A voluntary industry safety initiative does not set up formal standards binding Eastman Chemical, a federal judge ruled Thursday in another decision that helps frame the upcoming trial of a class-action lawsuit over the January 2014 chemical spill on the Elk River, a federal judge ruled Thursday.
U.S. District Judge John Copenhaver Jr. granted a motion from Eastman, which argued that the "Responsible Care" program - a much-touted effort by a chemical industry lobby group - did not independently create some duty that Eastman owed to residents and businesses who are suing over the company's role in selling to Freedom Industries Crude MCHM, the primary chemical involved in the spill that contaminated the region's drinking water supply.
The ruling is the latest in a series of decisions that Copenhaver has made in the weeks prior to the scheduled start on Oct. 25 of jury selection in the case against Eastman and West Virginia American Water Co. over the water crisis the occurred following the contamination of the area's drinking water after the spill.
The lawsuit alleges that West Virginia American did not adequately plan for or respond to the spill, and that Eastman did not properly caution Freedom about the potential dangers of Crude MCHM. Last year, Copenhaver approved the case being pursued as a class-action over the liability, or fault, of the water company and Eastman. The judge did not certify a damages class, meaning damages would be determined later, on some case-by-case basis that has yet to be fully defined.
In their case against Eastman, lawyers for residents and businesses argue the Eastman is liable for failing to instruct Freedom about the proper storage of Crude MCHM and not warning of the chemical's potential dangers. Eastman had wanted to block any evidence about whether the Responsible Care program constituted a set of industry standards that the company should have followed in its handling of MCHM matters and dealings with Freedom.
Copenhaver ruled that there was no "foundation to conclude that the broad principles of Responsible Care translated into specific practices or actions of companies that are well known and commonly accepted within the industry."
In another ruling this week, Copenhaver on Wednesday ruled with Eastman on the company's argument that it had not violated the federal Toxic Substances Control Act, or TSCA, in its handling of MCHM issues.
The TSCA issue was not scheduled to be part of the trial, because the parties had agreed to have Copenhaver rule on it as a matter of law. The only issue was that the plaintiffs sought a court injunction to force Eastman to stop the TSCA violations alleged in the lawsuit.
Lawyers for the plaintiffs had argued that Eastman violated the law by not reporting certain information about Crude MCHM to the U.S. Environmental Protection Agency. A former top EPA official, Robert Sussman, hired as an expert for the plaintiffs, had said that if Eastman had provided EPA with more information it "may well have led" to additional studies of the chemical and "to great controls on environmental release at coal preparation and related facilities, and these could have prevented the spill from occurring."
Copenhaver, though, ruled that such "conjectural or hypothetical" arguments are exactly the sort that the U.S. Supreme Court has dismissed as insufficient to show a legal standing to bring suit.
"That is, the plaintiffs cannot show that it would be 'likely' as opposed to merely 'speculative,' that the injury will be redressed by a favorable decision," the judge wrote. Copenhaver said that the injuctive relief sough by the plaintiffs in the TSCA part of their case - requiring Eastman to correct its failure to report certain MCHM information to EPA's TSCA office and begin keeping records about adverse health effects relating to the chemical - would not ameliorate any future potential to exposure to MCHM.
Reach Ken Ward Jr. at kward@wvgazettemail.com, 304-348-1702 or follow @kenwardjr on Twitter.