WINFIELD — The landfill that accepted 228 tons of Freedom Industries wastewater mixed with sawdust has dropped its opposition to the city of Hurricane’s investigation, according to a lawyer for the city.
Mike Callaghan, the attorney representing Hurricane in the lawsuit in Putnam Circuit Court, said the Disposal Service landfill has allowed the city to sample its property for the chemically contaminated material, which was generated from the Freedom Industries site cleanup and dumped at the landfill from Feb. 25 until March 13.
State Department of Environmental Protection spokeswoman Kelley Gillenwater said the material taken to the landfill was vacuumed up from the Freedom site and the Elk River immediately after the Jan. 9 spill, which fouled the water of roughly 300,000 West Virginians. The material was originally taken to a tank at the Poca Blending site in Nitro that Freedom owned, before being taken to the landfill. The remaining material from that tank has been shipped out of state.
The results of the sampling aren’t complete yet, but Callaghan said that the city has received the documents it requested from the landfill as part of the investigation.
Such evidence may be used in the separate and ongoing federal lawsuit the city and the Putnam County Commission have filed against Disposal Service and its owner, Waste Management, seeking to force the companies to remove the contaminated material. Callaghan, who is also representing the city and county in that case, has estimated the removal could cost millions of dollars.
“Once Waste Management figured out there was nothing that prohibited [the investigation], they let us go on to the property,” Callaghan said. Circuit Judge Phillip Stowers ruled during a May 2 hearing that the city had the right to investigate, but told lawyers in the case to file arguments on how far testing and requests for documents should go. Callaghan said further hearings were canceled when Disposal Service and Waste Management allowed the investigation to proceed.
Attorneys for the companies did not return calls Wednesday. Callaghan said no official paperwork has been filed yet to dispose of the case.
In an April 10 emergency meeting, Hurricane City Council launched a legislative investigation of the landfill. After the dump refused on April 18 to allow the city to complete its investigation, particularly by preventing an agent from collecting samples of the contaminated material, the city asked Stowers to force Disposal Service to comply.
Fighting the city in court, 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.
In an affidavit, a city agent wrote that he wasn’t allowed to “take samples from any of the landfill cells where the waste is contained.” Disposal Service stated that the city only ended up performing leachate testing on April 18. Hurricane and Putnam County officials have expressed concern that leachate — the liquid that seeps out of landfills and is treated before release — could introduce MCHM into the county’s water.
After the parties came to terms, Hurricane City Manager Ben Newhouse said city inspectors finally took the core samples about two weeks ago in the lined area of the landfill that they previously weren’t allowed to access. He said inspectors also went through a Waste Management safety program before testing.
“Preliminarily, what we have asked for, they have provided for us,” Newhouse said.
In its motion for protection from the investigation, the landfill had argued the city had no legal basis for its investigative order and that the order was a “naked attempt” to override DEP’s approvals for it to accept the contaminated material. It argued that DEP and the state Bureau for Public Health have the exclusive authority to regulate the disposal of the material in the landfill because DEP has ruled it is nonhazardous.
In the related federal case, for which no hearing has been set, Disposal Service and Waste Management filed a motion to dismiss Thursday, arguing the case should be thrown out partly because the city and county didn’t give a 90-day-notice of endangerment to the companies required under the federal Resource Conservation and Recovery Act before filing their suit. The defendants argue that notice is required, unless the chemicals deposited at the landfill are considered “hazardous waste.” The plaintiffs and defendants disagree on whether the chemicals meet that designation.
Reach Ryan Quinn at firstname.lastname@example.org or 304-348-1254.