The company that owns a Hurricane landfill is seeking the dismissal of a Putnam County lawsuit filed over the dumping of MCHM wastewater into the landfill, saying MCHM isn’t classified as a “hazardous waste” under federal law.
Last month, the city of Hurricane and the Putnam County Commission sued Disposal Service Inc. and Waste Management in federal court, asking them to inspect the site and address any threats to the public.
The lawsuit sought to remove waste to a hazardous waste landfill, asserting Crude MCHM was over the 1-part-per-million concentration and is considered hazardous waste under federal law.
It also said Eastman Chemical, the chemical’s manufacturer, recommends incineration as the disposal method.
However, both companies assert in last Thursday’s motion to dismiss that officials didn’t provide proper 90-day notice required under the Resource Conservation and Recovery Act, and said Crude MCHM is not a hazardous waste under that federal law.
According to previous reports, following the Jan. 9 chemical leak at Freedom Industries, the state Department of Environmental Protection ordered Freedom to ship remaining chemicals and contaminated water away from the Elk River site.
The company shipped thousands of gallons to its Poca Blending facility in Nitro and later shipped some of the material to the Hurricane landfill.
The site received a special DEP permit to store the waste and the chemical was mixed with sawdust before it was shipped to a lined storage area at the facility, according to previous reports.
The city and the commission previously filed a complaint against the DEP seeking to revoke the wastewater permit. However, the Kanawha County circuit judge dismissed the case, saying it was moot because Waste Management agreed to stop accepting the wastewater.
DEP Secretary Randy Huffman previously told the Charleston Daily Mail that MCHM isn’t classified as hazardous waste under state law and some federal officials say it doesn’t fall under that category either.
In their document supporting their motion to dismiss, the companies assert Putnam County officials haven’t shown MCHM is listed in regulations as a hazardous waste by the U.S. Environmental Protection Agency.
It also said officials haven’t shown the chemical displays characteristics such as ignitability, corrosivity, reactivity and toxicity under the regulations.
The motion also states officials didn’t bring action against the EPA administrator or begin a “rulemaking proceeding” but instead tried to “bypass these two prescribed avenues by urging this court to find that Crude MCHM is a hazardous waste” under federal law.