Sustained Outrage

Flurry of action continues in spill case

Coal Water Pollution


There continues to be interesting maneuvering in the federal class-action case over the water crisis that followed the January 2014 Elk River chemical spill.

The latest court filing, just last night, is this brief from lawyers for Kanawha Valley residents that argues that U.S. District Judge John T. Copenhaver Jr. should not rule in favor of Eastman Chemical in the Toxic Substances Control Act claims in the case.  Recall that Judge Copenhaver asked for additional briefing on the issue — which boils down to whether Eastman violated the law by not properly testing the chemical or warning buyers or the public about potential health impacts, or about possible safety concerns related to the type of storage tanks Freedom used.

Among other things, the new legal brief argues:

Here, without a complete and competent toxicological analysis of the risks of acute and chronic effects to human health from exposures to Crude MCHM, Plaintiffs and the Class Members face the continuing and ongoing threat and health risk resulting from any future release of the substance into the environment. Without updated and accurate published [safety data sheets] sheets that take into account the results of competent and thorough toxicological results from studies evaluating the health risks caused by Crude MCHM, Plaintiffs face the same dangers and risks.

Interestingly, there’s also another new issue that’s come up in the case: This filing from the lawyers for residents asking Judge Copenhaver to “take judicial notice” of more than a dozen facts — basically a long list of times, dates and places where the “do not use” order given to West Virginia American Water Co. customers was in place (for example, see here, here and here).

A basic part of the case against West Virginia American is the allegation that the company could have — and should have — taken steps to avoid the disruption of water service caused by the spill, by perhaps by closing its drinking water intake to avoid contaminating the system, for example.

In their new filing, lawyers for residents argue that these “facts” about the “do not use” order are not disputed and help to prove their case:

… Plaintiffs ask this Court to take judicial notice of the fact that West Virginia American’s Kanawha Valley customers were annoyed and inconvenienced by the contamination of the water system and the resulting loss of the ability to use their tap water for any purpose other than toilet flushing or firefighting. However, that the loss of the use of tap water is an inconvenience is well-known generally throughout United States (and likely other developed countries where usable tap water may be taken for granted). The United Nations has “recognized the right to safe and clean drinking water and sanitation as a human right that is essential for the full enjoyment of life and all human rights.”1 Moreover, it is particularly well known in the area around Charleston, West Virginia, as a result of the experience in January 2014.

Finally, in another court filing that’s just been made public, the mediators who have overseen talks between the various parties in the case reported that their last session — in late June — made some progress, but did not result in a settlement.  Lawyers for both sides had already informed Judge Copenhaver of this during the last monthly status conference in July. There’s another monthly status conference scheduled for this Friday at 10 a.m. in Judge Copenhaver’s courtroom.