Five months after court documents unsealed by a federal judge offered evidence that Union Carbide Corp. failed to report a toxic dumping site in South Charleston leaking hazardous substances into nearby Davis Creek and its tributaries, the company is facing another lawsuit over water pollution concerns.
The Courtland Company, which owns property near Davis Creek, filed a lawsuit against Union Carbide Wednesday alleging the site, known as the Filmont landfill or dump, along the creek is violating the Clean Water Act. That filing came a day before it 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.
The filings, made in United States District Court for the Southern District of West Virginia, come after the Courtland Company filed other lawsuits against Union Carbide in the same court in 2018 and 2019 that remain unresolved.
The 2018 lawsuit alleged 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.
The existence of the little-documented Filmont dump was revealed in an October 2019 deposition of Union Carbide’s remediation leader, prompting a second lawsuit two months later that alleged Union Carbide was violating federal hazardous waste management and cleanup laws.
The second lawsuit alleged that Union Carbide disposed of hazardous waste and substances from the 1950s through the 1980s at the dump, a Union Carbide-owned site near the West Virginia Regional Technology Park. Courtland says that site was never properly closed and remains an illegal open dump.
The Charleston attorney and former state Department of Environmental Protection secretary representing the Courtland Company said its latest, Clean Water Act-focused lawsuit was filed to hasten environmental relief for the company.
“In our opinion, it’s just a very straightforward violation,” Michael Callaghan said. “That’s why we filed the third one, because from the first suit, you had land water contamination. Now we’ve uncovered they’re directly discharging pollutants into Davis Creek without a permit. By filing the third suit, we think we can just really clarify stuff and hopefully we can get it moving quicker in front of the court.”
The lawsuit alleges that leachate from Union Carbide’s disposal site containing hazardous waste and substances is still being discharged into Davis Creek and the Kanawha River without a proper permit.
Union Carbide is discharging toxic pollutants including arsenic, chromium, cadmium, lead, selenium and mercury into Davis Creek and two other waterways, Ward Branch and South Boundary Creek, the lawsuit alleges.
Orange sludge deposits were heavy where dump waste liquid flowed from the dump and along a creek bank into Ward Branch last month, 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 this week.
Simonton had previously reported on and provided photos of heavy orange sludge deposits on the eastern bank of Davis Creek, on which the Filmont dump sits, adding the deposits were notably absent on the creek’s western bank in a declaration filed in one of the Courtland Company’s other lawsuits against Union Carbide in October.
Simonton reported landfill material — including broken concrete, bricks, five-gallon buckets and more heavy orange sludge — along a bank of Ward Branch near the Filmont dump. He also provided photos of what he said was orange sludge entering Davis Creek flowing from the Filmont dump, just east of the material.
Sampling results indicated the dump-material liquid and related sludge were highly contaminated with toxic material from the dump, according to Simonton.
The Courtland Company’s temporary restraining order request calls for Union Carbide to submit fully compliant National Pollutant Discharge Elimination System and stormwater permit applications within 14 days and submit a complete inventory of every outfall from the Filmont site from which pollutants are being discharged within seven days to a court-appointed special master.
Patricia M. Bello, counsel for Union Carbide, said that Union Carbide had not been served with the Courtland Company’s complaint and declined further comment.
Union Carbide is fighting not only Courtland’s complaints but oversight from the DEP. Last month, the DEP 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 has not complied with the order’s terms, according to DEP acting communications director Terry Fletcher. Earlier this month, the company 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.
A Freedom of Information Act request filed by the Charleston Gazette-Mail showed that a review of groundwater monitoring data by Potesta & Associates Inc. to help the South Charleston Sanitary Board evaluate the site showed no basis for vapor intrusion concerns.
That review concluded that a restriction on groundwater drilling and extraction that the city of South Charleston established in a 2016 ordinance had cut off any potential direct contact or ingestion exposure pathways for residents from affected groundwater under the city’s nine-acre parcel along Davis Creek.
The Potesta & Associates review was based on sampling results from 2011 through 2019 at two monitoring wells that Union Carbide installed on South Charleston city property along the west side of Davis Creek to assess potential groundwater impact.
Callaghan has acknowledged that ingestion exposure probably isn’t an issue, but said he believes the real issue is the entrance of contaminants like 1,4-Dioxane, a synthetic industrial chemical that the U.S. Environmental Protection Agency says is a likely human carcinogen, and arsenic into Davis Creek.
“This is an environmental issue that needs addressed quickly,” Callaghan said. “The situation’s getting worse.”