Putnam County and the City of Hurricane on Monday filed a federal lawsuit requesting that Waste Management of West Virginia remove 228 tons of MCHM-, PPH- and DiPPH-contaminated wastewater mixed with sawdust from its Disposal Service landfill.
Mike Callaghan, the former secretary of the state Department of Environmental Protection who is an attorney for the city and county in the case, has estimated the removal could cost millions of dollars. The city and county want the defendants to pay for the removal.
The suit, filed in the West Virginia’s Southern District court, requests the defendants be held liable for the “costs of performing a competent, timely and complete response to the actual and potential endangerments and nuisances” caused by the chemicals in the landfill. It also requests reimbursement for the plaintiffs’ costs to monitor the removal.
The wastewater comes from the site cleanup of Freedom Industries, the company that leaked the chemicals into the Elk River on Jan. 9, contaminating the water supply for about 300,000 West Virginians.
The suit requests a “remedial investigation and abatement” in compliance with the National Oil and Hazardous Substances Pollution Contingency Plan.
If defendants do not comply, the suit also requests an order allowing the city and county to “undertake, at their sole discretion, any necessary and appropriate response” and be reimbursed for their work. Hurricane and Putnam County also want the defendants to pay their litigation costs. The city and county have agreed to split a $60,000 retainer to hire Callaghan and several other attorneys with national environmental experience.
The city and county allege that the dumping of the chemicals at the landfill was “unlawful and hazardous,” although DEP permitted up to 700 tons to be deposited there.
Waste Management voluntarily agreed to stop dumping the material March 13 after residents near the landfill smelled the infamous licorice odor and public backlash ensued. It also voluntarily moved up the expiration date on its permits to deposit the waste from Oct. 1 to March 26, so they are now expired. DEP has said the remaining wastewater is being trucked to disposal sites in Ohio and North Carolina.
The suit states the manufacturer of Crude MCHM, which contains several chemicals, recommends it be mixed with a compatible chemical and incinerated rather than placed in a landfill. It also contests the DEP’s ruling that the chemical is nonhazardous because it contains methanol, which federal Environmental Protection Agency regulations, adopted by a state hazardous waste management program, deem a “hazardous substance.”
It also notes many questions about the chemicals’ health effects remain unanswered. Among other concerns, Hurricane and Putnam County officials have expressed worries that leachate — the liquid that seeps out of landfills — could introduce MCHM into the county’s water.
The suit states the landfill said eight of nine truckloads of the wastewater arrived there in liquid form, where it was mixed with sawdust in a concrete-lined pit.
The federal suit is separate from litigation recently filed by a resident living near the landfill seeking class-action status. It’s also separate from Hurricane’s suit seeking to force the landfill to comply with its investigation of the material there.
In a response to that suit, which could gather evidence for the federal suit, Disposal Service said it wouldn’t allow the city to “disturb the lined part of the landfill to sample for the material” for a number of reasons, including concern that disrupting the area would cause health and safety issues. Scott Mandirola, director of the state Department of Environmental Protection’s Division of Water and Waste Management, has said that unburying the material and exposing it to the air again has more potential to cause problems than leaving it alone. Putnam County Circuit Judge Phillip Stowers ruled Friday that the city can investigate the material at the landfill, but has yet to decide how much power the City of Hurricane has.
Reach Ryan Quinn at firstname.lastname@example.org or 304-348-1254.