights asserted,’” ECF No.

14 at 8 (quoting Chesapeake Bay Found., Inc. v. Severstal

Sparrows Point, LLC, 794 F. Supp. 2d 602 (D. Md. 2011)). The

defendant would not prevail under this standard.

judicial notice under Fed. R. Evid. 201, “a court [may]

consider[] relevant facts from the public record at the pleading

stage,” but “the court must construe such facts in the light

most favorable to the plaintiff[].” Id. Further, “whether a

fact [from the public record] properly is considered under this

exception depends on the manner in which a court uses” it. Id.

A court typically may not use the contents of a public record to

contradict the allegations of the complaint. See id. (citing

Clatterbuck v. City of Charlottesville, 708 F.3d 549, 558 (4th

Cir. 2013), abrogated on other grounds by Reed v. Town of

Gilbert, 576 U.S. 155 (2015)); see also Goldfarb, 791 F.3d at

511 (“[J]udicial notice must not ‘be used as an expedient for

courts to consider matters beyond the pleadings and thereby

upset the procedural rights of litigants to present evidence on

disputed matters.’” (quoting Waugh Chapel S., LLC v. United Food

& Com. Workers Union Local, 728 F.3d 354, 360 (4th Cir. 2013)).

Here, even if the court considered the exhibits, it

could not rule in the defendant’s favor. The defendant asks the

court to use the exhibits in an effort to establish that the

plaintiff cannot “credibly plead that [the defendant]’s handling

of hazardous wastes has created an imminent and substantial

endangerment to health or the environment.” ECF No. 14 at 17.

Doing so, however, would require the court to ignore its duty to

view the exhibits in the plaintiff’s favor. As the defendant

itself describes the exhibits, they state only that the

defendant agreed to implement measures with the goal of

eliminating human exposure to and environmental contamination

from hazardous waste and that EPA determined that a corrective

action plan will be protective of human health and the

environment. See id. Inferring from these exhibits that the

defendant has not created an imminent and substantial

endangerment to health or the environment would require the

court to view them in a light favorable to the defendant, which

the court may not do. See Zak, 780 F.3d at 607. Further, using

the exhibits as the defendant suggests would require the court

to rely on the contents of the exhibits to contradict the

allegations of the complaint and thereby resolve disputed

factual matters, which, again, the court may not do. See

Goldfarb, 791 F.3d at 511; Zak, 780 F.3d at 607; Waugh Chapel,

728 F.3d at 360; Clatterbuck, 708 F.3d at 558.

In sum, to the extent the court may consider the

exhibits the defendant submitted, the court concludes that doing

so does not allow the court to grant the defendant’s motion to

dismiss the RCRA-related claims.

C. Strict liability

Lastly, unlike in Courtland II, the defendant argues

that the plaintiff’s claim for strict liability must be

dismissed on the ground that heavily-regulated activities cannot

be abnormally dangerous as a matter of law because a pervasive

regulatory scheme presupposes that the activity can be conducted

in a manner that is not abnormally dangerous.6 See ECF No. 14 at

22–23.

As the court stated in Courtland II, “[w]hether an

activity or instrumentality qualifies as ‘abnormally dangerous’

is a question of law for the court,” and “[i]n determining

whether an activity is abnormally dangerous, courts must balance

six factors.” Mem. Op. & Order at 49, Courtland II, No. 2:19-

cv-00894 (citing, inter alia, Crum v. Equity Inns, Inc., 685

S.E.2d 219, 230 (W. Va. 2009) (per curiam)). Despite its

assertion that courts do not view heavily-regulated activities

as abnormally dangerous, the defendant fails to cite a West

Virginia authority that supports this proposition, and the court

is not aware of any. As in Courtland II, the parties do not

address the six-factor balancing test, and, given the court’s

6 In Courtland II, the defendant raised this argument only in

passing in its reply brief, see ECF No. 10 at 25-26; ECF No. 21

at 14, and the court did not address it in its memorandum

opinion and order.

limited ability to review and balance the six factors at this

stage and the requirement to draw all inferences in the

plaintiff’s favor, the court must deny the motion to dismiss the

strict-liability claim. See id. at 51–53.

D. Remaining Claims

As previously explained, the remaining claims in the

complaints and the parties’ arguments regarding them are

sufficiently similar to the corresponding claims and arguments

in Courtland II that the court’s treatment of the motion to

dismiss in Courtland II suffices for purposes of the current

motion, with the exception of the issues discussed above. More

specifically, as in Courtland II, the complaint here alleges

that the defendant has “caused the “release of toxic, noxious,

harmful and hazardous contaminants” from its property “into the

environment” and the plaintiff’s property.7 ECF No. 1 at 1–2.

And, as in Courtland II, based on these allegations, the

complaint asserts, aside from the RCRA-related and strict-

liability claims already discussed, claims for recovery of

response costs and declaratory relief under CERCLA, public

7 The plaintiff plausibly alleges that the presence, release, and

threatened continued release of acetone, 2-butanone, di-n-butyl

phthalate, arsenic, badium, cadmium, chromium, lead, and

selenium from the UCC Tech Center. ECF No. 1 at 13–19.

nuisance, private nuisance, negligence, negligence per se, and

gross negligence.

For the reasons set forth in the court’s memorandum

opinion and order in Courtland II, the court concludes that the

defendant’s motion to dismiss must be denied with respect to the

claims for response costs and declaratory relief under CERCLA,

public nuisance, private nuisance, negligence, and gross

negligence, and it must be granted with respect to the claim for

negligence per se.

III. Conclusion

For the foregoing reasons, it is ORDERED that the

defendant’s motion to dismiss (ECF No. 13) is granted as to

Count VII for negligence per se and denied as to all other

counts.

The Clerk is directed to transmit copies of this

memorandum opinion and order to all counsel of record and any

unrepresented parties.

ENTER: September 29, 2020

pi, L —<y—<

Jo . Copenhaver, Jr.

Senior United States District Judge

18