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Unsealed Court Documents Show Union Carbide Conducted Testing At Filmont Site For Years

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Court Documents
A photo submitted to the court.

Newly unsealed court documents provide additional evidence that chemical giant Union Carbide Corp. failed to report the presence of a toxic dumping site in South Charleston that has been leaking hazardous substances into nearby Davis Creek.

Senior U.S. District Judge John T. Copenhaver, of the U.S. District Court for the Southern District of West Virginia, ruled in mid-September that more than a dozen court documents should be made public. Documents had been sealed under a protective order at the request of Union Carbide.

The decision came after West Virginia Public Broadcasting and several local conservation groups wrote to the court urging transparency in relation to the Filmont landfill, a Carbide-owned dump site located near the West Virginia Regional Technology Park in South Charleston and Davis Creek, a tributary of the Kanawha River.

The previously unknown site came to light through a series of lawsuits filed by the Courtland Co., a West Virginia-based landholding firm that owns property near the Filmont landfill. In 2017, environmental sampling conducted for the company on its property showed elevated levels of pollutants such as arsenic, barium, cadmium, lead and selenium. The company originally alleged the contamination was coming from the nearby Tech Center. However an October 2019 deposition of Union Carbide’s remediation leader unearthed the existence of the Filmont facility.

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Few public documents exist that mention the Filmont property. Solid waste, including lumber, scrap and polymer, drums of unidentified material and waste from a nearby wastewater treatment plant were all dumped on the site from the 1950s through the 1980s. Courtland alleges Carbide did not report the Filmont landfill to federal or state environmental officials as required by statutes that govern the management and cleanup of hazardous waste.

Documents Unsealed

More than a dozen documents were unsealed, including multiple lengthy groundwater monitoring reports for the Filmont site created by contractors for Union Carbide.

The reports show Union Carbide has been actively monitoring the Filmont site for at least a decade, through 2018. They also note that sampling shows groundwater at the site is impacted by organic and inorganic chemicals including arsenic, mercury and lead. Arsenic and 1,4-dioxane — a synthetic industrial chemical and likely human carcinogen, according to the EPA — were found at levels above federal drinking water limits.

A 2018 report, for example, notes groundwater from the site flows toward Davis Creek, and some pollutants including arsenic and an ether were found above screening levels on the other side of the creek.

In one unsealed document, a 2010 PowerPoint presentation to the West Virginia Department of Environmental Protection, Carbide told the state agency it intended to “maintain the inactive landfill as it currently exists” while preventing “unacceptable risk to human health and the environment from site contaminants.”

Lawyers for Courtland argue Carbide should have reported the landfill and its toxic contents to federal regulators under the federal Resource Conservation and Recovery Act, or RCRA, which dictates how hazardous waste should be handled. That opinion is shared with Scott Simonton, an engineer and professor at Marshall University, who reviewed the case and documents for Courtland as an environmental expert.

In his newly unsealed and lightly redacted declaration, Simonton also said he believed the pollutants disposed of in the Filmont landfill “pose a significant risk to human health and the environment.”

“UCC has had prepared several reports regarding contamination at and emanating from the Filmont landfill, but none have ever been shared with any state or federal environmental or public health protection agency,” he wrote.

Reporting Questions

Carbide disputes those claims. In an emailed statement, the company said it reported the existence of the landfill to the U.S. Environmental Protection Agency in 1981 under the federal Comprehensive Environmental Response, Compensation, and Liability Act, also called CERCLA or the Superfund law. A copy of that form was included in the cache of unsealed documents.

A records request by West Virginia Public Broadcasting to the West Virginia Department of Environmental Protection revealed that following that notification, a preliminary assessment of the site to determine if it contained hazardous waste was conducted. The assessment noted contamination of groundwater, surface water and soil were all a “potential hazard.”

It remains unclear what happened after the assessment. A search of EPA’s Superfund database does not show the Filmont landfill.

David Sternberg, a spokesperson with EPA, said in an email that the EPA is not involved with the site under the Superfund program at this time.

He said on Aug. 26, WVDEP informed EPA that they would take the lead for any further investigation or action under the state’s Voluntary Remediation Program.

In its statement, Carbide maintained it has complied with all laws and regulations.

“Union Carbide has assessed and monitored the site as part of its normal, diligent property management and consistent with obligations under CERCLA and related regulatory provisions,” the company said. “In addition to the 1981 notice to the USEPA, Union Carbide has shared the status and results of its on-site assessments with the West Virginia Department of Environmental Protection in 2010 and on further occasions in subsequent years.”

What’s In The Creek

Last week, Courtland submitted additional documentation to the court in support of forcing Carbide to take immediate action to clean up the site. In a court filing, Simonton describes a kayak trip in mid-September on Davis Creek and Ward Branch, two waterways that border the Filmont site. He describes “orange sludge” just below the waterline on Davis Creek and discharge and sludge from what he says is the Filmont site flowing into Ward Branch.

“The orange sludge deposits were nearly continuous along that portion of the creek bank which borders the Filmont hazardous waste dump up to the most upstream point I could access via kayak,” he wrote.

Samples taken showed “one of the highest concentrations of iron I have ever observed in a field sample,” he wrote. High levels of aluminum, manganese, arsenic and lead were also found. He noted children fishing immediately downstream of the mouth of Davis Creek.

Simonton concluded by suggesting a time-sensitive clean-up should be ordered.

In court documents, lawyers for Carbide argue the landfill poses no significant threat to human health or the environment and an expedited timeline is not needed.

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