“The sad thing is, we have worked so hard to clean up Davis Creek.”
Diana Green, treasurer of the Davis Creek Watershed Association, remembers the creek being trashed when the association formed in 1995, strewn with litter and even stolen cars.
“In one sense, we’ve succeeded in what we’ve been trying to do, which is clean the trash and the solid waste issue,” Green said. “I think we’ve done a great job with that.
“But what’s happened at the landfill is beyond our control, totally.”
Court documents, ordered unsealed in September by U.S. District Judge John T. Copenhaver, offer evidence that Union Carbide Corp. failed to report a toxic dumping site in South Charleston that has been leaking hazardous substances into nearby Davis Creek and its tributaries.
The documents arose from lawsuits the Courtland Company, which owns property near Davis Creek, filed against Union Carbide. One lawsuit, filed in December 2019, alleged that Union Carbide disposed of hazardous waste and substances from the 1950s through the 1980s at the Filmont landfill, a Union Carbide-owned site near the creek and the West Virginia Regional Technology Park. Courtland says that site was never properly closed and remains an illegal open dump.
“What we’re asking for is Union Carbide to clean up all the mess that they caused there,” said Michael O. Callaghan, a Charleston attorney representing the Courtland Company.
The December 2019 lawsuit followed an October 2018 Courtland lawsuit against Union Carbide 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.
The existence of the little-documented Filmont landfill was revealed in an October 2019 deposition of Union Carbide’s remediation leader.
“So basically, they had a landfill ... just put fill material over top of it and just walked away, and then they got caught,” Callaghan said.
Filings show that Union Carbide had been monitoring the Filmont site and, in 2010, prepared a PowerPoint presentation for the West Virginia Department of Environmental Protection in which it pledged to “maintain the inactive landfill as it currently exists.”
Patricia M. Bello, counsel for Union Carbide, said the company denies all claims that Courtland has asserted against it and “will continue to vigorously defend itself.” Bello declined further comment.
However, 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.
In September, Scott Simonton, an engineer, professor at Marshall University and former vice chairman of the Environmental Quality Board, observed and confirmed contaminants migrating from the Filmont waste dump where it borders Davis Creek and two other waterways, Ward Branch and South Boundary Creek, according to a declaration filed in October.
Simonton reported on and provided photos of heavy orange sludge deposits on the eastern bank of Davis Creek, on which the Filmont dump sits, adding that the deposits were notably absent on the creek’s western bank. 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.
Simonton noted that a popular fishing point and boat landing near and downstream from the Filmont dump “should be a matter of immediate public health protection concern.”
Green said most people who fish in Davis Creek do so upstream of the pollution area, but that people have been fishing downstream, at the mouth of Davis Creek, for many years because it’s accessible.
“People should be forewarned not to eat any fish that they catch downstream, at the mouth of Davis Creek,” Green said.
Simonton reported sludge containing aluminum, arsenic, beryllium, cadmium, chromium, copper, lead, manganese, mercury, nickel, selenium and zinc that covered the bottom of the South Boundary Creek, Davis Creek and Ward Branch, and that contaminated liquids likely have entered the Kanawha River.
In his declaration, Simonton concluded that Union Carbide should perform a time-sensitive interim removal action to eliminate the continuing introduction of hazardous substances and waste from the Filmont dump, as well as develop a final site remedial-action plan.
Callaghan said he, Simonton and a Union Carbide engineering representative and company legal counsel inspected the site Monday and encountered orange sludge documented in photos.
“We know we’ve got something bad that’s polluted, but we don’t know how bad or what the extent is yet,” Callaghan said.
The Courtland Company’s lawsuits are not close to a resolution.
“I think once people understand the recklessness of Union Carbide and how they’ve endangered the public health and safety of the people in South Charleston, I think they’re going to be outraged at Union Carbide and their indifference,” Callaghan said.
But South Charleston’s mayor doesn’t see cause for alarm.
“We have not received any information that I’m aware of that raises a red flag of any endangerment to the general public at large,” Mayor Frank Mullens said.
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 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 more than my one client that’s been polluted on,” Callaghan said. “The public’s been polluted on.”
Green, who stressed that she was speaking for herself and not the Davis Creek Watershed Association, is a Charleston native who grew up in a neighborhood that was at least half Union Carbide families. She said her best friend growing up was the daughter of a chemist who came to the Kanawha Valley from South Carolina to work for Union Carbide in the 1940s.
“The people that came here from all over the world that worked for Union Carbide were top-notch scientists and engineers,” Green said. “Those folks and their families, and even their children’s children, have contributed huge amounts to the cultural life, the economic life of the Kanawha Valley.”
But Green wants to see Union Carbide held accountable for the mess she believes the company made.
“And all they need to do is just agree to clean it up,” Green said.