New Lawsuit Alleges Toxic Chemicals Entering Davis Creek, Kanawha River From Hidden Landfill, Violating Clean Water Act

A previously undisclosed landfill is allowing potentially toxic chemicals to enter Davis Creek in South Charleston and the Kanawha River, in violation of the Clean Water Act, a lawsuit filed in federal district court today alleges.

The landfill, known as the Filmont Waste Disposal Facility or the Filmont Landfill, is located alongside Davis Creek near where it meets the Kanawha River. It was operated by Union Carbide Corp. as early as the 1950s, into the 1980s, but few if any records were kept of what was sent there.

The Courtland Corp., a West Virginia-based landholding firm, has owned land adjacent to the landfill site since 2001, but only just found out about the dump in a 2019 deposition.

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Courtland alleges the landfill “has caused and is continuing to cause the discharge of toxic, noxious, harmful and hazardous pollutants into public waters of the State of West Virginia and into navigable waters of the United States.”

Union Carbide responded to a request for comment by saying that the company hasn’t been served with the complaint, so the company is not in a position to comment further at this time.

This is the third lawsuit against Union Carbide related to the Filmont Landfill but the first time the company has used the Clean Water Act to attempt to address the problem.

In August 2018, Courtland filed its first lawsuit against Union Carbide. A year earlier, the company conducted environmental sampling on its property and found elevated levels of pollutants such as arsenic, barium, cadmium, lead and selenium.

Near the end of an October 2019 deposition, Jerome Cibrik, remediation leader at Union Carbide, revealed that “another UCC facility” in “this general area north of the tracks” was causing contamination in some monitoring wells. The tracks are part of a rail yard, sometimes called the Massey rail yard or coal yard, also owned by Union Carbide.

In December 2019, Courtland filed a second lawsuit in the U.S. District Court for the Southern District of West Virginia, this time focused on the Filmont Landfill. The complaint alleges hazardous, toxic chemicals from both the rail yard and landfill are leaching into the soil, groundwater and surface water, and contaminating both their property and running into Davis Creek.

Courtland has not received any relief from these initial lawsuits and has now filed a third suit alleging the Filmont landfill is contaminating the surface water, in violation of the Clean Water Act.

Mike Callaghan, the attorney representing Courtland in these filings, said there are likely significant risks present at the site that need to be determined and dealt with, based on initial testing. But, he said, no one really knows what is buried there.

Sampling done in 2011 by Union Carbide in wells installed across Davis Creek from the Filmont Landfill site showed levels of 1,4-dioxane — a synthetic industrial chemical and likely human carcinogen according to EPA — at levels 177 times above the screening level. Results showed levels of arsenic, dioxane and lead at levels above EPA standards. Arsenic is a known carcinogen. Dioxane is an ether and likely carcinogenic, according to the EPA. The data also showed 1,4-dioxane appeared to have migrated past the creek.

“We need a bigger investigation into the site. You have to do that before you can do a health assessment,” he explained. “We are so far behind because Carbide has hidden this thing for so long, we don’t even know what else is sitting out of there. I think once you do some sort of risk analysis, I think you are going to find a significant risk.”

Callaghan is a former assistant U.S. attorney and secretary of the West Virginia Department of Environmental Protection. He said he wants Union Carbide to “stop it and clean it up so it’s not polluting any more.”

The Filmont Waste Disposal Facility is a part of the same nearly 31-acre parcel of real property also occupied by Union Carbide’s Massey rail yard in the city limits of South Charleston. The land is owned and operated by Carbide, and Dow Chemical, which bought Carbide in 2001.

The Clean Water Act (CWA), passed in 1972, made it unlawful to discharge any pollutant into navigable waters. It is enforced by the Environmental Protection Agency.

According to the EPA’s website, industrial, municipal, and other facilities must obtain permits if their discharges go directly to surface waters through the EPA’s National Pollutant Discharge Elimination System (NPDES) permit program.

Callaghan explained that he would like to see Carbide come in and clean up the dump, shipping the toxic material out to a landfill designed to handle toxic industrial waste.

“Everything that is in the Filmont Landfill needs to be tanked out,” he said. “There is no leachate control, no liner in this dump. This is like throwing a bunch of hazardous waste in a field by the river that is in the floodplain.”

The Filmont Landfill was never designed or constructed to contain the wastes put into it, today’s lawsuit alleges. “Consequently, toxic leachate and other pollutants have been seeping and discharging both directly to navigable waters and via groundwater to navigable waters.”

The waters affected by the landfill, according to the lawsuit, included Davis Creek, the Ward Branch, the North Drainage Ditch, and the South Boundary Creek (also known as the South Boundary Drainage Ditch). These surface waterways lead directly to the Kanawha River.

West Virginia Public Broadcasting initially reported on this developing story in August 2020. The federal courts unsealed a set of documents related to exactly what Union Carbide knew about the landfill in September, at the request of West Virginia Public Broadcasting and several conservation organizations, to reveal the company knew about the landfill going back years.

In one unsealed document, a 2010 PowerPoint presentation to the West Virginia Department of Environmental Protection, Carbide told the state agency it intended to “maintain the inactive landfill as it currently exists” while preventing “unacceptable risk to human health and the environment from site contaminants.”