West Virginia State University’s suit to force the chemical companies responsible for polluting the groundwater beneath its campus to clean it up resulted in a mistrial Monday.
The mistrial comes after nearly two weeks of trial in what has been the university’s seven-year legal battle against the companies.
The university and the surrounding community in Institute, one of West Virginia’s only two majority-Black communities, have long had to wrestle with industrial pollution.
Kanawha County Judge Maryclaire Akers declared a mistrial after a jury of six people failed to reach a verdict. According to a note from the jury foreman, one of the jury members was confrontational, insulted another juror and considered evidence outside the case.
Following the declaration, the attorneys for the university declined to comment.
In 2017, the historically Black institution sued Dow Chemical, its subsidiary Union Carbide and former operators of the plant. The University wanted the companies, that had polluted the groundwater beneath its campus with probable carcinogens, to clean up the contamination, prevent further migration of the contaminants and compensate the university for harm done to its reputation.
“It is my hope that Dow will come to the table and take full responsibility for the mess it created,” then-university President Anthony Jenkins said at the time that the lawsuit was filed.
The U.S. Environmental Protection Agency initially announced the discovery of contaminated groundwater at the Institute chemical plant in a 1984 report documenting environmental pollution in the Kanawha Valley. The discovery prompted the federal agency to issue corrective measures over the next three decades to address the pollution.
In August 2013, a private engineering firm tasked with investigating the contamination reported to the EPA, state, university and chemical companies that the contaminants were migrating from the chemical plant to the groundwater underneath a portion of the land that had been given to the campus earlier that year.
Three chemicals — 1,4-dioxane, 1,1-dichloroethane and chloroform — were found at “elevated levels” in the groundwater underneath the campus, according to the original lawsuit.
At the time of the case filing in 2017, university officials said they learned of the contamination about four years earlier when the property had been transferred to the university.
While Union Carbide representatives couldn’t comment on particulars as the case is now still pending, a spokesperson said in an emailed statement that the Institute chemical plant “poses no health risk to the community, including WVSU, and the data supports this conclusion,” adding that Union Carbide has “met, and will continue to meet and exceed, all of its remediation commitments with oversight from the US EPA and the WV DEP.”
The jury began deliberating Friday after hearing closing arguments by the two sides.
“We did not make this pollution. Carbide did,” said Brian Glasser, attorney for the university. “Carbide made all the money for all the years off all these manmade chemicals.”
Union Carbide manufactured chemicals at the plant until 1986 when the company sold it to Rhone-Poulenc. The French company operated the plant until 2000 when it merged with another company and formed Aventis, which operated the plant for two years before becoming a part of Bayer CropScience. Bayer eventually sold the plant back to Union Carbide, which was a subsidiary of Dow at that time. Each of the owners and operators were defendants in the case.
“This is the day that they should have to account for those decisions,” Glasser later told the jury.
Following Glasser, Scott Masterson, an attorney representing Dow and the other companies in the case, said the question wasn’t about whether the groundwater was contaminated, but whether the contamination “substantially and unreasonably interfere with their use and enjoyment of their property and how does it damage that groundwater.”
“The groundwater isn’t touching anything else. It’s not bubbling up to the surface. There’s no evidence whatsoever that it’s vaporizing anywhere,” Masterson said. “They’ve tested the air in the building. They tested the soil. It’s not happening. There’s no evidence supporting that.”
The 2013 report by the private engineering firm investigating the contamination, CH2M Hill, said that there was a potential risk of exposure to the contaminants polluting the groundwater through ingestion of drinking water and inhalation in occupied buildings.
However, because the university gets its water from West Virginia American Water and not from the groundwater on campus, the firm concluded that there was only concern for potential exposure through inhaling the vapors that can travel through the soil. They also concluded that there was no risk to human health because, at the time, the buildings were unoccupied and the university indicated that there were no plans for residential use.
Because of that, the firm issued two recommendations: place a legal order prohibiting the use of the university’s groundwater and require vapor barriers for new buildings built on campus or place a legal order prohibiting the residential use of the property outright.
Union Carbide has had a long history with the community in Institute. Nearly forty years ago, a cloud of hazardous chemicals leaked from Union Carbide, injuring several employees and sending dozens of nearby residents to seek medical help.
The Institute leak came less than a year after a Carbide plant in Bhopal, India, leaked methyl isocyanate, or MIC, a toxic gas that burned the eyes and lungs of thousands of families living nearby and killed as many as 15,000.
A company spokesperson previously told Mountain State Spotlight that Union Carbide will continue its engagement with the community and that the company “continues to operate its facilities in West Virginia in compliance with all permits and has proactively and voluntarily taken actions to reduce emissions.”
This case was just one of the several legal challenges that have mounted against Union Carbide and former operators of the chemical plant in the past few years.
Last month, a federal judge ordered Union Carbide to pay a $200,000 civil penalty after the court found that the company’s South Charleston landfill violated the Clean Water Act. This comes after nearby property owner Courtland Company sued Union Carbide over contamination from its Filmont landfill. Courtland first sued Union Carbide in 2018.
In July, a Kanawha Valley resident filed a lawsuit in the Kanawha County Circuit Court, alleging her cancer is caused by her ongoing exposure to ethylene oxide emissions from the nearby Union Carbide plant as well as other chemical facilities throughout the Kanawha Valley.
Several of the same companies in the university’s case are named as defendants, including Dow, Union Carbide and Bayer CropScience. In a statement, Union Carbide told the Charleston Gazette-Mail that it has already reduced emissions and is “ready to defend this misguided complaint.”
Disclosure: The law firm of Bailey & Glasser represents West Virginia State University in its lawsuit against Dow Chemical. One of the firm’s co-founders, Ben Bailey, is chairman of Mountain State Spotlight’s board of directors. The firm’s other co-founder, Brian Glasser, is counsel of record and has donated to Mountain State Spotlight.