John Copenhaver Story Archives - West Virginia Public Broadcasting

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.

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.

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.

W.Va. City Council Ordered To Stop Reciting The Lord's Prayer

A West Virginia city was ordered Tuesday to stop opening its council meetings with The Lord’s Prayer.

U.S. District Judge John T. Copenhaver Jr. ruled that Parkersburg City Council’s practice of opening its meetings with the New Testament prayer violates the establishment clause of the First Amendment, which prohibits government from favoring one religion over others.

The judge issued a permanent injunction against the prayer recital and awarded $1 in damages to each plaintiff.

Copenhaver ruled in a lawsuit filed by the Freedom from Religion Foundation. The Madison, Wisconsin-based group and two of its members sued the city in 2018.

The judge issued a permanent injunction against the prayer recital and awarded $1 in damages to each plaintiff.

The lawsuit said residents stood at each Parkersburg City Council meeting to recite the prayer with council members. Plaintiffs Daryl Cobranchi and Eric Engle of Parkersburg attended some meetings, remained seated and did not participate in the prayer’s recital.

Attorney Who's Sued Carbide 4 Times Pushes for Civil Penalties

Union Carbide wants to voluntarily clean up an industrial site in South Charleston, but an attorney who’s suing the company says that’s not good enough.

Michael Callaghan, the Charleston attorney who’s filed multiple lawsuits against Union Carbide in U.S. District Court, says the company violated the federal Clean Water Act.

In a letter to the Department of Environmental Protection, he says the company shouldn’t be allowed to clean up the site without paying civil penalties.

Callaghan says Union Carbide can’t use the state agency’s Voluntary Remediation Program as long as it’s the subject of multiple federal lawsuits.

The site in South Charleston, which was an industrial landfill from the 1950s to the 1980s, has been contaminating Davis Creek, a tributary of the Kanawha River.

Expert testing of Davis Creek has revealed high levels of arsenic, chromium, cadmium, lead, selenium, mercury and other toxic substances.

Callaghan has filed four lawsuits since 2018 seeking to force Union Carbide to clean up the site and pay civil penalties. The most recent lawsuit was filed last month.

State officials last October issued a violation against Union Carbide under the West Virginia Water Pollution Control Act. The company appealed.

In July, the Department of Environmental Protection proposed a settlement agreement in which Union Carbide would clean up the site, but not pay any civil penalties.

Earlier this month, Union Carbide submitted an application for the state’s Voluntary Remediation Program to clean up the site. The state agency accepted the application and is negotiating an agreement.

In his letter, Callaghan asked the state agency to revoke the application within 10 days. Otherwise, he said he’d seek a restraining order from U.S. District Judge John Copenhaver, who’s overseeing the case.

Residents to Get Share of $73 Million from Water Crisis Settlement

People affected by a 2014 chemical spill into a West Virginia river will soon receive their first batch of settlement checks from a class-action lawsuit.

U.S. District Court Judge John Copenhaver approved the distribution of the $73 million to nearly 200,000 residents and businesses.

Anthony Majestro is a lawyer for the residents and says the checks will go in the mail on Sept. 14 or Sept. 17. They’ll include an additional $1 million from former Freedom Industries President Gary Southern.

The residents and businesses sued after a chemical known as Crude MCHM spilled from a storage tank at Freedom Industries into the Elk River. It was upriver from a water plant in Charleston and people were told not to drink or clean with the water for days.