A 30-month legal battle arising from a South Charleston landholding company’s concerns about water pollution from nearby Union Carbide Corp. shows no signs of slowing down.
A week after the Courtland Company filed its third lawsuit in the U.S. District Court for the Southern District Court of West Virginia since August 2018 against Union Carbide, the company filed notice of an appeal of its second lawsuit against the chemical corporation to the 4th U.S. Circuit Court of Appeals, signaling that it saw the suit filed in December 2019 at a dead end in district court with no hearings held or scheduled.
That lawsuit was prompted by an October 2019 deposition of Union Carbide’s remediation leader that revealed the existence of the little-documented Filmont dump, which Courtland offered evidence to suggest was a toxic dumping site in South Charleston leaking hazardous substances into nearby Davis Creek and its tributaries.
The 2019 lawsuit alleges 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 Courtland Company, which owns property near Davis Creek, filed a lawsuit against Union Carbide Wednesday alleging the Filmont site is violating the Clean Water Act and sought a temporary restraining order and preliminary injunction directing Union Carbide to stop all discharges from the site into nearby waters within 14 days or submit a fully compliant National Pollutant Discharge Elimination System permit application and stormwater permit application for all such discharges in the same time frame.
Union Carbide responded to the Courtland Company’s latest lawsuit and temporary restraining order request in a filing this week by asking the federal court to deny Courtland’s restraining order motion, reporting that Carbide representatives have seen intermittent evidence of a seep on the north side of the Filmont site but also extensive evidence of iron oxide deposits upstream on property owned by the West Virginia Department of Transportation.
Union Carbide alleged that its representatives’ inspections determined that Courtland’s property is likely the primary source of iron impacts to Davis Creek and another nearby creek from onsite operations. The chemical company also filed a declaration from an environmental consultant, Charles H. MacPherson, Jr., that disputed a declaration made by Scott Simonton, professor at Marshall University and former vice chairman of the Environmental Quality Board, in a Courtland filing reporting sampling results indicating that dump-material liquid and related sludge along a creek bank were highly contaminated with toxic material from the dump.
MacPherson also alleged that Courtland was “disingenuously misleading” the court by excluding evidence that a Courtland tenant operates an iron oxide reclamation and salvage operation near a drainage channel and that Courtland is adding iron oxides into the watershed areas of Davis Creek and the Kanawha River.
Courtland responded in a Tuesday court filing by again asking for a temporary restraining order, alleging that Union Carbide has long been aware of discharges from its Filmont dump and the dump’s impact on Courtland’s property and a nearby drainage ditch.
“The discharges are apparently readily visible to everyone except [Union Carbide] and some of its consultants,” Courtland stated.
Courtland cited a deposition from an environmental consultant who worked on projects on Union Carbide’s behalf who according to a Courtland filing said in a deposition in December that his companies, CH2M Hill and its corporate successor Jacobs Engineering, and Union Carbide had been aware since 2006 of a seep at and from the Filmont dump of 1,4-Dioxane, a synthetic industrial chemical that the U.S. Environmental Protection Agency says is a likely human carcinogen.
“Further delay is beyond pointless,” Courtland argued.
ERM, an environmental consulting company that Union Carbide retained to investigate the Filmont site, applied on Feb. 2 to enter it into the West Virginia 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. The board granted a 30-day stay of the DEP’s order on Feb. 1 and noted that the order can be extended for an additional 30 days if Union Carbide provides instream samples taken upstream and downstream of the Filmont landfill.