U.S. District Court 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.

Judge Orders Sale Of Justice Coal Company’s Helicopter

Bluestone has a 2009 Bell helicopter, valued at about $1.2 million, and Caroleng sought a court order for the U.S. Marshals to seize it where it was housed in Roanoke, Virginia.

A federal judge has cleared the way for the sale of a helicopter owned by one of Gov. Jim Justice’s coal companies.

Last year, Caroleng Investments, an offshore shell company, went to the U.S. District Court for the Western District of Virginia to recover about $10 million owed by Bluestone Resources.

Bluestone has a 2009 Bell helicopter, valued at about $1.2 million, and Caroleng sought a court order for the U.S. Marshals to seize it where it was housed in Roanoke, Virginia.

Bluestone and another Justice creditor, First Source Bank, sought a stay of that order.

This week, U.S. District Judge Robert S. Ballou denied the stay, giving the parties seven days to arrange for a sale of the helicopter.

In the meantime, Ballou’s order said, the helicopter is not to be moved. Publicly available flight tracking information showed the helicopter was moved in October from Roanoke to Burlington, North Carolina.

The case is one of many where Justice’s creditors have taken his businesses to court to recover millions of dollars. Justice is a Republican candidate for U.S. Senate this year.

Next Phase In Federal Trial Will Determine Penalties For Union Carbide

The maximum penalty Union Carbide would pay for violating the Clean Water Act at a landfill it owns in South Charleston: $64,618 per violation per day.

A five year federal court case involving Union Carbide is moving into the next phase, and the company could have to pay pay a steep civil penalty.

The maximum penalty Union Carbide would pay for violating the Clean Water Act at a landfill it owns in South Charleston: $64,618 per violation per day.

In late September, the U.S. District Court for the Southern District of West Virginia ruled that the company has been in violation of the federal law since 2015. A landfill that discharges stormwater into navigable U.S. waterways must seek a permit under the Clean Water Act.

Union Carbide sought no such permit for the Filmont Landfill. The site is adjacent to Davis Creek, a tributary of the Kanawha River.

Union Carbide operated the landfill for about 30 years, but its existence wasn’t widely known until a 2018 lawsuit in federal court in Charleston.

The court also determined the Filmont Landfill was an illegal open dump under the Resource Conservation and Recovery Act. Union Carbide and Courtland Co., the plaintiff in the case, may both have to pay costs related to the cleanup of the site. Courtland’s South Charleston property is adjacent to Union Carbide’s.

The court will ultimately determine what penalty Union Carbide will pay, but added together, one violation over eight years could cost more than $188 million.

Union Carbide and Courtland will bring in expert witnesses to determine how many of those days Union Carbide was in violation.

Courtland has requested that the penalty phase of the trial take place in April 2024. The trial will determine other costs, including legal fees.

Union Carbide is a subsidiary of Dow Chemical.

Court Orders Marshals To Seize Helicopter From Justice-Owned Company

The court directed marshals to take possession of a 2009 Bell helicopter belonging to Bluestone Resources from the Roanoke-Blacksburg regional airport.

A federal court in Virginia has ordered U.S. Marshals to seize a helicopter from a coal company owned by West Virginia Gov. Jim Justice.

In a supplemental writ of execution filed Thursday in Abingdon, Virginia, the court directed marshals to take possession of a 2009 Bell helicopter belonging to Bluestone Resources from the Roanoke-Blacksburg regional airport.

The order says the helicopter must be turned over within 90 days.

The seizure is part of a lawsuit filed against Bluestone by Caroleng Investments, an offshore company based in the British Virgin Islands.

In 2021, a federal court in Delaware ruled that Bluestone owed Caroleng more than $10 million, plus interest. None of that amount has been paid, the Virginia court said.

Bluestone, based in Roanoke, is one of the numerous companies Justice lists on his annual financial disclosure to the West Virginia Ethics Commission.

The $10 million judgment was not listed on Justice’s more recent U.S. Senate candidate disclosure form. The governor is running for the Senate next year.

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.

Federal Court Rules In Favor Of States In Horse Racing Rules Case

A federal appeals court has ruled in favor of West Virginia, Louisiana and Texas in a case regarding the implementation of federal racetrack safety rules for horse racing.

Both the nonprofit Horseracing Integrity and Safety Authority (HISA), and the federal act that created it, were declared unconstitutional by the 5th U.S. Circuit Court of Appeals. Congress originally passed HISA in 2020.

The authority would have overseen safety programs and made decisions regulating doping and medication in horse racing. In the past, these decisions were made at the state level.

The court ruled that the act gave too much power to the agency and not enough to the Federal Trade Commission, which had the power to approve or reject HISA regulations but not to modify them.

Attorney General Patrick Morrisey has previously made statements against the legality of HISA, while animal rights organizations like Animal Wellness Action disagree, calling the act the “sport’s last chance at survival.”

An injunction was previously placed on the agency by the U.S. District Court’s Western District of Louisiana last July, but was blocked by the appellate court. A racehorse collapsed and was euthanized during a race at Mountaineer Casino, Racetrack, and Resort in New Cumberland shortly after the initial injunction.

West Virginia has two racetracks in the state, also including Hollywood Casino at Charles Town Races.