Hurricane and Putnam County are using new laws to strengthen their federal lawsuit against the Hurricane landfill that accepted 228 tons of MCHM-contaminated wastewater mixed with sawdust.
The County Commission passed an ordinance Aug. 12, and the Hurricane City Council followed with similar action Tuesday that bolsters the governments’ ability to declare the current presence of Crude MCHM, PPH and DiPPH in the landfill a public nuisance, said Charleston attorney Mike Callaghan.
Callaghan is representing the city and county in their suit, which seeks to force the Disposal Service landfill and its owner, Waste Management, to pay for removing the material.
According to the state Department of Environmental Protection, the chemicals there were vacuumed up from the Freedom Industries tank-farm site and the Elk River immediately after the Jan. 9 chemical leak that fouled the drinking water of about 300,000 West Virginians.
When the landfill stopped accepting the material after nearby residents noticed the infamous licorice smell and public backlash ensued, the rest from the tank was shipped out of state.
The city and county, which originally filed suit May 5, submitted an amended complaint late Wednesday that adds new counts based on the new laws. Callaghan said the new public nuisance arguments will now complement the suit’s previous claim that the contaminated material should be considered “hazardous waste” under federal and complementary state law and is thus unsuited for storage in a normal landfill — a claim the dump has contested.
A new count also seeks to better help Hurricane recover costs to solve the nuisance, including expenses “to investigate, respond to, monitor, assess, evaluate, and mitigate” it.
Callaghan expects the landfill owners to argue the new ordinances are unenforceable because they were passed after they accepted the material, but he said many U.S. Supreme Court decisions support the city and county’s actions. For example, when a house collapses and no municipal ordinance exists to remove it, he said a city is currently allowed to pass laws after the fact to get rid of it.
“A municipality can basically determine anything to be a nuisance at any time,” Callaghan said.
The amended complaint calls the chemicals in the landfill a public nuisance because “they pose an unacceptable endangerment to public health, safety, welfare, good order, or the healthfulness of the environment in that they present an unreasonable risk, through releases of the Crude MCHM wastes and residues to air, soil, groundwater, and to the local (wastewater treatment facility) and its employees, of human exposure to substances which have already had a significant adverse impact upon the health of West Virginia residents.”
It continues to note that the potential harm of the chemicals is still not fully understood. The trial is set for June 2.
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