Case 2:14-cv-01374 Document 821 Filed 06/03/16 Page 1 of 39 PageID 22575

IN THE UNITED, STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON



- Plaintiffs,

CIVIL ACTION NO.: 
(Consolidated with Case No. 2:14?11011;
Case No. 2:14?13164; Case No. 2:14-?

13454)

HON. JOHN T. COPENHAVER
AMERICAN WATER WORKS
COMPANY, et. (11.,
Defendants.

DEFENDANT EASTMAN CHEMICAL OPPOSITION TO PLAINTIFF 
MOTION FOR SUMMARY JUDGMENT ON THE ISSUE OF DEFENDANT
COMPLIANCE WITH THE TOXIC SUBSTANCES CONTROL ACT

 

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TABLE OF CONTENTS

Page
INTRODUCTION .. 1
ARGUMENT AND AUTHORITIES ..2
1. Summary Judgment Standard ..2
II. Plaintiffs? Lack Authorization And Standing To Assert TSCA Claims. .. 3
TSCA Overview ..6
IV. Plaintiffs Lack An Actionable Claim Under ..7
A. Section 8(e) does not require reporting studies that do not ?reasonably
support a conclusion of substantial risk of injury to health or the
environment. . . 8
l. Eastman animal studies do not demonstrate a substantial risk of
injury to human health .. 10
a. Skin irritation ?findings? do not require reporting under
.. 11
b. Skin sensitization ?findings? do not require reporting
under .. 13
c. Hyperemia ?findings? are not appropriate for reporting
under .. 13
d. Hematuria ?findings? are not appropriate for reporting
under .., 14
e. Other ?health effects? are not a substantial risk under
.. l7
2. MCHM aquatic toxicology studies do not demonstrate a
substantial risk of injury to human health or the environment
under .. 18
3. PowerPoints and articles regarding five public health studies do
not reasonably support a conclusion of substantial risk to human
health under .. 19
4, Water monitoring and odor studies do not indicate a substantial
risk under .. 21

i

 

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B. Exemptions from the reporting requirement of 8(e) .. 21
l. The 22 studies are exempt because of EPA awareness of the

studies. .. 21
2. NTP studies are exempt from reporting under .. 23
3. Public health studies are exempt from reporting under .. 25

V. Plaintiffs Lack An Actionable Claim Under 5 For Purported Deficiencies In
Eastman?s 1997 Premanufacture Notice. .. 25
VI. Plaintiffs Lack An Actionable Claim Regarding .. 28
CONCLUSION .f ., .. 31

ii

 

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TABLE OF AUTHORITIES
Page(s) 

Cases
3M Co. v. Browner,

17 F.3d 1453 (DC. Cir. 1994) .. 25
Anderson v. Liberty Lobby, Inc. 

477 US. 242 (1986) ..2
Arch Mineral Corp. v. Babbitt,

104 F.3d 660 (4th Cir. 1997) .. 25
Bodne v. Geo A. Rheman Co., Inc,

811 F. Supp. 218 (D.S.C. 1993) .. 25
Carellus Dev. Corp. v. L.D. McFarland C0., 

910 F. Supp. 1509 (D. Or. 1995) .. .. 25
Friends of the Earth, Inc. v. Gaston Copper Recycling Corp. 

629 F.3d 387 (4th Cir. 2011) .. 3, 4
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (T 0C), Inc. 

528 US. 167 (US. 2000) ..4
Friends for Ferrell Parkway v. Stasko,

282 F.3d 315 (4th Cir. 2002) ..5
Gwaltney of Smith?eld v. Chesapeake Bay Found, 7

484 US. 49 (US. 1987) ..4
In re Elementis Chromium,

2015 EPA App. LEXIS 5, Mar. 13, 2015) .. 8, 2O
Lujan v. Defenders of Wildlife,

504 US. 555 (US. 1992) .. ..4
Mair v. City of Albany,

303 F. Supp. 2d 237 (N.D.N.Y 2004) 
Nat?l Parks Conservation Ass Inc. v. Tenn. Valley Auth, I

502 F.3d 1316 (11th Cir. 2007) .. 25



 

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Pender v. Bank of Am. Corp,

788 F.3d 354 (4th Cir. 2015) ..5
Purepac Pharm. Co. 12. Thompson,

354 F.3d 877 (DC. Cir. 2004) .. 28
Spokeo v. Robins,

578 U.S. Slip 0p. at 10 (May 16, 2016) .. ..4
Steel Co. v. Citizens for a Better Env?t,

523 U.S. 83 (U.S. 1998) .. 4, 5, 6
United States v. Diebold, Inc,

369 U.S. 654 (1962) ..2
United States v. Potomac Navigation, Inc. i I

2009 U.S. Dist. LEXIS 51484 (D. Md. Apr. 29, 2009) ..4
White v. Dow Chem. Co. 

2007 US. Dist. LEXIS 98915 (SD. W. Va. Nov. 29, 2007) ..3
Statutes
15 ..1, 25
15 U.S.C. 2605 .. 26
15 U.S.C. 2607 ..1, 8, 27, 28
15 U.S.C. ?2614 .. 1, 3
15 U.S.C. 2619 .. 3, 4
18 U.S.C. 3571 ..6
28 U.S.C. ..25
33 U.S.C. 1319 ..6
33 U.S.C. 1365 .. ..3

Other Authorities

40 C.F.R. 717 .. 28
43 Fed. Reg. 11110, et seq.  .. 7, 9, 19
56 Fed. Reg. 28458 ..7

iv

 

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68 Fed. Reg. 33129, 61? seqFed. Reg. 2162, et seq. ..7
72 Fed. Reg. 3432, at seq.  
Fed. R. Civ. P. 56(3) .., ..2
US. Const., Art. 111, e1. 1 ..4

 

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INTRODUCTION

Plaintiffs? Motion for Partial Summary Judgment and Memorandum of Law in Support
on the Issue of Defendant Eastman?s Compliance with the Toxic Substances Control Act allege
that Eastman violated 15 U.S.C 2604 (TSCA 5), 2607 (TSCA 8),1 and 2614(3)(b)
(TSCA 15).2 Under the citizen suit provision of TSCA, Plaintiffs seek injunctive relief on the
TSCA claims in their Complaint.3 Yet the only TSCA violations alleged in the Complaint, and
the only claims for which Plaintiffs have given statutorily required notice to the EPA, are 8(e)
claims. Plaintiffs? pursuit of injunctive reliefrequests af?rmative actions even the EPA'lacks the
authority to demand under TS CA, seeking to order Eastman:

to submit to EPA numerous reports and studies (which EPA already has)

under TSCA 

(2) to withdraw its 1997 TSCA ?5 Premanufacturing Notice and resubmit it with
the various studies and other information which Plaintiffs want Eastman to submit

under and,

(3) record and place on file third party reports related to the January 9, 2014

Freedom Elk River spill as if they were allegations of adverse health effects

subject to TSCA 8(0) recordkeeping requirements.

Plaintiffs lack statutory standing to pursue these claims and have set forth no basis on which the
Court can find they have standing under Article 

Plaintiffs also have set forth no evidence much less undisputed evidence to
demonstrate Eastman has not complied with TS reporting and recordkeeping requirements
regarding the submission of a chemical Premanufacture Notice under 5, internal 8(0) records
of reports individuals make regarding chemical contact, and reports demonstrating ?a substantial

risk of injury to health or the environment? under Critically, Plaintiffs cannot demonstrate

that the MCHM studies, reports and other information they cite meet the ?substantial risk?

 

1 Plfs.? Mem. 1. TSCA 5 is attached as EX. A. TSCA 8 is attached as Ex. B.
2 Plfs.? Mem. 5. 15 U.S.C. ?2614(3)(b) is attached as EX. c.
3 These claims can be found in Count Twenty?one of Plaintiffs? First Amended Consolidated Class Action

Complaint. Dkt. 170,111] 305?322.

 

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threshold of TSCA Instead, Plaintiffs? have cobbled together a theory regarding
substantial risk which rests entirely. on the ipse dixit conclusory opinions of their experts,
including Robert Sussman a lawyer with no training or expertise in interpreting toxicology
studies that various studies ?reasonably support the conclusion that [crude presents a
substantial risk.? At the same time, Plaintiffs overlook the various reporting exemptions that
apply directly to Eastman and to the various studies and other information involved here.
Plaintiffs also neglect to acknowledge that EPA was fully informed immediately after the
2014 Elk River spill of the Eastman studies which Plaintiffs claim should have been submitted,
exempting them from reporting. What is more, Plaintiffs ignore the I fact that in the twenty
months since their counsel notified the EPA of some of the very TSCA violations alleged in this
suit, the EPA has taken no. action. This court, too, should ?nd merit lacking in Plaintiffs? legally
and factually insufficient claims, and deny Plaintiffs? motion for summary judgment.
ARGUMENT AND AUTHORITIES

I. Summary Judgment Standard

summary judgment is appropriate only ?if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.? FED.
R. CIV. P. 56(a). A genuine issue of material fact exists if, in Viewing the record and all
reasonable inferences drawn therefrom in a light most favorable to the non?moving party, a
reasonable fact finder could return a verdict for the non?movant. Anderson v. Liberty Lobby,
Inc, 477 US. 242, 248 (1986). Inferences that are ?drawn from the underlying facts . . .
must be viewed in the light most favorable to the party opposing the motion.? United States v.
Diebeld, Inc, 369 US. 654, 655 (1962). Summary judgment is justified by failure to make a

?showing sufficient to establish the existence of an element essential to the party?s case and on

 

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which that party will bear the burden of proof.? White v. Dow Chem. Co., 2007 US. Dist.

LEXIS 98915 (S.D. W. Va. Nov. 29, 2007).

II. Plaintiffs? Lack Authorization And Standing To Assert TSCA Claims.

TSCA claims in both Plaintiffs? Complaint and Plaintiffs? Motion are brought pursuant to
the citizen suit provision of TSCA.4 Because their claims are not authorized by TSCA, Plaintiffs
lack statutory standing. Citizen suits under environmental statutes are limited to violations
identi?ed in the EPA notice letter. Friends of the Earth, Inc. v. Gaston Copper Recycling Corp,
629 F.3d 387, 400 (4th Cir. 2011) (?the sufficiency of the plaintiffs? notice letter, at its core,
presents a legal defense to the plaintiffs? claim?) (reviewing an identical notice requirement5 in
the Clean Water Act). The EPA notice letter here raised no issue with Eastman?s PMN (TSCA
nor reporting requirements under TSCA Just as in the notice letter, the only
violations of TSCA alleged in Count Twenty-one of Plaintiffs? Complaint are under TSCA
Therefore any claim based on 5 and 8(0) are not only unwarranted for summary
judgment, but are actually barred altogether because statutory standing is lacking. See Friends of
the Earth, 629 F.3d at 401.

Second, the relief Plaintiffs seek an order compelling8 Eastman to act is not

authorized by TSCA in a private-citizen suit. The only relief available to Plaintiffs is ?to

 

4 15 U.S.C 2619(a)(l), which provides that ?any person may commence a civil action. . . against any person
who is alleged to be in violation of this chapter . . . to restrain such violation.? (emphasis added).

Compare 15 U.S.C. ?2619(b)(1)(A) with 33 U.S.C. 1365(b)(1)(A).
6 See Letter from Kevin Thompson, Counsel for Plaintiffs, to Regina McCarthy, Administrator, EPA
(Sept. 3, 2014). Attached as EX. D. 

These claims are presented either directly or derivativer through 15 U.S.C. 2614(3)(b) which provides that:
?It shall be unlaw?il for any person to? fail or refuso to submit reports, notices, or other information . . . as required
by this chapter or a rule thereunder.? I
8 Plaintiffs? summary judgment motion prays for an order which would require Eastman (1) to submit to EPA
numerous rep01ts and studies (which EPA already has) under TSCA (2) to withdraw its 1997 TSCA ?5
Premanufacturing Notice and resubmit it with the various studies and other information which Plaintiffs want
Eastman to submit under and, regard and place on ?le third party reports related to the January 9, 2014
Freedom Elk River spill as if they were atlegations of adverse health effects subject to TSCA 8(0) recordkeeping

requirements. 

 

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restrain? current violations of TSCA.9 Plaintiffs do not seek to ?restrain? alleged violations of
TSCA, but rather seek an order requiring Eastman to af?rmatively act. Mair v. City of Albany,
303 F. Supp. 2d 237, 243 (N.D.N.Y 2004) (?Ordering defendants back tothe homes Where
abatement activity has ceased, to do more work, would not be a restraint or a stoppage; it would
be ordering an affirmative act?); United States v. Potomac Navigation, Inc., 2009 U.S. Dist.
LEXIS 51484 (D. Md. Apr. 29, 2009) (?Citizen suits under TSCA cannot be brought for
compensatory damages or ?recovery,? but only to restrain current violations. Because there is no
current conduct on the part of Third Party Defendants that could be restrained, there can be no
claim against them under 

To bring suit in federal court, Plaintiffs must also demonstrate Article standing10 in
addition to statutory standing. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc, 528
U.S. 167, 181 (U.S. 2000) (applying Article standing analysis to similar citizen suit provision
in Clean Water Act).11 To have standing, Plaintiffs must show they (1) suffered an injury in fact
that is actual and imminent, (2) that is fairly traceable to the defendant?s action and not the result
of some third party not before the court and (3) the injury must likely be redressed if the plaintiff
prevails in the lawsuit. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (U.S. 1992).
Plaintiffs? lack standing here because the injuries complained of are not fairly traceable to
Eastman?s alleged TS CA violations and the relief sought by Plaintiffs cannot redress any injury.

As the Supreme Court recently explained in Spokeo v. Robins, class action plaintiffs

?cannot satisfy the demands of Article by alleging a bare procedural violation? of a statute.

 

9 15 U.S.C. 2619; See Gwaltney of Smith?eld v. Chesapeake Bay Formal, 484 U.S. 49, 64 (U .8. ?987) (hoiding
similar language in the Clean Water Act did not allow suits based on past Violations); See also United States v.
Potomac Navigation, Inc, 2009 U.S. Dist. LEXIS 51484 (D. Md. Apr. 29, 2009).

10 Here the terms Article standing and constitutional standing are used interchangeably to describe the standing
limits embodied by the case or controversy ciause in U.S. Const, Art. 2, cl. 1.

11 See also Friends of the Earth, Inc. v. Gaston Copper Recycling Corp, 629 F.3d 387, 390 (4th Cir. 2011) (Clean 
Water Act) and Steel Co. v. Citizens for a'Better Env?t, 523 U.S. 83, 86 (U.S. 1998) (applying Article standing
analysis to a similar citizen suit provision in the EPCRA).

4

 

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578 US. Slip op. at 10 (May 16, 2016). That ruling applies here, where class plaintiffs
have alleged no concrete economic loss or injury that stems from purported violations of
reporting and recordkeeping requirements under TSCA. Plaintiffs? constitutional standing is
predicated solely on the theory of speculative injuries from Eastman?s TSCA violations allegedly
compromising ?government officials and the scientific community [being] fully able to evaluate
the spill?s impacts on public health.?12 Plaintiffs allege 110 injuries in this case caused by or
fairly traceable to Eastman?s alleged TSCA violations. A single Plaintiff?s speculation ?that it
faces the potential for a long-term decrease in revenue because of the continuing effect on
consumer confidence in the local water supply? does not rise to the level of a concrete harm, is
only a harm particularized to one person, and is not traceable to Eastman?s alleged TSCA
Violations. Freedom, not Eastman, discharged the chemical into the Elk River. Friends for
Ferrell Parkway v. Stasko, 282 F.3d 315, 320 (4th Cir. 2002) (?The traceability requirement
ensures that it is likely the plaintiff?s injury was caused by the challenged conduct of the
defendant, and not by the independent actions of third parties not before the court?). Moreover,
Plaintiffs? proposed relief cannot redress any injury real or speculative - to Plaintiffs. Ordering
Eastman to disclose information under TSCA and ?5 will not redress any of
Plaintiffs? alleged injuries. Steel Cal, 523 US. at 107. (?Relief that does not remedy the injury
suffered cannot bootstrap a plaintiff into federal court; that is the very essence of the
redressability requirement?). Plaintiffs do not have standing and their TSCA claims should be
dismissed.

Finally, in addition to failing to establish constitutional Standing, all of the information

which Plaintiffs seek to have this Court order Eastman to disclose is known to EPA and the

 

?2 Plfs.? Mem. 6. See also PIfs.? Compl. 320?321.

 

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public and the issue is moot. Fender v. Bank of Am. Corp, 788 F.3d 354, 367-368 (4th Cir.
2015) (?If a live case or controversy ceases to exist after a suit has been filed, the case will be
deemed moot and dismissed for lack of standing?)

In sum, not only are Plaintiffs not entitled to summary judgment on their TSCA claims,
these claims, in fact, should be dismissed for lack of standing. The absence of standing,

regardless of the stage in litigation at which it is raised, warrants dismissal. See Steel C0., 523

US. at 89.

Overview

As part of the federal environmental legislative reform of the 1970s, Congress enacted
TSCA to screen new chemicals for toxic effects before they could be commercialized. In
contrast to the penalties provided under pollution control statutes,13 function was to
prospectively assess the risks of chemicals before they were in Widespread use.14 TSCA was not
intended, as Plaintiffs seek, to permit litigants to second-guess decision to allow a
chemical?s commercialization decades after the fact. Plaintiffs allege three types of TSCA

violations:

(1) Eastman failed to submit 22 studies or reports to EPA which Plaintiffs argue required
reporting under Dkt. 729, Plfs.? Mem. 6?25. (2) Eastman?s Premanufacture
Notice submitted in October 1997 on a constituent of crude MCHM (which
EPA reviewed and approved), did not comply with 5 of TSCA. Id. at 25?27. (3)
Plaintiffs claim that Eastman violated internal company record-keeping provisions of 
Id. at 28-29.

Plaintiffs? motion seeks an injunction requesting the Court to:

0 Direct Eastman to submit the, 22 reports and studies to 8(e) docket in 15 days;

 

2 13 See ag, 33 U.S.C. 1319 (Clean Water Act penalties); l8 UJSC. 3571 (Clean Air Act penalties).
14 David Markell, An Overview of TSCA, Its History and Key Underlying Assumptions, and Its Place in
Environmental Regulation, 32 Wash. U. .L. Pol?y 333, 345 (2010). See also Council on Environmental Quaiity,
Environmental Quaiity: The Eighth Annual Report of the Council on Environmental Quality 5 (1977) (?The new
public policy expressed in the law is that manufacturers of chemicals have an obligation to test product safety and
that government has the authority to regulate potentially dangerous chemicals and to take immediate action on those

that are an imminent hazard?).

 

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- Require Eastman to Withdraw its 1997 PMN and resubmit it with all available data on crude
and pure MCHM and a full and complete description of exposure and release at user sites;

0 Require Eastman to maintain in its ?le under 8(c) records of all known reports of adverse
health effects relating to the January 9, 2014 spill of MCHM into the Elk River.

IV. Plaintiffs Lack An Actionable Claim Under 

Section 8(e) requires that manufacturers and distributors of chemicals who obtain
information Which ?reasonably supports the conclusion that such substance or mixture presents a
substantial risk of injury to health or the environment? must inform EPA ?unless such person has
actual knowledge that the Administrator has been adequately informed .of such information.?
Although When TS CA became effective in 1976, scant, information existed regarding its practical
application, EPA has issued explanations in various guidance documents in the decades since. :5

EPA ?nalized its 8(e) ?policy statemen on March 16, 1978.16 EPA later published a
8(e) reporting guide (?1991 EPA 8(e) Reporting Guide?). 56 Fed. Reg. 28458
(June 20, 1991); Dkt. 777, Ex. 2. EPA issued this commentary on 8(e) applicability for a
number of toxicological case studies to help companies better understand the kind of information
that should be reported.

The most recent EPA guidancel7 Section Noti?cation of Substantial Risk;

3918

Policy Clari?cation and Reporting Guidance, revised previous guidance.? In 2005, some of

 

15 Section 8(e) was ?self?implementing? the statute became effective without EPA regulations.

16 Statement of Interpretation and Enforcement Policy; Noti?cation of Substantial Risk, 43 Fed. Reg. 11110
(?1978 EPA 8(e) Policy Statement?), Dkt. 777, Plfs.? Mem., Ex. 3. 

17 A guidance document provides ?an agency statement of general applicability and future effect . . . that sets forth
a policy on a statutory, regulatory or technical issue or an interpretation of a statutory or regulatory issue.? Final
Bulletin for Agency Good Guidance Practices, 72 Fed. Reg. 3432, 3439 (Jan. 25, 2007).

18 68 Fed. Reg. 33129 (June 2, 2003) (?2003 EPA 8(e) Guidance?), Dkt. 777,P1fs. Mem, Ex. 5.

i9 EPA republished ?the policy statement in its entirety . . . including both those portions of the policy statement
that are-revised and those portions that are not affected by any revisions,? id. at 33129, because it ?hopes and
expects that this guidance will be useful to manufacturers, including importers, processors, and distributers [sic] of
chemical substances in ful?lling their responsibilities under section This guidance is not, however, a substitute
for rulemaking and it does not impose any binding requirements upon either the regulated community or the

Agency.?

 

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the changes that the 2003 EPA 8(e) Guidance made to the 1978 EPA 8(e) Policy Statement
were corrected and EPA simultaneously announced new Question Answer Guidance.20

As provided for in the 2003 EPA 8(e) Guidance, the website has updated its
Question Answer Guidance three times: in January 2005, September 2006, and January
2010.21 These Question Answer Guidance website postings provide practical instruction

useful to companies for determining their reporting obligations under 

A. Section 8(e) does not require reporting studies that do not ?reasonably support a
conclusion of substantial risk of injury to health or the environment.?

None of the 22 studies cited by Plaintiffs are required to be reported because they do not
reasonably support a ?nding of a substantial risk of injury, as they must. Plaintiffs? unsupported
interpretation of the incidental observations in the studies here resembles the speculation about
potential risk that was held to not ?reasonably support? substantial risk ?ndings in In re
Elementis Chromium, 2015 EPA App. LEXIS 5, 97-99 (EPA Mar. 13, 2015):

Information must not just ?support? a conclusion of substantial risk of injury, it

must ?reasonably? support the conclusion. The modi?er ?reasonably? mandates a

degree of certainty for identifying the supporting information that must be

reported. Information regarding substantial risk of injury must not be speculative
in nature; rather, as guidance notes, it should ?reliably ascribe the effect to

the chemical.?
To disregard this EPA standard and allow speculation to support substantial risk ?ndings would
expand the reporting requirements beyond the intent and reach permitted by 

Neither TSCA nor its legislative history de?ne what constitutes a ?substantial risk of

injury to health or the environment.? 15 U.S.C. ?2607(e). Together, the EPA Guidance

 

Id. at 33130?31 (emphasis added). The 2003 EPA Guidance also explains that the agency planned to:
?develop . . . a ?question and answer" . . . document that would provide further detail and ?real world? examples to
further assist persons in ful?lling their section 8(e) reporting responsibilities . . . Id. at 33133.

29 TSCA Section 8(e) Reporting Guidance; Correction, Clari?cation of Applicability, and Announcement
Regarding the Issuance Questions and Answers, 70 Fed. Reg. 2162?64 (Jan. 12, 2005).

21 EPA, Toxic Substance [sic] Control Act (TSCA) Section 8(e) Notices, 
This Question Answer Guidance is attached as EX. E.

8

 

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documents and Question Answer Guidancefrom EPA provides signi?cant insight regarding
what constitutes a ?substantial risk.? The 1978 EPA 8(e) Policy Statement presented a two-
pronged approach for determining ?substantial risk? by weighing human health effects and
exposure.22 The ?rst criterion for reporting is a ?nding of human health effects including either

of the following:?

(1) Any instance of cancer, birth defects, mutagenicity, death, or serious or
prolonged incapacitation, including the loss of or inability to use a normal bodily
function with a consequent relatively serious impairment of normal activities, if
one (or a few) chemical(s) is strongly implicated. 

(2) Any pattern of effects or evidence which reasonably supports the
conclusion that the chemical substance or mixture can produce cancer, mutation,

birth defects or toxic effects resulting in death, or serious or prolonged
incapacitation.

Id. at 11112. For the second criterion, exposure factors, the Policy Statement provides:
Both hazard and exposure must occur for there to be any risk. If there is virtually
no exposure, EPA will be unable to conclude that the chemical may present an
unreasonable risk. 23
Within this framework, Plaintiffs argue various MCHM studies are required to be reported under
8(e) because: (1) Plaintiffs claim signi?cant health risks are associated with MCHM, and (2)
the Freedom Industries spill increased the chemical?s exposure to a level requiring reporting.
Both of these arguments are incorrect.

Plaintiffs fail to show that MCHM poses a substantial risk to human health. Decades of

animal testing revealed that MCHM posed none of the substantial risks to human health listed

 

22 43 Fed. Reg. 11111.
23 Similar to the two?pronged approach of the 1978 EPA 8(e) Policy Statement for ?substantial risk,? the 1991' 1
EPA 8(e) Guidance similarly provides for balancing the factors:

In deciding whether information is ?substantial risk? information, one must consider 1) the seriousness of the
adverse effect, and 2) the fact or probability of the effect?s occurrence. In determining TSCA Section 8(e) 
[sic], these two criteria should be weighted differently depending upon the seriousness of
the effect or the extent of the exposure, the more serious the effect, the less heavily one should weigh actual or
potential exposure, and Vice versa. Id. at 2.

 

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above cancer, birth defects) typically justifying reporting. Likewise, Plaintiffs? 
do not rise to the level of these substantial risks. See Dkt. 170, Compl. 5?7. I

Also, EPA guidance makes clear exposure for purposes of 8(e) reporting is calculated24 
based on potential exposure associated with its intended use such as with commercialization,25 or
upon discovery of previously extant but unknown exposure.26 Plaintiffs point to no authority for
their position that exposure should, or even can, be determined by the risk of improper discharge
or improbable release by other parties, or that it meets the standard for widespread use.? Also,
Plaintiffs do not identify any instances when EPA has gone so far to determine ex postfacto that.
a release caused by a third party places a chemical manufacturer in violation of reporting
requirement, or any basis for making such an extension of 

Because Plaintiffs can point to no factual support to satisfy the ?substantial risk? criteria
under the 2003 EPA 8(e) Guidance, summary judgment on their claims would be
inappropriate. A

1. Eastman animal studies do not demonstrate a substantial risk of injury to
human health. -

Plaintiffs? Motion alleges that findings from seven studies performed by Kodak on behalf

of Eastman should have been reported under TSCA The findings which Plaintiffs claim

 

24 Similar to the 1991 EPA 8(a) Reporting Guide, the 2003 EPA 8(e) Guidance ties exposure potential to
typical commercial activities: ?production levels, persistence, uses, means of disposal, or other pertinent factors.? Id.
at 33138.

25 Letter from Victor Kimm, Deputy Assistant Administrator, EPA, to Robert Sussman, Counsel for various
chemical companies, Latham Watkins (Apr. 2, 1992). Attached as Ex. F.

26 See 2006 EPA 8(e) Question Answer Guidance at Q. A. 25.

27 To the contrary, evidence in the record suggests ?[t]he potential exposure of residents that occurred following
the spill (if any occurred above measurable concentrations) was very low. Given this low exposure and the strong
warning properties of Crude MCHM (its odor), the potential for toxicity to humans following the spill was very
likely negligible.? Plfs.? Ex. 12, Rebuttal Opinion Letter of D. Paustenbach (Mar. 9, 2016).

28 The seven animal studies performed by Eastman Kodak Company, Rochester, New York which Plaintiffs
I contend included findings required to be reported were: (1) Study on Basic Toxicity of Crude 4-
Feb. 10,1977 (?1977 Basic Toxicology Study?); (2) Four?week Oral
Toxicity Study of in the Rat (TX-89-296), Apr. 3, 1990 (?1990 Oral Study of Pure
(3) Acute Toxicity of Jan. 26, 1990 (?1990 Acute Toxicity

10

 

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required reporting fall into several categories: (1) Skin imitation; (2) Skin sensitization; and, (3)
?serious toxic effects,? including hyperemia and hematuria and a variety of other 
Under TSCA, none of these ?ndings required reporting.

a. Skin irritation ?findings? do not require reporting under 

Plaintiffs claim that Eastman?s animal toxicology studies demonstrated skin irritation
which should have been reported.29 Plaintiffs are simply wrong. As a preliminary matter, EPA
has repeatedly indicated that skin irritation findings are rarely reportable. EPA guidance30 notes:

As stated in March 16, 1978 Section 8(e) policy statement, as Well as

numerous SeCtion 8(e) ?status reports,? the Section 8(e) reportability of irritation

and/0r corrosivity ?ndings from acute animal or skin irritation studies is quite

limited.

EPA provides31 for a possible exception to the general presumption of non-reportability only in
limited circumstances:

previously unknown or A unexpected effects that occur and are

observed/determined during such routine tests may have to be submitted under

Section 8(e) if the effects are serious and meet the reporting criteria outlined in

Part of Section 8(e) policy statement lethality, neurotoxicity).

First, Plaintiffs offer no basis for any exception to the normal rule that 8(e) does not
require reporting unremarkable irritation ?ndings, except the conclusory opinions of their expert.
Second, Plaintiffs overlook key differences in two similar-sounding, but dramatically differently

designed toxicity tests. In a guideline skin (dermal) irritation study such 404, the test

article (chemical) is applied for four hours under a light, ?semi-occluded? dressing, similar to a

 

Study?); (4) Acute Dermal Irritation Study in the Rabbit (TX-97-256), NOV. 10, 1997 (?1997 Dermal Irritation

Study?); (5) Acute Dermal Toxicity Study in the Rat 08), Feb. 24, 1998 and Acute Oral Toxicity Study in

the Rat (TX-99-188), Dec. 1, 1999 (Two studies using different suppliers of lab rats SASCO and Charles River,

collectively, ?1998?99 Sprague-Dawley Rat Studies?); and (6) A Two?Week Dermal Toxicity Study in the Rat 

98-129), Jan. 6, 1999 (?1999 Two-week Dermal Toxicity Study?).

29 Plaintiffs? Motion alleges that skin irritation ?ndings in the following Eastman animal toxicology studies should
have been reported under 1977 Basic Toxicology Study, 1990 Acute Toxicity Study, 1997 Dermal Irritation

Study and 1999 Two?week Dermal Toxicity Study.

1991 EPA 8(e) Reporting Guide at 35.

Id.

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gauze pad.32 By contrast, the protocol for acute dermal toxicity, OECD 402, because it is testing
for systemic toxicity rather than skin irritation, involves applying the test article for twenty?four
hours under an impervious dressing (?full occlusion?) that would be similar to a plastic sleeve, as
was done in studies Plaintiffs claim should have been reported.33 As a result, constant contact
with the test article during the period of the study at higher doses produces an exaggerated
response in the skin compared to what would be expected with application for one-sixth of the
time, that is, in a dermal irritation study. This exaggerated response is further magni?ed by the
use of an impervious dressing compared to a semi-?occluded one. The potential reduction in
expected irritatiOn severity diminishes the reportability under 

Crude MCHM is in a class of chemicals associated with the potential for skin irritation,35
and the study results did not deviate beyond that expectation. Plaintiffs seek to sidestep this
problem by arguing ?ndings require reporting due to ?the potential for signi?cant exposure.?
This is simply not true: there is no potential for signi?cant exposure, and the only potential for
exposure comes from mishandling the chemical, which, as explained above, is not to be
. considered. Moreover, even the mishandling by Freedom Industries in this case resulted in
material being diluted to a level many orders of magnitude less than the doses used in any of the
dermal irritation or toxicity studies. The dilution of even a moderately irritating substance in
water at the dilution levels measured in the 2014 Freedom Industries release, falls yet further

short from the reporting requirement threshold. Consistent with the EPA Guidance, just as

 

32 Test No. 404: Acute Dermal Imitation/Corrosion, OECD Guidelines for the Testing of Chemicals
(July 28, 2015). x.

33 E. g, Acute Dermal Toxicity Study in the Rat, Eastman Chemical Company, Kingsport, TN
(Feb. 24, 1998).

3? See 1991 EPA 8(e) Reporting Guide at 35.
35 Dennis Paustenbaoh, et al., The toxicity of crude (MCHM): review of

experimental data and results of predictive models for its constituents and a putative metabolite, 45 Crit. Rev.
Toxicol. Suppl. Suppl 2:1?55 (2015).

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countless ?ndings involving the common occurrence of skin irritation do not require reporting,
neither did the ?ndings in Eastman?s skin irritation studies require reporting.

b. Skin sensitization ?findings? do not require reporting under 

In recognition of the fact that in skin sensitization studies, ?the nature .of the reaction can
vary from slight to severe,?36 the EPA directs companies to base their determinations of 8(e)
reporting of test results on ?the severity of the response? and ?the number of animals affected.?
Eastman?s decision not to report the 1977 Basic Toxicology Study is fully consistent with those
criteria, as no animals displayed severe reactions. The majority of animals demonstrated no
reactions at all, and the test substance barely met the lower boundary to be classi?ed as
sensitizing. None of the extreme situations speci?ed in the Guidance were met by the test results
death) and no 8(e) submission was required in 1977. Because the 1977 study did not
support a ?nding of severe skin sensitization, and the 1997 study37 was also not sensitizing,
reporting under 8(e) would not have been appropriate, either before or after the 2014 Freedom
release.

c. Hyperemia ?findings? are not appropriate for reporting under 

Hyperemia refers to an increase in blood ?ow to an organ, such as the skin. 38 For
example, blushing is. a form of hyperemia. In a laboratory setting, it can refer to a test animal?s
ears displaying pinkness. Plaintiffs label hyperemia a ?serious toxicological effect.? Hyperemia
is not a toxicological effect, much less a serious one. Hyperemia is not even in the index of
Casarett Doull?s Toxicology,39 the leading Toxicology treatise. It is an effect so'minor and

commonplace that it does not warrant attention in other key texts as well.40 Even Plaintiffs?

 

36 1991 EPA 8(e) Reporting Guide at 35.

37 Acute Dermal Irritation Study in the Rabbit Nov. 10, 1997 (?i997 Dermal Irritation Study?).
38 Vinay Kumar, et a1., Robbins Cotran Pathologic Basis of Disease (8th ed. 2009).

39 Curtis Klaassen, et a1., Casarett Doull?s Toxicology: The Basic Science of Poisons (8th ed. 2013).

40 Wallace Hayes and Claire Kruger, Hayes? Principles and Methods of Toxicology (6th ed. 2014).

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toXicologist, Dr. King, was unwilling to state that hyperemia presents ?an injury to health,?
labeling its occurrence merely ?an important ?nding.? Plfs.? Mem. 10, citing King Decl. at 1
(Ex. 9). There is no basis for Plaintiffs? claims that hyperemia should have been reported under


Moreover, Plaintiffs? cite no EPA Guidance, EPA administrative opinions, or case law
?nding hyperemia to be ?an injury to health? that triggers reporting obligations under 
Plaintiffs merely cite to the unsupported z'pse dixiz? opinion of Mr. Sussman, a lawyer with no
training in toxicology, that would likely deem hyperemia to be reportable, even if mild,
because of the potential for signi?cant harm.? Plfs.? Mem. 10. For Plaintiffs to prevail on a
motion for summary judgment, however, they must Show that as a matter of law, EPA requires
reporting hyperemia under and that undisputed facts demonstrate that an actual reporting
threshold was met by the study results. Plaintiffs admit that they can show nothing of the sort,
contending only that the EPA would be ?likely? to require reporting hyperemia. Because
Plaintiffs cannot point to actual hyperemia study ?ndings triggering a reporting obligation,
Plaintiffs claim that the reporting requirement threshold would be met hypothetically if a study
were conducted with ?longer exposure or under different dosing conditions?? Plaintiffs fall
short of meeting their burden on summary judgment to show hyperemia presents a ?substantial
risk of injury to healt 

d. Hematuria ?findings? are not appropriate for reporting under 

Plaintiffs claim that Eastman should have ?led 8(e) reports regarding three Eastman rat

studies42 in the late 1990s that they claim documented hematuria, or blood in the urine. Plaintiffs

 

41 Plfs.? Meni. 10 (citing Sussman Rebuttal Declaration at 11 ll).
42 These studies include Acute Dermal Toxicity Study in the Rat, Eastman Chemical Company,
Kingsport, TN, Feb. 24, 1998; Acute Oral Toxicity Study in the Rat, Eastman Chemical Company,

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support their arguments by claiming the 2006 EPA Question Answer Guidance requires
reporting hematuria and (2) arguing testimony from Plaintiffs? expert Dr. King supports this.43
Oddly, Plaintiffs claim ?hematuria . . . clearly falls within the category of serious effects
(ie. ?serious or prolonged incapacitation, including the loss of a normal bodily function,
resulting in relatively serious impairment of normal activities?) observed in acute tests that EPA
considers reportable without regard to exposure.?44 In fact, the provision they cite45 actually
indicates the presumption46 that observations from acute tests (?such as LDSOs and range-?nding
tests?) need not be reported.47 The reason EPA ?nds these observations not reportable is that
acute tests are typically performed using elevated dose levels intended to cause adverse effects or
even death. One type of routine acute test, the LDSO, is so~called because it determines the lethal
dose at which 50% of the animals in the study die.48 Because the physical process of death can
produce a variety of grotesque acute studies especially LDSOs are not reliable

frameworks for determining if it is exposure to the test chemical that is causing the or

death itself.

 

Kingsport, TN, Dec. 1, 1999; and A Two?Week Dermal Toxicity Study in the Rat, TX-98-129, Eastman Chemical
Company, Kingsport, TN, Jan. 6, 1999.

43 It should be noted that another Piaintiffs? expert, Richard Sussman, has previously indicated industry interpreted
the 8(e) reporting requirements as not involving consideration of urinalysis data unless two other criteria were
already met. Letter from Robert Sussman, Counsel for various chemical companies, Latham Watkins to Victor
Kimm, Deputy Assistant Administrator, EPA, Encl. Flowchart at 25 (Dec. 26, 1991). Attached as Ex. G.

4? Plfs.? Mom. 13 (citing 2006 EPA Question Answer Guidance at Q23). 

?5 How can reportable information under TSCA 8(e) be distinguished from routine tests, such as LD5OS
and range??nding tests?? 2006 EPA Question Answer Guidance at Q23.

46 has been longstanding position that acute toxicity. studies that do not show serious toxicologic
effects neurotoxicity) are of limited interest to EPA in a Section 8(e) context.? Kimm Ltr, Enci. at 56, supra
n25.

47 Question 23 from the 2006 EPA Question Answer Guidance provides for a possible exception to the general
ruie of not reporting incidental effects from acute studies for ?serious human health effects includ[ing] any pattern of
effects or evidence that reasonably supports the conclusion that the chemical substance or mixture can produce
cancer, mutation, birth defects or toxic effects resulting in death, or serious or prolonged incapacitation, including
the loss of a normal bodily function resulting in relatively serious impairment of normal activities.? What was
observed in the three studies Plaintiffs reference does not fall within that exception.

48 To put the studies at issue in context, it should be noted that two studies (the acute oral toxicity and acute
dermal toxicity) were LDSOs, and one (the two?week dermal toxicity) involved repeat-dose testing for systemic
toxicity via the dermal route.

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In the 1999 dermal toxicity rat study, the laboratory reported that single incidence of
hematuria and discolored (green) urine was observed for one high-dose female on Day 2? under
a heading entitled ?incidental clinical abnormalities.?49 That means hematuria was observed in
only one rat on one day early in the two-week study, and never again. EPA has held transient
effects need not be reported.50 Furthermore, the lab itself described the ?nding as ?incidental.?
Indeed, Plaintiffs can point to no support in medical or toxicological literature for their
contention that transient hematuria is normally related to ?serious or prolonged incapacitation,
including the loss of a normal bodily function, resulting in relatively serious impairment of

normal activities.?51

AlSo, the hematuria Plaintiffs point to in the 1998 Acute Dermal Toxicity Study in the
Rat, 08, was the result of an acute study. In fact, ?red urine and N-Multistix52 positive
results were seen at a dose level that was lethal to some rats.?53 There was also the separate
conclusion that this study was rendered unreliable by the fact that rats used by the Kodak
laboratory around this time in various studies, including the 1998 Acute Dermal Study,54
suffered from illnesses and health problems linked to their breeder (SASCO), and the Kodak
laboratory shifted to receiving the same Sprague-Dawley rat strain from a different breeder.55

Indeed, after the SASCO rats were replaced, the lab ran a follow-up study,56 and only on

female rats, since the hematuria in the initial study was only observed in female rats.57 A dose of

 

49 A Two-Week Dermal Toxicity Study in the Rat (TX-93429), Jan. 6, 1999 (?1999 Two-week Dermal Toxicity
Study?).

50 See 1991 EPA 8(e) Reporting Guide at 34 (discussing effects ?found simply to be transient rather than either
intermittent or continuous in nature?); Sussman Ltr, Encl. at 9 (Dec. 26, 1991), cited supra at 11.43.

51 Plfs.? Mem. 13. I

52 N?Multistix are dipsticks that test for the presence of blood in the urine. Their tendency for giving false
positives led to their limited use in the Kodak laboratory. O?Donoghue Dep. 20: 1-22z25; 82:7-88220.

53 O?Donoghue Decl. 8.

54 1998 Acute Dermot Toxicity Study in the Rat, O?Donoghue Dep. 67:3.

55 O?Donoghue Dep. 87:2?4. 

56 Acute Oral Toxicity Study in the Rat, Eastman Chemicai Company, Kingsport, TN, Dec. 1, 1999.

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500 mg/kg was used because this was the dose in the ?rst study at which hematuria was
observed without test subject death or excessive toxicity.58 No hematuria, however, was
observed.59 Eastman determined that MCHM did not cause hematuria, and revised its Safety
Data Sheet to remove the risk of hematuria which Eastman added as a precaution after the TX-
97?308 results.60

Accordingly, the ?ndings from the two studies in which hematuria was visually observed
do not reveal anything other than an incidental observation and an uncorroborated effect that did
not pose ?a substantial risk of injury to healt 

e. Other ?health effects? are not a substantial risk under 

Plaintiffs repeatedly take unremarkable ?ndings and overstate the risks. Plaintiffs take
out of context61 ?ndings relating to organ weight measurements to try to show a change, even
when the study notes that the weight changes were not signi?cant.62 Similarly, even though
organ weight change or blood chemistry ?uctuations are only reportable when both are observed,
and at signi?cant levels, Plaintiffs suggest only one factor triggers reporting.63 Plaintiffs also

falsely con?ate mutagenicity with toxicogenomics, even though the two involve different

 

57 O?Donoghue Dep. 87:13-14.
58 O?Donoghue Dep. 75:1-82:25.
59 Id. at 87:20?25.

60 

61 Plfs.? Mem. 11.
62 Four?week Oral Toxicity Study of in the Rat April 3, 1990 (?1990

Oral Study of Pure (?None of the effects were indicative of more than minor toxicity and all were most
likely reversible?); A Two-Week Dermal Toxicity Study in the Rat (TX-98-129), Jan. 6, 1999 (?1999 Twomweek
Dermal Toxicity Study?) (noting ?the absence of signi?cant histopathologic and serum clinical chemistry changes?).
63 Compare Plfs.? Mem. 11 with Pifs.? Mem., Ex. 2 at 22. Interestingly, Plaintiffs? expert, Dr. Sussman, indicated
the understanding among industry that EPA guidance does not require for reporting determinations to even consider
?any histological changes in an organ, clinical chemistry hematology, urinalysis, organ weights? unless the
following two criteria were already met: (1) ?clear signs of neurotoxicity and/or treatment related to changes in
gonadal weight, histopathology or function and/or biologically or statistically significant increase in tumor incidence
at any dose level? and (2) NOEL greater than 5 mg/kg/day or a LOEL such that the NOEL is expected to be greater
than 5 mg/kg/day. Sussman Ltr, Flowchart Encl. at 25, cited supra at 11.43.

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research.64 Lastly, Plaintiffs? interpretation of an ataxia observation as a basis for neurotoxicity
reporting has been speci?cally questioned by EPA itself since ?the testing laboratory staff simply
used the term ataxia to describe the animals? physical state as being something other than
active.? Kimm Ltr, Encl. at 3, supra n.25. These observations do not require reporting.

2. MCHM aquatic toxicology studies do not demonstrate a substantial risk of
injury to human health or the environment under 

Plaintiffs claim Eastman should have reported four MCHM aquatic toxicology studies,65
including three Eastman conducted years before the spill, and a highly publicized post?spill study
conducted at the University of South Alabama on one test organism, D. magma. Plaintiffs?
theory is based on the unsupported argument by their expert, Dr. Spadaro, that coal processors
regularly discharge MCHM into water, and that environmental exposure post?spill constitutes
widespread exposure suf?cient to require reporting of the study. Section 8(e) requires nothing of
the sort. 

Plaintiffs put forth no evidence of a single routine MCHM commercial discharge by coal-
processing companies, much less Eastman?s knowledge of a purported pattern of discharges by
processors. Just as TSCA 8(0) does not hold chemical manufacturers accountable
for recording incidents related to exposure as discussed in Part VI, 8(e) does not
impose a duty? on manufacturers to. search for or report this information. The 2006 EPA
Question Answer Guidance indicates that TSCA 8(e) ?is not intended to compel searches for
information or extraordinary efforts to acquire information.? Id. at A3. This guidance takes on

special force in situations where pollution, when it occurs, may be unknown even to

 

64 Curtis Klaassen, et ai., Casarett Doull?s Toxicology: The Basic Science of Poisons 41, 445 (8th ed. 2013).

65 These four studies are: Basic Toxicity of Crude Eastman Kodak
Company, Rochester, NY, (Feb. 10, 1977); An Acute Aquatics Effects Test with the Fathead Minnow, Pimephales
promelas, Eastman Kodak Company, Rochester, NY (1998); An Acute Aquatic Effects Test with the Daphnid,
Daphnia magna, Eastman Kodak Company, Rochester, NY (1998); Rahui Gupta, et a1., Multi?disciplinary Approach
to the development of Sound Scienti?c Support: The West Virginia Experience, National Association of County and
City Health Officials (N ACCHO) Annual Conference (2014).

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the Operator, or worse, intentionally hidden. Plaintiffs do not present adequate
factual or legal support for their theory that unknown, undocumented malfeasance by a third
party makes a 8(e) violation out of Eastman?s reasonable decision not to report aquatic
toxicology studies based on intended use exposure level.

Similarly, Plaintiffs do not even allege any serious harm to aquatic organisms as a result
of the Elk River spill, much less widespread harm, as is necessary for reporting to be required.
As the 2006 EPA Question Answer Guidance at Q. 31 indicates, under Part V(b) of the
2003 EPA 8(e) Guidance, various factors are needed for nonhuman organism exposure to
require reporting. Eastman?s aquatic toxicity studies do not satisfy any of those factors because
MCHM is not ?known to cause serious adverse effects in nonhuman organisms,? nor is
widespread exposure part of intended use, id. at pronounced bioaccumulation has
not been observed in the Elk River area, id at Elk River species interrelationships have not
been changed to a significant degree, if any degree at all, id. at MCHM is not a chemical that I
rapidly degrades into an unacCeptably toxic substance, id. at and no large?scale ?sh kills or
other environmental destruction due to MCHM has been documented in the spill?s aftermath, id.
at (5).

Plaintiffs? lack of evidence of widespread environmental damage and ?multiple releases
to water at signi?cant levels during coal preparation operations,? Plfs.? Mem. 15, precludes
summary judgment on Plaintiffs? 8(e) reporting claims for the aquatic toxicology studies.

3. PowerPoints and articles regarding five public health studies do not reasonably
support a conclusion of substantial risk to human health under 

After their participation in the investigation and recovery efforts following the Freedom
Industries spill, various involved individuals delivered a handful of presentations and articles.

Though Plaintiffs note the potential reporting obligation for what the 1978 EPA 8(e) Policy

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Case Document 821 Filed 06/03/16 Page 26 of 39 PageID 22600

Statement terms informal ?reports concerning and studies of undersigned [sic], uncontrolled
circumstances,?66 Plaintiffs ignore other applicable criteria negating a reporting requirement
here.

First, Plaintiffs overlook that the very guidance they cite limits reporting to information
that must ?reasonably support[]? a conclusion of ?substantial risk? and ?reliably ascribe the
effect to the chemical.? Id. Plaintiffs also ignore a change to the reporting requirements after the
1978 Policy Statement creating a reporting exception for secondary source material.67

None of the articles and PowerPoints cited by Plaintiffs meet the reporting criteria. None
include underlying data or enough detail to allow assessing if they support ?nding substantial
risk of injury to human health or the environment as the 2003 EPA 8(e) Guidance
contemplates. This data is of special concern in the context of secondary studies, so that the
potential reporting party, Eastman, can ensure it is reporting credible results, and notpassing
along inaccurate information that would hinder rather than help regulators? risk assessment.
Furthermore, language in some of the studies suggests their unreliability. For instance, one
report notes: ?[S]everal confounding factors existed? and is unlikely that all reported effects

were directly related to MCHM toxicity.? Plfs.? Mem., Ex. 17 at 2.68 Such unsupported

speculation about chemical effects does not meet the standard for ?reasonabl[e] support? for

 

66 43 Fed. Reg. 11112.

67 The 2003 EPA 8(e) Guidance, 68 Fed. Reg. 33133 provides:

The rationale fort these proposed changes was to relieve persons who are potentially subject to reporting under
8(e) from the burden of considering information from secondary sources when the Secondary source does not
provide suf?cient information for a person to judge whether the information should be reported. For instance, a
manufacturer of alchemical might obtain a news article about research done by another company. A person reading
the article would need the underlying study to evaluate the true signi?cance of the results of the research and, based
on the evaluation, make a judgment as to whether there is a substantial risk of injury to human health or the
environment. In such a case, the potential reporting obligation falls on the company that generated the research
discussed in the news article.

68 Another states, ?These data cannot ?prove? that MCHM caused the reported Plfs. Mem., EX. 16

at 6.
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Case 2:14-cv-01374 Document 821 Filed 06/03/16 Page 27 of 39 PageID 22601

substantial risk ?ndings set forth in In re Elementz's Chromium, 2015 EPA App. LEXIS 5 (EPA

Mar. 13, 2015) and discussed in Part IVA.

4. Water monitoring and odor studies do not indicate a substantial risk under



Plaintiffs claim obligates Eastman to report odor recognition tests and water
monitoring conducted by governmental entities indicating widespread exposure to MCHM and
detection of licorice odor. This is not so. Smelling a licorice scent is not an adverse effect on
human health, and indeed, Plaintiffs do not even attempt to point to any authority for this
position. Furthermore, the language Plaintiffs cite from the 2003 EPA Guidance as
triggering reporting due to widespread exposure omits a key quali?er: the reporting obligation is
triggered only by ?Non?emergency situations involving environmental contamination.? 68 Fed.
Reg. 33138. Plaintiffs do not dispute that the Elk River spill was an emergency environmental
contamination. Plfs.? Mem?. 5-6. Using language taken out of context as the only support for
Plaintiffs? argument that water monitoring and odor detection studies require reporting speaks to
the weakness of their claim. Because Plaintiffs fail to put forth a suf?cient legal and factual
basis for required reporting for water monitoring and odor recognition results, summary
judgment would be inappropriate.

B. Exemptions from the reporting requirement of 8(e)
1. The 22 studies are exempt because of EPA awareness of the studies.

All of the 22 studies are exempt under 8(e) from the reporting requirement which
contains an exception from reporting for information of which the EPA Administrator is already
?adequately informed.? The 2003 EPA 8(e) Guidance includes several exemptions for
circumstances presented by measures taken in the aftermath of the 2014 Elk River spill. First,

. ?To the extent EPA Headquarters and the Regions become involved in joint cleanups,

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Case 2:14-cv-01374 Document 821 Filed 06/03/16 Page 28 of 39 PageID 22602

assessment, etc., or act in advisory roles with other Federal agencies, the Administrator could
reasonably be considered to be adequately informed.? EPA Section 8(e) Guidance, 68 Fed.
Reg. 33134. The very next day after Freedom Industries detected their plant?s contamination of
the Elk River, EPA Headquarters and Region 3 were involved in on-the?ground risk
assessment.69 EPA was also acting in an advisory role and coordinating with other federal
agencies, id, in particular FEMA, CDC, NTP, and NIH. Dennis Matlock, Charleston WV
Chemical Leak, Environmental Protection Agency OSCs maintained EPA personnel
assigned 24~7 friday [sic] 1/ 10/14 through saturday [sic] 1/1 1/ 14 as (liasons [sic]
to FEMA) to the FEMA Regional Office (FEMA Region 3) informed of the work on the
In addition, EPA has had access to all of the 22 studies at issue here, which are each
available on the internet.71 Accordingly, Plaintiffs? argument that the various studies cited in
Plaintiffs? Motion should have been reported under 8(e) after the spill are foreclosed on several
independent grounds, a point even Plaintiffs appear to concede by admitting availability of these
studies and reports extended ?perhaps to EPA regional technical staf Plfs.? Mem. 24. Also,
the 2003 EPA 8(e) Guidance exempts studies involving adverse effects from reporting if they
are listed in ?[d]atabases available to the public (online or in paper versions), such as the

National Library of Medicine (NLM) databases (Toxline, Medline, Hazardous Substances Data

 

69 Larry Cseh, Contaminated Water Incident: Charleston, WV, Environmental Health Of?cer Safety Advisory
Committee, (discussing role in reviewing Eastman studies to develop response and indicating National
Response Plan was in effect from Jan. 10?20, 2014),
. ehopac. org/index.php/resp onsenarratives 
Charleston?WV, EX. Centers for Disease Control and Prevention, Information about MCH1VI (Feb. 5, 2014)
Centers for Disease Control and
Prevention, Summary Report of Short?term Screening Level Calculation and Analysis of Available Animal Studies
for MCHM (J an. 20, 2014) (same), Ex. I. 

70 Dennis Matlock, Charleston WV Chemical Leak, EPA (2016)
Ex. I.

71 For example, Eastman had the MCHM studies the company conducted posted online shortly after the spill and
shared the study information with authorities in order to aid in the response effort. Tom Conuel, Rapid
Response: West Virginia 2014 Elk River Spill, NLM in Focus (Mar. 9, 2016),
Green Dep. 32.

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Case 2:14-cv-01374 Document 821 Filed 06/03/16 Page 29 of 39 PageID 22603

Bank, etc.) . . . 3?72 MCHM studies are listed in Toxline, and the listing includes the very studies,
data and other information both from Eastman and the NTP which Plaintiffs? Motion for
Summary Judgment alleges that Eastman should have reported to EPA.73 Plaintiffs? request for
an injunction ordering Eastman to report studies is therefore moot.

Plaintiffs ignore multiple reporting exemptions which preclude Plaintiffs? 8(e) claims
altogether under the overarching policy that EPA does not need information it can be presumed
to have or to get from other sources. 

2. NTP studies are exempt from reporting under 

. There are multiple reasons Why the NTP studies are exempt from reporting. As discussed
in Part IV.B.1, studies involving adverse effects?. are exempt from reportng if listed in public
databases, such as Toxline?s listing of the three NTP studies Plaintiffs cite. Also, the 1991 EPA
8(e) Reporting Guide indicates that ?with regard to a public scienti?c conference/meeting,
visually or verbally obtained information from such meeting is subject to Section 8(e) reporting
unless the obtained information is captured accurately/ adequately in a meeting transcript,
abstract, or other such written record or document that is to be formally released to the public
within a reasonable time frame.? Id. at 7 (emphasis in original). Under this guidance, the NTP
research was not required to be reported because the research was publicly released in just such a
forum: in a presentation at the NTP Board of Scienti?c Counselors Meeting on June 16, 2015

entitled, Response to the Elk River Chemical Spill.? The NTP study results at issue here

 

7? 68 Fed. Reg. 33132, 33139. - 
73 Toxnet Toxicology Data Network 4?Methyieyclohexanemethanol, National Library of Medicine

(Sept. 4, 2014), The database

listing for MCHM is attached as EX. K. I
74 On summary judgment, inferences regarding adverse effects are drawn in favor of the non?moving party,

Eastman.
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Case 2:14-cv-01374 Document 821 Filed 06/03/16 Page 30 of 39 PageID 22604

were discussed in a presentation webcast and transcript available to the public and EPA on the
NTP website.75

Furthermore, as Plaintiffs concede, the 2003 EPA 8(e) Guidance provides that reporting
is not required for of?cial publication or of?cial report (draft or ?nal) published or made
available to the public by another Federal Agency and any information developed by another
Federal Agency as a result of a toxicological testing/study program, or site evaluation, in which
EPA is collaborating on the design, review or evaluation of testing/sampling plans or resultant
data.? (emphasis added). To explain away the inconvenient fact that NTP is a federal agency
that has developed these reports as a result of toxicological testing, and collaborated with EPA in
Elk River spill response and site evaluation,76 Plaintiffs claim has not issued official
reports on any of the studies but instead has merely made available informally an initial
summary of results.? Plfs.? Mem. 17-18. Of course, Plaintiffs? semantic antics aside, the 
reporting exception speci?cally'extends to reports regardless of whether ?draft or ?nal.?

Finally, there is insuf?cient evidence for the argument advanced by Plaintiffs? expert
Robert Sussman that ?it is unwarranted for companies to assume that EPA senior managers had
access .to or were informed about the NTP ?ndings. . . Plfs.? Mem. 18 (citing Sussman
Rebuttal Decl. ii 43). This assertion belies the reality of the close relationship between NTP and
EPA, both in the context of the spill response and in general. The EPA, for example, holds a seat

on the NTP Executive Committee,77 and the two entities both rely on information present in the

 

75 Scott Auerbach, Webcast of NTP Response to the Elk River Chemical Spill, National Toxicology Program
(June 16, 2015), Ex. L. West Virginia Chemical
Spill, National Toxicology Program, West Virginia Chemical Spill:
NTP Studies and Results, NTP (Dec. 9, 2015), 

76 EPA has been collaborating with many federal agencies, including NIEHS, since shortly after the spill to
evaluate toxicological effects. Tom' Conuei, Rapid Response: West Virginia 2014 Elk River Spill, NLM
in Focus (Mar. 9, 2016), 
EX. M.

77 Organization, National Toxicoiogy Program (Dec. 9, 2014), 

24

 

 Document 821 Filed 06/03/16 Page 31 of 39 PageID 22605

Toxline database maintained by the same agency that houses NTP. Accordingly, Plaintiffs?
claim that Eastman must report NTP studies lacks suf?cient factual support for summary
judgment.

3. Public health studies are exempt from reporting under 

Plaintiffs neglect other reasons that the public health studies are exempt from reporting.
Plaintiffs cannot dispute that these studies have been covered by numerous sources in the
media,78 a fact which defeats their reporting requirement argument. 2003 EPA 8(e) Guidance
(?substantial risk? information need not be reported if obtained from a ?news publication 
newspaper, news magazine, trade press) with circulation in the United States,? at Part or a
?radio or television news report broadcast in the United States,? at Part Furthermore, all
of the public health publications Plaintiffs claim should have been reported were presentations
made available to the public and EPA in the formats Plaintiffs include in their exhibits, and
therefore do not require reporting. 2003 EPA 8(e) Guidance, Part Lastly, none of the
studies document health effects of the severity rising to the level of ?substantial risk of injury to
human healt See Part. IVA Supra. For all of the above reasons, Plaintiffs lack undisputed
evidence for summary judgment on their public health study claims under 

V. Plaintiffs Lack An Actionable Claim Under ?5 For Purported Deficiencies In
Eastman?s 1997 Premanufacture Notice.

Plaintiffs next take issue with Eastman?s October 20,1997 Premanufacture Notice
for a secondary component of crude MCHM, cyclohexanemethanol 4? -

(methoxymethyl) a submission that was required under 15 U.S.C. 2604 when

 

78 E. 3, Jeff Jenkins, New study results Show ?long?term heaith effects? not expected from MCHM spill water
emergency (Jun. 16, 2015), 
.

25

 

Case 2:14-Cv-01374 Document 821 Filed 06/03/16 Page 32 of 39 PageID 22606

crude MCHM became a commercial product.79 Plaintiffs concede ?the EPA did not identify any
issues before the 90-day review period expired on January 21, 1998,? Plfs.? Mom. 25, but
nevertheless now assert that they can base a claim on What they say are defects in the PMN. This
argument fails for several reasons.

First, as a matter of law, any alleged violation of 5 in connection With the 1997 ?ling is
time-barred by the applicable ?ve-year statute of limitations. 3M Co. v. Browne)?, 17 F.3d 1453,
1455-56 (DC. Cir. 1994) (applying statute of limitations in 28 U.S.C. 2462 in holding that
actions for violations of PMN requirements must be commenced Within five years of the
date of the violation).80 The five?year statute of limitations applies to citizen suits. Catellus Dev.
Corp. v. LD. McFarland 910 F. Supp. 1509, 1518 (D. Or. 1995) (citing Bodne v. Geo A.
Rheman Co, Inc, 811 F. Supp. 218, 221 (D.S.C. 1993) ?for the proposition that ?28 U.S.C.
2462 is the relevant federal statute of limitations to citizen actions under environmental


Second, Plaintiffs cannot demonstrate that the injunctive relief they seek would redress
any harm they are currently suffering, despite their demand that this Court ?[r]equire Eastman to
Withdraw its 1997 PMN and resubmit it with all available data on crude and pure MCHM and a
full and complete description of exposure and release at user sites.? Plf?s Mem. 29. This ?ies in
the face of EPA procedure. TSCA does not require that a base set of test data accompany a
as a result many PMNS are ?led iwith little or no accompanying toxicology or exposure
data. What is essential to any PMN is the chemical identity of the substance proposed for

commercial manufacture. EPA uses that identity information to conservatively predict toxicity

 

79 When Eastman sought to commercialize crude MCHM in the 19903, a PMN was required for 
8? See also Arch Mineral Corp. v. Babbitt, 104 F.3d 660,- 669?670 (4th Cir. 1997) (adopting the reasoning of 3M

applying statute of limitations to administrative proceedings).
81 See also Nat?l Parks Conservation Ass?n, Inc. v. Term. Valley Auth, 502 F.3d 1316, 1327?28 (11th Cir.

2007)
26

 

Case 2:14-cv-01374 Document 821 Filed 06/03/16 Page 33 of 39 PageID 22607

based on structure activity relationships (SAR) to other chemicals with related structures.82 If the
modeling predicts toxicity that could pose an unreasonable risk, additional data is often
generated to eliminate conservatism introduced by the SAR model. By allowing the PMN review
period to expire without imposing regulatory controls, EPA effectively determined that it had
enough information to conclude allowing on the Inventory would not likely pose an



unreasonable risk.

Furthermore, withdrawing and resubmitting the PMN to EPA would do nothing for
Plaintiffs. Withdrawing a PMN does not remove a chemical from the TSCA inventory of
chemicals that can be produced that horse left the stable in 1998, when the EPA elected not to
block manufacture of the chemical, the review period expired, the notice of
commencement issued, and the chemical was added to the inventory, giving any company the
right to manufacture it.83 If a new PMN were ?led, the EPA would likely reject it because the
chemical is already on the inventory; thus, there is no real way to accomplish the inj unctive relief
the Plaintiffs seek.

Plaintiffs concede that 5 only requires a manufacturer to provide information that is
?known? to or ?reasonably ascertainable by? the PMN submitter. Plfs.? Mom. 28. Plaintiffs
claim, ?Eastman had every reason to know that signi?cant releases and discharges to water are
routine at coal preparation sites.? Id. There is absolutely no evidence in the record, however,
indicating that Eastman had any actual knowledge at the time it submitted the PMN in 1997 of

these releases, that they are real, or that they were readily ascertainable. Plaintiffs? theory

 

82 Chem. Categories Used to Review New Chem. under TSCA, EPA (Sept. 29, 2015) 


83 Plaintiffs? only means to remove a chemical already on the inventory would be to initiate legal action against
EPA under TSCA 6, 15 U.S.C. 2605, which Plaintiffs have declined to do. EPA would then have to seek to ban
the chemical or restrict its use under Section 6 or obtain a consent decree. EPA could also pursue a Signi?cant New
Use Rule or issue a test ruie if they were, in fact, concerned about the chemical?s prevalence in



27

 

Case 2:14-cv-01374 Document 821 Filed 06/03/16 Page 34 of 39 PageID 22608

directly con?icts with EPA guidance noting the limitations a PMN Submitter has regarding
information on sites it does not control.84 Plaintiffs cite no EPA guidance or rulings for their
theory of PMN reporting requirements, nor justify their allegation that continuous, widespread
MCHM discharges occur at coal processing plants with anything other than the uncorroborated

say-so of their expert, Jack Spadaro. Plfs.? Mem. 28, n.68. Plaintiffs? PMN claim does not merit

summary judgment.
VI. Plaintiffs Lack An Actionable Claim Regarding .

Plaintiffs complain that Eastman violated TSCA 15 U.S.C. 2607, which requires
companies to keep records on allegations of harmful effects caused by chemicals, thus enabling
the company or EPA to learn of patterns of allegations that may point to a previously unknown
adverse effect caused by a chemical or group of chemicals. The statute states:

Any person who manufactures, processes, or distributes in commerce any

chemical substance or mixture shall maintain records of signi?cant adverse

reactions to health or' the environment, as determined by the Administrator by

rule, alleged to have been caused by the substance or mixture. . . . Records

required to be maintained under this subsection shall include records of consumer I

allegations of personal injury or harm to health, reports of occupational disease or

injury, and reports or complaints of injury to the environment submitted to the

manufacturer, processor, or distributor in commerce fromany source.

15 U.S.C. 2607(c). TSCA 8(c) final rule, 40 C.F.R. 717, attached as EX. N, became
effective on November 21, 1983. As noted above, Plaintiffs may not make a citizen suit claim

here because it was not included in their notice letter. Furthermore, EPA guidance makes clear

that these claims would be unfounded even if they were a permissible part of this case.

 

84 EnVironmental Protection Agency, EPA Instructional Manual or Reporting Under TSCA ?5 New Chemicals
Program, 2015, at 48, _manual_2015_5~
26?2015.pdf: ?In most cases, you have more speci?c information on sites you control than sites you do not 
control. If you do not have specific information on sites controlled by others, describe a typical operation involving
the particular processing or end use application based on information available to you . . . 

28

 

Case 2:14-cv-01374 Document 821 Filed 06/03/16 Page 35 of 39 PageID 22609

In pertinent part, 40 C.F.R. 717.10 provides that allegations state the cause of the effect
and that companies may opt for allegations to be by signed written submission, promoting
integrity in allegations and facilitating tracking-patterns among reported effects. I Subsequently,
the EPA published Question Answer Guidance in 1984.85 Both the rule and guidance make
clear that companies are not obligated to record allegations of chemical effects unless (1) the
allegation is signed, 40 C.F.R. (2) the allegation is submitted to the company, id,
and (3) the allegation includes information regarding the cause and nature of a suf?ciently severe
adverse reaction. 40 C.F.R. Plaintiffs do not allege any of the materials86
they contend Eastman should have recorded contain even a single signed report from. an
individual exposed to MCHM, any instance of an affected person submitting a report or
authorizing someone to do so on their behalf, or specific allegations adequately describing cause
and nature of the effect. 1

In particular, the plain language of the statute itself, in addition to the rule and guidance,
require that the report regardless of its source be ?submitted to? the company. 15 U.S.C.
2607(0). This is not a mere knowledge standard, but requires actual transmission of the report
to the manufacturer. See Pttr?pac Pharm. Co. v. Thompson, 354 F.3d 877, 889 (DC. Cir. 2004)
(interpreting verb ?submitted? for mailing requirement; submission involved an actual
transmission). Plaintiffs concede that ?consumers communicated their to health
authorities and researchers and not to Eastman directly.? Plfs.? Mom. 29. Plaintiffs therefore

cannot demonstrate a qualifying allegation submitted to Eastman on the basis of these reports.

 

85 EPA reiterated in its 8(c) brochure that ?[c]ompanies subject to the rule are not?required to record unsigned
written allegations.? Of?ce of Toxic Substances, Environmental Protection Agency, Answers to Your Questions
About the TSCA Section 8(0) Ruie (1984), attached as EX. 0. See also Of?ce of Toxic Substances, Environmental
Protection Agency, Questions and Answers Concerning the TSCA Section 8(c) Rule Questions Received at:
Seminar on Toxic Substances Control Act Section 8(0) Recordkeeping and Reporting Allegations of Adverse
Reactions November 10, 1983 (1984) at 3 (same), attached as Ex. P.

86 These reports and presentations are cited in Plfs.? Mem, Ex. 29 at 2?3.

29

 

Case 2:14-cv-01374 Document 821 Filed 06/03/16 Page 36 of 39 PageID 22610

Plaintiffs? argument that a recordkeeping obligation was triggered ?once Eastman came
into possession of analyses and reports tabulating and describing these id, is out of
step With the rule and guidance. EPA maintains for good reason that although a consumer report
can be made for a consumer by another person, the report must include a report speci?c to an
individual, and be signed by someone. Tabulations and analyses anonymously aggregating
individual reports do not meet these requirements. The ?presentations and reports,?87 Plaintiffs
claim Eastman should have submitted comprise an ?analy[sis] [of] . . . records,? a ?compilation,?
a ?survey? and ?analysis,? a ?catalog[]? and and ?population survey,?
respectively.88 None involve personal reports, and therefore do not qualify for 
recordkeeping requirement. For instance, reports fail to describe on a personal level89 the nature
of the alleged exposure and reaction to or any speci?c reactions in the studies that rise
to the level of signi?cant adverse reactions.91 Accordingly, Plaintiffs fail to demonstrate
evidence cf unrecorded qualifying allegations necessary to succeed on their 8(0) claim for

summary judgment.

 

*7 Plfs.? Mem. 29.

88
Id. at 19?20.
89 EPA guidance states: ?Isolated medical data are not inherently allegations. If a doctor were to make an

allegation (Le, a statement or assertion) on behalf of a patient, such data could be cited as the signi?cant adverse
reaction.? Ex. at 4. Plaintiffs, however, present no evidence of any doctor who submitted to Eastman a report for
a patient of allegedly adverse reactions linked to MCHM.

9? The ailegation must make a link between a particular company?s ?product, process or ef?uent and the human
health or environmental effect. . . . The nature of the adverse reaction should be explained. . . . [T]he industry is only
required to record ?signi?cant adverse reactions.? Of?ce of Toxic Substances, Environmental Protection Agency,
Answers to Your Questions About the TSCA Section 8(0) Rule (1984), Ex. 0.

91 See (?signi?cant adverse reactions to human health include: . . cancer or birth defects . . . . blood,
reproductive, or neurological disorders?). Plaintiffs claim, ?[b]ecause the reported involved ?partial or
complete impairment of bodily functions? and ?impairment of normal activities?, they qualify as ?significant adverse
reactions? under the EPA 8(c) regulations.? Id. at 29. Plaintiffs have cherry-picked from the description of what
quali?es as significant adverse reactions, without failing to note that the form of impairments they describe should
be ?experienced by ali or most of the persons exposed at one time? or ?experienced each time an individual is

exposed.?

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Case 2:14-cv-01374 Document 821 Filed 06/03/16 Page 37 of 39 PageID 22611

CONCLUSION

Plaintiffs have failed to provide suf?cient legal and factual support for their claims that

Eastman violated TSCA and 5, claims which the limits of both TSCA and the

Constitution deny them standing to press. WHEREFORE, based on the foregoing, Defendant,

Eastman Chemical Company requests the Court deny Plaintiffs: Motion for Summary Judgment.

ATTORNEYS FOR DEFENDANT
EASTMAN CHEMICAL COMPANY

E. Williams

Marc E. Williams (WV Bar No. 4062)
Robert Massie (WV Bar No. 5743)
Melissa Foster Bird (WV Bar No. 6588)
NELSON MULLINS RILEY 
SCARBOROUGH LLP

949 Third Ave, Suite 200

Huntington, WV 25701

Phone: (304) 526?3 501

Fax: (304) 526-3541

Email: 
Email: bob.massie@nelsonmullins.com
Email: 

Robert Scott (Admitted pro hac vice)
Marquel S. Jordan (Admitted pro hac vice)
BLANK ROME LLP

717 Texas Avenue, Suite 1400

Houston, Texas 77002

Phone: (713) 228-6601

Fax: (713) 228-6605 Fax

Email: 

Email: 

31

 

Case 2:14-cv-01374 Document 821 Filed 06/03/16 Page 38 of 39 PageID 22612

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON

GOOD, et. al.,

Plaintiffs,

AMERICAN WATER WORKS
COMPANY, et. (11.,

Defendants.

CIVIL ACTION NO.: 
(Consolidated with Case No. 2:14-11011;
Case No. 2114?13164; Case No. 2:14?
13454)

HON. JOHN T. COPENHAVER

CERTIFICATE OF SERVICE

This under-signed attorney hereby certifies that a copy of the foregoing "Defendant Eastman

Chemical Company?s Motion for Summary Judgment on the Issue of Corrosion has been

served on the 3rd day of June, 2016. This Certificate of Service is being provided to the Court

and counsel through the ECF system.

David R. Barney, Jr., Esq.

Kevin Thompson, Esq.

Barney Thompson PLLC

2030 Kanawha Boulevard East
Charleston, WV 25311

Phone: 304.343 .4401

Facsimile: 304.343.4405

Email: drbarneywv@gmail.com
Email: kwthompsonwv@gmail.com
Counsel for Plaintiffs

32

 

Case 2:14-cv-01374 Document 821 Filed 06/03/16 Page 39 of 39 PageID 22613

Van Bunch, Esq.

Bonnett, Fairbourn, Friedman Balint, RC.
2325 E. Camelback Road, Suite, 300

Phoenix, Arizona 85016

Phone: 602.274. 1100

Facsimile: 602.274.1199 .

Email: Vbunch@bfib.com

Counsel for 

 

Stuart Calwell, Esq.

Alexander D. McLaughlin, Esq.
The Calwell Practice, LC

Law and Arts Center West

500 Randolph Street

Charleston, West Virginia 25302
Phone: 304.343.4323

Facsimile: 304.344.3684

Email: scalwell@calwell.com
Email: . com
Counsel for Plaintiffs

Thomas J. Hurney, Esq.

Jackson Kelly, PLLC

500 Lee Street East, Suite 1600

PO. Box 553

Charleston, West Virginia 25301
Phone: 304.340.1000

Facsimile:

Email: acksonkelly . com
Counsel for Defendants

Kent Mayo, Esq.

Baker Botts LLP

1299 Ave, NW
Washington, DC. 20004?2400 
Phone: 202.639.1122

Facsimile: 202.585.1007

Email: kent.mayo@bakerbotts.com
Counsel for Defendants

Marc E. Williams

33