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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.

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.

Courtland Calls Union Carbide Ruling A ‘David Versus Goliath Victory’

A company that took Union Carbide to court over a hazardous waste dump celebrated a favorable ruling from a federal judge.

Courtland Company, which sued Union Carbide beginning in 2018, called the outcome a “David versus Goliath victory.”

Late last week, U.S. District Judge John T. Copenhaver Jr., in a 400-page decision, found that Union Carbide had violated federal law by creating an illegal open dump in South Charleston.

In testimony last year in Charleston, Courtland’s lawyers showed evidence that Union Carbide had dumped toxic substances in the landfill over a 30-year period and had not sought any permits from the state or federal government.

Testing revealed the presence of contaminants in Davis Creek, a tributary of the Kanawha River.

If Copenhaver’s ruling stands, Union Carbide will pay for the cleanup of soil and water contamination and could face civil penalties under the Clean Water Act.

In a statement, Union Carbide, a subsidiary of Dow Chemical, noted that Copenhaver dismissed two of four pending lawsuits against it.

The company added that it is working with the West Virginia Department of Environmental Protection to clean up the Filmont Landfill under the department’s Voluntary Remediation Program. That effort began before last year’s trial and continues today, the company said.

Federal Judge Rules Against Union Carbide In South Charleston Landfill Case

A federal judge in Charleston has ruled against Union Carbide, ordering the company to pay for the cleanup of a hazardous materials site in South Charleston.

This story has been clarified to reflect that the penalty phase of the trial will take place at a later date.

A federal judge in Charleston has ruled against Union Carbide, finding the company in violation of federal law over a hazardous materials site in South Charleston.

Judge John T. Copenhaver Jr., of the U.S. District Court for the Southern District of West Virginia, in a 400-page ruling dated Sept. 28, said Union Carbide is responsible for the cleanup of the Filmont site, where numerous hazardous substances were dumped from the 1950s to the 1980s, under the federal Superfund law, or CERCLA.

Copenhaver ruled the Filmont site violated the Resource Conservation and Recovery Act, creating an illegal “open dump.” Union Carbide also violated the federal Clean Water Act, which required the company to seek a permit from the U.S. Environmental Protection Agency for stormwater runoff from an adjacent railyard it owns.

Copenhaver’s ruling mostly favors the Courtland Company, which had first sued Union Carbide in 2018 over contamination of its property from the Union Carbide landfill and railyard.

Copenhaver dismissed two of the pending lawsuits against Union Carbide. And he also ruled that Courtland is responsible for cleaning up contamination on its South Charleston property that was not caused by Union Carbide.

Both properties are adjacent to Davis Creek, a tributary of the Kanawha River. The Filmont landfill is located in the city of South Charleston, down the hill from the Union Carbide Tech Center, which is also on the Superfund list, and across Davis Creek from where the West Virginia Division of Highways is performing major construction on the Jefferson Road interchange.

The penalty phase of the trial will take place at a later date.

The case was the subject of an 18-day trial in Charleston last year.

Union Carbide had argued that it was not required to remediate the site under CERCLA, the site was not an “open dump” and it was not required to seek a permit from the EPA.

Copenhaver, 98, is one of the last active federal judges nominated by President Gerald Ford. Copenhaver was confirmed to the federal bench in 1975.

Union Carbide is a subsidiary of Dow Chemical.

View previous reporting on this issue from West Virginia Public Broadcasting here.

Witness: Union Carbide Landfill Leaking Toxics ‘As We Speak'

An adjacent property owner, Courtland Co., has sued Union Carbide four times since 2018 alleging contamination from the Filmont landfill.

Union Carbide’s Filmont landfill in South Charleston is discharging 17,000 gallons a day of water that includes multiple hazardous pollutants.

That’s what Marshall University Professor Scott Simonton told the U.S. District Court in Charleston on Wednesday.

The discharge is polluting Davis Creek, a tributary of the Kanawha River, Simonton testified.

“It’s not even imminent,” he said. “It’s happening right now as we speak, those contaminants are oozing into Davis Creek.”

Previously, a remediation specialist for Union Carbide testified that there are no hazardous materials in the Filmont landfill.

However, an attorney for the company, a subsidiary of Dow Chemical, revealed in court that anyone who enters the site must have hazardous materials training.

An adjacent property owner, Courtland Co., has sued Union Carbide four times since 2018 alleging contamination from the Filmont landfill.

The West Virginia Department of Environmental Protection and the city of South Charleston knew Union Carbide was monitoring the site about a decade before it was revealed publicly.

On Tuesday, Simonton testified that the ecological and human health risk assessments Union Carbide performed in 2014 and 2015 were “junk.”