A judge said Friday that the city of Hurricane can investigate a landfill where an MCHM wastewater mixture was dumped. However, Putnam County Circuit Judge Phillip Stowers still must decide how much power the city has.
About 228 tons of MCHM-contaminated wastewater mixed with sawdust generated from the Freedom Industries cleanup is being stored at the Disposal Service Inc. landfill. Last month, the Hurricane City Council launched a legislative investigation of the landfill, owned by Waste Management.
Hurricane has a right to protect its citizens under the state home-rule law, Stowers said.
After the dump refused on April 18 to allow the city to complete its investigation, particularly preventing an agent from collecting samples of the contaminated material and handing over documents, the city asked Stowers to force Disposal Service to comply.
Stowers said Friday the landfill must produce any documents — by Wednesday — pertaining to how the MCHM mixture ended up at the landfill, unless attorneys want to argue why the documents should be protected.
Stowers also said arguments over testing the cells where the chemical mixture is being stored should be filed by Friday.
Attorneys for the landfill said they did not believe Hurricane had the authority for the investigative order but said they already had agreed to allow city agents to perform some tests of soil, groundwater and leachate.
Hurricane doesn’t have a right to regulate the landfill, but it does “have the right to check how it’s doing business,” Stowers said.
Hurricane and Putnam County officials have expressed concern that leachate — the liquid that seeps out of landfills — could introduce MCHM into the county’s water supply.
Stephen Gandee, an attorney for Disposal Service, said West Virginia Department of Environmental Protection tests showed the wastewater contained no more than 81 parts per million of Crude MCHM. That’s 81,000 parts per billion — well above the less than 0.15-parts-per-billion threshold at which humans can smell the chemical, as estimated by the West Virginia Testing Assessment Project.
In its motions for dismissal and protection, the landfill argued that the city has no legal basis for its investigative order and that the order is a “naked attempt” to override the DEP’s approval for it to accept the contaminated material. Landfill attorneys argue that the DEP and the state Bureau for Public Health have the exclusive authority to regulate the disposal of the material in the landfill because the DEP has ruled it nonhazardous.
Disposal Service further argues that allowing the investigative order would “establish a dangerous precedent” by effectively giving the city “an unchecked opportunity to override the DEP’s expertise and authority any time it felt so inclined.”
“I don’t intend to rule [that] the city of Hurricane can go out and do something to the landfill inconsistent with DEP regulations,” Stowers said, but added that Hurricane has a right to ensure the health, safety and welfare of its citizens.
The landfill was the only one in West Virginia the DEP permitted to accept the wastewater. Freedom leaked MCHM, a coal-cleaning chemical, into the Elk River on Jan. 9, fouling the water supply for about 300,000 West Virginians.
The DEP has said Freedom’s site cleanup must ensure that MCHM doesn’t get into waterways, so any rainwater or snow melt that runs across the site is being collected. Waste Management said it dumped the contaminated wastewater starting on Feb. 25, until it voluntarily stopped on March 13, after residents near the landfill smelled the infamous licorice odor of the chemical and public backlash ensued.
Now-expired permits would have allowed it to dump up to 700 tons.
Attorney Mike Callaghan, who represents Hurricane, said experts believe the MCHM mixture wouldn’t have had time to seep out when the test was conducted and showed non-detect levels. He said he plans to file a lawsuit on behalf of the county that, among other things, will ask that the MCHM mixture be moved from the Hurricane landfill to a site meant for hazardous materials. The lawsuit also will request that the leachate at the landfill be regularly monitored.
Disposal Service said it wouldn’t allow the city to disturb the lined part of the landfill to sample for the material for several reasons, including concern that disrupting the area would cause health and safety issues. Scott Mandirola, director of the DEP’s Division of Water and Waste Management, has said unburying the material and exposing it to the air again has more potential to cause problems than leaving it alone.
Callaghan told Stowers the tests they planned to conduct wouldn’t disturb the lined portion of the landfill.
Stowers said he planned to make a swift decision on the case, as any delay causes the public more anxiety.
Reach Kate White at firstname.lastname@example.org or 304-348-1723.