West Virginia chemical spill spawns class actions

Posted on: February 14th, 2014 by Steve Larson
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chemical dangerChemical maker Freedom Industries Inc. and water company West Virginia-American Water Co. have been hit with a host of proposed class actions following a massive coal processing chemical spill that contaminated drinking water across nine counties.

According to court filings and announcements from various law firms, at least seven putative class actions have been filed in Kanawha County Circuit Court on behalf of local residents and business owners, as well as the residents of eight other counties who are supplied by the water utility.

The suits were prompted by a spill of 4-methylcyclohexane methanol, or Crude MCHM, from a Freedom Industries storage facility in Kanawha County into the Elk River, shortly upstream from a WVAW water intake. The chemical, which is used to remove impurities from coal, can cause throat, eye and skin irritation, induce vomiting or cause troubled breathing, according to the West Virginia Department of Health & Human Resources.

The spill prompted WVAW to issue a do-not-use order, warning customers across Boone, Cabell, Clay, Jackson, Kanawha, Lincoln, Logan, Putnam and Roane counties — an area which includes the state capital, Charleston — not to use tap water for anything other than toilet-flushing or firefighting, because of a “high probability” of contamination. State officials also declared a state of emergency, backed by a federal emergency declaration making federal funding and assistance available.

According to one of the complaints, filed by local business owner Adelphia Inc., while the spill and resultant contamination occurred on the morning of Jan. 9, residents of the affected counties were not informed that they should not drink, cook with or bathe using water supplied by WVAW until that evening.

“Hours before the public warnings were issued, water company officials deceptively told a different story,” Adelphia said.

Instead, WVAW officials had said their treatment facility located near the leak site could handle the leak and that the spill was not a health risk to customers, the complaint claimed.

Also, Freedom Industries had not self-reported the spill, as legally required, leaving it to air quality officials from the state’s Department of Environmental Protection to discover the spill after responding to odor complaints, “long after the spill began,” according to the suit.

The suit, alleging negligence, strict liability and violations of West Virginia’s consumer protection and hazardous waste laws, seeks compensatory, statutory and punitive damages for personal injury and property damage, as well as for economic losses for businesses near the spill site directed to close and consumers forced to buy bottled water.

Freedom released a statement, saying the safety of residents close to its plant was its “first priority,” alongside containment and cleanup, with company President Gary Southern saying the company had been working continuously to prevent further contamination since becoming aware of the leak.

Since the spill, the state DEP has cited Freedom for violations of the state’s air and water pollution laws. While the company has emptied the leaking tank, the DEP said it will also issue an enforcement order requiring Freedom to remove material from all other tanks at the site, noting the spill — estimated at between 2,000 and 5,000 gallons — had reached the river because of seepage through a secondary containment dike.

Federal agencies have also launched probes into the spill, with the U.S. Department of Justice announcing that it would investigate the spill and take appropriate action based on the results, and OSHA announcing it would investigate Freedom’s facility to investigate any health and safety issues for the company’s workers.