Five months ago, federal regulators quietly rejected a Dow Chemical proposal for cleaning up toxic pollution at the Institute chemical complex, a move that court records show is now generating significant controversy in West Virginia State University’s lawsuit against the chemical giant over contamination of the groundwater under the university’s nearby campus.
Attorneys for State say that Dow misled a federal judge and the university with statements that suggested the U.S. Environmental Protection Agency had approved the company’s cleanup plan, though EPA had specifically turned down the Dow proposal back in April.
Dow “withheld this fact from the court while claiming that EPA has “determined that any contamination beneath the WVSU campus ... can be effectively addressed without remediation” and that EPA is “presently in the middle of reviewing the corrective measures proposal that addresses proposed protective measures to be taken both at the Institute facility and the surrounding properties,” the university’s court filing said.
“But the truth is this: The EPA rejected Dow’s proposed cleanup plan in April 2017,” university lawyer Steve Ruby wrote in a court filing late last month.
Ruby cited an April 10 email that EPA sent to Dow and to the state Department of Environmental Protection.
Joan Schafer, a spokeswoman for EPA’s regional office, confirmed federal officials had rejected Dow’s proposal and said the EPA had asked for “additional information” that would “summarize their investigation in support of the proposed remedy.” Schafer did not respond to requests for additional details or copies of any documents that outlined EPA’s action.
In its own court filing, Dow sought to downplay the EPA action. Company lawyers said EPA’s activities are “ongoing” and that “EPA has not yet approved the final version of the specific corrective measures proposal” for the site.
Word of EPA’s move rejecting the Dow cleanup proposal emerged as the university and company are arguing over whether the lawsuit should be litigated in state or federal court, as Kanawha County officials press forward with their plans for a new youth sports complex at Shawnee Park near state’s campus, and as the potential health threats related to one of the Dow chemicals -- 1,4-dioxane -- are getting increased attention nationally.
In late April, West Virginia State sued Dow and other former Institute plant owners and operators, seeking to force the companies to clean up contamination beneath the campus, prevent future migration of the chemicals, and compensate the university, a historically black institution, for harm to its image to the public and potential students. University officials and lawyers say three contaminants have been found at “elevated levels” in the groundwater 15 to 50 feet beneath the campus. The chemicals are 1,4-dioxane, 1,1-dichloroethane and chloroform.
University lawyers originally filed the case in state court. Dow moved it to federal court, and now State is trying to convince U.S. District Judge John T. Copenhaver Jr. to send it back to Kanawha Circuit Court.
Last year, the EPA said that 1,4-dioxane would be among the first chemicals that it would review under the provisions of the updated Toxic Substances Control Act, and on Wednesday the non-profit Environmental Working Group cautioned that the chemical has been found in tap water supplies that serve nearly 90 million Americans in 45 states. The report from EWG said that the chemical is classified as a likely carcinogen.
Because the university’s tap water comes from West Virginia American Water’s Elk River facility, the concern with the campus groundwater contamination is potential exposure to humans through vapors that could travel up through the soil. University officials have said that testing has found some chemicals above screening levels that would require more investigation, but has not discovered levels that create any immediate health threats to students, faculty, staff, or others on campus. University officials say they learned of the contamination about four years ago, when they took ownership from the state of the former West Virginia Rehabilitation Center, located between the campus and the chemical plant.
The plant in Institute has been operating since the late 1940s, and was for decades run by Union Carbide, a company that was once a major institution in the Kanawha Valley. The plant was sold to the French firm Rhone-Poulenc in 1986, and later to Bayer CropScience. It was sold to Dow, which has since merged with Carbide, in 2015. Chemical manufacturing facilities like the Institute plant are subject to the federal Resource Conservation and Recovery Act, or RCRA, which requires facilities to correct and clean up releases of hazardous wastes.
Dow had in January proposed a cleanup plan to EPA that would have -- without West Virginia State’s approval -- prohibited any residential construction on parts of the rehab center property, and bar the use of the groundwater and impose “costly conditions” on any non-residential construction, the university says.
In an Aug. 21 court filing, Dow lawyers said that the case should remain before Copenhaver, in part because the university was in effect challenging a federally ordered cleanup of the site.
Dow lawyers said the EPA, after reviewing “voluminous scientific reports compiled over a period of years” had “determined that any contamination beneath the WVSU campus poses no threat to health or safety and can be effectively addressed without remediation.” Dow noted that EPA had said in a July 2016 letter that the agency “agrees with the conclusions” presented by Dow in a report on the site. When they announced their lawsuit against Dow, West Virginia State officials had cited that same EPA letter as evidence in their effort to assure the campus community there was no current threat to the health of students, faculty or staff at the university.
University lawyers, though, learned more recently about the April 2017 email in which EPA rejected Dow’s cleanup proposal.
“The EPA has approved no corrective measures for the groundwater contamination at issue here,” the university’s court filing said. “It has made no determination about what corrective measures are necessary. Indeed, the EPA does not even have a plan before it for approval. And even when a new plan eventually is submitted, it can only be approved after it is accepted by the EPA and undergoes public comment.”
Reach Ken Ward Jr. at email@example.com, 304-348-1702 or follow @kenwardjr on Twitter.