Case 2:14-cv-01374 Document 777-1 Filed 05/11/16 Page 1 of 7 PageID 16064 2030 Kanawha Boulevard, East 0 Charleston, West Virginia 25311 Telephone: 304.343.4401 83 rn ey Facsimile: 304.343.4405 September 3, 2014 Mr. James P. Roberts, President VIA CERTIFIED MAIL Eastman Chemical Company 200 South Wilcox Drive Kingsport, Tennessee 37662 Eastman Chemical Company VIA CERTIFIED MAIL c/o Corporation Service Company 209 West Washington Street Charleston, West Virginia 25302 Hon. Regina McCarthy, Administrator VIA CERTIFIED MAIL United States Environmental Protection Agency 1200 Avenue Of?ce of the Administrator 1101A Washington, DC. 20460 Re: Statutory Notice of Intent to Bring Suit Against Eastman Chemical Company for Violations of the Toxic Substance Control Act (TSCA) 15 USC 2619 Dear Ms. McCarthy and Mr. Roberts: Please be advised that my ?rm represents Good of Charleston, West Virginia and I would request that you direct all future correspondence to my of?ce.1 Ms. Good was exposed to Methanol (MCHM) from a leak discovered on January 9, 2014, from the Freedom Industries, LLC, tank farm site along the Elk River in Charleston, Kanawha County, West Virginia. This correspondence is to serve as the requisite Notice in accordance with the Citizen Suit and Private Right of Action provisions of the Toxic Substance Control Act (TSCA) 15 USC 2619. As such, Ms. Good hereby provides Notice of Intent to amend her currently-?led Class Action Complaint to include a cause of action alleging violations of 15 USC 2607(e) and 15 USC Ms. Good will seek such relief as is available under this statute including, but not limited to, attorney fees, litigation costs and injunctive relief aimed at ending the on- going violation. At the time of the January 9, 2014 spill, MCHM was ?among the 60,000 chemicals grandfathered without any evaluation of its safety upon the 1976 enactment of the Toxic Substances Control Act.? See ?The Fiscal Year 2014 Management Challenges,? Ms. Good?s full name, address and telephone number, as required by 40 CFR is as follows: Dawn Good; 1401 Lee Street; Charleston, West Virginia 25301; (304) 807-1137. Case 2:14-cv-01374 Document 777-1 Filed 05/11/16 Page 2 of 7 PageID 16065 Challenges-2014. Regardless of whether MCHM is ?grandfathered,? once a manufacturer possesses information that reasonably supports the conclusion that MCHM presents a substantial risk of injury to health or the environment such information must be immediately reported to the Environmental Protection Agency (EPA) Administrator. 15 USC 2607(e). At the time of the spill and immediately thereafter, Eastman Chemical Company (Eastman) knew that MCHM presented a substantial risk of injury to health or the environment because of the widespread acute illnesses reported throughout the affected region. Eastman should have reported to the EPA Administrator that thousands of residents presenting with the exact predicted in the Eastman MCHM MSDS sought medical advice and/or treatment after being exposed to MCHM. In the face of this sort of evidence, TSCA required Eastman immediately to notify the EPA Administrator of information that MCHM presented a risk of injury to health. 15 USC 2607(e). Eastman has known of the risk of injury to health and the environment since at least 1997 when its toxicologists ?rst identi?ed the potential for blood disorders to occur after laboratory animal exposure to MCHM. Instead of informing the EPA Administrator that their product presented a substantial risk of injury to health or the environment, Eastman commissioned more studies using not only different scientists but also hardier strains of laboratory animals. Based on this manipulated and faulty science, Eastman later issued MSDS sheets which omitted the potential risk of blood disorders and other risks to health and the environment that proper testing would have disclosed, instead of making the disclosures to the EPA as mandated by 15 USC 2607(e) to disclose the risk to health. Further, Eastman knew that its product was intended for use in coal processing plants designed to discharge slurry containing MCHM into refuse impoundments which then discharge into the waters of the United States. Thus, Eastman knew or should have known that MCHM would come into direct contact with the environment. Not only does MCHM enter the environment when used as intended in coal processing facilities, but Eastman should also have known that this harmful toxin would enter the waters of the United States given the frequency of permitted and unpermitted releases of coal processing wastes. Thus, Eastman, under 15 USC 2607(e), should have disclosed the risk of harm to the environment presented by the obvious pathway from the coal processing plant to the waters of the United States. In the aftermath of the spill, testing by the West Virginia Department of Environmental Protection (WVDEP) identi?ed MCHM in NPDES outlets and in creeks from slurry impoundments at six different locations across the state. See WVDEP MCHM coal processing tests attached hereto as ?Exhibit Given the acute health impacts experienced by the population, when Eastman learned the WVDEP had con?rmed the exposure pathway to the streams of West Virginia its duty to report under 15 USC 2607(e) was once again triggered. Independent scienti?c testing by West Virginia Testing Assessment Project, replicating key components of Eastman?s aquatic toxicology studies, indicate that MCHM signi?cantly is more toxic than previously represented by Eastman. See West Virginia Testing Assessment Project Oxidation Technical Memo attached hereto as ?Exhibit These results call into Case 2:14-cv-01374 Document 777-1 Filed 05/11/16 Page 3 of 7 PageID 16066 question the veracity of Eastman?s studies determining that the potential for harm to aquatic life was small and once again independently triggered Eastman?s duty under 15 USC 2607(e) to disclose to the EPA information indicating that MCHM presents a risk to the environment. In facts strikingly similar to the instant matter, a chemical manufacturer was found by a federal district court to have violated 15 USC 2607(e) due to a failure to report to the EPA the fact that releases had occurred which negatively impacted the odor and taste of drinking water in Suffolk County, New York. Such impact on the odor and taste of the water was considered by the Court to be a signi?cant impact on the environment suf?cient to require reporting under TSCA. In re: Methyl Tertiary Butyl Ether BE Products, 559 F. Supp.2d 424, 436 (SD. NY. 2008). In this case, the impact of the MCHM spill on the odor and taste of the water was immediately evident. This alone, aside from the impacts of health, triggers a duty for Eastman to report the spill to the EPA Administrator under 15 USC 2607(e). FOIA requests to the EPA have thus far revealed no communications from Eastman to the EPA Administrator making the submission of information required by 15 USC 2607(e). Based on our investigation to date, it appears that no formal reporting has occurred as mandated by TSCA. The fact that information related to the Freedom Industries spill, coal processing plants and the blood disorder risks have not been formally reported as of yet makes this an on?going violation pursuant to TSCA. Because 15 USC 2607(e) ?self-implementing? that is, the statute?s requirements became effective without the EPA passing any rule. . Eastman is under a continuing duty and obligation to voluntarily and immediately report to the EPA Administrator. In re: Methyl Tertiary Butyl Ether BE Products, 559 F. Supp.2d at 429. As President of Eastman, Mr. James Roberts ultimately is responsible for the on-going violation complained of herein. Each failure to submit reports, notices or other information as required by TSCA is a separate violation of 15 USC Others unknown to undersigned counsel at this time are likely to also be responsible for the violations of 15 USC 2607(e) and 15 USC The location of the violation is believed to be Eastman Chemical?s factory in Kingsport, Tennessee. The beginning date for the violation related to the failure to report the potential for blood disorders is April 16, 1998 and continuing every day until the present. The beginning date for the violation related to the failure to report to the EPA the effect on health and environment is January 9, 2014 and continuing every day until the formally reported. Every public health of?cial from the CDC to the Kanawha County Board of Health cited the lack of toxicological data as the largest impediment to adequately assessing the risk of MCHM exposure. Eastman?s on-going violation of 15 USC 2607(e) for the past seventeen years is not minor paperwork infraction without real?world harm to residents. Eastman?s seventeen years of failures to report under 15 USC 2607(e) denied medical, science and government professionals information desperately needed on the evening of January 9, 2014. Had Eastman carried out its duty under 15 USC 2607(e) to report the risks of MCHM over the past seventeen years, those public health of?cials would have not only immediately had access to the questionable ?nal reports Eastman grudgingly made available days after the spill Case 2:14-cv-01374 Document 777-1 Filed 05/11/16 Page 4 of 7 PageID 16067 but also the raw data gathered in those early Eastman studies so scientists from CDC and EPA could draw their own conclusions. Had Eastman properly characterized and disclosed the risk of MCHM, West Virginia American Water would have had a more accurate MSDS upon which to rely when making the decision to leave the intakes open. Ms. Good, through undersigned counsel, requests that the EPA Administrator use her emergency powers to issue a rule under 15 USC 2603 ordering Eastman to undertake immediate testing protocols and to issue a rule under 15 USC 2604 ordering an immediate halt to Eastman?s further production, sale and/or distribution pending results of tests conducted pursuant to 15 USC 2603. Thank you for your attention to and cooperation in this matter. I hope that we can work together to mitigate the negative effects on the community of this dangerous public health hazard. Should you have any further questions or concerns, please do not hesitate to contact me. Sincerely, Kevin W. Thompson Case 2:14-cv-01374 Document 777-1 Filed 05/11/16 Page 5 of 7 PageID 16068 CHARLESTON MAIN P0 Charleston, West Virginia 253019998 5514560701 -0099 09/02/2014 (800)275-8777 04:07:46 PM Sales Receipt Product Sale Unit Final Description Qty Price Price BECKLEV WV 25801 Zone-1 $1.82 First-Class Mail Large Env 4.30 oz. Expected Delivery: Wed 09/03/14 Issue Postage: $1.82 OAK HILL WV 25901-5651 Zone-1 $0.49 First-Class Hail Letter 0.70 02. Expected Delivery: Wed 09/03/14 Return (Green Card) $2.70 00 Certified $3.30 USPS Certified Mail 70131710000184601130 Issue Postage: $6.49 WASHINGTON DC 20460 Zone-3 $1.40 First-Class Mail Large Env 2.40 oz. Expected Delivery: Fri 09/05/14 Return Rept (Green Card) $2.70 Certified $3.30 USPS Certified Mail 70131710000184601123 Issue Postage: $7.40 CHARLESTON WV 25302-2348 Zone?0 $1.40 First-Class Mail Large Env 2.50 oz. Expected Delivery: Wed 09/03/14 Return (Green Card) $2.70 00 Certified $3.30 USPS Certified Mail 70131710000184601116 Issue Postage: $7.40 KINGSPORT TN 37662 Zone-3 $1.40 First-Class Mail Large Env 2.40 oz. Expected Delivery: Fri 09/05/14 Return (Green Card) $2.70 Certified $3.30 USPS Certified Mail 70131710000184601109 Issue Postage: $7.40 Total: $30.51 Paid by: Personal Check $30.51 00 For tracking or inquiries go to . .. U.S. Postal Servicem CERTIFIED MAILTM RECEIPT Case 2:14-cv-01374 7 PageID 16069 (Domestic Mall Only; No Insurance Coverage Provided) For delivery Information visit our website at ?'.JJ Postage :0 Certified Fee JV r-=I CI Return Receipt Fee a (Endorsement Required) U.) Restricted Delivery Fee ?6 a I: (Endorsement Required) 7 u-?I - D. Total Postage Fees ?7 6:08 . l?1 dA?xes MA Col ,4 -5- "Ian 123 .. Eftir, State, 21PM Zoo Smilax ha i PS Form 3800. August 2006 See Reverse tor Instructions U.S. Postal Service TM CERTIFIED RECEIPT t. Sent TclEas (Domestic Mail Only; No Insurance Coverage Provided) I: For deliver-v Infonmaiion visit our website at .3 .11 Postage 3 ?0 :0 A Certified Fee 53.30 23 I: ?mm c. (Enumzetzgn?tsaes *2-70/ {19.353498}, Restricted Delivsry? Fee a El (Endorsement Requwed) '1 02'- . Total Postage Fees IN. Street, Apt. Noall City, State, (5302 See Reverse for Instructions PS Form 3800, August 2006 U.S. Postal Servicem CERTIFIED MAILTM RECEIPT (Domestic Mail Only; No Insurance Coverage Provided) For delivery ur website ng?f $1.40 0701 Postage . r. :0 Codified Fee ?3'30 s? Postm Here - t' of (Esote?ineneetie?: W-Qtsi :1 Total Postage 8: Fees tTo - n- WIN Aim 5 A ?bi%bif""' ry Mme- .0 City, State, I I PS Form 3800, August 2006 . See Reverse for Instructions Document 777-1 Filed 05/11/16 Page 7 of 7 PageID 16070 SENDER: COMPLETE THIS SECTION I Complete items 1. 2, and 3. Also complete item 4 if Restricted Delivery is desired. Print your name and address on the reverse so that we can return the card to you. Attach this card to the back of the mailpiece, or on the front if space permits. 1. Article Addressad to: the eels, medal Drain/inn Mimi COMPLETE THIS SECTION ON DELIVERY A. Signature - B. Received by (Printed Name) El Agent Addressee C. Date fDeIivery 7 D. ls delivery address different from item Yes If YES, enter delivery address below: No 2Q) South Wilcox Drive Kinggporhm 376192 3. Service Type gCertified Main Priority Mail Express" Registered El Return Receipt for Merchandise Ci insured Mail El Collect on Delivery 4. Restricted Delivery? (Extra Fee) El Yes 2. Article Number (Transfer from service label) 770143 EllJEil Elven lil?cl PS Form 3811, July 2013 Domestic Return Receipt I. SENDER: COMPLETE THIS SECTION I Complete items 1, 2, and 3. Also complete item 4 if Restricted Delivery is desired. I Print your name and address on the reverse so that we can return the card to you. I Attach this card to the back of the mailpiece, or on the front if space permits. COMPLETE THIS SECTION ON DELIVERY Addressee 04735? if?? he 5/ a Silvia; 23a v34. 5i?? Orvillesion, 2630?. D. is delivery address different from item 1? Yes if YES, enter delivery address below; No 3. Service Type Certified Mail?3 El Priority Mail Express" El Registered Return Receipt for Merchandise El insured Mall El Collect on Delivery 4. Restricted Delivery? (Extra Fee) Yes 2. Article Number (Transfer from service label) 7013 1471.70 ElEiEll even Ps Form 3811. July 2013 Domestic Return Receipt SENDER: COMPLETE THIS SECTION I Complete items 1, 2, and 3. Also complete item 4 if Restricted Delivery is desired. I Print your name and address on the reverse . so that we can return the card to you. I Attach this card to the back of the maiipiece, or on the front if space permits. COMPLETE THIS SECTION ON DELIVERY A. Signature A A 3- I BLT Re?i'iaive'd Name) . a El Agent El Addressee C. lay? Delivery- 1. Article Addressed to: MaOiJriV, Weigh i5 Arm; 0' raglmeer 20440 US EPA ?ivn?toru?EZC 2. Article Number (Transfer from service label) PS Form 3811, July 2013 iota D. ls delivery address different from item 1? Yes if YES, enter delivery address below: No 3. Se ice Type Certi?ed Mail? E3 Registered El insured Mail 4. Restricted Delivery? (Extra Fee) $710 DUEL BLiial] 1.133 El Priority Mail Express? El Return Receipt for Merchandise El Collect on Delivery El Yes Domestic Return Receipt