Lawyers for Kanawha Valley residents and businesses alleged Tuesday that Eastman Chemical destroyed a load of Crude MCHM that had been destined for Freedom Industries, hampering efforts after the January 2014 Elk River spill to determine to what extent the chemical's corrosive properties played a role in causing the contamination of the region's drinking water supply.
Kevin Thompson, lawyer for the residents and businesses, alleged in a motion filed in U.S. District Court that Eastman "destroyed the last best evidence of the chemical previously stored in the tank that failed," causing the spill just 1.5 miles upstream from West Virginia American Water Co.'s regional drinking water intake.
In the eight-page motion, Thompson asked U.S. District Judge John Copenhaver Jr. to sanction Eastman by instructing the jury at trial that the batch of Crude MCHM was as corrosive as the most corrosive sample of the chemical that was tested by an expert for the plaintiffs who are suing Eastman. The motion invoked a legal concept known as "spoliation," which is when evidence needed in a case is destroyed or altered.
"Eastman is a very sophisticated party that should have immediately recognized the likelihood of litigation following the spill and the importance of preserving a sample of the Crude MCHM shipment bound for Freedom Industries on Jan. 9, 2014," the motion said. "A litigant has a duty to preserve evidence likely to be relevant to reasonably foreseeable litigation, and the destruction of such evidence is spoliation."
In the class-action case over the Freedom spill and the water crisis that followed, residents and businesses allege that Eastman - which made Crude MCHM and sold it to Freedom - did not properly instruct Freedom officials about the proper storage of the material, a move that led to it being stored in a carbon steel tank that corroded, causing the spill. Last week, Copenhaver denied a motion from Eastman to throw out those allegations.
The tank that leaked at Freedom was used by the company to store a coal-industry product it called Shurflot 944, which was a mixture of Crude MCHM from Eastman and other chemicals.
The motion filed Tuesday explained that Crude MCHM from Eastman was "variable" and that tests of it produced different results for the material's ability to corrode. It says that on Jan. 18, 2014, a load of Crude MCHM that, prior to the spill, was going to be delivered to Freedom was "burned and destroyed" by Eastman. Prior to the burning of it, Eastman employees had been trying to sell the material to another customer. Court records filed Tuesday blacked out the potential sales price, but Thompson's motion said that the figure made the decision to burn the Crude MCHM "especially suspect."
The motion says that Eastman should have been aware that litigation was likely, noting that the company took part in a conference call the night of the spill that included a federal criminal investigator. It notes that the suit against Eastman was filed on Jan. 13, 2014. Eastman has not yet responded to the motion and a spokesman for the company could not be reached early Tuesday evening.
Trial in the case, in which West Virginia American Water Co. also is a defendant, is scheduled to start on Oct. 25.
During a conference call on Tuesday, the parties told Copenhaver the trial could last three to five weeks. The court is in the process of preparing to select a jury of residents from Mason, Jackson, Roane, Lincoln and Nicholas counties, and to try to assure that none of the jurors are customers of West Virginia American.
Reach Ken Ward Jr. at kward@wvgazettemail.com, 304-348-1702 or follow @kenwardjr on Twitter.