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Fight over Filmont persists

Pictured is a segment of the Filmont landfill, a Union Carbide-owned site in South Charleston that the Courtland Company alleges was never properly closed and remains an illegal open dump and environmental hazard. A federal judge on Tuesday denied the Courtland Company’s request to direct Union Carbide to withdraw its application to remediate the site through a state program for voluntary cleanup of contaminated properties, dismissing Courtland’s concern that the agreement threatened the court’s jurisdiction in unresolved suits over the site.

A federal judge has again sided with Union Carbide Corp. in its legal battle against a neighboring South Charleston landholding company alleging contaminants from the chemical giant’s alleged toxic dumping site are polluting its property.

Senior U.S. District Judge John T. Copenhaver, Jr. on Tuesday denied the Courtland Company’s request to direct Union Carbide to withdraw its application to a state program for voluntary cleanup of abandoned or underused contaminated properties.

The Courtland Company filed an emergency motion earlier this month asking the U.S. District Court for the Southern District of West Virginia to direct Union Carbide to withdraw the application to the West Virginia Department of Environmental Protection-administered program and bar the agency from issuing any administrative order regarding the alleged toxic dumping site.

The Department of Environmental Protection accepted the Filmont landfill — a Union Carbide-owned site near Davis Creek and the West Virginia Regional Technology Park — into its Voluntary Remediation Program on Sept. 23.

Union Carbide in August agreed to a consent order from the DEP aimed at ensuring environmental compliance at the Filmont site. The consent order stipulated that if Union Carbide is accepted into the Voluntary Remediation Program, the Filmont site would be remediated within 60 days.

The Voluntary Remediation Program allows companies and communities to voluntarily remediate sites and return them to productive use, offering certain environmental liability protections under state law. Applications are required to include a site assessment prepared by a licensed remediation specialist which identifies all actual or potential contaminants at and near the site as well as pathways for contaminant migration.

Agreements struck under the program prohibit the Department of Environmental Protection from initiating any enforcement action against the applicant unless there is an imminent threat to the public. The DEP is required to approve or disapprove all work plans and reports submitted by the applicant or the applicant’s licensed remediation specialist within 30 days.

The specialist is to issue a final report explaining how the applicant complied with requirements under the agreement when work is completed. The DEP then issues a certificate of completion within 60 days if it agrees the report was properly issued.

The Courtland Company contended the site’s acceptance into the Voluntary Remediation Program interfered with the court’s jurisdiction over Courtland’s pending lawsuits under federal water pollution and hazardous waste management laws.

In its emergency motion, Courtland called Union Carbide’s program application “improper and illegal” and an “attempted end-run” on the court’s jurisdiction, “abetted” by the DEP, that could thwart enforcement of federal minimum requirements for any plan to investigate or abate the Filmont site.

But Copenhaver ruled the court’s jurisdiction over Courtland’s claims is not usurped by Union Carbide’s Voluntary Remediation Program participation.

“To the extent that Courtland avers it is left without a viable remedy in these actions if UCC is permitted to participate in the VRP, such is not the case,” Copenhaver wrote.

The Courtland Company has filed four federal lawsuits against Union Carbide since 2018 over water pollution concerns.

Courtland first sued Union Carbide in August 2018 alleging that groundwater contaminants were migrating from Union Carbide property onto Courtland property, citing a 2017 Courtland-funded investigation the company said revealed arsenic, barium, lead, selenium and other contaminants on its property that also were present in Union Carbide facility groundwater.

Then an October 2019 deposition of Union Carbide’s remediation leader revealed the existence of the Filmont landfill, which Courtland alleges was never properly closed and remains an illegal open dump and environmental hazard.

Courtland’s third federal lawsuit came in February, alleging the dump was violating the federal Clean Water Act a day before the company filed for a temporary restraining order and preliminary injunction directing Union Carbide to stop all discharges from the site into nearby waters within 14 days.

But Copenhaver denied the Courtland Company’s request in April.

In May, Copenhaver granted Courtland’s motion to consolidate its three lawsuits against Union Carbide, concluding it would likely reduce the overall time, burden and expense for the court, parties and witnesses.

Then in September, Courtland filed a fourth federal lawsuit against Union Carbide requesting a permanent injunction to stop the alleged illegal discharges from the Filmont site.

Courtland’s lawsuits remain unresolved.

Union Carbide submitted its application to enter the Filmont landfill into the Voluntary Remediation Program to the DEP in February.

But DEP acting spokesman Terry Fletcher said in September, prior to the DEP’s acceptance of the application, that the company had not yet been accepted into the program due to its pending appeal of a notice of violation that the agency issued in December alleging that the Filmont landfill was discharging unpermitted waste via seeps and pipes into Ward Branch, a waterway near the dump.

The Courtland Company alleges Union Carbide disposed of hazardous waste and substances from the 1950s through the 1980s at the Filmont landfill.

Filings show Union Carbide had been monitoring the Filmont site and, in 2010, prepared a PowerPoint presentation for the Department of Environmental Protection in which it pledged to “maintain the inactive landfill as it currently exists.”

Courtland’s February lawsuit alleged leachate from Union Carbide’s disposal site containing hazardous waste and substances was still being discharged into Davis Creek and the Kanawha River without a proper permit. The suit alleged Union Carbide was discharging toxic pollutants including arsenic, chromium, cadmium, lead, selenium and mercury into Davis Creek and two other waterways, Ward Branch and South Boundary Creek.

Orange sludge deposits were heavy where waste liquid flowed from the dump and along a creek bank into Ward Branch in January, according to a declaration from Scott Simonton, professor at Marshall University and former vice chairman of the Environmental Quality Board, filed by the Courtland Company in February.

Mike Tony covers energy and the environment. He can be reached at 304-348-1236 or mtony@hdmediallc.com. Follow @Mike__Tony on Twitter.

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