Finding only public interests at issue from contamination of public drinking water supplies, a West Virginia federal court dismissed a private nuisance claim, but not a public nuisance claim against a chemical manufacturer.  See Good v. American Water Works Co., No. CIV-A-2:14-01374 (S.D.W.V. June 4, 2015).  Defendant Eastman Chemical Company was the manufacturer and distributor of a chemical, Crude MCHM, used in the coal industry and released from a Freedom Industries, Inc. facility near Charleston, West Virginia in January 2014. 

Plaintiffs are a putative class of some 300,000 residents whose water service was interrupted when Crude MCHM entered the Elk River and contaminated the public drinking water supply.  Plaintiffs contend Eastman is liable for damages for public and private nuisance, among other claims, based on its alleged failure to warn of the dangers of Crude MCHM and its allegedly negligent sale of the chemical to the facility at issue.  Eastman moved to dismiss these and other common law claims.  The Court granted in part Eastman’s motion, dismissing the private nuisance claims.  

On private nuisance, the Court granted Eastman’s motion because “the presence of the pollutants in the public water supply will not support a private nuisance claim.”  Good slip op. at *8 (citation omitted).  The Court found the only interest invaded here was that of the public generally, which by definition is not a private nuisance. 

On public nuisance, Eastman argued Plaintiffs cannot allege they suffered a special injury, as required under West Virginia law.  The Court, citing a dearth of authority defining special injury, allowed the claim to go forward  but expressed doubt the evidence would support a public nuisance claim.