The January 9th, 2014 chemical release at a Freedom Industries, Inc. facility in West Virginia has shown, yet again, that major environmental releases are likely to prompt major environmental lawsuits. As a result of the spill of 7,500 gallons of 4-MCHM, a chemical foam used to wash coal, 300,000 residents of nine counties were told not to use tap water for anything other than toilet-flushing or firefighting, area businesses were forced to close, and hospitals took emergency measures to conserve water.
More than 60 lawsuits were filed in state court by residents and business owners in eight counties against West Virginia-American Water Company and Freedom Industries. The suits assert personal injury claims ranging from emotional distress and requests for medical monitoring to property-related claims such as trespass. Freedom Industries and the water supply company promptly removed the 62 actions to federal court, which Plaintiffs moved to remand. On April 18th, U.S. District Court Judge John T. Copenhaver, Jr. issued an order consolidating the cases for the limited purposes of adjudicating a motion to remand the actions to state court. See Desimone Hospitality Servs. LLC v. West Virginia-American Water Co., No. 2:14-CV-14845 (S.D. W. Va., Apr. 18, 2014). Citing Federal Rule of Civil Procedure 42(a), Judge Copenhaver explained that consolidation was particularly appropriate here because “[t]he risk of inconsistent adjudications, substantial expense to the parties, and inefficient use of court resources markedly increases here if the court declines consolidation to some extent.” See Desimone Hospitality Services LLC, slip op. at 23-24.
In addition to these suits, non-profit groups also have filed an emergency petition with the West Virginia Supreme Court of Appeals accusing the state’s Department of Environmental Protection and the Department of Health and Human Resources of failing to perform their legal duties to protect the public’s health in response to the spill. See Covenant House v. Huffman, No. 14-0112 (W. Va. February 7, 2014).