CHARLESTON – The West Virginia State University Board of Governors’ lawsuit against Dow Chemical alleging groundwater contamination has been removed to federal court.
Union Carbide Corporation; Bayer Corporation; Bayer Cropscience LP; Bayer Cropscience Holding Inc.; Rhone-Poulenc Inc.; Rhone-Poulenc AG Company; Rhone-Poulenc AG Company Inc.; and Aventis Cropscience USA were also named as defendants in the suit.
“This case is a quintessential federal dispute that can and should be heard in federal court,” the defendants’ notice of removal states. “Plaintiff…brings claims that directly challenge ongoing investigative and remedial activities by the United State Environmental Protection Agency.”
Based upon voluminous scientific reporters compiled over a period of years, the EPA has determined that any contamination beneath the WVSU campus poses no threat to health or safety and can be effectively addressed without remediation, according to the notice.
“Rather than accept the EPA’s expert judgment, however, plaintiff seeks to compel defendants to undertake a host of remedial actions that the EPA has rejected,” the notice states. “In effect, plaintiff is attempting to hijack the EPA’s statutory and regulatory mandate by collaterally attacking the EPA’s judgment in state court. Because the dispute is federal in character, it firmly belongs in federal court.”
The defendant states that federal law establishes a comprehensive statutory and regulatory framework that governs the contamination at issue; that the EPA has been conducting ongoing investigation and remediation activities at the Institute facility for decades; that WVSU and owners of property adjacent to the facility have cooperated with the EPA investigation for years; that the EPA and other experts have concluded there is no risk to human health; and that WVSU agreed with the EPA’s conclusions.
The defendants state that despite acknowledging there was no risk, WVSU continued to file its lawsuit.
Dow Chemical’s Institute plant has contaminated the groundwater under West Virginia State University with three likely carcinogens, yet it refuses to clean up the pollution and pay for the harm it has caused the university, according to a complaint filed April 27 in Kanawha Circuit Court and removed to federal court on July 7.
WVSU claims instead, Down seeks to force the costs of its pollution upon a small institution whose modest resources are already fully consumed by serving its students and its community.
“The law has no place for such greed and injustice,” the complaint states. “The university brings this action to compel Dow and others who operated the plant to clean up their mess and pay for the damage they have done.”
WVSU claims the Institute plant contaminants have continuously migrated from the Institute plant to the university’s property for many years and they continue to do so today and will continue to do so for the foreseeable future absent preventive measures.
The university has spent money and its officials have spent time investigating and responding to the Institute plant pollution and investigating and responding to the Institute plant pollution have also created a distraction, diminishing the university’s ability to carry out its missions of educating students and serving the community and region, as well as causing frustration, annoyance and inconvenience, according to the suit.
In a university press release, WVSU claims the contamination poses no health risks, as the campus does not use groundwater for its drinking water, however, the pollution threatens campus development plans and local and national reputation.
“Although the contaminants under our campus pose no current health risk, Dow still must be held accountable for the damage it has done to our property and reputation,” said University President Anthony L. Jenkins in a press release back in April. “Dow must restore our campus to the condition it was in before this contamination and help us address the harm this will do to our image locally and nationally. Dow also must compensate us for the loss of use of our property.”
Jenkins said the university was reluctant to resort to litigation, but Dow left them no choice.
The three contaminants have been found at “elevated levels” in the groundwater 15 to 50 feet beneath the campus.
The chemicals are 1,4-dioxane, 1,1-dichloroethane and chloroform.
WVSU is seeking compensatory, remedial and punitive damages. It is being represented by Brian A. Glasser, Samuel A. Hrko, Steven R. Ruby and Sharon F. Iskra of Bailey & Glasser.
The defendants are represented by Patricia M. Bello, Matthew A. Nelson and R. Scott Masterson of Lewis Brisbois Bisgaard & Smith; Floyd E. Boone Jr., Thomas A. Heywood and Roger G. Hanshaw of Bowles Rice; Michael W. Carey and David R. Pogue of Carey, Scott, Douglas & Kessler; and Joseph M. Price and Stephen F. Gandee of Robinson & McElwee.
U.S. District Court for the Southern District of West Virginia case number: 2:17-cv-03558