Union Carbide is working with the West Virginia Department of Environmental Protection (WVDEP) on a voluntary remediation of the Filmont landfill. The site is the subject of an ongoing federal lawsuit over water pollution and was listed by EPA as a Superfund site.
The U.S. Environmental Protection Agency (EPA) said it is letting state officials supervise the cleanup of a South Charleston landfill and has no immediate plans to conduct an investigation of the site.
Union Carbide is working with the West Virginia Department of Environmental Protection (WVDEP) on a voluntary remediation of the Filmont landfill. The site is the subject of an ongoing federal lawsuit over water pollution and was listed by EPA as a Superfund site.
It was not, though, placed on the National Priorities List, which includes 1,300 of the nation’s most contaminated places, 11 of which are in West Virginia.
An adjacent property owner, Courtland Company, is seeking a $1.4 billion civil penalty against Union Carbide in the U.S. District Court for the Southern District of West Virginia. It also seeks an injunction that requires EPA supervision of the cleanup.
Senior Judge John T. Copenhaver Jr. has yet to rule on Courtland’s proposals. Union Carbide has asked Copenhaver to dismiss them.
Last September, Copenhaver ruled that the Filmont site was an illegal open dump under the Resource Recovery and Conservation Act and that the company violated the Clean Water Act by not seeking a wastewater discharge permit for the facility, which operated for three decades.
Filmont is adjacent to Davis Creek, a tributary of the Kanawha River.
At the time, Mike Callaghan, an attorney for Courtland, called the ruling a “David versus Goliath victory.” At its peak, the company employed 12,000 workers in West Virginia, making it one of the state’s largest.
Though some state and local officials knew about the landfill for more than a decade, its existence wasn’t publicly revealed until 2019 after Courtland first sued Union Carbide.
Union Carbide, a subsidiary of Dow Chemical, has said the site poses no imminent or substantial harm to the environment or human health. Union Carbide did not respond to a request for comment.
Terry Fletcher, a spokesman for the WVDEP, said the inclusion of Filmont in the Superfund database does not affect the ongoing voluntary remediation of the site. He added that the agency is coordinating with the EPA.
Kelly Offner, a spokeswoman for the EPA’s Region 3, which includes West Virginia, said the agency added Filmont to the Superfund Active Site Inventory in 2022, working with DEP.
She said the EPA has no immediate plans to conduct a preliminary assessment of the site.
“The EPA will continue to support the WVDEP on their site investigation,” she said.
The WVDEP appears to be deferring to Union Carbide on its investigation.
David Carpenter, a licensed remediation specialist who testified that WVDEP could complete the work faster than the EPA, is on Union Carbide’s payroll. He also testified that the Filmont site does not meet the criteria to be placed on the National Priorities List, which the EPA oversees.
Additionally, WVDEP project managers who perform oversight of the remediation work are paid by Union Carbide.
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.
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.
“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 state Department of Environmental Protection has filed a motion in federal court to intervene in a proposed settlement to limit mining pollutants in streams.
At the heart of the issue is the Guyandotte River and the alleged failure of the DEP to administer water testing and limits for ionic toxicity in 11 state streams that affect 100,000 people. As a result, conservation groups filed a lawsuit.
The state Department of Environmental Protection has filed a motion in federal court to intervene in a proposed settlement to limit mining pollutants in streams.
At the heart of the issue is the Guyandotte River and the alleged failure of the DEP to administer water testing and limits for ionic toxicity in 11 state streams that affect 100,000 people. As a result, conservation groups filed a lawsuit.
The U.S. Environmental Protection Agency has proposed to settle the lawsuit by agreeing to establish specific water quality standards for mining runoff. Environmental groups celebrated the settlement and said it will restore aquatic life and the health of the streams.
“The consent decree comes after decades of advocacy and legal action by the Sierra Club and its partners to compel the EPA to fulfill its obligations under the Clean Water Act,” the Sierra Club said in a statement.
However, on April 22, the DEP filed a motion to have a seat at the table, which possibly could change the direction of the proposed settlement. In the motion the DEP said its interest could not be adequately represented by existing parties in the lawsuit, i.e. the EPA.
“As the primary regulator of water quality in the State of West Virginia, the WVDEP is flummoxed as to why it has been kept in the dark regarding a proposed settlement which must have been months in the making,” DEP said in the motion.
The state organization also said it was “astounded” that the EPA had not mounted a defense against the allegations made by the environmental groups in the lawsuit.
State leaders have also questioned the EPA’s proposed settlement, including U.S. Sen. Joe Manchin D-W.Va.
“If the EPA has any legitimate water quality concerns, they should have worked with the West Virginia Department of Environmental Protection,” Manchin said in a statement. “Which knows our waterways better than the federal government ever will. Instead of collaborating with the state, it appears the EPA colluded with environmental groups to enter into a ‘sue and settle’ agreement that bypasses the regulatory process and expands federal authority without any accountability.”
The three environmental groups on the lawsuit are the Sierra Club of West Virginia, the Highlands Conservancy, and the West Virginia Rivers Coalition.
The proposed settlement is open for comments from the public until April 29.
In Pineville, West Virginia, a town of 500, residents filled up the front rows of the county courtroom recently. They came to hear the latest legal update on a battle some have been fighting for generations – securing clean water. Bobby Lee Keen and his wife Patsy attended the hearing. “How come they have people living like they’re in a third world country in the United States of America?” asked Bobby Keen.
In Pineville, West Virginia, a town of 500, residents filled up the front rows of the county courtroom recently. They came to hear the latest legal update on a battle some have been fighting for generations – securing clean water. Bobby Lee Keen and his wife Patsy attended the hearing.
“How come they have people living like they’re in a third world country in the United States of America?” asked Bobby Keen.
The Keens have lived in their house for 20 years, but they have never had clean drinking water. They say the only way they can drink the orange water that comes out of the faucet is by using it to make coffee.
Keen said the water quality has gotten worse in the last year, and he and his wife have had stomach issues and rashes. Other residents have reported similar symptoms.
And they’re not sure what could be causing it. Regardless, Keen believes one thing to be true.
“There’s something getting in that water,” he said.
One of the three places along the creek where water started coming out, and with it, a white stringy slime.
Courtesy of David Stover
A year ago, down the street from the Keens’ house, water started flowing out of the ground in the middle of a field, forming a pool. All that water led to a mold infestation in a nearby property owner’s house. The water had a rotten egg smell and white stringy slime.
Who Is Responsible?
Just below the surface of that pungent pool is an old mine, previously owned by the now-defunct Pinnacle Mining Company.
The West Virginia Department of Environmental Protection (EPA) tested the water and said that the results indicated that it had been polluted by the abandoned mine.
Nicolas Zegre, a Mountain Hydrologist at West Virginia University (WVU), said holes like the one in Pineville are known as artesian wells. They naturally push water from aquifers to the surface.
“When you start mining, the geologic layers, the below ground layers,” Zegre said. “You’re fundamentally changing how water is going to flow through the earth.”
Now, the pool of smelly, murky water has become a steady stream that flows into Indian Creek.
The DEP ordered Pinnacle to remedy the situation. When Pinnacle failed to act, it took the company to court.
There is one major problem here. Pinnacle Mining Company no longer legally exists. As part of its bankruptcy, the company’s assets and liabilities were sold. But to whom?
“That’s the million dollar question,” Matt Hepler, a scientist with Appalachian Voices, said.
Court documents show Pinnacle was, at least in part, bought by Bluestone Mining Resources and is owned by Gov. Jim Justice. However, Justice said Bluestone is not responsible.
Justice answered this question: “Many people along Indian Creek in Wyoming county are sounding the alarms about water contamination possibly coming from a mine that your company purchased, and now owns. As both the governor and the owner of said company is there anything you are planning on doing for these folks so that they can have clean drinking water?” by saying he is not responsible.
Photo Credit: WV Governor’s Office
“I’m all for them having good clean drinking water. But you can’t, you can’t blame me on this one,” Justice said at one of his regular press briefings. “The companies that we have are so distantly involved in this, it’s unbelievable. You know, the DEP is working on the issue.”
Hepler said this fits into a bigger context of the mess that ensues after a coal company goes bankrupt.
“They can’t even figure out, they’re arguing who that new owner is. So they’re not even sure. They’re just pointing fingers at each other,” Hepler said.
Which raises another big picture question.
“Who gets left holding the liability when these coal companies go out?” Hepler asked.
Will The Problem Be Fixed?
In court on April 4, the presiding Wyoming County Judge Derek Swope demanded the companies figure out who is responsible by their next court date in May.
Outside the courthouse, community members said they felt disappointed. Richard Altizer has been delivering water bottles to some of the residents affected by the water crisis. He and others were hoping the courts would have ordered Bluestone and Alpha Metallurgical Resources to cease all operations until they fixed some of the problems associated with Pinnacle’s abandoned mine.
Disappointed residents, some affected by the water crisis, leave the court room.
Photo Credit: Briana Heaney/West Virginia Public Broadcasting
“If that judge were to order that mines and the gas companies shut down until that is fixed they’d be out there tomorrow fixing it,” Altizer said.
In their lawsuit, the DEP and the man whose house was flooded, are asking for injunctive relief. They don’t want money for the damaged property or the health issues the water has caused, they only want what has been broken to be fixed. But residents are frustrated by what they say is a year of inaction.
“Now that the mine gets to operate, and the gas wells keep doing what they’re doing, everything’s hunky-dory with the poor people down here. And it’s frustrating,” Altizer said. “But like I said, we still got legal rights.”
The community is considering a class action lawsuit.
Richard Altizer has been delivering water bottles to community members paid for through crowd funding sites and city officials.
Photo Credit: Briana Heaney/West Virginia Public Broadcasting
Is The Water Toxic?
In the meantime, the question looms, is the water safe?
Grace Denver, an expert on water and its connection to people’s lives, works at WVU’s Center For Resilient Communities. She affirmed what residents have been saying about their everyday use of the water from contaminated wells.
“That can result in huge GI issues, skin rashes,” Denver said. “It can even lead to longer-term things like cancer and things like that.”
Patsy Keen brought photos with her to court in hoping to show someone involved in the legal process what the water was doing to her skin while she was routinely showering in it.
Photo Credit: Briana Heaney/West Virginia Public Broadcasting
Even though the DEP found the mine was the source of the contamination, it said the water quality passes all mine reclamation standards. But members of the community are skeptical. Terry Fletcher, with the DEP, said the agency is doing everything within its power to take on the issue.
“I know, there’s been kind of a narrative pushed out there that we’re only testing for one to two, three to four things when we’re testing for dozens and dozens of parameters,” Fletcher said.
But Hepler from Appalachian Voices said the tests that the department has done so far might not show the true water condition.
“Now when you test the water column, which is just to say test the water without any of that slime in it,” Hepler said. “The water has been coming back fine, according to West Virginia DEP standards.”
Hapler believes the water does pass mine reclamation standards, as well as Clean Water Act standards, but he said that even still that doesn’t translate to the water being safe.
And there is another set of data that is being ignored, said WVU’s Grace Denver.
“Community members are experts of their own lives,” Denver said. “And so I think like their lived experience of knowing, like recognizing the smell, noticing the color change in their community, and recognizing also if any rashes are appearing, or if they’re feeling funky, I think that is scientific knowledge. And I think that we should be taking these observations from the community a lot more seriously.”
For Bobby Keen, whose faucet still has orange water coming out, he said he isn’t angry at anyone, he just wants his family and community to have access to safe water.
**Editor’s Note: A previous version of this story said even though the DEP found the mine was the source of the contamination, it said the water quality passes all mine reclamation standards. It has been changed to: Even though the DEP found the mine was the source of what residents believe is contaminated water, it says the water quality passes all state water quality standards.
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.
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.
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.
Around sundown, residents said you used to hear a roar of frogs. Now it’s silent.
They said they have broken out in rashes and had medical symptoms they had never experienced before like frequent headaches and stomach aches.
The West Virginia Department of Environmental Protection filed a lawsuit against Pinnacle Mining, a defunct coal mining company that was bought by a company owned by Gov. Jim Justice. A hearing is scheduled for Wednesday at 1 p.m. in Pineville.
In the lawsuit, the DEP, accuses Pinnacle of discharging harmful chemicals into Indian Creek.
Around sundown, residents said you used to hear a roar of frogs. Now it’s silent.
They said they have broken out in rashes and had medical symptoms they had never experienced before like frequent headaches and stomach aches.
Along the creek bed, there are greasy pools, tongs of white slimy strings, and yellow foam. A woman who lives along the creek had 100 chickens die around the same time the frogs stopped singing.
Resident Richard Altizer said he doesn’t know what chemicals are causing the putrid sulfur smell that comes out of his neighbors well, but he knows it’s not natural. He said that someone should go to jail for poisoning people’s wells.
Altizer said he doesn’t trust the DEP even though in the lawsuit they filed the agency is requesting relief in the form of asking the companies to clean up the water sources and to prevent any more unauthorized discharges from entering the stream.
“It’s the DEP that is not protecting us like they were supposed to be,” Altizer said. “They did not protect us. And there will be no accountability.”
