PFAS, known as “forever chemicals,” are manmade chemicals used in an array of industrial processes and consumer products. They linger in the environment and pose a risk to human health.
The Washington Works facility discharges industrial process water and stormwater into the Ohio River and its tributaries, according to a 2018 permit it received under the Clean Water Act.
According to the EPA, the amount of PFAS in the water discharged from the facility exceeds the limits allowed by the permit.
Water can be treated to remove PFAS. The EPA’s order requires Chemours to do that, as well as to monitor the discharge water to further understand the presence of PFAS in it.
This is the EPA’s first enforcement action involving PFAS. The Washington Works facility was formerly operated by DuPont.
A new rule from the EPA gives the agency more power over intrastate bodies of water, but Attorney General Patrick Morrisey is calling it federal overreach.
A new rule from the Environmental Protection Agency (EPA) gives the agency more power over intrastate bodies of water, but Attorney General Patrick Morrisey is calling it federal overreach.
The rule defines waters protected under the Clean Water Act. It expands the EPA’s authority over intrastate bodies of water like lakes, ponds, streams and wetlands.
The rule’s text says it “ensures critical protections for the nation’s vital resources, which support public health, environmental protection, agricultural activity and economic growth.”
Morrisey called the rule federal overreach during a press conference Thursday afternoon, arguing it takes jurisdiction away from states and would negatively affect economic and job growth, and that smaller bodies of water should be regulated differently than larger rivers. He says it could affect farmers, developers or other property owners who want to utilize waterways on their land.
“When you look at the way the rule is structured, we are very concerned once again, that this is targeting ephemeral streams, or even your backyard ditch,” Morrisey said.
The rule is set to go into effect March 20, sixty days after its original publication in the federal register. The lawsuit is set to be filed in North Dakota, with West Virginia joining 23 other states.
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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The cover page of the lawsuit filed in federal district court.
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.
An illustration from the lawsuit, identifying the location of the landfill owned by Union Carbide Corp.
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.”
A federal judge has ruled a coal company owned by the family of West Virginia Gov. Jim Justice is liable for more than 3,000 violations of federal clean water standards stemming from pollution discharged from a coal mine in southern West Virginia.
In a motion issued Monday, U.S. District Judge David Faber ruled Bluestone Coal Corporation discharged selenium at the Red Fox Surface Mine in McDowell County many times at levels above its permitted allowances from July 2018 to March 2020. Selenium is a chemical element found in coal that accumulates in the body and has been linked to growth deformities and reproductive failure in fish.
Data submitted by the company to regulators showed 60 violations of its monthly average limit for
selenium and 78 violations of its daily maximum limit for selenium. Under the Clean Water Act, each violation of a monthly average limit is treated as a violation for every day in the month in which the violation occurred, rather than as a single violation for that month. In total, Faber found Bluestone was liable for 3,033 days of violations of the Clean Water Act.
Faber also ruled that the company violated its permit under the federal Surface Mining Control and Reclamation Act 183 times.
The lawsuit was brought by four environmental groups — the Ohio Valley Environmental Coalition, West Virginia Highlands Conservancy, Appalachian Voices and the Sierra Club — under the citizen suit provision of the Clean Water Act.
Last month, Faber rejected Bluestone’s request to have the lawsuit dismissed. The company argued a 2016 settlement deal reached with the Environmental Protection Agency precluded environmental groups from suing over the selenium pollution.
In his opinion, Faber noted enforcement under the Clean Water Act is set up to be simple, and Bluestone’s own data showed repeated violations.
If and how much Bluestone should pay for violating the Clean Water Act, as well as if they will be required to install selenium treatment systems at the mine, will be decided at trial.
According to the document, the company has already paid $278,000 in penalties for selenium violations at the mine occurring from July 2018 to June 30, 2019.
Environmental groups are seeking additional penalties for the selenium pollution. In previous court filings, the groups estimate the maximum civil penalty under the Clean Water Act for Bluestone’s violations could top $160 million.
A request for comment from Bluestone or its lawyers listed on the court docket was not immediately returned. In a response filed with the court, Bluestone’s lawyers argued a pending modification to its pollution discharge permit by the West Virginia Department of Environmental Protection, if it had been in place, would have placed three of the four places where selenium is entering the environment into compliance.
The company further argued the levels of selenium being leaked from the mine “show there was no harm to the aquatic life under DEP’s standards.”
A federal judge has denied a request by coal companies owned by the family of West Virginia Gov. Jim Justice to dismiss a lawsuit over selenium violations at a southern West Virginia coal mine.
The Ohio Valley Environmental Coalition, West Virginia Highlands Conservancy, Appalachian Voices and the Sierra Club in sued Bluestone Coal Corporation in August 2019, using the citizen lawsuit provision of the Clean Water Act.
The groups alleged that the Justice companies were discharging selenium at the Red Fox Surface Mine in McDowell County at levels that violated federal mining permits. Selenium, a chemical element found in coal that bioaccumulates, has been linked to growth deformities and reproductive failure in fish.
According to court documents Bluestone reported 107 violations since July 2018 — 42 violations of its average selenium limits and 65 violations of its maximum selenium limits. The company paid $278,000 in fines. But environmental groups argued the company should be subject to millions more in civil penalties.
Bluestone and its affiliates, including Red Fox’s operator Southern Coal Corporation, disagreed. They urged the court to dismiss the lawsuit, arguing that the Justice coal companies are being monitored by federal environmental regulators under a 2016 agreement.
Between 2009 and 2014, 27 Justice coal companies accumulated more than 23,000 water pollution violations at mines in West Virginia, Virginia, Tennessee, Kentucky and Alabama. The companies reached a settlement deal with the Environmental Protection Agency that included a $900,000 civil penalty and an agreement to implement an estimated $5 million in pollution control measures.
The deal also required the Justice companies to provide quarterly pollution reports to regulators. Selenium was not a pollutant covered under the agreement, court documents note.
Bluestone argued that because of the 2016 agreement with the EPA, also known as a consent decree, environmental groups could not bring a citizen lawsuit against them over the selenium pollution. They argued the lawsuit “would create undue interference” with the federal deal.
In his opinion issued Wednesday, U.S. District Court Judge David Faber disagreed. In his 29-page ruling, he sided with environmental groups and questioned whether the 2016 EPA agreement did enough to prevent the Justice coal companies from polluting.
The company “continues to be in consistent non-compliance with the terms of its selenium permits despite facing these general penalties for violations and repeat violations,” wrote Faber, who sits on the bench of the U.S. District Court in the Southern District of West Virginia.
The consent decree’s penalties, he continued, “have not remove[d] or neutralize[d] the economic incentive to violate” the environmental regulations related to selenium.
A request for comment from Bluestone or its lawyers listed on the court docket was not immediately returned.
Environmental groups are seeking additional penalties for the selenium pollution. In court filings, the groups estimate the maximum civil penalty under the Clean Water Act for Bluestone’s violations could top $160 million.
In an emailed statement, Vivian Stockman, executive director of the Ohio Valley Environmental Coalition praised the court’s decision to allow the case to proceed.
“The opinion underscores why it is so important to maintain fair and impartial courts as an independent branch of government,” she said. “Not even our billionaire governor is above the law and his businesses must be held accountable for polluting our waters.”
Federal environmental regulators finalized a rule Monday that reduces the time states have to approve federal permits for energy projects.
The Environmental Protection Agency finalized changes to a portion of the Clean Water Act called Section 401.
For decades, it has given states and tribes the power to review new projects to make sure they don’t harm local waterways. Under the law, states also had the power to withhold approval and set special conditions. In West Virginia, for example, the rule allowed environmental regulators to revoke and then reissue a permit for the Mountain Valley Pipeline. Section 401 has been used by some states, like New York, to prevent new pipelines from being built.
In a press release, the EPA said some states abused the law, using it to stall energy projects, and the new rule, which sets a one-year time limit for states to approve or reject projects, is returning the law to its original intention.
“EPA is returning the Clean Water Act certification process under Section 401 to its original purpose, which is to review potential impacts that discharges from federally permitted projects may have on water resources, not to indefinitely delay or block critically important infrastructure,” said EPA Administrator Andrew Wheeler.
Under the adjusted rule, states are also now only able to consider water quality impacts, not a project’s impacts on things like climate change.
Environmental groups opposed the rule change.
In a statement, Jon Devine, director of federal water policy at the Natural Resources Defense Council said the rule was a mistake and infringes on states’ rights.
“Enforcing state and federal laws is essential to protecting critical lakes, streams, and wetlands from harmful pollutants and other threats,” he said. “But the Trump administration’s rule guts states’ and tribes’ authority to safeguard their waters, allowing it to ram through pipelines and other projects that can decimate vital water resources.”
