A federal judge Wednesday denied a request by the Hurricane landfill that accepted 228 tons of MCHM-contaminated wastewater mixed with sawdust that a lawsuit against it be dismissed.
Chief Judge Robert C. Chambers’ decision ends an ongoing argument since the Disposal Service landfill and its owner, Waste Management, filed in May a motion to dismiss the suit the city of Hurricane and Putnam County filed against them earlier that month. The trial is now set for June 2.
The city and county want to force the dump to remove the material — an effort Mike Callaghan, an attorney for the city and county, has estimated could cost millions of dollars. According to Chambers’ order, Hurricane and Putnam claim the presence of the waste — containing the chemicals Crude MCHM, PPH and DiPPH — in the landfill presents “an imminent and substantial endangerment to the health or the environment” and is furthermore a “nuisance affecting public health.”
State Department of Environmental Protection spokeswoman Kelley Gillenwater has said the material taken to the landfill was vacuumed 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.
The landfill has been arguing the case should be discarded before it goes to trial 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 complaint. The landfill contended that notice is required, unless the chemicals deposited at the landfill are actually considered hazardous waste.
Putnam and Hurricane contested the motion to dismiss, calling it a delaying tactic, and the landfill replied and later asked Chambers to consider a U.S. Environmental Protection Agency official’s letter saying the chemical isn’t a “hazardous waste.” Chambers agreed to consider the document, and the city and county further objected to the letter, calling it “highly problematic” and arguing it said nothing new.
Chambers ruled Wednesday that the city and county had “adequately alleged that this case respects a violation of RCRA Subchapter III” and thus their claim under the act is exempt from the 90-day-notice. Generally, his order finds the city and county have made a “good faith allegation” — enough to get the case past the motion to dismiss and into the discovery phase where lawyers can request evidence from the landfill to make their arguments in the trial next year.
“The flaw in [the] Defendants’ argument is that they insist that Plaintiffs must wholly prove the facts at issue at this early stage in the proceedings,” Chambers wrote.
He stated his conclusion was unmoved by the EPA letter and another letter from the DEP stating that the waste is not considered “hazardous waste” under the RCRA.
He noted the EPA letter was not written until after the city and county filed their complaint and that because discovery hasn’t yet been conducted, the city and county “cannot know precisely what information” the landfill and Waste Management gave DEP before it concluded the waste was not “hazardous waste.”
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