A federal judge has set back a South Charleston company’s effort to address alleged water pollutant discharges from nearby Union Carbide Corporation.
Senior Judge John Copenhaver, Jr. on Monday denied the Courtland Company’s request in the U.S. District Court for the Southern District of West Virginia for a temporary restraining order directing Union Carbide to stop all discharges from what the company has offered evidence to suggest is a toxic dumping site in South Charleston leaking hazardous substances into nearby Davis Creek and its tributaries.
The Courtland Company, which owns property near Davis Creek, had filed in February for a temporary restraining order and preliminary injunction directing Union Carbide to stop all discharges from the site into nearby waters within 14 days.
Copenhaver found that Courtland had not presented sufficient evidence that pollutants discharged from the Filmont Site to a drainage ditch and Ward Branch, another nearby waterway, are being deposited on its property.
Courtland failed to identify the location of violations regarding seeps associated with one of the drainage ditches and did not provide adequate information to identify a point source for or dates of the stormwater discharge it alleges, Copenhaver ruled.
The court also found that Courtland failed to clearly show it would be “irreparably harmed” by contaminants discharging from the Filmont Site onto its property via a drainage ditch.
Patricia Bello, attorney for Union Carbide, said that the corporation is pleased with the court’s decision and will continue to defend itself in related litigation.
Courtland’s February filing for a temporary restraining order came a day after Courtland filed a lawsuit against Union Carbide Wednesday alleging the site, known as the Filmont landfill or dump, along the creek is violating the federal Clean Water Act.
Both filings came after the Courtland Company filed other lawsuits against Union Carbide in the same court in 2018 and 2019 that remain unresolved.
The Charleston attorney and former state Department of Environmental Protection secretary representing the Courtland Company says that his client’s cases will proceed, even if the company didn’t get the immediate legal relief it sought via a temporary restraining order.
“We’re disappointed in the ruling, but we understand it,” Michael Callaghan said. “Certainly, Courtland is looking forward to its day in court, whenever that day will come.”
Courtland maintains that the Filmont site has been discharging contaminants for decades.
ERM, an environmental consulting company that Union Carbide retained to investigate the Filmont site, applied on Feb. 2 to enter it into the state Department of Environmental Protection’s Voluntary Remediation Program, which encourages voluntary cleanup and redevelopment of abandoned or underused contaminated properties by providing certain environmental liability protections under state law, according to a declaration from an ERM professional engineer that Union Carbide filed in its response to Courtland’s motion for a temporary restraining order.
In December, the Department of Environmental Protection ordered Union Carbide to stop discharging industrial waste into state waters after an October inspection by the department found the company was doing so without a permit to control surface water pollution. The DEP also ordered the company to submit documents, including a corrective action plan and all available groundwater sampling data, for the Filmont landfill after 2010 within 30 days.
But Union Carbide appealed the DEP’s order to the state Environmental Quality Board, a quasi-judicial review board that hears appeals of DEP decisions. An evidentiary hearing is scheduled for May 13.