Class action filed against Eastman Chemical over W.Va. chemical spill

By Kyla Asbury | Jan 16, 2014

CHARLESTON, W.Va. (Legal Newsline) - A federal class action lawsuit has been filed against Eastman Chemical Company after the plaintiffs claim it hid toxic properties in the chemical that spilled into the Elk River in West Virginia last week.

Freedom Industries; West Virginia-American Water and Gary Southern were also named as defendants in the suit.

At its Charleston facility along the Elk River, Freedom used, controlled, distributed, transported and disposed of 4-methylcyclohexane methanol, called 4-MCHM, which is a known toxic chemical that replaced diesel fuel in the froth flotation phase of coal processing, according to a complaint filed Jan. 13 in the U.S. District Court for the Southern District of West Virginia at Charleston.

Vantap LLC, which is doing business as Vandalia Grill; Georgia Hamra; John Sarver, who is doing business as Mousie's Car Wash; Nitro Car Care Center LLC; Carolyn Burdette; Colors Salon & Boutique LLC; Crystal Goode; and Michael Manypenny said the tank storing the 4-MCHM on the facility was built using rivet construction in the 1930s and on Jan. 9, government officials discovered a licorice smell originating from Freedom's facility.

Freedom did not self-report the leak of 4-MCHM, although it had an obligation to do so immediately, according to the suit.

"The licorice smell is associated with 4-MCHM at concentrations exceeding the chemical's odor threshold," the complaint states.

The plaintiffs said airborne release of 4-MCHM from the facility caused chemical air pollution, resulting in ambient concentrations well above the odor threshold for the chemical over an area of several square miles and over a period of several days after the Jan. 9 release.

West Virginia-American Water reported that only 2,000 to 5,000 gallons of 4-MCHM leaked into the Elk River. However, that number is as yet unknown, with recent estimates of 7,500, according to the suit.

Eastman is the exclusive U.S. manufacturer of 4-MCHM and Eastman had a duty to make full disclosure on Material Safety Data Sheets for 4-MCHM under the Emergency Planning Community Right to Know Act and to reflect accurately the state of knowledge of the medical and scientific communities about the toxicity of 4-MCHM, the suit says.

Eastman placed 4-MCHM into interstate commerce and issued MSDS sheets and other warning data that were inadequate and not protective, according to the suit.

The plaintiffs said Southern knew or should have known about the conditions at the facility and its acts and omissions in ignoring obvious threats to the environment and failure to take appropriate steps to mitigate them directly contributed to the plaintiff's damages.

The plaintiffs are seeking an injunction ordered the defendants to remove all sources of contamination from the Freedom facility; an injunction ordering WVAW to complete a risk assessment of the pollution risks upstream from its water intake on the Elk River and take the appropriate steps to ameliorate and reduce those risks to an acceptable level to ensure public safety in the future; an injunction ordering Eastman to complete a competent and thorough toxicological analysis of the risks to human health from 4-MCHM and to make changes to its published MSDS sheets accordingly; an order certifying this action to proceed as a class action; compensatory and punitive damages; and an order establishing a medical monitoring program.

The plaintiffs are being represented by Kevin W. Thompson and David R. Barney Jr. of Thompson Barney; Van Bunch of Bonnett Fairbourn Friedman & Balint PC in Phoenix; and P. Rodney Jackson of the Law Offices of Rod Jackson.

The case has been assigned to District Judge John T. Copenhaver Jr.

At least eight class action lawsuits have previously been filed in Kanawha Circuit Court against Freedom and West Virginia-American Water for the chemical spill.

The chemical spill tainted more than 300,000 WVAW customers' water in parts of nine counties across the state. The Do Not Use ban has been lifted for the majority of customers, but parts of the nine affected counties are still under the ban.

The Center for Disease Control advised pregnant women to not drink tap water until the chemical is completely gone from the water.

West Virginia Attorney General Patrick Morrisey is also investigating the chemical spill, along with U.S. Attorney for the Southern District of West Virginia Booth Goodwin.

U.S. District Court for the Southern District of West Virginia at Charleston case number: 2:14-cv-01374

From Legal Newsline: Kyla Asbury can be reached at classactions@legalnewsline.com.

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