CHARLESTON — A federal just partially denied Union Carbide's motion for a protective order in a 2019 case alleging the company's secret landfill contaminated ground and surface water.
Union Carbide filed the motion for a protective order last month regarding the deposition of Jerome Cibrik, a remediation leader at Union Carbide, arguing that the topics proposed by the plaintiff’s notice pertain to the Clean Water Act claim that the plaintiff had tried to bring in its supplemental complaint.
"In its response brief, the plaintiff argued that deposition topics related to the classification of the Filmont Site and the UCC Railyard as 'open dumps' were implicated by its Count V claim for judicial abatement of a public nuisance per se," the judge's order states.
A magistrate judge ruled that the plaintiff could not seek testimony related to floodplain permitting and ordered the deposition to be scheduled in early April and the plaintiff then objected to the magistrate's order.
The district judge found that the plaintiff's arguments were insufficient to show that the magistrate judge clearly erred in determining that the factual details comprising the county in the complaint do not concern floodplain permitting.
"The court perceives no clear error in the Magistrate Judge’s determination that Count V’s references to the statutes and regulations comprising the 'overarching statutory schemes' prohibiting open dumps do not permit the plaintiff to obtain discovery into the defendant’s compliance with the Clean Water Act or with particularized regulations concerning the discharge of pollutants into surface waters," the order states. "The fact that the plaintiff must resort to arguing that the particularized regulations are 'implicated' by its references to the general prohibitions on open dumps demonstrates that Count V fails to cite or otherwise reference those particularized regulations."
Courtland Company filed the lawsuit against Union Carbide in 2019, alleging that Union Carbide polluted two streams near Courtland property with its industrial landfill.
In the complaint, Courtland claims it didn't even know the Filmont Landfill existed until a deposition testimony was taken in a related lawsuit the year before.
"According to this testimony, the landfill's existence has not been disclosed to state or federal authorities as required by federal and state law," the complaint states.
The complaint alleges the landfill received wastes during the 1970s and 1980s from Union Carbide's chemical manufacturing facility.
Courtland filed a previous lawsuit against Union Carbide in 2018 for pollutants from the Union Carbide Tech Center that is near Courtland's property. The information regarding the Filmont Landfill was unearthed during depositions for that lawsuit.