West Virginia State University Board of Governors v. The Dow Chemical Co., No. 20-1712 (4th Cir. 2022)Annotate this Case
The federal government used the 433-acre Institute Facility for synthetic rubber production during World War II. In 1947, UCC purchased the Facility and began manufacturing hydrocarbon and agricultural products. In 1986-2015, the property was owned and operated by various companies, before ownership returned to UCC, a subsidiary of Dow Chemical. In 1984, UCC applied for a permit to operate hazardous waste management units, under the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 6901. The EPA published a report documenting groundwater contamination at the Facility. Since 1988, as part of the permitting process, the EPA instituted corrective actions at the Facility to address groundwater contamination. In 2013, the West Virginia Department of Administration transferred land to West Virginia State University (WVSU), so that WVSU was immediately adjacent to the Facility. WVSU refused to sign an environmental covenant agreeing not to use the groundwater and ultimately filed suit in state court, asserting state and common law claims and seeking remedial measures, beyond those recommended by the EPA.
Defendants removed the action to federal court invoking federal question jurisdiction, diversity jurisdiction, and federal officer jurisdiction, 28 U.S.C. 1331, 1332, 1441, 1442, and 1446. The Fourth Circuit affirmed a remand to state court. Defendants were not “acting under” the “subjection, guidance, or control” of the EPA. There is no federal question jurisdiction, 28 U.S.C. 1331, over WVSU’s state claims because they neither challenge an EPA-directed CERCLA “cleanup” under nor arise from RCRA remedial measures and, thus, are not preempted.