UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-1712

WEST VIRGINIA STATE UNIVERSITY BOARD OF GOVERNORS,

Plaintiff - Appellee,

v. THE DOW CHEMICAL COMPANY; UNION CARBIDE CORPORATION; BAYER CORPORATION; BAYER CROPSCIENCE LP; BAYER CROPSCIENCE HOLDING, INCORPORATED; RHONE-POULENC, INCORPORATED, RHONE- POULENC AG COMPANY; RHONE-POULENC AG COMPANY, INC.; AVENTIS CROPSCIENCE USA, LP,

Defendants - Appellants.

Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. John T. Copenhaver, Jr., Senior District Judge. (2:17-cv-03558)

Argued: September 21, 2021 Decided: January 10, 2022

Before GREGORY, Chief Judge, NIEMEYER, and RICHARDSON, Circuit Judges.

Affirmed by published opinion. Chief Judge Gregory wrote the opinion, in which Judge Niemeyer and Judge Richardson joined.

ARGUED: Kasdin Miller Mitchell, KIRKLAND & ELLIS LLP, Washington, D.C., for Appellants. Benjamin James Hogan, BAILEY & GLASSER LLP, Morgantown, West Virginia, for Appellee. ON BRIEF: Douglas J. Kurtenbach, Nader R. Boulos, Daniel I. Siegfried, KIRKLAND & ELLIS LLP, Chicago, Illinois; Floyd E. Boone, Jr., BOWLES RICE, LLP, Charleston, West Virginia, for Appellants. Samuel A. Hrko, Victor S. Woods, Charleston, West Virginia, Brian A. Glasser, BAILEY & GLASSER LLP, Washington, D.C., for Appellee.

2 GREGORY, Chief Judge:

This case deals with groundwater contamination on land owned by West Virginia State University (“WVSU”), a historically Black university, which is adjacent to a 433- acre industrial park located in Institute, West Virginia that consists of a chemical manufacturing plant and wastewater treatment unit (the “Institute Facility”). The suit asserts several state and common law claims and seeks that Defendants adopt remedial measures, beyond those recommended by the U.S. Environmental Protection Agency (“EPA”), to address contamination on property owned by WVSU. On July 7, 2017, Defendants removed the action to federal district court invoking federal question jurisdiction, diversity jurisdiction, and federal officer jurisdiction pursuant to 28 U.S.C. §§ 1331, 1332, 1441, 1442, and 1446. On August 7, 2017, Plaintiff filed a motion to remand to state court. On June 1, 2020, the district court granted Plaintiff’s motion to remand. Dow Chemical appealed. We conclude that the district court did not err in holding that neither 28 U.S.C. §§ 1442 nor 1331 confer federal jurisdiction over WVSU’s claims. For the following reasons, we affirm the district court’s ruling.

I.

A.

In 1890, WVSU received a land grant from the U.S. Congress. Beginning in 1943, the Institute Facility was owned by the federal government who used it as a synthetic rubber production plant during World War II. J.A. 220. Then, in 1947, the Union Carbide Corporation (“UCC”) purchased the Institute Facility and began manufacturing various

3 hydrocarbon and agricultural products. J.A. 80–81. In May 2013, the West Virginia Department of Administration (“WVDA”) transferred the former West Virginia Rehabilitation Center (“Rehabilitation Center”) to WVSU, which extended WVSU’s property so that it was immediately adjacent to the Institute Facility. J.A. 83. The Rehabilitation Center is in the southeastern part of the campus with the Institute Facility immediately bordering it to the southwest and the Kanawha River to the south. 1 See J.A. 230; see also J.A. 270 (Map); J.A. 385 (Map). Between 1986 until 2015, the Institute Facility was owned and operated by various companies, including Rhone-Poulenc, Inc. (1986-2000), Aventis (2000-2002), and Bayer CropScience (2002-2015). J.A