Putnam commissioners consider second landfill lawsuit
WINFIELD, W.Va. — Putnam County commissioners are considering another lawsuit to get MCHM-contaminated wastewater mixed with sawdust out of a Hurricane landfill.
Commission President Steve Andes said commissioners would meet Wednesday with County Attorney Jennifer Scragg Karr and lawyers who have done environmental remediation work at the federal level.
Karr said at Tuesday’s commission meeting that the county has been communicating with Waste Management, which owns the Disposal Services landfill in Putnam County, about the logistics of removing the contaminated material. But she said the landfill’s counsel has told her that the state Department of Environmental Protection, which allowed the material to be deposited there in the first place, won’t allow it to be removed.
“I think our state agency has failed us, miserably,” Commissioner Joe Haynes said.
DEP spokeswoman Kelley Gillenwater wrote in an email Tuesday that Waste Management now owns the material in the landfill.
“What it chooses to do with it is now up to Waste Management,” Gillenwater wrote. “The DEP has no authority to tell a solid waste permit holder what it can or can’t do with the material it has legally disposed of in a landfill as long as no regulatory requirements have been violated.”
In other words, Gillenwater said, “as long as Waste Management and its landfill continue to meet all permit requirements, the DEP has no cause to step in and order that the company do something else with the material.”
It’s not clear where the material would go if removed because the DEP has said the Hurricane landfill was the only place in the state permitted to take it. No other landfill has applied for a permit change to accept the material, and about 700,000 gallons of the wastewater is sitting in a tank at the Freedom Industries tank farm along the Elk River.
Scott Mandirola, director of the DEP’s Division of Water and Waste Management, said he couldn’t think of an environmental reason why the county would want to dig it out of the landfill.
“Unburying it and exposing it to the air again ... has more potential to cause issues than leaving it where it is,” Mandirola said.
Freedom leaked MCHM into the river on Jan. 9, fouling the water supply for about 300,000 West Virginians. The DEP has said Freedom’s site cleanup must ensure that MCHM doesn’t get into waterways, so any rainwater or snow melt that runs across the site is being collected. Freedom has been looking at disposal sites in North Carolina and Ohio, and Gillenwater wrote Tuesday that the bankruptcy trustee for Freedom is now looking at an underground injection well site in Ohio to take about 60,000 gallons stored at Poca Blending.
Karr said she’s not planning to speak with the DEP about the issue, and that the next step will be consulting with attorneys who “are well-versed in federal environmental protection laws.” She said the county could decide to proceed with a new lawsuit — she didn’t specify whether the defendant would be the DEP, Waste Management or both — on or before its April 15 meeting to set levy rates.
“[Commissioners] can’t make any decisions except for at a public meeting, but a lot of times I’ll contact each one of them and I’ll say, ‘Hey, can I do this?’” she said. “Then if I have a majority, I’ll go ahead and do something and then they affirm it at their meeting. So it’s possible I won’t have to wait until that meeting.”
Karr said the landfill is continuing to bury the material further under garbage.
Putnam County and the city of Hurricane filed a related lawsuit on March 24, asking a Kanawha County Circuit judge to force DEP Secretary Randy Huffman “to stop the permitting of the disposal of Crude MCHM-, PPH- and DiPPH-contaminated waste in the landfill.” The county and city also wanted the judge to force the DEP to compel the remediation of the 36,000 to 40,000 gallons of wastewater Waste Management already said it deposited from Feb. 25 to March 13.
Kanawha Circuit Judge Paul Zakaib issued a preliminary injunction but dismissed the case four days later because the DEP allowed Waste Management to change the end date of its permit from Oct. 1 to March 26, so the permit expired before the March 28 hearing took place. The permit allowed Waste Management to dump up to 700 tons of the wastewater mixed with sawdust into the landfill; company spokeswoman Lisa Kardell said it deposited about 228 tons before ceasing.
Waste Management had volunteered on March 15 to stop dumping the material in Putnam, but Andes said he wanted the permit rescinded so the company couldn’t decide to start dumping again. After learning the permit had expired at the hearing, Zakaib dismissed the case without ruling on whether the material already in the landfill had to be removed.
County officials have expressed concerns about MCHM-tainted leachate from the landfill entering the county’s water. They’ve also expressed concerns about residents inhaling chemical vapors.
Karr, speaking before commissioners Tuesday, suggested that dumping the material at the landfill violates state law, which defines statutory air pollution as “the discharge into the air by the act of man of substances (liquid, solid, gaseous, organic or inorganic) ... as to be injurious to human health or welfare, animal or plant life, or property, or which would interfere with the enjoyment of life or property.”
The city and county stated in their dismissed lawsuit that the local health officer for the Putnam and Kanawha-Charleston health departments has advised them that preliminary data “may demonstrate self-reported symptoms associated with inhaling” the chemicals. They said they first learned about the chemical when residents began complaining about a licorice smell near the landfill.
“The said health officer also advises that the long-term human impact from inhalation of these chemicals is unknown at this time,” officials said in the suit.
Also Tuesday, Maya Nye, president of People Concerned About Chemical Safety, said there will be a “Women and Water Listening Session” from 6:30 to 9 p.m. Thursday in the Putnam County Commission chamber at 3389 Winfield Road in Winfield. Women and families are invited to discuss and learn about the possible impacts of the water crisis on health issues, including pregnancy. Information will be compiled into a report to assist policymakers.
Reach Ryan Quinn at email@example.com or 304-348-1254.