Chemical firm loses hazwaste ruling

The state Supreme Court has ruled that a Nashua chemical company abandoned hazardous waste after it moved from its former facility in Merrimack.

Elementis Chemical Inc. had appealed a Superior Court finding that it abandoned materials at its former site when it moved in October 1998 from Merrimack to Nashua. Almost three years later, in August 2001, inspectors from the state Department of Environmental Services and the town of Merrimack discovered that Elementis was storing what they deemed to be hazardous waste at the Merrimack site.

The inspectors discovered two 20,000-gallon tanks containing sodium hydroxide, and a portion of the roof of a building had collapsed onto one of the sodium hydroxide tanks. They also found that the piping system associated with the tanks was labeled “caustic” and that what appeared to be dried caustic material had seeped from the end of one pipe.

They also found an above-ground storage area containing two more 20,000-gallon sodium hydroxide tanks and a third tank which contained anhydrous ammonia.

As a result of the inspection, DES issued an “Imminent Hazard Order” to Elementis, requiring the company to remove the waste. The state also filed an action seeking civil forfeiture penalties, alleging Elementis improperly stored hazardous waste at the Merrimack facility from 1998 to 2001.

But at trial, while the Hillsborough County Superior Court agreed with the state that Elementis had abandoned the material at the site, it also found that Elementis’s hazardous waste determination in 2001 could not be used to prove the waste was hazardous.

In its ruling, the Supreme Court, agreeing with the trial court that Elementis had abandoned the waste, also reversed the trial court’s finding that the state failed to prove the materials were hazardous.

The court remanded the case to the trial court for determination of a civil penalty. — JEFF FEINGOLD