The Courtland Company, Inc. v. Union Carbide Corporation

• Court: Court of Appeals for the Fourth Circuit
• Decided: October 6, 2025
• Docket: 23-2143
• Status: Unpublished

Opinion

USCA4 Appeal: 23-2143 Doc: 83 Filed: 10/06/2025 Pg: 1 of 14

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 23-2143

THE COURTLAND COMPANY, INC., a West Virginia Business Corporation,

Plaintiff - Appellant,

v.

UNION CARBIDE CORPORATION, a New York Corporation,

Defendant - Appellee,

and

DOW CHEMICAL COMPANY, INC., a Delaware Corporation,

Defendant.

No. 23-2144

THE COURTLAND COMPANY, INC., a West Virginia Business Corporation,

Defendant - Appellee. USCA4 Appeal: 23-2143 Doc: 83 Filed: 10/06/2025 Pg: 2 of 14

No. 24-2077

THE COURTLAND COMPANY, INC., a West Virginia Business Corporation,

Defendant - Appellee.

No. 24-2078

THE COURTLAND COMPANY, INC., a West Virginia Business Corporation,

Appeals from the United States District Court for the Southern District of West Virginia, at Charleston. John T. Copenhaver, Jr., Senior District Judge. (2:18-cv-01230, 2:21-cv- 00101, 2:19-cv-00894, 2:21-cv-00487)

Argued: September 11, 2025 Decided: October 6, 2025

Before NIEMEYER, AGEE, and RICHARDSON, Circuit Judges.

Affirmed by unpublished per curiam opinion.

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Nos. 23-2143/2144. ARGUED: Michael O. Callaghan, NEELY & CALLAGHAN, Charleston, West Virginia, for Appellant. Daniel A. Leister, LEWIS BRISBOIS BISGAARD & SMITH LLP, Cleveland, Ohio, for Appellee. ON BRIEF: Michael C. Donovan, LAW OFFICES OF MICHAEL C. DONOVAN, Mountain View, California; John R. Till, Kirk M. Tracy, PALADIN LAW GROUP, LLP, Walnut Creek, California, for Appellant. R. Scott Masterson, Patricia M. Bello, Charleston, West Virginia, Martin A. Shelton, LEWIS BRISBOIS BISGAARD & SMITH LLP, Atlanta, Georgia, for Appellee.

Nos. 24-2077/2078. ARGUED: Michael Craig Donovan, LAW OFFICES OF MICHAEL C. DONOVAN, Mountain View, California, for Appellant. Martin Arthur Shelton, Atlanta, Georgia, Patricia M. Bello, LEWIS BRISBOIS BISGAARD & SMITH, Charleston, West Virginia, for Appellee. ON BRIEF: Michael O. Callaghan, NEELY & CALLAGHAN, Charleston, West Virginia; John R. Till, Kirk M. Tracy, PALADIN LAW GROUP, LLP, Walnut Creek, California, for Appellant. R. Scott Masterson, Charleston, West Virginia, Daniel A. Leister, LEWIS BRISBOIS BISGAARD & SMITH LLP, Cleveland, Ohio, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

The Courtland Company, Inc., a West Virginia corporation, commenced four

separate actions against Union Carbide Corporation, a New York corporation, contending

generally that Union Carbide conducted activities on its properties in South Charleston,

West Virginia, that polluted the groundwater and surface water on the contiguous property

of Courtland. Indeed, for years, Union Carbide had disposed of toxic waste into landfills

on its properties, contaminating both ground and surface water. But likewise, Courtland

had, for years, used its 13.8 acre parcel for various industrial activities, which likewise

polluted the groundwater and surface water on its property. Indeed, in the second action

commenced by Courtland, Union Carbide filed a counterclaim for response costs in respect

to pollution on Courtland’s parcel and for allocation of Courtland’s costs.

More particularly, Courtland owned a 13.8 acre triangular parcel (the Courtland

Property) that was used as a storage, staging, and waste site for various industrial activities.

To the south of its property and contiguous to it, Union Carbide owned a 574-acre parcel,

its Technical Center, on which it had for years dumped toxic wastes (the “Tech Park” site).

The Tech Park site was generally upgradient from the Courtland Property, as water

generally flowed northward into drainage ditches and streams, ending in the Kanawha

River further north. To the northeast of the Courtland Property was an additional Union

Carbide parcel, on which were the Filmont dump and the Massey Railyard (the

Filmont/Massey Property). Both sites also had toxic wastes on them. Courtland filed suit

against Union Carbide under federal environmental laws and related state law for its

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releases and threatened releases of toxic wastes and polluted groundwater, surface water,

and stormwater. The layout of the parcels are shown in the following trial exhibit:

Generally, the four actions filed by Courtland address (1) releases and threatened

releases of contaminants from the Tech Park, in violation of the Comprehensive

Environmental Response, Compensation and Liability Act (CERCLA) and the Resource

Conservation and Recovery Act (RCRA) and state law, and the parties and the district court

have denominated this action as “Courtland I”; (2) releases and threatened releases of

contaminants from the Filmont/Massey Property, in violation of the same laws, “Courtland

II”; (3) discharges of polluted water into drainage ditches on the north edge of the

Filmont/Massey Property, in violation of the Clean Water Act, “Courtland III”; and

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(4) discharges of polluted water into a drainage ditch on the boundary between the south

edge of the Filmont/Massey Property and the north edge of the Courtland Property, in

violation of the Clean Water Act, “Courtland IV”.

The district court consolidated the four actions and tried them in two phases. Phase

I was conducted to determine all liability issues, and Phase II, all remedy issues. After an

18-day bench trial on Phase I, the district court issued a 416-page opinion making thorough

and detailed findings of fact and conclusions of law on liability. Then, after a 3-day bench

trial on Phase II, the court issued a 79-page opinion, again making thorough and detailed

findings of fact and conclusions of law on remedies. In the end, the court ruled in favor of

each party in part. From the district court’s judgments, Courtland filed these appeals.

After reviewing the district court’s rulings, the briefs and arguments of counsel, and

the extensive joint appendices, which consisted of over 9,000 pages, we affirm the

judgments of the district court substantially for the reasons given by the district court.

I

In the first action that Courtland filed, Courtland I, Courtland alleged that

contaminated water from Union Carbide’s Technical Center or “Tech Park” Property

migrated to the Courtland Property, contaminating the groundwater there. In Count I,

Courtland sought recovery of response costs in the amount of $36,916.25 and a declaratory

judgment under CERCLA, 42 U.S.C. §§ 9607(a) and 9613(g), and in Count II, it sought

citizen-suit relief under RCRA, 42 U.S.C. § 6972(a)(1)(A). In the remaining counts, it

sought declaratory and injunctive relief under state law.

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The district court found as fact that groundwater from Union Carbide’s Tech Park

Property was not the source of Courtland Property’s groundwater contamination, citing the

groundwater flow systems between the two properties, its bedrock structure, and the

testimony of Union Carbide’s expert, whom it credited. Thus, the court denied all relief,

including relief under Courtland’s parallel state statutory claim.

In particular, with respect to Courtland’s claim for recovery of response costs, the

court agreed with Courtland that it satisfied the criteria of 42 U.S.C. § 9607(a) to qualify

for such costs. The court stated:

The court thus concludes that the $36,916.25 Courtland has incurred as a result of Dr. Simonton’s August 2017 preliminary investigation of the Courtland Property groundwater constitute necessary costs of response that are consistent with the [National Contingency Plan].

* * *

Indeed, such costs were incurred in direct response to Courtland’s concern that contaminants from Tech Park were migrating to the Courtland Property groundwater and were thus a “necessary” prerequisite to enable any potential “subsequent measures to ensure a CERCLA-quality cleanup, as CERCLA and the [National Contingency Plan] both contemplate.

But the court then turned to Union Carbide’s defense mounted under § 9607(b), which

provides a causation defense on which Union Carbide bore the burden of proof. To avoid

liability for response costs, Union Carbide would have to show, among other things, that

the release or threatened release of a hazardous substance was caused by “the act or

omission of a third party.” 42 U.S.C. § 9607(b)(3). Consistent with its factual findings on

Courtland I, the court found that Union Carbide carried its burden, stating:

Nevertheless, consistent with the findings and credibility determinations made with respect to the opinions of Mr. de Haven and Dr. Simonton set

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forth in Section II.I. at pages 40–50 herein, and in viewing the entirety of the evidentiary record, the court concludes that [Union Carbide] has demonstrated, by a preponderance of the evidence, that Tech Park is not the source of the constituents detected in Courtland’s groundwater.

See also Westfarm Assocs. Ltd. P’ship. v. Washington Suburban Sanitary Comm’n, 66 F.3d

669, 681–82 (4th Cir. 1995). Having found that Union Carbide successfully proved its

defense, the court rejected Courtland’s CERCLA claim for response costs of $36,916.25.

With respect to the remaining counts alleged in Courtland I, the district court

dismissed some and Courtland voluntarily dismissed the others. These others, however,

give rise to no additional issues before us.

On appeal, Courtland argues that the district court should have awarded it response

costs simply on the basis that it satisfied the statutory terms of § 9607(a). In making that

argument, however, it focused only on § 9607(a), an argument with which the district court

agreed. But Courtland failed to address why the court erred in finding that Union Carbide

proved its causation defense under § 9607(b).

In sum, we conclude that the district court’s findings of fact were supported by the

evidence and that therefore its denial of response costs was not erroneous. Based on the

same facts, the court also did not err in denying Courtland the relief it requested under the

RCRA and the parallel state statute.

II

In the second action, Courtland II, Courtland alleged — again in a multicount

complaint — that contaminated water migrated to the Courtland Property from Union

Carbide’s Filmont/Massey Property located to the northeast of the Courtland Property.

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Courtland again asserted claims under the CERCLA, the RCRA, and state law. Under

CERCLA, Courtland again sought recovery of its response costs in the amount of

$7,802.50 for a kayak inspection trip by its expert and the amount of $27,142.50 for a

preliminary groundwater investigation, as well as declaratory and injunctive relief.

Union Carbide filed a counterclaim under CERCLA, claiming response costs of

$199,942.52 for its investigatory borings conducted on the Courtland Property. It also

claimed contribution from Courtland to allocate any response costs that Courtland might

obtain, relying on 42 U.S.C. § 9613(f)(1) (authorizing the equitable allocation of response

costs).

The district court found that Union Carbide was liable to Courtland under CERCLA

and awarded Courtland $27,142.50 in recovery costs. But, it denied Courtland’s claim for

$7,802.50 in costs that Courtland claimed for a kayak inspection trip by its expert, finding

that it was irrelevant to Courtland’s CERCLA claim and therefore not a “necessary”

response cost, as required by CERCLA. See 42 U.S.C. § 9607(a). The court also found

that Union Carbide was liable to Courtland under the RCRA because its Filmont site was

an open dump. On Courtland’s request for injunctive relief, however, the court concluded

that Courtland had failed to show irreparable harm and denied that relief. The court

dismissed Courtland’s remaining claims, which alleged generally public nuisance and

negligence.

On Union Carbide’s counterclaim, the court denied its request for response costs of

$199,942.52, but it granted Union Carbide contribution of 25% — $6,785.63 — in respect

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to Courtland’s response costs. It concluded that 25% was a fair amount for Courtland to

bear in view of its own activities that contaminated its own property.

On appeal, Courtland challenges the district court’s ruling (1) denying

reimbursement for the kayak trip; (2) granting Union Carbide contribution of 25%;

(3) denying its request for injunctive relief, and (4) dismissing its public nuisance claims.

Again, the district court’s rulings were based on its findings of fact, which Courtland

has not shown to be clearly erroneous. With respect to the rejection of the kayak costs, the

district court reasoned that the investigative activities, which consisted of surface water

and sediment sampling “significantly downstream” (north) of the Courtland Property, were

too attenuated from the groundwater migration concern that animated Courtland’s

CERCLA claim. It concluded, therefore, that the kayak trip expenses were not a

“necessary” response cost under CERCLA. We conclude that the district court’s finding

that the costs incurred in investigating hazardous releases downstream from Courtland’s

property and in non-adjacent waterways were not a “necessary” response cost was neither

clearly erroneous nor error.

With respect to contribution, the district court found that “both historic uses of and

ongoing industrial operations at the Courtland Property [were] contributing sources to its

groundwater contamination” and that Courtland’s contribution to the contamination

provided a solid basis to equitably allocate costs. Again, we cannot find that the district

court clearly erred in its findings of fact or abused its discretion in making the equitable

allocation.

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With respect to the district court’s denial of injunctive relief under the RCRA, the

district court found that Courtland had failed to demonstrate irreparable injury. It

concluded, as a factual matter, that the risks posed by groundwater contamination from the

Filmont site were most limited as (1) there were no known groundwater wells within a mile

of the Filmont site, (2) there was no evidence that contaminated groundwater from Filmont

could reach residential areas, (3) the area encompassing the Filmont and Courtland sites

was subject to an ordinance prohibiting the use of untreated groundwater, and (4) no one

on either the Filmont site or the Courtland Property was utilizing or planning to utilize the

groundwater. Courtland has not disputed these facts, and we conclude therefore that the

court’s findings were not clearly erroneous. And it follows that the court did not abuse its

discretion in denying injunctive relief.

Finally, with respect to the nuisance claims, the court held that the Filmont site is

not a public nuisance per se under West Virginia law and concluded that Courtland had

failed to provide evidence of harm to the general public in need of abatement. Again, we

agree.

In short, we affirm the district court across the board on Courtland II.

III

In the third action, Courtland III, Courtland alleged that Union Carbide discharged

pollutants from its Filmont site into drainage ditches at the north end of the Filmont/Massey

Property that empty into creeks and ultimately navigable waters, in violation of the Clean

Water Act, 33 U.S.C. §§ 1311 and 1342.

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The district court dismissed the action, however, finding that Courtland lacked

standing to bring the claim. It found that any discharge into the drainage ditches at the

north end of Union Carbide’s Filmont/Massey Property could never reach the Courtland

Property because the ditches were downstream from the Courtland Property and Courtland

could not demonstrate that water flowed uphill to reach its property. Moreover, the court

held that Courtland had not demonstrated that it had a sufficient environmental interest in

the area of the alleged discharge.

On appeal, Courtland contends that the district court erred, arguing that it had a

broader environmental interest in the area, which gave it standing. But we note, as the

district court found, Courtland provided no evidence of its broader interest as argued. As

the court explained, the plaintiff would have to show that Union Carbide’s discharges

directly impacted a concrete interest or had prevented specific activities in the affected

area. See Friends of the Earth v. Laidlaw Env’t Servs., Inc., 528 U.S. 167, 183–84 (2000);

Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149, 156–61 (4th

Cir. 2000).

IV

Finally in Courtland IV, Courtland alleged that Union Carbide discharged pollutants

from its Filmont/Massey Property into a drainage ditch at the south end of its property,

which is contiguous to the Courtland Property. Courtland alleged that the discharges were

made with groundwater, surface water, and stormwater, in violation of the Clean Water

Act.

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The district court dismissed Courtland’s claims that Union Carbide discharged

pollution through groundwater and surface water, finding as fact that, given the “historical

and current uses of the Courtland Property,” Courtland “very probably polluted” its own

groundwater and was “at least as likely” as Union Carbide to have been the source of the

surface water pollutants. The court, however, found that Courtland did prove three

discharges of polluted stormwater without a permit, in violation of the Clean Water Act.

Courtland presented evidence during the Phase I trial that stormwater was discharged from

the Filmont/Massey Property into the ditch three times without a permit. During the Phase

II trial, however, Courtland sought to introduce rainwater records to prove a wider range

of violations. The court rejected Courtland’s effort, explaining that Courtland should not

be given a second chance during the Phase II trial for proving liability, as that Phase was

conducted solely to determine remedies. Accordingly, the court considered only the three

discharges that Courtland proved during Phase I, and with respect to those discharges, the

court imposed the maximum civil penalty on Union Carbide under the Clean Water Act,

totaling $200,136.

On appeal, Courtland contends that the civil penalty should have been for every day

that Union Carbide did not have a permit to discharge stormwater instead of for every day

that there was an actual discharge. Courtland’s argument, however, would allow for a

civil penalty on days that there was no discharge, contrary to the Act’s language. See

33 U.S.C. §§ 1311(a), 1342(a)(1). The district court thus correctly read the statute to

provide for civil penalties for every unpermitted discharge, not for every day that Union

Carbide did not have a permit. See id.

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Courtland also challenged the district court’s discretion in rejecting Courtland’s

effort to provide evidence of more discharges during Phase II. In the circumstances where

the court established a comprehensive procedural course for disposing of all of Courtland’s

claims in an orderly manner, we cannot conclude that the court abused its discretion in how

it managed the cases. Neither party objected to the court’s decision to try the cases in two

phases.

At bottom, in disposing of these four actions, the district court conducted two trials

for a total of 21 days and made findings of fact and conclusions of law in memoranda

covering some 495 pages. The court was thorough and detailed, rational, and patient, and

we find no challenged factual finding to be clearly erroneous. Nor do we conclude that the

court erred in making any challenged legal conclusion. Accordingly, we affirm the

judgments of the district court.

AFFIRMED