Exelon: waste from Mallinckrodt downtown site shipped to West Lake

St. Louis Post-Dispatch | Jacob Barker | July 23, 2015

Silent on the issue for years, one of the companies potentially liable for contamination at the West Lake Landfill has suddenly gone public in its push for additional testing at the Bridgeton site.

Chicago-based utility company Exelon says it has new information indicating some of the waste in West Lake could have come directly from a downtown St. Louis campus where uranium and other radioactive materials were processed by Mallinckrodt chemical works.

Further, the small amount of waste could have been transported to West Lake against Mallinckrodt’s wishes — by a company now owned by a subsidiary of West Lake owner Republic Services.

If tests show new waste from Mallinckrodt at West Lake — and it actually turns out to be radioactive or hazardous — it could shift liability between Exelon and Republic as they look to divvy up a West Lake cleanup tab that could run into the hundreds of millions of dollars. Exelon’s new testing requests could delay the Environmental Protection Agency’s final cleanup decision.

Exelon’s entry into the fray of West Lake has also laid bare disagreements between it and Republic in the approach to an expensive cleanup that has become increasingly political.

John McGahren, an attorney representing Exelon, provided the Post-Dispatch with a 1995 Mallinckrodt response to the EPA admitting that 20 cubic yards of “nonhazardous building demolition debris” was “mistakenly” taken to West Lake by Able Industries, which operated as Johnny on the Spot.

A local business registered as Johnny on the Spot, which has the same address as Able Industries, is owned by CWI of Missouri Inc., a Republic subsidiary.

“The disposal of this material in the West Lake Landfill was not approved by Mallinckrodt — the Browning Ferris Industries Missouri Pass Landfill in Maryland Heights, Missouri, was the disposal facility designated and approved by Mallinckrodt for receipt of this material,” Mallinckrodt attorney Cathleen Bumb wrote.

“It is unknown by Mallinckrodt why Able Industries … transported the material to the West Lake Landfill,” Bumb wrote in the 1995 letter to EPA.

EPA records only definitively say that leached barium sulfate from processing activities is in the landfill. It was illegally dumped there by a contractor for uranium producer Cotter Corp. in 1973. Cotter had bought the waste for reprocessing, and Exelon retained Cotter’s pollution liability after it sold the company in 2000.

Now, McGahren says his client wants additional testing to confirm what the document says.

“It’s well documented the materials that Cotter handled, which was leached barium sulfate, but we proposed additional testing in the areas with the highest concentration of radionuclides,” he said.

Some residents and activists have long called for more testing of a site some say could have more radioactive material than the government has ever acknowledged.

McGahren said his clients believe that Cotter’s material is only in one portion of the contaminated area under EPA’s authority. They have proposed testing there and in other areas to confirm that some of the material “predates Cotter.”

“We want to know because I think the public is insisting on knowing, what’s in the landfill,” McGahren said. “What we want to do is further testing to demonstrate that the material does not leach, that’s its inert, and that it’s safe to be capped and contained in the landfill.”

He said there’s no reason to believe the material is unstable or unsafe and the testing would demonstrate that.

Until now, Republic has been the lead on much of the site testing and it has cautioned that new testing could slow down the process as EPA nears a cleanup decision, possibly at the end of 2016. Republic spokesman Richard Callow questioned the relevance of the new document.

“The basis for Mr. McGahren’s argument is nonhazardous demolition waste sent to a landfill in 1995 — decades into the decommissioning of Mallinckrodt and the investigation of West Lake,” Callow said in a statement. “And, EPA was made aware of it at the time — 2 decades ago — and has never found it relevant.”

It’s unclear what the material is or if it’s dangerous. The 20 cubic yards detailed in the report is described as nonhazardous, but Mallinckrodt also says that “no analysis was performed to this load of demolition debris.”

At the same time, the invoice says the waste was going to be sent to a local landfill anyway, just in Maryland Heights instead of Bridgeton. Yet, it came from a Mallinckrodt building that was listed in cleanup documents with the Nuclear Regulatory Commission.

The additional testing could strengthen a link between some landfill waste and Republic, possibly shifting more costs of a final cleanup to the waste operator. It also could provide a stronger link to the Department of Energy, the third party EPA considers potentially liable for West Lake cleanup.

McGahren said EPA would allow Exelon’s requested testing after Republic and the DOE agreed, but his client does not yet have access to the site.

Republic, in response to a Post-Dispatch inquiry, provided a letter from one of their attorneys to McGahren that says it would allow the testing subject to its final approval of a plan.

“Despite our disagreement with Exelon’s sampling proposal, and in the spirit of expeditiously moving toward (an EPA resolution), we feel there is little to be gained by preventing your inexplicably aggressive one-off push for additional data that EPA concedes ‘may provide some additional insight’ into site conditions,” Republic’s attorney, William Beck of Lathrop and Gage, wrote.

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