Violation Notices Issued/Lawsuits Filed in Connection with Charleston Chemical Leak

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Following the January 9 leak of 4-methylcyclohexane methanol (MCHM) into the Elk River from Freedom Industries’ storage facility in Charleston, W.Va., the West Virginia Department of Environmental Protection’s Division of Water and Waste Management issued a “Cease Operations Order” to Freedom Industries Etowah River Terminal, LLC. On Wednesday, West Virginia state regulators cited Freedom Industries for a variety of violations after an inspection of the Poca Blending site. The Charleston Gazette reported five notices of violation [NOV] were issued by the WVDEP [Department of Environmental Protection]. In addition to being cited for the improper storage of materials that could potentially contaminate groundwater, Freedom was cited for its failure to have the appropriate “secondary containment” for chemical spills – a condition regulators had previously cited as being a major factor behind the spillage of the MCHM into the Elk River. The DEP inspection report notes:

Secondary containment within the facility was deteriorated or non-existent … The plan indicates that the building itself acts as a secondary containment, but holes exist at floor level in the building’s walls.

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The building is surrounded by a trench which catches any runoff from within the building … Closed gates prevent this trench from discharging unless personnel open them, but since there is no method for separating stormwater from spillage prior to entering the trench, it does not function as secondary containment.

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Construction of a clay berm is planned to provide secondary containment for these tanks, but two are currently placed in a location which would prevent such construction and only one tank is on an impervious surface.

Late Wednesday, the U.S. Department of Labor's Occupational Safety and Health Administration announced it had opened an investigation at the Nitro site following reports of “potential chemical storage hazards.”

Meanwhile, local personal injury law firms have already filed civil actions against Freedom Industries and the West Virginia unit of American Water Works (AWK), the largest publicly traded water utility in the country. At least 17 similar lawsuits are on the local court docket. Lost revenue, wages, and other economic harm in Charleston and surrounding counties will total a half-billion dollars, plaintiffs’ lawyers have estimated.

Cozen O'Connor will continue to monitor ongoing governmental investigations.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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