State regulators are proposing a new agreement with Freedom Industries that the bankrupt company hopes will pave the way for it to enter a voluntary toxic cleanup program, a move that could reduce the amount of contaminated material they have to remove from the site of Januarys Elk River chemical spill.
The state Department of Environmental Protection on Thursday morning released a copy of its new seven-page consent order worked out between Freedom officials and the DEPs Division of Water and Waste Management. The deal is subject to a public comment period before final approval by DEP.
Under the agreement, the DEP would lift the terms of previous enforcement orders that would require Freedom Industries to cleanup and remove all contaminated soil and groundwater from its Etowah Terminal site, located just 1.5 miles upstream from the West Virginia American Water Company regional drinking water intake.
Freedom would then be eligible to apply for the DEPs Voluntary Remediation Program. If accepted into that program, the company could use a risk-based approach that Freedom officials hope reduce the amount of contamination they would have to dig up and remove from the site.
In recent bankruptcy court filings, Freedom chief restructuring officer Mark Welch has touted the voluntary program route as effective and less expensive, saying that cleaning up the site to the point that no Crude MCHM -- the coal-cleaning chemical that spilled in January -- could be detected was not practical nor scientifically possible.
But DEP Secretary Randy Huffman said in an interview this week that even if Freedom gets into the voluntary program, the company will have to convince his agency that any risk-based cleanup standards would eliminate any risk that MCHM would ever again contaminate the drinking water supply for hundreds of thousands of people in Charleston and surrounding communities.
I havent backed down from my zero-risk obligation, Huffman said. How scientifically and from an engineering perspective they could get to that through the Voluntary Remediation Program, I dont know yet.
Complicating the issue for the DEP and Freedom is that, with little scientific research about MCHMs potential health effects, there are no established guidelines for proper cleanup of soil or groundwater.
At the end of the day, there can be no risk, Huffman said. We just cant have it. We cant have any risk. If they can figure out how to do that [in the voluntary program], it is something we would consider.
Freedom has been eying the voluntary cleanup program for months as a way to ease its costs and the time involved in remediating the Elk River chemical storage facility. But previous DEP enforcement orders, issued unilaterally by the agency in the days and weeks after the Jan. 9 spill would block the company from the program.
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