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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.

Attorneys Rest Case In Federal Trial Over Union Carbide Landfill

The U.S. District Court in Charleston heard closing arguments Monday in the trial, which began nearly a month ago.

After weeks of testimony, attorneys on both sides of a federal trial involving a Union Carbide landfill in South Charleston have rested their case.

The U.S. District Court in Charleston heard closing arguments Monday in the trial, which began nearly a month ago.

Courtland Co. argued that Union Carbide violated federal law by not applying for, nor receiving the required permit for the Filmont landfill. It says Carbide contaminated its property and Davis Creek with hazardous industrial wastes.

An expert witness, Marshall University Professor Scott Simonton, testified that 17,000 gallons a day of “a soup of nasty contaminants” was leaking from the landfill.

The West Virginia Department of Environmental Protection issued a notice of violation to Union Carbide in October 2020 for seepages from the site Simonton documented.

Union Carbide alleged contamination from construction debris on Courtland’s property and claimed some of the contaminants in Davis Creek came from abandoned coal mines upstream.

The company’s attorneys tried to cast doubt on Simonton’s testimony.

Union Carbide, a subsidiary of Dow Chemical, said it complied with state and federal laws that applied to the landfill. It says it is voluntarily remediating the site.

Cortland has filed four lawsuits since 2018 and seeks civil penalties. U.S. District Judge John Copenhaver will issue a ruling.

‘The Whole Thing Is Junk:’ Expert Rips Union Carbide Landfill Data

Union Carbide performed risk assessments for ecological and human health on the Filmont industrial landfill in South Charleston in 2014 and 2015. Both assessments concluded there was no need to take further action.

Scott Simonton, a professor of industrial and systems engineering at Marshall University, offered a different view to the U.S. District Court in Charleston Tuesday.

“The whole thing is junk,” he testified on behalf of Courtland Co., which owns property adjacent to the Union Carbide site and is suing the company.

Simonton said Union Carbide had insufficient data to correctly perform the risk assessments.

The company has no idea how extensive the contamination is, Simonton added, because it never conducted a full investigation of the site.

“They do not, absolutely do not understand the full nature and extent of the contamination from this site,” Simonton testified Tuesday.

Court filings and testimony show Union Carbide has been monitoring the site since at least 2005 and told state and local officials about it. The landfill was not revealed to the public until 2019.

On Monday, Simonton testified that the site contained a “soup of nasty contaminants.”

The West Virginia Department of Environmental Protection issued Union Carbide a notice of violation in late 2020 for wastewater discharge from the Filmont site.

In early 2021, the company applied for the DEP’s Voluntary Remediation Program for the site.

The trial began earlier this month. Courtland has sued Union Carbide four times since 2018, alleging contamination of its property from the Filmont landfill.

‘Soup Of Nasty Contaminants’ In South Charleston Site, Expert Says

Scott Simonton, a professor of industrial and systems engineering at Marshall University, said drums of industrial waste buried in the Filmont landfill present an 'alarming' risk to the environment.

An expert witness in a federal trial testified that “a soup of nasty contaminants” is leaking from a South Charleston landfill chemical company Union Carbide owns.

Scott Simonton, a professor of industrial and systems engineering at Marshall University, said drums of industrial waste buried in the Filmont Landfill present an “alarming” risk to the environment.

“What we don’t know is the full nature and extent of those contaminants, how far they’ve gone, what they turn into, you know, where they go, how deep they go, how far downstream they go,” Simonton told the U.S. District Court in Charleston Monday.

Simonton added that a full remedial investigation needed to be done to properly gauge the risk of the contamination, which likely traces to waste materials produced at the former Union Carbide South Charleston plant.

Previously, a remediation specialist for Union Carbide, now part of Dow Chemical, testified that there were no hazardous materials buried at the site. It was an active dump from the 1950s to the 1980s.

The specialist, Jerome Cibrik, also said company risk assessments of ecological and human health concluded that no further action needed to be taken.

Simonton was testifying on behalf of Courtland Co., which owns property adjacent to the site and is suing Union Carbide over the contamination. Courtland has filed four lawsuits against Union Carbide since 2018, alleging the landfill violates state and federal clean water laws.

Simonton further testified that levels of methane present in soil samples at the site presented a potential explosion risk to workers.

He also said the water at the site tested for PFAS — also known as forever chemicals. The U.S. Environmental Protection Agency recently concluded that nearly any level of exposure to PFAS in drinking water is a health risk.

A local ordinance prohibits the extraction of groundwater around industrial sites. But Simonton described how insects, animals and people can still be exposed to pollutants through the food chain.

Judge Sides With Union Carbide In Lawsuit Over Water Pollution From South Charleston Landfill

A federal judge in Charleston has ruled in favor of Union Carbide in a lawsuit.

In a 90-page decision published Monday, Senior U.S. District Court Judge John Copenhaver denied an application for a temporary restraining order by the Courtland Co.

Courtland is suing Union Carbide over pollution from an industrial landfill in South Charleston into two streams near property both companies own. The court’s decision means the company won’t be required to take immediate action to stop water pollution from the landfill.

Courtland’s attorneys filed the request in February. They also filed a lawsuit alleging the site was in violation of the federal Clean Water Act.

“The main goal is to get a judge to order Union Carbide to stop polluting the people of South Charleston, and polluting my client’s property,” attorney Mike Callaghan said in February. He represents Courtland in the suit.

Copenhaver held a three-day hearing on Courtland’s request in late February and early March.

Union Carbide argued that the West Virginia Department of Environmental Protection should oversee the case, not federal regulators.

In his decision, Copenhaver agreed.

State officials in October issued a violation against Union Carbide under the West Virginia Water Pollution Control Act based on evidence that the landfill was polluting the streams. The company appealed, and a hearing is set for May 13.

Courtland has filed a total of three lawsuits against Union Carbide since 2018 over the South Charleston industrial landfill.

Decision Still Pending On Carbide Landfill Temporary Restraining Order

There is a mostly forgotten industrial landfill in South Charleston near Davis Creek and not far from the Kanawha River. That much is certain. Even Union Carbide Corp., which built the Filmont Landfill in the 1950s and operated it into the 1980s, admits it is there.

Whether the landfill is leaking hazardous chemicals into Davis Creek and the Kanawha River is the subject of a number of legal filings in federal court in recent months.

One of those filings was a request by the Courtland Co. for a Temporary Restraining Order to immediately eliminate the stormwater runoff, and direct discharges, from the landfill into Davis Creek and Ward Branch. Courtland owns property adjacent to the landfill. The request also asked for Union Carbide to submit a permit application to the West Virginia Department of Environmental Protection.

Two weeks after a three-day hearing in front of Senior U.S. District Judge John T. Copenhaver, of the U.S. District Court for the Southern District of West Virginia, there is still no decision from the judge.

An archival photo of a fire at the Filmont Landfill in 1966, showing barrels in the foreground.

During the hearing, Scott Simonton, Ph.D, an expert called to the stand by Courtland, explained that the Filmont Landfill is effectively a plateau built up higher than the surrounding property. Documents indicate waste in the site includes drums and hazardous materials, asbestos, fly ash and potash from the power plant, industrial solids and hazardous waste.

Last fall, Simonton used a kayak to row up Davis Creek to take samples and photographs of the edge of Filmont where it meets Davis Creek. He told the court that there was evidence of seep discharge into the water. He explained seep discharge is water that filters through the landfill and then seeps out draining into Davis Creek or Ward Branch, which is a tributary of Davis Creek. Spring rains saturate the landfill and leak out the rest of the year.

“Parts of the landfill were underwater as of a few days before the hearing,” he said. That would have washed away sludge and chemicals that had seeped out of the landfill.

Simonton said that the landfill is situated within the floodplain.

Throughout the hearing, both sides discussed the presence of iron in the seeps coming out of the landfill. Union Carbide’s attorney Martin Shelton portrayed the iron as naturally occurring or possibly the result of the metal recycling currently underway on the Courtland property.

He noted that creating a pumping system to remove the runoff from the landfill would cost hundreds of thousands of dollars, and millions for a pipeline, to pump water to a treatment facility for iron that hasn’t been shown to be a problem.

Simonton said that the sample he took from sludge on the edge of the landfill had one of the highest concentrations of iron he had ever seen.

“And the further you get from the landfill, the less iron you see,” he said. “Pumping away and treating the surface water from Filmont would result in a near immediate improvement of the water quality on Ward Branch and Davis Creek. We are going into the spring, boating, fishing and spawning season. Addressing this now would have a positive impact.

It’s urgent. It has been urgent.”