Lawyers for Hurricane and Putnam County are arguing that a federal judge shouldn’t give any weight to a U.S. Environmental Protection Agency official’s letter saying Crude MCHM isn’t a “hazardous waste.”
The city and county call the document “highly problematic” and say there’s nothing new there.
Waste Management and its Disposal Service landfill in Hurricane — the facility the city and county are suing to force it to remove the 228 tons of MCHM-contaminated wastewater mixed with sawdust it accepted — asked June 27 that U.S. District Chief Judge Robert C. Chambers consider a letter from the EPA’s John A. Armstead to Scott Mandirola, the director of the West Virginia Department of Environmental Protection’s Division of Water and Waste Management.
In the letter, Armstead told Mandirola that the EPA doesn’t consider Crude MCHM a hazardous waste when spilled or discarded under the federal Resource Conservation and Recovery Act, or RCRA.
“Remedial waste consisting of Crude MCHM mixed with debris and/or waste water would be a regulated hazardous waste only if such debris and/or waste water themselves met the regulatory definition of hazardous waste,” Armstead wrote.
DEP spokeswoman Kelley Gillenwater has said the material taken to the landfill was vacuumed up from the Freedom Industries site and the Elk River immediately after the Jan. 9 spill, which fouled the water of about 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. After the landfill stopped accepting the material, the rest from the tank was shipped out of state.
When asked why Mandirola — who has said unburying the material and exposing it to the air again has more potential to cause problems than leaving it alone — questioned the EPA about whether it considers Crude MCHM a hazardous waste on May 8, three days after Hurricane and Putnam County filed their federal lawsuit. Gillenwater wrote in an email that the DEP wanted to “ensure that the material was being handled in the most appropriate manner” and that the EPA “confirmed that our assessment that the material was not hazardous was correct.”
Chambers said June 30 he would consider the letter, and directed the landfill and the city and county to file responses explaining the weight the court should give the document.
The landfill responded that the letter “completely validates” its prior arguments that Crude MCHM isn’t considered a hazardous waste. Disposal Service has been arguing the case should be thrown out before it goes to trial partly because the city and county didn’t give a 90-day notice of endangerment to the companies required under the RCRA before filing suit. They argue that notice is required, unless the chemicals deposited at the landfill are actually considered hazardous waste.
The landfill argues that from one perspective, the “EPA letter is quite important to the Defendants’ Motion to Dismiss — the letter represents the proverbial ‘icing on the cake.’”
In a filing last week, the city and county argue the letter is “highly problematic for the purposes of determining whether the waste materials accepted by Defendants are or should be considered, in these emergency circumstances, hazardous wastes,” under the RCRA. The city and county assert that “we know nothing about who Mr. Armstead is — aside from the fact that he has access to U.S. EPA letterhead — or whether he has any authority to speak on behalf of U.S. EPA.”
The letter “purports to be some form of administrative determination” by the EPA, but is “clearly not an RCRA ‘Interpretive Ruling’ by U.S. EPA requiring review and approval by the Administrator of U.S. EPA and the U.S. EPA Office of General Counsel,” the city and county argue.
“His letter cannot and should not be regarded as (an) authoritative final statement by a federal agency,” the city and county contend.
Armstead also only answered questions related to Crude MCHM, and the city and county note that other chemicals released as part of the Jan. 9 spill were also likely deposited in the landfill. They also allege that Armstead believes “the chemical 4-methylcyclohexanemethanol and ‘Crude MCHM’” are the same thing, when in reality Crude MCHM is the former chemical mixed with methanol — which is listed as a hazardous waste under the RCRA and the West Virginia Hazardous Waste Management Act.
The city and county furthermore argue that they haven’t asserted that Crude MCHM is listed as a hazardous waste under the laws, but instead that it meets the definitions of hazardous waste the laws spell out. They added that Armstead’s letter ignores how the emergency toxicity limit the state set for Crude MCHM may affect its definition under the RCRA.
Reach Ryan Quinn at firstname.lastname@example.org, 304-348-1254 or follow @RyanEQuinn on Twitter.