Environmental Protection Agency Story Archives - West Virginia Public Broadcasting

EPA, For Now, Defers To State Officials On Union Carbide Landfill Cleanup

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.

This story has been updated to clarify the nature of the relationship between WVDEP and a licensed remediation specialist who is paid under contract by Union Carbide.

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.

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 is working closely with Union Carbide.

David Carpenter, a licensed remediation specialist who testified that WVDEP could complete the work faster than the EPA, works for a company called ERM. His work on the Filmont remediation is paid for by Union Carbide under contract with the state. 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.

Fletcher said the arrangement is required by state law. He said the structure ensures that the financial burden of the remediation is kept off taxpayers, while keeping the Voluntary Remediation Program viable.

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.

DEP Motions To Intervene In EPA Settlement

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.

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.

EPA Foes Vow To Block Power Plant Rules. It May Not Matter

Regardless of whether the rule stands or falls, the standards it sets could happen anyway.

The U.S. Environmental Protection Agency issued its final rule to limit carbon dioxide emissions from power plants Thursday, and the reaction from state officials was swift.

West Virginia Attorney General Patrick Morrisey said he’d take the case to court. Republican U.S. Sen. Shelley Moore Capito said she’d introduce a repeal resolution in the Senate. Democrat Joe Manchin, who’s not running for re-election, said he’d support her measure.

Regardless of whether the rule stands or falls, the standards it sets could happen anyway.

Morrisey was successful in his bid to block President Barack Obama’s Clean Power Plan. The U.S. Supreme Court sided with him in West Virginia v EPA two years ago.

The policy never took effect. But as Amanda Levin, director of policy analysis for the Natural Resources Defense Council, points out, the goals it set were met, and earlier than planned.

“That was also a rule at that time, there were concerns about whether or not the power sector would be able to achieve it, and it ended up achieving those standards 11 years early, even though the rule was stayed,” she said.

Now, as then, critics of the rules, including some in the electric power sector, say they can’t be achieved. Manchin points to the 2021 winter storm in Texas that caused deadly power outages.

“We saw what happened in Texas, how many people’s lives were lost, how much was disrupted in the economy, went to heck in a handbasket down there when their gas lines froze up.” he said.

The failures in Texas, and more recently in the eastern United States in late 2022, were mostly of fossil fuel infrastructure, especially natural gas. Renewables and battery storage helped hold the Texas power grid through last summer’s heat.

Levin says the new EPA rules come at a time when electric utilities are rapidly building wind, solar and battery storage. They’ve already surpassed coal and even nuclear.

“Clean energy sources are now the cheapest and fastest growing source of new power generation,” she said.

Even West Virginia is building more solar and will soon begin building storage batteries.

Mon Power activated the largest solar facility in the state in January in Monongalia County and is building another one in Harrison County.

Form Energy is building a long-duration storage battery plant in Weirton. Other companies coming to West Virginia, including steelmaker Nucor, wanted access to renewable power.

Phil Moye, a spokesman for Appalachian Power, which operates three coal plants in West Virginia, says the company is looking at the EPA rules to see how they affect plant operations and future investments.

“The development of new dispatchable generation resources and storage technologies will be critical in determining how quickly the industry can meet the requirements of the new rules,” he said.

Appalachian Power is an underwriter of West Virginia Public Broadcasting.

EPA To Require Coal And New Gas Power Plants To Cut Emissions

The power plant rules align with changes that have been happening in the sector in the past decade. Electric utilities have moved sharply away from coal, largely switching to natural gas.

The U.S. Environmental Protection Agency on Thursday rolled out its final rules to cut emissions from existing coal-fired and new gas power plants.

Those plants will have to ultimately cut their carbon dioxide emissions by 90 percent or shut down.

The new rules include updated limits on mercury and other toxic pollutants from plants that burn coal. They also include changes to how power plants dispose of the wastewater that results from treating coal emissions to remove toxic pollutants.

Finally, the rules require the cleanup of coal ash disposal sites that were closed prior to 2015.

“By developing these standards in a clear, transparent, inclusive manner, EPA is cutting pollution while ensuring that power companies can make smart investments and continue to deliver reliable electricity for all Americans,” said EPA Administrator Michael Regan.

The power plant rules align with changes that have been happening in the sector in the past decade. Electric utilities have moved sharply away from coal, largely switching to natural gas.

“This year, the United States is projected to build more new electric generation capacity than we have in two decades – and 96 percent of that will be clean,” said White House Climate Adviser Ali Zaidi.

Renewables such as wind and solar account for an increasing percentage of power generation and have surpassed coal.

Still, fossil fuel producing states, and some industry groups, are expected to challenge the new rules. Some will argue that the rules will have a negative economic impact on power plant communities. Others will say the rules will make the power grid less reliable.

“We will be challenging this rule,” said West Virginia Attorney General Patrick Morrisey in a statement issued soon after the new rules were published. “The U.S. Supreme Court has placed significant limits on what the EPA can do—we plan on ensuring that those limits are upheld, and we expect that we will once again prevail in court against this out-of-control agency.”

Morrisey, who’s running in West Virginia’s Republican primary for governor, led a successful challenge of the Obama administration’s Clean Power Plan. The Supreme Court’s ruling in West Virginia v EPA two years ago constrained the EPA’s rulemaking process. Morrisey and others are likely to argue that the agency still overstepped its authority.

Others say the grid simply isn’t ready for a massive shift away from traditional baseload power to more intermittent sources of energy such as wind and solar.

“This barrage of new EPA rules ignores our nation’s ongoing electric reliability challenges and is the wrong approach at a critical time for our nation’s energy future,” said Jim Matheson, CEO of the National Rural Electric Cooperative Association.

Adding to the uncertainty, a change in administrations after this year’s election could result in a rollback of the new rules.

If the rules hold up, the EPA projects $370 billion in climate and public health benefits over the next two decades. The agency’s analysis predicts a reduction of 1.38 billion tons of CO2 through 2047, the equivalent of the annual emissions of 328 million gasoline powered cars.

The EPA is also gathering public input on a proposal to cut emissions from existing gas-fired power plants. Natural gas is currently the nation’s top source of electricity, and though it produces lower carbon emissions than coal, the production and transportation of gas emits methane, a more powerful heat-trapping gas than CO2.

The EPA’s principal solution for coal and gas plants to comply with the new rules is carbon capture and storage. But the technology has not been deployed successfully on a commercial scale, and power plant operators say that the rules will force fossil fuel plants to effectively shut down.

“It is obvious that the ultimate goal of these EPA regulations is to stop the use of fossil fuels to produce reliable energy in the United States by forcing the premature closure of coal plants and blocking new natural gas plants,” said U.S. Sen. Joe Manchin, D-West Virginia, chairman of the Senate Energy and Natural Resources Committee.

Another powerful foe of the EPA rules vowed Thursday that she’d introduce a bill to repeal them.

“To protect millions of Americans, including energy workers, against executive overreach that has already been tried and rejected by the Supreme Court,” said U.S. Sen. Shelley Moore Capito, R-West Virginia, “I will be introducing a Congressional Review Act resolution of disapproval to overturn the EPA’s job-killing regulations announced today.”

Capito is the senior Republican on the Senate Environment and Public Works Committee, which oversees the EPA and confirms its administrator.

EPA Proposes Settlement In Guyandotte Watershed Pollution Lawsuit

The EPA’s proposed consent decree would settle a lawsuit filed this month by environmental groups in the U.S. District Court for the Southern District of West Virginia.

The U.S Environmental Protection Agency has proposed a settlement to a federal lawsuit over water pollution from coal mining.

The EPA’s proposed consent decree would settle a lawsuit filed this month by environmental groups in the U.S. District Court for the Southern District of West Virginia.

It establishes total daily maximum loads for ionic toxicity in the lower Guyandotte watershed.

Ionic toxicity, dissolved mineral salts that result from surface mining, can impair aquatic life.

The West Virginia Rivers Coalition, the West Virginia Highlands Conservancy and the Sierra club filed the lawsuit on March 18. It named Adam Ortiz, the EPA Region 3 Administrator, as a defendant.

The proposed settlement was published in the Federal Register on Friday. The public has until April 29 to submit comments.