CHARLESTON — An engineer took samples from Davis Creek and two other bodies of water connected to it after he observed pollutants in the water, according to a declaration filed in federal court.
Dr. David Scott Simonton traveled by kayak on West Virginia waters on Sept. 11 and 12 and observed orange sludge below the waterline that he said appeared to consist of fairly thick deposits of iron hydroxide/oxyhydroxides.
"Orange deposits intermingled with and covered the creek sediments in Davis Creek away from these sludge blankets, at times nearly the full width of the creek is stained with orange deposits which extend beyond the heavy orange sludge deposits," Simonton said in the Oct. 5 declaration. "These heavy orange sludge deposits were present only on the eastern bank of the creek, on which bank the Filmont dump sits and were notably absent on the western bank of Davis Creek."
Last December, Courtland sued Union Carbide, alleging it was leaking harmful pollutants into Davis Creek. Courtland's South Charleston property is near Davis Creek.
Courtland alleged that Union Carbide allowed the release of toxic, noxious, harmful and hazardous contaminants into the environment, which have caused the soil, groundwater and surface waters in Courtland's vicinity to be contaminated. Courtland claims the pollutants have been released from Union Carbide since the 1950s.
Courtland claims in its lawsuit that because of the rail yard and an undisclosed landfill, Davis Creek and/or the Kanawha River have been contaminated by hazardous wastes and substances.
Simonton said in the declaration that 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.
Simonton observed that Ward Branch was murky and not as clear as Davis Creek.
"All along the Filmont hazardous waste dump (south) bank of the Ward Branch, I observed landfill material, including broken concrete, bricks, 5-gallon buckets, and a heavy orange sludge similar to what I had observed on the east bank of Davis Creek," Simonton said in the declaration. "This material came all the way to and into the creek as I proceeded east."
He also observed the orange sludge on Ward Branch as well.
From the samples he had obtained, Simonton said they had the highest concentration of iron he had ever observed in a field sample. He said beryllium, cadmium, chromium, copper, nickel, selenium and zinc were also present.
Earlier this month, Union Carbide sought to compel the Courtland Company to grant access to its South Charleston property to conduct soil sampling.
Union Carbide alleged that it served a notice of inspection on the plaintiff on Aug. 31, indicating it would conduct an inspection on Courtland's South Charleston property on Sept. 15 and 16, but the plaintiff's counsel said on Sept. 4 that the dates were "overly ambitious" for an inspection date.
"Defendant’s counsel also explained that the purpose of the soil investigation is to determine the conditions on the Courtland Property since Plaintiff put its property at issue by claiming it was impacted by Defendant’s activities," the Oct. 1 motion states.
An inspection and soil investigation of the Courtland property would be directly relevant for Union Carbide to be able to properly evaluate and rebut Courtland's claims and contentions in its complaint filed last December.
Union Carbide argues that it is the subject of claims that it contributed to the contamination of the environment and that it filed a counterclaim against Courtland on Sept. 9 alleging causes of action under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), negligence, declaratory Relief under West Virginia law, and equitable indemnity.
"Defendant alleges that Plaintiff is liable under CERCLA as a past and current owner and/or operator of a facility or facilities for response costs that Defendant has incurred or will incur related to hazardous substances which may be present at the Courtland Property," the defendant states in the motion.
Union Carbide also alleges that Courtland’s actions, negligence, misconduct and breach of its duties caused the Courtland property to become contaminated.
In the complaint, Courtland claims it didn't even know the Filmont Landfill existed until a deposition testimony was taken in a related lawsuit.
"According to this testimony, the landfill's existence has not been disclosed to state or federal authorities as required by federal and state law," the complaint states.
The complaint alleges the landfill received wastes during the 1970s and 1980s from Union Carbide's chemical manufacturing facility.
Courtland filed a previous lawsuit against Union Carbide in 2018 for pollutants from the Union Carbide Tech Center that is near Courtland's property. The information regarding the Filmont Landfill was unearthed during depositions for that lawsuit.
