Lawsuit Alleges Union Carbide Failed To Report Toxic Landfill
On a recent sticky July afternoon, Diana Green stands on the muddy bank of lower Davis Creek in South Charleston, West Virginia.
As a child, she enjoyed wading in the nearly 10-mile-long stream in search of crayfish and salamanders. As an adult, Green set down roots there, purchasing a farm that backs up to the creek. Seeing the waterway choked with trash and pollution, Green helped form a small community-based watershed group in the 1990s. The Davis Creek Watershed Association has been dedicated to improving the environmental quality of the watershed, and 25 years later, she says they have largely succeeded. Several different fish species, from skipjack to bass live in the stream.
But these waters have also been shaped by the Kanawha Valley’s deep connection to the nearby chemical industry.
The creek backs up against land owned by Union Carbide Corp., a corporate monolith that has for decades provided a solid living for thousands of area residents, investing in the region and its workers.
Now, the company’s goodwill is being challenged by new information unearthed in a series of lawsuits by a corporate landowner. A lawsuit filed by the Courtland Co., a private, West Virginia-based landholding firm that owns property near Davis Creek, alleges Union Carbide has for decades knowingly leaked potentially toxic pollutants into the waters of Davis Creek.
Union Carbide, purchased by Dow Chemical Co. in 2001, insists in court filings that there is “no evidence to support that UCC is currently endangering the public and adversely impacting public resources.”
The company declined to answer a list of detailed questions. In an emailed statement it said: “Union Carbide Corporation (UCC) is aware of the complaints by Courtland Company. UCC denies all claims asserted against it by Courtland and will continue to vigorously defend itself. As this is ongoing litigation, UCC will not comment further at this time.”
Michael Callaghan, the attorney representing Courtland, vehemently disagrees with the company’s assessment. Callaghan is a former assistant U.S. attorney and secretary of the West Virginia Department of Environmental Protection.
“I've been doing environmental law in some form or fashion for 30 years, and I have never seen anything like this,” he said. “To walk away from a liability and just leave it on the ground is outrageous.”
I've been doing environmental law in some form or fashion for 30 years, and I have never seen anything like this - Michael Callaghan, attorney
In August 2018, Courtland filed its first lawsuit against Union Carbide. A year earlier, the company conducted some environmental sampling on its property and found elevated levels of pollutants such as arsenic, barium, cadmium, lead and selenium. In the lawsuit, the company asserts the contamination came from the nearby Tech Center, which was Carbide’s research and development hub for decades.
In the suit, Courtland asked Union Carbide and Dow to investigate and clean up the contamination.
“I would call that a garden variety environment case. Just a straightforward case of your neighbor pollutes on you and we need to solve that problem,” Callaghan said. “Well, the case took quite a strange twist.”
Near the end of an October 2019 deposition, Jerome Cibrik, remediation leader at Union Carbide, revealed that “another UCC facility” in “this general area north of the tracks” was causing contamination in some monitoring wells. The tracks are part of a rail yard, sometimes called the Massey rail yard or coal yard, also owned by Union Carbide.
When asked what was disposed of in the site Cirbik said, “We don’t have good records of what was in there.” He then identified DYNEL, a polyester fiber material, as a substance that was specifically disposed of at the Filmont site.
“We had found some limited files that deal with this facility and they mentioned disposal, mainly nonhazardous materials and DYNEL,” he said. “That’s about all we know for sure what went there from the South Charleston facility.”
DYNEL is a textile fiber with a fur-like texture and appearance that was developed in the late 1940s. It’s made from vinyl chloride and acrylonitrile. It was produced at the South Charleston plant until 1975.
Cibrik noted the landfill operated at least during the 1970s and 1980s. Other documentation shows it likely began operating in the 1950s. When asked if the site was built in compliance with federal environmental law, specifically the Resource Conservation and Recovery Act, or RCRA, he said no.
The complicated law, passed by Congress in 1976, created a framework for the proper management of hazardous and non-hazardous waste.
“I do not believe so and it is not subject to those regulations,” he said. “There is also evidence hazardous waste went into it.”
Cibrik called the area the “Filmont Landfill.”
In December 2019, Courtland filed a second lawsuit in the U.S. District Court for the Southern District of West Virginia, this time focused on the Filmont Landfill. The complaint alleges hazardous, toxic chemicals from both the rail yard and landfill are leaching into the soil, groundwater and surface water and contaminating both their property and running into Davis Creek.
That includes arsenic, 1,4- dioxane, multiple types of ethers, benzene, chloroform and vinyl chloride, which have been measured in groundwater on the site in excess of federally established screening levels, and in some cases dozens of times above federal drinking water limits set by U.S. Environmental Protection Agency.
Sampling done in 2011 by Union Carbide in wells installed across Davis Creek from the Filmont site showed levels of 1,4-dioxane — a synthetic industrial chemical and likely human carcinogen according to EPA — at levels 177 times above the screening level.
Courtland has largely used the land to store vehicles and other materials, and argues it’s impossible it created the contamination. In court documents, the company asserts the underground channels through which groundwater from the Filmont site and rail yard flow are connected to Davis Creek. Lawyers for the company argue if pollution from the landfill has migrated onto Courtland’s property, then it could easily be migrating into other places, such as a nearby residential neighborhood.
But the full extent of what could be going on remains hidden. The bulk of the monitoring data and information about this landfill remains under a protective order asked for by Union Carbide. West Virginia Public Broadcasting has joined Green and some members of the Davis Creek Watershed Association in asking the judge to make the records public, given the possible public health and safety ramifications of the dumping. The judge is currently considering unsealing about two dozen documents.
A Mystery Landfill
The Filmont Landfill is located adjacent to the West Virginia Regional Technology Park, formerly owned by Union Carbide. Constructed in 1949, the sprawling campus was often referred to as the Tech Center. Scientists there were responsible for some of the most innovative breakthroughs in chemical technology in modern history.
“The Tech Center was a world-class place with world-class scientists,” said Gary Brown, a retired Tech Center employee who worked there from 1969 until 2001 when Dow Chemical bought Union Carbide.
The Tech Center, like Carbide’s other two facilities in the Valley — the South Charleston and Institute plants — were constructed largely before the passage of most modern environmental laws.
When Brown first arrived in the Valley in the late 1960s, he recalled, he couldn’t hang his clothes outside to dry without them being covered with soot. The passage of the Clean Water Act, Clean Air Act, Toxic Substances Control Act and Resource Conservation and Recovery Act fundamentally changed the way companies could dispose of waste.
“The world changed for sure,” he said. “At one time I think people and companies looked at a river and they said ‘well, that’s a good way we can dump our waste in the river and it’ll disappear.”
Beginning in 1999, Union Carbide began working with the EPA to clean up hazardous waste within the 574-acre Tech Center, due to legal obligations under RCRA.
The company identified 70 different areas that contained waste, including three inactive landfills that until 1973 accepted coal ash slurry from the power plant at the Tech Center, municipal sludge from the South Charleston wastewater treatment plant, and some waste from Carbide’s South Charleston facility.
A 2005 investigation at the Tech Center found the landfills were contaminating groundwater with levels of arsenic and barium that, if consumed, could harm human health. Under the “corrective action,” which was finalized in 2010, Carbide was required to monitor groundwater across the Tech Center property.
The Filmont Landfill, the dump site Courtland claims in the lawsuit is contaminated with multiple toxic pollutants, does not appear in any of the Tech Center documentation. But four EPA documents from the late 1970s and early 1980s describe some of what was dumped on the site.
According to a report filed in March 1979 by EPA’s National Enforcement Investigations Center, Union Carbide employees reported solid waste from the company’s South Charleston facility, including “lumber, paper, scrap polymer, etc” were disposed of in the Filmont Landfill.
An EPA document from 1984 states the Filmont Landfill received industrial grit processed by the South Charleston Sewage Treatment Company, a subsidiary of Union Carbide, which operated the wastewater plant owned by the City of South Charleston. The plant treated both municipal and industrial waste, including from Carbide’s South Charleston plant.
Another document notes drums were both dumped and buried on the site, which is listed as 20 acres in size.
A search of EPA’s RCRA database shows no record that the Filmont landfill was granted a permit. A spokesperson for the agency said in an email, “To the best of our knowledge there is/was no RCRA (hazardous waste) regulated landfill named Filmont in South Charleston, WV.”
West Virginia Public Broadcasting has filed a Freedom of Information Act Request with the WVDEP and is awaiting a response. Record requests filed by Courtland’s lawyers to both EPA and WVDEP have not returned any information.
South Charleston Wells
While much of the information and data about the Filmont Landfill remains sealed, public records obtained from the City of South Charleston offer a window into the scope of the contamination.
In late 2009, emails show Union Carbide and a consulting firm that handles the bulk of environmental monitoring and compliance at the Tech Center site reached out to the City of South Charleston asking for an agreement to access city property to install two monitoring wells on the other side of Davis Creek from the Filmont Landfill.
In a Nov. 18, 2009 email, Paul Weber, with CH2M Hill Environmental Services, a contractor for Union Carbide, wrote to Steve DeBarr, general manager of the City of South Charleston Sanitary Board, proposing the company install temporary wells on city property.
“UCC has investigated the groundwater contamination at the Filmont Landfill up to their property boundary, which is adjacent to Davis Creek,” Weber said. “The downgradient extent of contamination has not been defined by these previous investigations. Although UCC does not expect the contamination to extend beyond Davis Creek, UCC would like to install these two temporary monitoring wells on the other side of Davis Creek to confirm this expectation.”
In July 2010, as the city was mulling over Carbide’s request, Cibrik, the head of remediation for Carbide, sent Michael Moore, attorney for the City of South Charleston, a list of figures that show “what constituents were found in groundwater at our Filmont site.”
He notes metals, semi-volatile organic compounds and volatile organic compounds were all identified within the 10 monitoring wells, adding “metals often exceed regulatory levels at natural background concentrations.”
It would take until the summer of 2011 before Union Carbide and the city would finalize an agreement for the company to drill the two wells west of Davis Creek, one on city property.
Carbide and the city also developed a background information and potential frequently asked questions document to address questions about the drilling and well monitoring.
The wells were drilled on Sept. 6, 2011. In October, Cibrik asked for a meeting with DeBarr and Moore to discuss the results of sampling conducted at the wells. The wells were sampled twice, once in September and again in October. Results showed levels of arsenic, dioxane and lead at levels above EPA standards. Arsenic is a known carcinogen. Dioxane is an ether and likely carcinogenic, according to the EPA. The data also showed 1,4-dioxane appeared to have migrated past the creek.
Following that meeting, Carbide asked the City of South Charleston for a second agreement to install a third well. On May 4, 2012, Cibrik emailed DeBarr and Moore noting the new well had been sampled twice and showed no concerning results. Cibrik characterized the bulk of the data as “good news,” noting that the groundwater flow did not appear to be going toward the nearby residential neighborhood.
When reached by phone recently, DeBarr said it was his understanding at the time, based on data provided and interpreted by Union Carbide, that the Filmont site did not pose a problem or threat to property or residents in South Charleston.
“I don’t have the expertise to say anything contrary to what they told me,” he said.
DeBarr said after 2012 the City of South Charleston did not receive any further data from the monitoring wells.
Marc Glass, a principal researcher in charge of evaluation and remediation of environmental contamination in soil and water for the Morgantown-based environmental consulting firm Downstream Strategies, said the limited data available in the case does seem to indicate pollution from the Filmont Landfill appears to have left the site, especially dioxane and some chlorinated solvents.
“There’s really significant contamination there of some nasty things right at the property boundary, and it’s on the other side of Davis Creek,” he said.
Even if nearby residents aren’t using the groundwater, Glass said given the levels of contamination observed in these wells it’s possible the pollutants could rise up through the surface in vapor from and collect inside buildings.
There's really significant contamination there of some nasty things right at the property boundary, and it's on the other side of Davis Creek - Marc Glass, Downstream Strategies
Bill Muno is the former head of the Superfund program for EPA’s Region 5 and at one time oversaw the region’s RCRA program. After RCRA’s passage, Muno said anyone who generated, transported or disposed of hazardous waste was required to register with EPA.
“If the landfill was operated after November of 1980, and Union Carbide wanted to continue to operate it, it would have had to file a [RCRA] Part A permit application,” he said.
Muno said if the landfill wasn’t in use when RCRA went into effect, and it poses a threat to the health and safety of the public or environment, Union Carbide would be still responsible for taking care of the problem either on its own or through the Superfund program.
“If you dispose of hazardous waste or place hazardous waste or even store hazardous waste for a period of time — over 90 days under the law — then you have obligations under RCRA because you’re responsible for that waste material,” he said.
He said more investigation by the company as well as state and federal regulators is warranted.
“We already have enough information, even in 2012, to say we should expect there to be contamination distributed either more deeply or more widely,” Glass said.
Callaghan, the attorney representing Courtland, has asked the judge overseeing the case to take immediate action to address the Filmont site.
“Part of what the lawsuit is looking to do is to protect, first of all the interests of my client, but secondly, the public [and] the public space exposed to these chemicals,” he said. “The public needs to know the nature and extent of this exposure so we can determine what kind of human health risk exists.”
As the cases move forward in court and more specifics come to light, Diana Green with the Davis Creek Watershed Association, hopes the Filmont site can be cleaned up.
Standing on the bank of the creek, surrounded by lush foliage, she lets out a heavy sigh.
“I think we’re all concerned about having all the truth of every situation that involves our watershed,” Green says. “You look all around and it’s beautiful, green and you can’t picture what’s going on below the surface.”
Correction: An earlier version of this story misstated when Dow Chemical purchased Union Carbide. It was 2001 not 2011.