Judge rules for city in landfill MCHM contamination case

By Kelly Stadelman | May 12, 2014

WINFIELD -- A Putnam County judge has ruled the city of Hurricane can move forward with its investigation of contaminated water dumping at the DSI Landfill owned by Waste Management.

The landfill accepted waste that contained the chemical MCHM from Freedom Industries, which contaminated the drinking supply of nine counties.

Mayor Scott Edwards said city manager Ben Newhouse will serve as the lead investigator for the city.

“He is very knowledgeable about the case and has been working and talking with our attorneys,” he said. “We are fighting for the citizens of Hurricane and will not be stepped on. The company simply made a mistake, and it needs to make it right.”

The landfill did stop taking the tainted water after being served legal papers in March. Shortly after that, the state Department of Environmental Protection revoked the modified permits.

Newhouse said at Monday night’s council meeting that Putnam Circuit Judge Phillip Stowers ruled on the motion Friday.

“The judge went back and reviewed the constitution, specifically Chapter 8,” Newhouse said. “The judge said the city has the right to protect its citizens under the state home rule law. The city has the right to investigate if it is a public nuisance or a health concern for its citizens.”

Newhouse has been asked to find out exactly what happened at the landfill in regards to MCHM.

“The judge’s ruling gives us the right to ask questions and find out answers,” he said. “Approximately 228 tons of the contaminated waste was put in the landfill.”

Both sides are to have an informal meeting this week, and Waste Management is to provide the city with information related to the case, Newhouse said.

“If they don’t provide what we want then we’ll go back to the judge next week,” he said.

The city’s concern rises out of the fact that the leachate from the landfill goes directly into the city’s treatment plant.

“We have workers and citizens who live their lives around these water and sewage lines every day,” he said. “Our citizens’ health and safety is our priority.”

The city has a chemical engineer on staff who will assist Newhouse. Newhouse said the city has already given some thoughts on the documentation.

“We have a preliminary list of documents we want, but we are more interested to see what the company gives us,” Newhouse said. “We want to find out how the chemical ended up at the landfill and we want to collect samples from the site.”

Legal Resolutions & Recoveries in April filed a lawsuit against Waste Management in federal court on behalf of the city and county. The city and county want Waste Management to remediate the disposal site.

In a previous statement Lisa Kardell, director of public affairs for Waste Management, said that while Putnam County and the city of Hurricane have chosen to pursue legal action against Waste Management in regards to its disposal of waste containing a small amount of MCHM at the DSI Landfill, the company remains steadfast in its position that it was in full compliance with DEP regulations and permits and that the material in its current state is not hazardous to human health or the environmental.

“As an approved subtitle D landfill, DSI Landfill possesses all required regulatory environmental controls and was fully compliant in both accepting and safely and securely disposing of a relatively small quantity of wastewater from Freedom Industries,” she said in a prepared statement. “The West Virginia DEP approved the waste stream as a nonhazardous material and the DSI Landfill accepted the waste in accordance with our permit.

On Jan. 9, an estimated 10,000 gallons of crude MCHM leaked from Freedom Industries’ Etowah River Terminal along the Elk River. More than 300,000 residents in parts of nine counties who use West Virginia American Water Company were without tap water for days, and many still are wary of using the water. WVAWC’s intake facility along the Elk River is just more than a mile downstream from the leak site.

The week after the leak, Freedom Industries filed for bankruptcy, effectively halting lawsuits filed against the company. As a result, many plaintiffs have since removed Freedom as a defendant in the lawsuits.

Freedom and WVAWC want the cases in federal court. Last month, U.S. District Court Judge John Copenhaver combined the requests of plaintiffs in the 62 separate cases to move them back to state court. Copenhaver’s order basically consolidates the cases to determine if they will continue in federal or state court.

Court documents show there have been 62 lawsuits filed over the leak. Of those, 38 seek class-action status. And all of the complaints have claims similar claims such as bodily injury, emotional distress, annoyance, loss of enjoyment, nuisance, inconvenience, requests for medical monitoring, lost income and loss of business revenue.

Of the complaints already filed in various state and federal courts, some list Freedom and WVAWC as defendants and others list just Freedom or just WVAWC. Some also list Eastman Chemical, which produces the crude MCHM. Freedom Industries filed for bankruptcy Jan. 17.

EDITOR'S NOTE: Stadelman is president of The Putnam Standard. Find the paper online at www.theputnamstandard.com.

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