Federal judges refuses to dismiss lawsuit over MCHM-contaminated - WBOY.com: Clarksburg, Morgantown: News, Sports, Weather

Federal judges refuses to dismiss lawsuit over MCHM-contaminated residues at Putnam County, WV, landfill

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A federal judge in Huntington is allowing a lawsuit filed by the City of Hurricane and Putnam County commissioners over MCHM-contaminated wastes stored at the nearby Disposal Services landfill to continue.

Disposal Services and its operator, Waste Management, had asked U.S. District Judge Robert C. Chambers to dismiss the complaint, arguing that the two government entities had failed to afford them the 90-day notice required under the federal Resource Conservation & Recovery Act for all but hazardous wastes.

Chambers, however, denied the petition, saying that local leaders had “adequately alleged” their position that the lack of definitive data on the dangers of prolonged exposure to MCHM qualified their lawsuit for the RCRA exemption, despite letters Disposal Services subsequently obtained from state and federal environmental regulators suggesting the wastes at issue are not hazardous.

The lawsuit, filed in May, seeks a court order forcing Disposal Services and Waste Management Inc. to properly dispose of the MCHM, abate any leftover contamination and pay court costs.

Chambers said that when the complaint was filed, the EPA and DEP opinions weren’t available.

“Given plaintiffs’ allegations of evidence showing the toxicity of the chemical waste and their allegation that the EPA may not have readily available toxicological data on these chemicals—along with the fact that a Subchapter III listed chemical comprises at least some of the chemical waste—this Court cannot say that (their) jurisdictional allegation that the waste chemicals involved in this action are toxic or otherwise hazardous waste under RCRA Subchapter III is wholly unsubstantial and frivolous,” Chambers wrote.

Without engaging in discovery, he said no one can know what information Disposal Services and Waste Management had given to WVDEP and USEPA to persuade regulators that they were not dealing with a hazardous waste.

“It would be putting the cart before the horse to require Plaintiffs to definitively prove (the MCHM residues at issue are hazardous) at the outset of the case,” he said, adding that while their “nascent Subchapter III claim may ultimately fail ... this is not the proper context in which to make such an assessment.”

The lawsuit alleges residents began complaining of “powerful and noxious odors” emanating from the landfill in March. Upon investigating, they discovered MCHM residue from the January 9 chemical spill at Freedom Industries Etowah terminal, which fouled the water supply in nine-counties in southern West Virginia, had been trucked to the landfill.

It alleges at least nine tanker loads of MCHM liquids were brought to the landfill. Eight truckloads were pumped into a concrete-lined container and mixed with sawdust to solidify the material, while material in the ninth truck was already in solid form.