Two West Virginia waste management companies charged with cleanup of a chemical spill that polluted the Elk River lost their bid to have an environmental lawsuit filed against them in a West Virginia federal court thrown out.
The City of Hurricane, W.V., and the Putnam County Commission filed the lawsuit in May, alleging that Waste Management Inc. and Disposal Service Inc. improperly disposed to toxic chemicals it collected from the January 9 spill caused by a Freedom Industries coal-cleaning plant.
The plaintiffs accuse the two companies of dumping propylene glycol phenyl ether, dipropylene glycol phenyl ether, and crude MCHM containing methanol, which they collected during the Elk River cleanup, into a landfill owned by Disposal Services.
The 10,000-gallon spill polluted the water supply for the state’s largest city, Charleston, leaving more than 300,000 people with water too toxic to drink, cook, bathe, or wash with for nearly a week. Traces of the chemicals continued to show up in independent tests for weeks following the spill.
The chemicals were blamed for causing widespread illnesses in Charleston and other affected areas including nine West Virginia counties. Symptoms included nausea, diarrhea, vomiting, and irritation of the skin and eyes.
According to Law360, Waste Management and Disposal Service argued that the plaintiffs “failed to prove that any of the three chemical wastes involved in the suit qualifies as a hazardous waste under the Resource Conservation and Recovery Act.”
Judge Robert Chambers disagreed, saying that the case is akin to a lawsuit that citizens can file under the Clean Water Act or the Surface Mining Control and Reclamation Act (RCRA), which requires only that the plaintiff make a “good faith allegation” of the violation for jurisdictional purposes. As such, the plaintiffs need not prove the toxicity of the chemicals at this stage in the case, the judge said, noting that the “plaintiffs allege that the waste chemicals involved in this action are toxic or otherwise hazardous waste under … the RCRA.”