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WEST VIRGINIA ENVIRONMENTAL QUALITY BOARD
UNION CARBIDE CORPORATION,
APPELLANT,
V. APPEAL NO. 21-01-EQB
DIRECTOR, DIVISION OF WATER AND WASTE MANAGEMENT, DEPARTMENT OF ENVIRONMENTAL PROTECTION,
APPELLEE.
ORDER GRANTING IN PART APPELLANT UNION CARBIDE CORPORATION'S MOTION FOR STAY
On Wednesday, January 27, 2021, the parties, by and through their legal counsel, appeared
before a quorum of the Environmental Quality Board ("EQB") via Zoom teleconference to present
oral arguments concerning Appellant Union Carbide Corporation ("UCC") and its Motion for Stay
pending appeal.
UCC seeks to stay provisions of Order No. 9943 issued December 8, 2020, concerning
providing information and documents relating to the closed Filmont Landfill located in South
Charleston, Kanawha County, West Virginia. UCC seeks additional time to investigate and
respond to the issues raised in Order No. 9942.
Pursuant to W. Va. Code § 22B-1-7(d), this Board may grant a stay of certain terms and
conditions of an appealed permit if it can demonstrate that "an unjust hardship to the appellant will
result from the execution or implementation of a . . . order . . . pending determination of appeal."
Pursuant to W. Va. Code R. § 46-4-5.2, "[t]he board may, in its administrative discretion, and in
the interests of fairness and justice, rule on motions which tend to regulate the course of a hearing,
simplify the issues, and dispose of procedural requests or similar matters."
Upon review of the written pleadings and hearing oral arguments, the Board finds that UCC
has satisfied the requirements governing stay motions under W. Va. Code § 22B-1-7(d) and the
WEST VIRGINIA ENVIRONMHNTAL QUALITY BOARD
UNION CARBIDE CORPORATION,
APPELLANT,
V.
DIRECTOR, DIVISION OF WATER ANDWASTE MANAGEMENT, DEPARTMENT0F ENVIRONMENTAL PROTECTION,
APPELLEE.
APPEAL NO. 21-01-EQB
ORDER GRANTING IN PART APPELLANTUNION CARBIDE CORPORATION'S MOTION FOR STAY
On Wednesday, January 27, 2021, the parties, by and through their legal counsel, appeared
before a quorum of the Environmental Quality Board ("EQB") via Zoom teleconference to present
oral arguments concerning Appellant Union Carbide Coaporation ("UCC") and its Motion for Stay
pending appeal.
UCC seeks to stay provisions of Order No. 9943 issued December 8, 2020, concerning
providing information and documents relating to the closed Filmont Land fill located in South
Charleston, Kanawha County, West Virginia. UCC seeks additional time to investigate and
respond to the issues raised in Order No. 9942.
Pursuant to W. Va. Code § 22B-1-7(d), this Board may grant a stay of certain terms and
conditions of an appealed permit if it can demonstrate that "an unjust hardship to the appellant will
result from the execution or implementation of a . . . order . . . pending determination of appeal."
Ppursuant to W. Va. Code R. § 46-4-5.2, "[t]he board may, in its administrative discretion, and in
the interests of fairness and justice, rule on motions which tend to regulate the course of a hearing,
simplify the issues, and dispose of procedural requests or similar matters."
Upon review of the written pleadings and hearing oral arguments, the Board fmds that UCC
has satisfied the requirements governing stay motions under W. Va. Code § 22B-1-7(d) and the
standards set forth in Camden Clark Memorial Hospital v. Turner, 212 W. Va. 752, 575 S.E.2d
362 (2002).
Accordingly, for all the foregoing reasons, the Board grants UCC's Motion for Stay as
follows:
A. The Board hereby stays Order No. 9943 for thirty (30) days beginning on the date of the execution of this Order Granting Motion for Stay.
B. Order No. 9943 can be extended for an additional thirty (30) days if UCC provides to WVDEP, within thirty (30) days of the date of this Order Granting Motion for Stay, current instream samples at two locations: one (1) sample upstream from the existing landfill; and one (1) sample downstream of the exiting landfill.
These locations shall be marked with GPS and shown on a topographical map for the Board.
Identified below are the parameters to be included in the analysis sampling:
PH (s.u.) FLOW (cfs or gpm) TEMPERATURE (Celcius) TOTAL HOT ACIDITY (ppm CaCO3) MINERAL ACIDITY (ppm CaCO3) TOTAL ALKALINITY (ppm CaCO3) TOTAL IRON (ppm) TOTAL MANGANESE (ppm) TOTAL SUSPENDED SOLIDS (ppm) TOTAL DISSOLVED SOLIDS (ppm) SPECIFIC CONDUCTANCE (µmhos - corrected at 25° C) SULFATES (ppm) TOTAL ALUMINUM (ppm) DISSOLVED ALUMINUM (ppm) SELENIUM (ug/L)
ORDERED and ENTERED this I Sk day of February, 2021.
Environmental Quality Board
AC: D)r Edward Snyder, Chairman
2
stzndzlrds sat forth in Camden Clark Memorial Hospital v. Turner, 212 W . Va,. 752, 575 S.E.2,a
362 (2002).
Accordingly, for all the foregoing reasons, the Board grants UCC's Motion for Stay as
follows:
A.
8.
The Board hereby stays Order No. 9943 for thirty (30) days begirming on the date
of the execution of this Order Granting Motion for Stay.
Order No. 9943 can be extended for an additional thirty (30) days if ucc providesto WVDEP, within thirty (30) days of the date of this Order Granting Motion forStay, current instream samples at two locations: one (1) sample upstream from the
existing landfill; and one (1) sample downstream of the exiting landfill.
These locations shall be marked with GPS and shown on a topographical map for
the Board.
Identified below are the parameters to be included in the analysis sampling:
PH (s.u.)FLOW (cfs or gpm)TEMPERATURE (Celcius)TOTAL HOT ACIDITY topm Cac03)MINERAL ACIDITY (ppm Cac03)TOTAL ALKALINITY (ppm Cac03)TOTAL IRON ®pm)TOTAL MANGANESE topm)TOTAL SUSPENDED SOLIDS (ppm)TOTAL DISSOLVED SOLIDS (ppm)SPECIFIC CONDUCTANCE (Hmhos -corrected at 25° C)SULFATES (ppm)TOTAL ALUMINUM ®pm)DIS SOLVED ALUMINUM (ppm)SELENIUM (ug/L)
ORDEREDandENTEREDthisJ±dayofE±,2021.
Environmental Quality Board
2
ENVIRONMENTAL QUALITY BOARD
UNION CARBIDE CORPORATION
Appellant, v. Appeal No. 21-01-EQB
DIRECTOR, DIVISION OF WATER AND WASTE MANAGEMENT, DEPARTMENT OF ENVIRONMENTAL PROTECTION,
Appellee.
CERTIFICATE OF SERVICE
i I hereby certify that I, Jackie D. Shultz, Clerk for the Environmental Quality Board, have this day, the I 64- day of February, 2021, served a true copy of the foregoing Order Granting In Part Appellant Union Carbide Corporation's Motion For Stay via certified US First-Class Mail, Electronic Mail or Hand Delivery to the following:
via certified US Mail and Electronic Mail:
Patricia M. Bello, Esquire Lewis Brisbois Bisgaard & Smith LLP 707 Virginia Street, East, Ste. 1400 Charleston, WV 25301
Martin A. Shelton, Esquire Lewis Brisbois Bisgaard & Smith LLP 1180 Peachtree St., NE, Ste. 2900 Atlanta, GA 30309
via hand delivery and Electronic Mail:
Patricia. Bello@LewisBrisbois. corn
9489 0090 0027 6201 3823 30
Jonathan C. Frame, Esquire Office of Legal Services WV Department of Environmental Protection 601 57th Street, S.E. Charleston, WV 25304
via Hand Delivery:
Katheryn Emery, P.E., Director Division of Water and Waste Management WV Department of Environmental Protection 601 57th Street, S.E. Charleston, WV 25304
9489 0090 0027 6201 3823 47
Jackie D. Shultz, Clerk
ENVIRONMENTAL QUALITY BOARD
UNION CARBIDE CORPORATION
Appellant,V. Appeal No. 21-01-EQB
DIRECTOR, DIVISION 0F WATER ANDWASTE MANAGHMENT, DEPARTMENTOF ENVIRONMENTAL PROTECTION,
Appellee.
CERTIFICATE 0F SERVICH
I hereby certify that I, Jackie D. Shultz, Clerk for the Envirormental Quality Board, have this day,the±dayofFebruary,2021,servedatruecopyoftheforegoingorderGrantinglnpartAppeuantUnionCarbideCorporation'sMotionForStayviacertifiedUSFirst-ClassMail,ElectronicMailorHandDelivery to the following:
via certified US Mail and Electronic Mail..
Patricia M. Bello, EsquireLewis Brisbois Bisgaard & Smith LLP707 Virginia Street, East, Ste. 1400Charleston, WV 25301
Martin A. Shelton, EsquireLewis Brisbois Bisgaard & Smith LLP1180 Peachtree St., NE, Ste. 2900Atlanta, GA 30309
via hand delivery and Electronic Mail:
Jonathan C. Frame, EsquireOffice of Legal ServicesWV Department of Environmental Protection60157th Street, S.E.Charleston, WV 25304
via Hand Delivery:
Katheryn Emery, P.E., DirectorDivision of Water and Waste ManagementWV Department of Environmental Protection60157th Street, S.E.Charleston, WV 25304
Patricia.Bello@,LewisBrisbois.com
]L+Bq HD]H HDE7 EEDL ]EE] ]tl
]L+E] DDEm tlDE7 EEHL ]BE] H7
Martin.Shelton@,LewisBrisbois.com
Jonathan.C.Frame@,wy_,_gov
