Dow Chemical Story Archives - West Virginia Public Broadcasting

WVSU Lawsuit Against Union Carbide A Mistrial

A mistrial was declared Monday in a lawsuit filed by West Virginia State University (WVSU) against Dow Chemical after a hung jury.

WVSU filed the suit in 2017, alleging that Union Carbide, a subsidiary of Dow Chemical, polluted groundwater in and around the campus. The trial had closing arguments on Friday, but by Monday the jury was already at an impasse.

In notes provided to the judge by jurors, one of the jurors became hostile, causing a breakdown in the jury’s ability to come to a consensus. According to the notes the juror was being “confrontational” and “offensive” to some of the other jurors.

The Location

Institute is an unincorporated area that lies between the city of Dunbar, home to WVSU and the Union Carbide Chemical Plant.

A map provided by a independent contractor to the EPA on ground water contamination by Union Carbide.
*CH2M Hill East Property Boundary Investigation page 2.*

This unincorporated area is home to a Resource Conservation and Recovery Act cleanup site, overseen by the U.S. Environmental Protection Agency. RCRA is a 1976 law that requires the cleanup of hazardous materials.

A timeline of events.
*Briana Heaney/West Virginia Public Broadcasting*

The Argument

WVSU says that toxic pollution created by Dow Chemical subsidiary, Union Carbide, is polluting properties owned by WVSU. WVSU claims this pollution makes it more costly for the university to expand because it will have to spend millions to make areas affected by pollutants safe for residential and nonresidential use.

Dow says the company is not responsible, and the Institute Plant site poses no health risks to the community, including its neighbor WVSU.

“Dow Chemical’s Institute Plant has contaminated the groundwater under West Virginia State University with three likely carcinogens, yet Dow refuses to clean up the pollution and pay for the harm,” the plaintiff, WVSU’s Board of Governors, said in the lawsuit.

The EPA found benzene, chlorobenzene, chloroform, carbon tetrachloride, and tetrachloroethene in the ground water at the site. EPA’s remedy requires land and groundwater use restrictions for activities that may result in exposure to those contaminants. Ground water systems are interconnected and do not stop at property boundary lines.

In the court filing, WVSU said Dow is aware of the damage its subsidiary, Union Carbide, has done to the air and ground water.

“Dow admits that the pollution under the university’s property is so serious that no one can live in the polluted area, or even work or study there without special protective measures,” WVSU said in a response to Dow’s motion to dismiss.

The filing states that Dow — not the university — says the WVSU’s property has been so severely damaged that no one can live where the contamination has spread to, and any building on the property requires barriers to block toxic fumes.

Dow refutes this.

“The Institute site poses no health risk to the community, including WVSU, and the data supports this conclusion,” Union Carbide Media Relations said in an emailed statement. “WVSU has repeatedly made the same assertion. UCC (Union Carbide Corporation) has met, and will continue to meet and exceed, all of its remediation commitments with oversight from the U.S. EPA and the WVDEP.”

Dow has been Union Carbide’s parent company since 2001. Dow says it is not responsible for Union Carbide’s every liability. In particular, it’s not necessarily responsible for these instances of Union Carbide’s alleged pollution at the company’s Institute Plant.

“Dow never owned or operated the Institute Plant, foreclosing any argument that Dow may be held directly liable,” Dow said in a court filing.

West Virginia State University can move forward with the litigation by going back to square one, starting a new trial with new jurors in Kanawha Circuit Court. A new date will be established by the circuit court.

Dow Chemical declined an interview request. However, it said in an emailed statement that there are no health risks to the community, including West Virginia State University.

The university and its law firm, Bailey and Glasser, declined to comment on the ongoing litigation.

Dow Chemical Workers To Return To Work

Striking workers at the Union Carbide Plant, owned by Dow Chemical, in South Charleston, have agreed to return to work.

Approximately 77 members of International Association of Machinists and Aerospace Workers (IAM) Local 598 (District 54) have voted to ratify an improved contract offer and end their strike at the employer according to a press release from the union.

On Oct. 21, the union went on strike for better wages and benefits.

“Congratulations to the membership of IAM Local 598 for standing strong for the contract they deserve,” said IAM District 54 President and Directing Business Representative T. Dean Wright Jr.

Highlights of the new contract include:

General wage increases from 15.91 percent up to 20.28 percent over the life of the agreement.
New employees will reach the top rate in 36 months or sooner.
The majority of the bargaining unit will exceed $40 per hour for their base salary, and has a defined path to making top rate or certification.
15 percent of total yearly salary contribution to 401(k) savings plan.
Contributions to FSA dependent care reimbursement account.
Contributions to child care annually.

Employees At South Charleston Union Carbide Plant Strike

Nearly 80 employees at a Kanawha County chemical plant have gone on strike over pay and benefits concerns.

Updated on Wednesday, October 23 at 10:10 a.m.

Nearly 80 employees at a Kanawha County chemical plant have gone on strike over pay and benefits concerns.

Workers at the South Charleston Manufacturing Site Plant voted to strike Monday, according to a press release from the International Association of Machinists and Aerospace Workers (IAM). The South Charleston-based IAM Local 598 chapter represents workers on site.

The chemical plant is operated by Union Carbide Corporation, a subsidiary of the Dow Chemical Company. Union Carbide was obtained by the multinational corporation in 2001, according to its website.

The union members’ previous contracts expired Sunday. Then, 77 IAM members began striking “to secure fair wages and protect their right to holidays and vacations as part of their benefits package,” according to a Monday statement from IAM District 54 President and Directing Business Representative T. Dean Wright Jr.

Wright’s district represents members in Ohio, West Virginia and northeastern Indiana. IAM represents roughly 600,000 members across different industries nationally, according to the union’s website.

Members of the International Association of Machinists and Aerospace Workers Local 598 chapter continued their strike in South Charleston Tuesday.

*Photo Credit: Emily Rice/West Virginia Public Broadcasting*

“Our members working at Dow Chemical perform dangerous jobs that demand appropriate compensation and respect for their labor,” Wright continued in a Monday IAM press release. “They are simply asking for what is fair — recognition of the value they bring to the company.”

A media representative from Union Carbide wrote in an email to West Virginia Public Broadcasting that the company is actively meeting with union representatives “to conduct a productive and fair negotiation.”

“We are committed to continuing these discussions in good faith and are hopeful that we will reach a resolution soon,” they wrote. “Union Carbide Corporation remains committed to offering a competitive total rewards package, which includes fair wages and adequate holiday and vacation days. Our goal in these negotiations has always been to reach a mutually beneficial agreement that supports both our employees’ well-being and the company’s operational needs.”

Meanwhile, the representative said Union Carbide is “confident” it will be able to continue safely operating the site during the strike.

Representatives from Dow Chemical did not respond to phone call or email requests for comment from West Virginia Public Broadcasting.

IAM and its local South Charleston chapter also did not respond to email or phone call requests for further comment. Strikers at the South Charleston facility declined to provide a comment to West Virginia Public Broadcasting Tuesday.

Emily Rice contributed reporting to this story.

**Editor’s Note: This story was updated to include a written statement from Union Carbide Corporation, which was emailed to West Virginia Public Broadcasting after publication on Tuesday, Oct. 22.

No Contaminants At Union Carbide Site? False, Expert Testifies

Union Carbide has applied for a stormwater discharge permit for its Massey Railyard in South Charleston.

An expert witness in an ongoing federal lawsuit against Union Carbide pushed back on the company’s recent assertion.

Union Carbide has applied for a stormwater discharge permit for its Massey Railyard in South Charleston.

In its application, submitted to the West Virginia Department of Environmental Protection last month, the company indicated that a lengthy list of toxic substances were not present at the site.

Scott Simonton, an expert witness for Courtland Company, which first sued Union Carbide in 2018, says that’s incorrect.

Simonton reviewed soil test results from Union Carbide’s own contractor from 2022 that show a variety of chemicals present on the property.

“For UCC to say that there are no contaminants expected to be present in stormwater from this contaminated facility cannot be true in light of the abundance of data,” Simonton said in Courtland’s filing Tuesday.

Last year, U.S. District Judge John T. Copenhaver Jr. ruled that an adjacent Union Carbide property called the Filmont Landfill was an illegal open dump. He also ruled that the company violated the federal Clean Water Act by not seeking a stormwater discharge permit for the facility.

Union Carbide, a subsidiary of Dow Chemical, has also sought a stormwater discharge permit for the Filmont property from the WVDEP. The public will be able to submit comment on both permit applications once they are published.

Courtland has asked Copenhaver to impose $1.4 billion in civil penalties on Union Carbide for its Clean Water Act violations at Filmont. The judge has yet to rule on the matter.

Union Carbide Seeks Water Pollution Permit For Site In Court Case

Union Carbide applied to the West Virginia Department of Environmental Protection for a National Pollution Discharge Elimination System permit for its Massey Railyard.

Union Carbide has sought a water pollution permit for a facility in South Charleston where the company has been in federal court for several years.

Union Carbide applied to the West Virginia Department of Environmental Protection for a National Pollution Discharge Elimination System permit for its Massey Railyard.

The application, dated June 26, was filed in U.S. District Court in Charleston in an ongoing lawsuit against Union Carbide by the Courtland Co., which owns property in South Charleston.

Courtland first filed suit against Union Carbide in 2018 over water pollution from the Massey Railyard and the adjacent Filmont Landfill. In its latest filing, Union Carbide indicated it also will submit a permit application for the landfill.

Senior Judge John T. Copenhaver Jr. ruled last year that the landfill was an illegal open dump and that Union Carbide violated the Clean Water Act by not seeking permits under federal law.

Courtland seeks civil penalties of $1.4 billion. Copenhaver has yet to issue a ruling. Union Carbide is pursuing a voluntary remediation of the Filmont site with state regulators. The site was added to the U.S. Environmental Protection Agency’s Superfund database in 2022.

Union Carbide’s application for Massey has been submitted to WVDEP, and the company plans to submit another one for Filmont. At some point, the state agency will publish the applications and accept public comment.

The eight-acre Massey site discharges an average of nearly 15,000 gallons of runoff per day, according to the application. The application includes a long list of pollutants. Union Carbide checked a box that says “all not present.”

It also asks whether the application is for a “new facility.” Union Carbide checked “yes,” even though the railyard has been active since the 1960s. Union Carbide, a subsidiary of Dow Chemical, and WVDEP did not immediately respond to requests for comment.

It Took 41 Years To Add A Union Carbide Landfill To EPA Database. Why?

Five years after the site’s existence became publicly known as part of a federal lawsuit, it remains unclear who dropped the ball in failing to list the site as required by federal law.

After Congress passed the landmark Superfund law in December 1980, Union Carbide and other companies were required to report hazardous waste sites to the U.S. Environmental Protection Agency by the following June.

Union Carbide’s Filmont landfill in South Charleston, then an active industrial waste disposal site, was not added to the EPA Superfund database until October 2022, more than 41 years later.

Five years after the site’s existence became publicly known as part of a federal lawsuit, it remains unclear who dropped the ball in failing to list the site as required by the Comprehensive Environmental Response, Compensation and Liability Act – the longer name for Superfund.

“Both the state and the EPA have some culpability here for ignoring this problem for such a long time,” said Pat McGinley, a law professor at West Virginia University who specializes in environmental cases.

The U.S. District Court for the Southern District of West Virginia last September ruled that the landfill was an illegal open dump and that Union Carbide violated the Clean Water Act by failing to ask for a stormwater discharge permit for the facility.

Senior Judge John T. Copenhaver Jr. will soon decide how much Union Carbide, a subsidiary of Dow Chemical, will pay in civil penalties. The plaintiff in the case, Courtland Company, has asked for a judgment of $1.4 billion and that the EPA supervise the cleanup, rather than the West Virginia Department of Environmental Protection.

Union Carbide has asked Copenhaver to dismiss Courtland’s proposals.

Despite the quiet addition of the Filmont site to the Superfund database less than two years ago, the EPA, the WVDEP and Union Carbide have said it is not a Superfund site.

To be sure, it is not on the National Priorities List, which includes 1,300 of the most polluted places in the country – 11 are in West Virginia.

But Kelly Offner, a spokeswoman for EPA’s Region 3, which includes West Virginia, said it could qualify based on a future assessment.

“It’s in the hands of the state for now, but the option to exercise EPA resources and oversight through the Superfund program is there,” she said. “We generally consider a site a Superfund site once it’s utilizing EPA resources/oversight and on the (National Priorities List).”

Offner said that the agency does not have an immediate plan to conduct its own investigation.

For now, the site is part of WVDEP’s Voluntary Remediation Program. Union Carbide is paying for the work, including a licensed remediation specialist, David Carpenter, who testified in the Courtland lawsuit against adding the site to the National Priorities List.

Filmont was in operation from the 1950s to the 1980s, according to court documents and testimony.

WVDEP and some local officials knew about the Filmont landfill’s existence as far back as 2009, but there was no public mention of it until Courtland filed its first of four lawsuits in 2018.

And even then, it would be another four years before the site was added to the Superfund database.

McGinley said he sees a pattern of inaction on multiple levels.

“There’s a lot of history here of government inaction. And EPA is the agency of the ultimate resort here. I mean, they’re supposed to be reviewing what state agencies, how they carry out their responsibilities under federal law,” he said.