• Case Against Landfill Operator Involving Waste From January Chemical Leak In West Virginia Proceeds
  • August 12, 2014
  • Law Firm: Sutherland Asbill Brennan LLP - Washington Office
  • The chemical leak that contaminated the drinking water for thousands of residents around Charleston, West Virginia in January continues to spring new litigation despite the owner of the storage site having filed for bankruptcy.  One of the nearby county commissions and a town within that county filed suit in May against the operator of a landfill where 228 tons of waste containing the chemicals that contaminated the region’s water supply were stored.  The Wall Street journal chronicled the details of the suit in a June article.

    Yesterday, the U.S. District Court for the Southern District of West Virginia denied the landfill operator’s motion to dismiss the case that alleges the operator improperly and unlawfully disposed of hazardous wastes, including Crude MCHM, PPH, and DiPPH.  The plaintiffs brought a federal claim under the Resource Conservation and Recovery Act (“RCRA”) and sued in federal court, contending that the federal court had supplemental jurisdiction over their additional state-based nuisance claims.  The landfill operator’s motion to dismiss was based on the argument that the plaintiffs failed to abide by the statutory notice requirement contained in the RCRA by not giving 90 days’ notice before commencing their suit.  The plaintiffs admitted they did not meet this notice requirement but met the exception to the notice requirement, which allows for immediate suits alleging violations involving the handling of hazardous wastes.

    The court determined that at this jurisdictional stage, the plaintiffs had alleged enough facts to establish that the identified chemicals did constitute hazardous wastes under the RCRA and thus they did not have to satisfy the 90-day jurisdictional notice requirement.  The case will now proceed to discovery.

    In the bankruptcy case that involves the owner of the storage facility where the chemical leak started, the Charleston Gazette reported yesterday that West Virginia government agencies have filed nearly $1.8 million in claims seeking repayment for expenses in responding to the chemical leak.