Clean Water Act Story Archives - West Virginia Public Broadcasting

EPA Lists Union Carbide South Charleston Landfill As Superfund Site

An ongoing case in the U.S. District Court for the Southern District of West Virginia will determine whether Union Carbide, a subsidiary of Dow Chemical, will pay civil penalties.

This is a developing story and may be updated. The original story misstated the number of National Priorities List sites in West Virginia. It has been corrected.

The U.S. Environmental Protection Agency has listed a closed Union Carbide landfill in South Charleston as a Superfund site, joining some of the most contaminated places in the country.

An ongoing case in the U.S. District Court for the Southern District of West Virginia will determine whether Union Carbide, a subsidiary of Dow Chemical, will pay civil penalties.

Courtland, a property owner that sued Union Carbide, is seeking a $1.4 billion civil penalty against the company over pollution resulting from the dumping of toxic material. Courtland also has sought an injunction from the court that would put the cleanup under EPA supervision.

The Courtland and Union Carbide Filmont sites are directly beside Davis Creek and close to where the creek enters the Kanawha River.

Illustration by Eric Douglas

Last year, Senior Judge John T. Copenhaver Jr. found that the site, called the Filmont landfill, was an illegal open dump under federal law. He also found that Union Carbide violated the Clean Water Act by failing to seek a stormwater discharge permit for the facility.

Copenhaver dismissed two of Courtland’s four lawsuits against Union Carbide.

Last month, Union Carbide asked Copenhaver to reject the civil penalty and the injunction.

The company has said it’s pursuing a voluntary remediation with the West Virginia Department of Environmental Protection that would achieve the same goals as an EPA-supervised cleanup and would take less time to complete.

Pat McGinley, a law professor at West Virginia University who specializes in environmental law, said the Superfund listing could affect the outcome of the case.

“It brings EPA into the process of determining the appropriate remedial action,” he said, “obviously not what the defendant prefers.”

In a court filing dated April 30, Mike Callaghan, an attorney for Courtland, noted that the Superfund listing did not place the Filmont site on the National Priorities List. That list currently includes 1,340 of the most polluted sites across the country. Eleven are in West Virginia.

However, Callaghan noted that the EPA intends to conduct a preliminary assessment on the site, where Union Carbide had dumped various contaminants from the 1950s to the 1980s.

“Counsel is further exploring the significance of this site being listed under EPA’s Superfund Site Information and the impacts that may have on this litigation,” Callaghan wrote.

The Superfund program was created by Congress in 1980 after one of the most famous toxic sites in U.S. history, the Love Canal neighborhood in Niagara Falls, New York.

West Virginia Public Broadcasting has asked Union Carbide, the EPA’s Region 3 office and the WVDEP for comment.

Civil Penalty Of $1.4 Billion Sought In Union Carbide Landfill Case

Union Carbide has asked a federal judge to reject the proposed penalty, as well as Courtland’s proposed injunction under the Resource Conservation and Recovery Act.

Union Carbide has asked a federal judge to reject a proposed settlement over a landfill site in South Charleston.

Courtland, a real-estate company, has proposed that Union Carbide pay a civil penalty of $1.4 billion to settle a series of lawsuits over an inactive waste disposal site.

Last year, U.S. District Judge John T. Copenhaver Jr. ruled that the Filmont Landfill in South Charleston was an illegal open dump under federal law and that Union Carbide violated the Clean Water Act by failing to seek a permit for the site.

Union Carbide has asked Copenhaver to reject the proposed penalty, as well as Courtland’s proposed injunction under the Resource Conservation and Recovery Act.

That injunction would mean the U.S. Environmental Protection Agency would supervise the cleanup of the site.

Union Carbide is working with the West Virginia Department of Environmental Protection on a voluntary remediation plan. The company says Courtland’s proposal would delay the cleanup of the site.

Union Carbide cited testimony from David Carpenter, a licensed remediation specialist, that the voluntary program under DEP could get the site remediated by the end of 2026.

Carpenter testified that Courtland’s proposed injunction would extend the process by five to eight years.

The EPA’s program, the National Contingency Plan, is meant for sites that pose an imminent danger to the public, Carpenter said, and that the Filmont Landfill was not such a site.

Union Carbide operated the landfill for about 30 years, but its existence wasn’t widely known until a 2018 lawsuit in federal court in Charleston.

A landfill that discharges stormwater into navigable U.S. waterways must seek a permit under the Clean Water Act. Filmont is adjacent to Davis Creek, a tributary of the Kanawha River.

Union Carbide is a subsidiary of Dow Chemical.

Fayette Man Sentenced For Clean Water Act Violations

Michael Graves, 68, of Charlton Heights, has been sentenced to one year of incarceration, to be served on home confinement as part of a five-year term of federal probation, and fined $10,000. His company, West Virginia Environmental Services (WVES), was fined $500,000 and placed on corporate probation for three years. These sentences were handed down for violations to the Clean Water Act.

For years, toxic water pollutants including arsenic, hexavalent chromium, and selenium were allowed to flow into Jarrett Branch, a tributary of the Kanawha River near Alloy, West Virginia. The West Virginia Department of Environmental Protection issued several warnings to the owner of the landfill who allowed it to happen, but those warnings were ignored.

Now, Michael Graves, 68, of Charlton Heights, has been sentenced to one year of incarceration, to be served on home confinement as part of a five-year term of federal probation, and fined $10,000. His company, West Virginia Environmental Services (WVES), was fined $500,000 and placed on corporate probation for three years. These sentences were handed down for violations to the Clean Water Act.

According to court documents and statements made in court, Graves and WVES owned and managed an industrial waste landfill in Fayette County. Graves and WVES were paid more than $9.8 million from 2006 to 2020 to accept industrial waste and treat the resulting leachate. Leachate is a contaminated liquid that passes through a landfill and includes toxic materials. It must be properly treated prior to discharge into a stream or tributary. No new waste was accepted at the Fayette County landfill after 2008, so the sole remaining task of Graves and WVES was to collect and treat the leachate.

Graves and WVES failed to maintain the landfill’s leachate collection for several years beginning in at least 2016. This failure on the part of Graves and WVES caused the discharge of leachate that contained toxic water pollutants into Jarrett Branch.

Inspectors from the DEP repeatedly documented the illegal discharges into Jarrett Branch, resulting in numerous notices of violations issued to Graves and WVES. The Clean Water Act National Pollutant Discharge Elimination System (NPDES) permit for the landfill has since lapsed and has not been renewed.

“Mr. Graves and WVES continuously and repeatedly allowed discharges of untreated toxic industrial pollutants into the nation’s waters, despite having been paid millions of dollars to properly maintain the landfill,” U.S. Attorney Will Thompson said. “The defendants abused the public trust that accompanied the issuance of the discharge permit. This outcome, which includes the maximum possible fine against WVES, reflects the egregious nature and circumstances of the offenses and is necessary to promote respect for the law and to deter similar criminal conduct.”

Graves and WVES each pleaded guilty to one felony count of violation of the Clean Water Act on Feb. 22, 2023. Senior United States District Judge John T. Copenhaver, Jr. imposed the sentence.

Judge Sides With Union Carbide On Inspection, Testing Of Landfill

As part of its ongoing lawsuit against Union Carbide, the Courtland Company asked U.S. District Judge John T. Copenhaver Jr. to collect soil samples at UCC’s Filmont Landfill in South Charleston.

A federal judge has denied a company’s request to inspect and test property owned by Union Carbide.

As part of its ongoing lawsuit against Union Carbide, the Courtland Company asked U.S. District Judge John T. Copenhaver Jr. to collect soil samples at UCC’s Filmont Landfill in South Charleston.

This week, Copenhaver denied the request, siding with UCC. UCC had argued that Courtland would have access to the data it has collected as part of its voluntary remediation of the site, under the supervision of the West Virginia Department of Environmental Protection.

The trial is now in its penalty phase. In September, Copenhaver ruled that UCC violated the federal Clean Water Act by not having permits for stormwater discharge and that the landfill was an illegal open dump. UCC could face fines of $64,618 per day per violation.

The parties participated in an 18-day bench trial last year in the U.S. District Court for the Southern District of West Virginia, where Copenhaver is a senior judge.

Union Carbide, now part of Dow chemical, operated the Filmont landfill from the 1950s to the 1980s. The property borders Davis Creek, a tributary of the Kanawha River, and Courtland’s property in South Charleston.

Both companies may have to pay remediation costs, but only UCC faces potential civil penalties.

The case has been active since 2018. The general public had no knowledge of the Filmont Landfill until Copenhaver unsealed documents the following year that revealed its existence.

According to testimony in the trial, a handful of local officials and the state DEP were previously aware the landfill existed and was possibly contaminating soil and water in the area.

The next phase of the trial could take place early next year.

Next Phase In Federal Trial Will Determine Penalties For Union Carbide

The maximum penalty Union Carbide would pay for violating the Clean Water Act at a landfill it owns in South Charleston: $64,618 per violation per day.

A five year federal court case involving Union Carbide is moving into the next phase, and the company could have to pay pay a steep civil penalty.

The maximum penalty Union Carbide would pay for violating the Clean Water Act at a landfill it owns in South Charleston: $64,618 per violation per day.

In late September, the U.S. District Court for the Southern District of West Virginia ruled that the company has been in violation of the federal law since 2015. A landfill that discharges stormwater into navigable U.S. waterways must seek a permit under the Clean Water Act.

Union Carbide sought no such permit for the Filmont Landfill. The site is adjacent to Davis Creek, a tributary of the Kanawha River.

Union Carbide operated the landfill for about 30 years, but its existence wasn’t widely known until a 2018 lawsuit in federal court in Charleston.

The court also determined the Filmont Landfill was an illegal open dump under the Resource Conservation and Recovery Act. Union Carbide and Courtland Co., the plaintiff in the case, may both have to pay costs related to the cleanup of the site. Courtland’s South Charleston property is adjacent to Union Carbide’s.

The court will ultimately determine what penalty Union Carbide will pay, but added together, one violation over eight years could cost more than $188 million.

Union Carbide and Courtland will bring in expert witnesses to determine how many of those days Union Carbide was in violation.

Courtland has requested that the penalty phase of the trial take place in April 2024. The trial will determine other costs, including legal fees.

Union Carbide is a subsidiary of Dow Chemical.

More Than 300 Streams Missing From State’s Polluted List, EPA Says

The EPA has identified 346 streams in West Virginia that don’t meet water quality standards under the Clean Water Act, totaling 1,600 miles.

More than 300 streams are missing from a state database of polluted waterways.

The U.S. Environmental Protection Agency has identified 346 streams in West Virginia that don’t meet water quality standards under the federal Clean Water Act, totaling 1,600 miles.

They are missing from a list the Department of Environmental Quality must submit every two years to the EPA.

They include portions of the Guyandotte, Elk, Gauley, Big Coal, Little Kanawha, Tug Fork, Tygart and South Branch Potomac rivers, as well as Davis Creek near Charleston.

According to the West Virginia Rivers Coalition, the DEP uses an outdated methodology to measure biological impairment in rivers and streams.

The EPA is taking public comment on the issue through Oct. 18.