Case 2:14-cv-01374 Document 936 Filed 08/02/16 Page 1 of 12 PageID #: 33318

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA

CRYSTAL GOOD, et al.,
Civil Action No. 2:14-CV-01374
Hon. John T. Copenhaver

Plaintiffs
v.

Consolidated with:
Civil Action No. 2:14-CV-13164
Civil Action No. 2:14-CV-11011
Civil Action No. 2:14-CV-13454

AMERICAN WATER WORKS COMPANY,
et al.,
Defendants.

PLAINTIFFS’ MEMORANDUM OF LAW WITH RESPECT
TO STANDING TO BRING A CLAIM SEEKING RELIEF
UNDER THE TOXIC SUBSTANCES CONTROL ACT
Plaintiffs, by counsel, hereby respectfully respond to the Court’s July 25, 2016, Order
[Doc. 933], which directed Plaintiffs to demonstrate that they have standing under Article III of
the United States Constitution and that they suffered an injury fairly traceable to Eastman’s
alleged violation of the Toxic Substances Control Act (“TSCA”), 15 U.S.C. §2604 (TSCA §5),
§2607 (TSCA §8) and §2614(3)(b) (TSCA §15), which will be redressed by a favorable decision
of the Court. Plaintiffs clearly have standing. Eastman cannot meet its burden of demonstrating
that Plaintiffs’ claims are moot.

In support thereof, Plaintiffs incorporate their previous

arguments and state as follow:
ARGUMENT
A. Plaintiffs Have Constitutional Standing.
1. The Court’s Order Ruling that Plaintiffs Have Standing Controls.
In its Order of June 4, 2015 [Doc. 379], the Court found that, based on Plaintiffs’
allegations regarding Eastman’s violations of TSCA, Plaintiffs “have both standing and a
plausible claim for relief under Section 2619(a)(1).” Order [Doc. 379] at 13.

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The Court stated in its June 4, 2015 Order that “Plaintiffs desire in that claim only what
Congress has specifically permitted, namely, to pursue a private action to enjoin violations of the
Toxic Substances Control Act.” The Court then quoted the broad language of TSCA, “[a]ny
person may commence a civil action against any person who is alleged to be in violation of this
Chapter…” 15 USC §2619(a)(1).
The U.S. Supreme Court dealt with similar language authorizing citizens to file lawsuits
against the Federal Election Commission to compel the disclosure of information:
Often the fact that an interest is abstract and the fact that it is widely shared go
hand in hand. But their association is not invariable, and where a harm is
concrete, though widely shared, the Court has found ‘injury in fact’… Such an
interest, where sufficiently concrete, may count as an ‘injury in fact.’ This
conclusion seems particularly obvious where (to use a hypothetical example)
large numbers of individuals suffer the same common injury (say, a widespread
mass tort), or where large numbers of voters suffer interference with voting rights
conferred by law. Cf. Lujan, supra, at 572; Shaw v. Hunt, 517 U.S. 899, 905
(1996). We conclude that, similarly, the informational injury at issue here,
directly related to voting, the most basic of political rights, is sufficiently concrete
and specific such that the fact that it is widely shared does not deprive Congress
of constitutional power to authorize its vindication in the federal courts.
Federal Election Commission v. Akins, et al., 524 U.S. 11, 24-25 (1998).
The Court’s prior ruling on the standing issue controls. If the facts relied upon by the
Court and which formed the basis of Plaintiffs’ allegations were untrue, then Eastman “should
have moved for summary judgment on the standing issue and demonstrated to [this] Court that
the allegations were sham and raised no genuine issue of fact.” Gwaltney of Smithfield, Ltd. v.
Chesapeake Bay Foundation, Inc., 484 U.S. 49, 66 (1987). But, Eastman did not. So, the case is
ripe for disposition by motion for summary judgment or it should proceed to trial “where the
plaintiff must prove the allegations in order to prevail . . . the Constitution does not require that
the plaintiff offer this proof as a threshold matter in order to invoke the District Court’s
jurisdiction.” Id. Thus, the Court may read no further and can reject Eastman’s renewed
standing arguments posited in opposition to Plaintiffs’ Motion for Summary Judgment.

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2. Plaintiffs Satisfy Article III Standing Requirements.
Assuming the Court revisits the standing issue, which it need not do, Plaintiffs must
fulfill three requirements in order to demonstrate Article III standing to sue. Plaintiffs must
show that they (1) suffered an injury in fact that is actual and imminent, as opposed to
conjectural or hypothetical; (2) a causal connection must exist between Plaintiffs’ injury and the
complained of conduct that makes the injury fairly traceable to the complained of conduct, as
opposed to being the result of independent acts by a third party not before the court; and (3) it
must be likely, not merely speculative, that Plaintiffs’ injury will be redressed by a favorable
decision in the lawsuit. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).
a. Plaintiffs Have Suffered an Injury in Fact.
Abstract injury is not enough to satisfy the “injury in fact” requirement for Article III
standing. O’Shea v. Littleton, 414 U.S. 488, 494 (1974). Alleging a “bare procedural violation,
divorced from any concrete harm,” is insufficient. Spokeo v. Robins, No. 13-1339, 578 U.S. ___,
Slip Op. at 10 (decided May 16, 2016); Summers v. Earth Island Institute, 555 U.S. 488, 496
(2009) (“[D]eprivation of a procedural right without some concrete interest that is affected by the
deprivation . . . is insufficient to create Article III standing”).
In environmental standing cases, the Fourth Circuit has distinguished between
environmental injury which “can be demarcated as a traditional trespass on property or tortious
injury to a person” from damage “to an individual’s aesthetic or recreational interests.” Friends
of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149, 154 (4th Cir. 2000) (“Gaston
Copper”). In the latter case, because the interests may be widely shared, the plaintiffs must be
among the injured. Id.; see also Sierra Club v. Morton, 405 U.S. 727, 735 (1972).
This Court need look no further than the evidence presented in support of the claims
made by Class Representative Crystal Good to find that she was impacted in a “personal and
individual way” by Eastman’s failure to abide by TSCA. Crystal Good suffered an eye injury
after being exposed to the vapors emanating from tap water contaminated with Crude MCHM.
Dr. Carl Werntz of the WVU School of Medicine opined the injury was causally linked to the
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exposure to Crude MCHM. See Exhibit 1- Dr, Werntz IME Defense expert witness, Dr. Dennis
Paustenbach testified that such impact would be expected once someone inhaled Crude MCHM,
even at the concentrations during the Water Crisis, because of Crude MCHM’s malodorous
properties. See Plaintiffs’ Reply in Support of Plaintiffs’ Summary Judgment On the Issue of
Defendant Eastman’s Compliance with the Toxic Substances Control Act, at 9. ECF Doc. # 911.
Plaintiff Crystal Good’s claims for physical injury are “fairly traceable” to Eastman’s
failure to obey TSCA. Eastman had an obligation to report to the TSCA 8(e) docket its 1977
study entitled, “Basic Toxicity of Crude MCHM” documented potentially serious effects from
inhalation exposure and its 1990 study entitled, “Acute Toxicity Study on Pure MCHM”
chronicled experiments documenting eye irritation to lab animals. See Plaintiffs’ Memorandum
in Support of Plaintiffs’ Summary Judgment On the Issue of Defendant Eastman’s Compliance
with the Toxic Substances Control Act, at 9,12. ECF Doc. # 729.
Plaintiff Crystal Good’s claims for trespass, personal property damage and out-of-pocket
expenses are also “fairly traceable” to Eastman’s failure to obey TSCA’s provisions regarding
the Pre-Manufacture Notice (PMN).
“Had Eastman made timely reports of toxicology studies and filed a complete,
compliant PMN, the additional information provided to EPA would likely have
resulted in greater scrutiny of MCHM’s potential for adverse health effects and
significant exposure. This may well have led to requirements to conduct additional
toxicology studies to evaluate MCHM’s health and environmental effects, resulting in
more informative data on risks to human health and aquatic organisms at the time of
the spill. It could also have led to greater controls on environmental release at coal
preparation and related facilities, and these could have prevented the spill from
occurring.” See Sussman Declaration, Exhibit 19 to Memorandum in Opposition to
Defendants’ Motion to Exclude Robert Sussman at . ECF Doc. #847-19.
Specifically, the PMN mischaracterized a coal processing plant as a “closed loop”
system. Plaintiffs’ mining expert and former federal mine inspector, Jack Spadaro, explained
that coal prep plants are not “closed loop” and that process water is discharged through designed
outlets. Because these “open loop” coal processing plants are all on creeks and rivers, it is a
certainty that the water carrying Crude MCHM will find its way into the waters of the United

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States. See Spadaro Declaration, Exhibit 10 to Plaintiffs Motion for Partial Summary Judgment
at 5. ECF Doc. #777-10.
Hiding that likelihood of water pollution becomes even more directly traceable to Crystal
Good’s property-related claims when coupled with the fact that Eastman did not disclose aquatic
toxicology studies which, had they been disclosed, would have bumped Crude MCHM into a
higher toxicity category. Those studies, properly disclosed, would have highlighted the potential
hazards associated with release of Crude MCHM into an aquatic environment.
The injury or threat of injury must be both “real and immediate” and not conjectural or
hypothetical. O’Shea, 414 U.S. at 494; Golden v. Zwickler, 394 U.S. 103, 109-10 (1969). In this
regard, past exposure to illegal conduct, in itself, does not show a present case or controversy
regarding injunctive relief, unless accompanied by some “continuing, present adverse effects.”
O’Shea, 414 U.S. at 495.
Here, injury in fact is readily satisfied because Eastman’s past and present failures to
report information to the TSCA 8(e) docket have caused and are causing continuing, present
legal harm. The Fourth Circuit has recognized that in a toxic discharge case, “[t]hreats or
increased risk thus constitutes cognizable harm. Threatened environmental injury is by nature
probabilistic.” Gaston Copper, 204 F.3d at 160; 1 see also Natural Res. Def. Council v. EPA, 464
F.3d 1, 6 (D.C. Cir. 2006) (“Environmental and health injuries often are purely probabilistic”).
The claims of Crystal Good, the other Class Representatives and the Class Members for
annoyance, inconvenience, public nuisance and emotional distress in the aftermath of the Water
Crisis are “fairly traceable” to Eastman’s failure to report exposure, odor and toxicity to the
TSCA 8(e) docket. It is an understatement to say that it was annoying, inconvenient and
emotionally distressing to be exposed to a toxic substance for which little to nothing is known
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The Fourth Circuit relied on several examples where courts had found the injury in fact element of
Article III standing satisfied by threatened environmental injury. See Village of Elk Grove v. Evans, 997 F.2d 328,
329 (7th Cir. 1993) (standing due to village in path of potential flood and “even a small probability of injury is
sufficient to create a case or controversy”); Mountain States Legal Found. v. Glickman, 92 F.3d 1228, 1234 (D.C.
Cir. 1996) (increased risk of wildfire from certain logging practices constitutes injury in fact).

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about its long-term effects. It is downright terrifying when public health officials like Dr. Rahul
Gupta and environmental enforcement officials like WVDEP official Mike Dorsey publicly
comment about the lack of long-term health data. It is annoying and emotionally distressing then
to realize that reams of information about health and environmental impacts of Crude MCHM
were hidden away by Eastman.
This fear of long-term health effects is a continuing legal harm and adverse effect. At the
very least, one would expect that in the aftermath of such a catastrophe a company of Eastman’s
stature would promptly report to the TSCA 8(e) docket all of the relevant information so that in
the event of another Crude MCHM exposure public health officials would have all relevant
information.
It is heightened by the fact that the Plaintiffs have presented evidence of an actual threat
of continued exposure and increased risk. The failure of the PMN or the TSCA 8(e) docket or
Eastman’s Safety Data Sheets (“SDS”) to truthfully disclose the “open loop” nature of a coal
prep plant and the revelation that WVDEP test results show that Crude MCHM is polluting West
Virginia’s stream and rivers every day proves this point. Spadaro Declaration at ¶13. ECF Doc.
#777-10. In addition, it is undisputed that Eastman is still selling Crude MCHM for use in coal
prep plants. Finally, Eastman even resists placing into the TSCA 8(e) docket information related
to the odiferous nature of Crude MCHM- exactly the sort of information that Exxon failed to
report in In re: MTBE.In Re Methyl Tertiary Butyl Ether, 559 F. Supp. 2d 424 (SDNY 2008).
Plaintiff Crystal Good lives in Charleston- downstream from innumerable coal processing
plants. Plaintiffs Roy McNeal, Wendy Ruiz and Kim Ogier live in the coalfields in Logan and
Boone County- even closer to coal prep plants. There is no doubt that the evidence adduced and
presented in this case shows a real and present threat of additional contamination.
Here, without a complete and competent toxicological analysis of the risks of acute and
chronic effects to human health from exposures to Crude MCHM, Plaintiffs and the Class
Members face the continuing and ongoing threat and health risk resulting from any future release
of the substance into the environment. Without updated and accurate published SDS sheets that
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take into account the results of competent and thorough toxicological results from studies
evaluating the health risks caused by Crude MCHM, Plaintiffs face the same dangers and risks.
See Walters v. Edgar, 163 F.3d 430, 434 (7th Cir. 1998) (“A probabilistic harm, if nontrivial, can
support standing”); Central Delta Water Agency v. United States, 306 F.3d 938, 947 (9th Cir.
2002) (“the possibility of future injury may be sufficient to confer standing on plaintiffs”).
“[P]ast wrongs are evidence bearing on whether there is a real and immediate threat of
repeated injury.” O’Shea, 414 U.S. at 496. In O’Shea, plaintiffs challenged illegal bond setting,
sentencing and jury fee practices in criminal cases. To allege a threat of repeated injury, the
plaintiffs would have had to have been arrested again, even though they claimed no
constitutional right to engage in any conduct proscribed by state law and had not indicated that
they intended to conduct themselves so as to violate criminal laws. The threat of injury from any
continuing pattern regarding illegal bond, sentencing and jury fee practices were remote.
O’Shea, 414 U.S. at 497-98. Similarly, in Zwickler, where the defendant had been convicted
under a statute making it a crime to distribute anonymous literature in connection with an
election campaign, it was “wholly conjectural” that there might come another occasion where
Mr. Zwickler might be subject to a new prosecution for distributing handbills. Zwickler, 394
U.S. at 109.
Here, in contrast, the threat of repeated injury is real. The prospect of a release of Crude
MCHM into the environment in the future, such as could affect some or all of the Plaintiffs and
the other Class Members, given the fact that threatened environmental injury is “by nature
probabilistic” as recognized by the Fourth Circuit, can easily be seen to be a plausible
occurrence, and is not speculative or hypothetical. Even in the absence of an accidental spill, as
Eastman itself knows, Eastman’s product will end up in the environment because Crude MCHM
slurry from coal processing plants inevitably migrates to the waters of the United States.
b. A Causal Connection Exists Between Injury and Conduct.
It has been noted that with respect to this element, the “fairly traceable” element, the
Supreme Court and the Fourth Circuit have established a “fairly low threshold.” Gaston Copper,
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179 F.3d at 116; see also Hudson Riverkeeper Fund, Inc. v. Atlantic Richfield Co., 138 F. Supp.
2d 482, 485 (S.D.N.Y. 2001) (with respect to the traceability element Supreme Court has
“established a low causation threshold”). The Supreme Court has stated that a “substantial
likelihood” that defendant’s actions caused plaintiff’s harm confers standing. Duke Power Co. v.
Carolina Envtl. Study Group, Inc., 438 U.S. 59, 75 n. 20 (1978).
Here, Plaintiffs assert that independent scientific testing has indicated that Crude MCHM
is significantly more toxic than has been previously represented by Eastman. The evidence
suggests that Plaintiffs and the Class Members in significant numbers required medical treatment
after exposure to Crude MCHM. Eastman reported false and misleading conclusions to the EPA
regarding the toxicity of Crude MCHM. Given the “low causation threshold” needed to confer
standing, there is no question that Plaintiffs’ injuries were fairly traceable to Eastman’s conduct.
As noted earlier and explained more fully in Plaintiffs’ TSCA briefing, Eastman’s expert
toxicologist, Dr. Dennis Paustenbach, has already opined that eye irritation, headaches, vomiting,
nausea and rashes could have been caused by the noxious odor of the Crude MCHM. Plaintiffs
have requested that this Court order Eastman to report to the docket the information in Eastman’s
possession related to odor.
Eastman argues that Plaintiffs’ alleged injuries are not fairly traceable to Eastman’s
alleged TSCA violations because Freedom Industries was the one that discharged the chemical.
Def. Mem. at 5. This assertion, part of Defendants’ overall litigation strategy to cast blame upon
Freedom to absolve themselves from responsibility, misstates the law and facts.
Freedom’ actions had nothing to do with Eastman’s misleading the EPA regarding Crude
MCHM toxicity. Freedom had nothing to do with Eastman’s ignoring data in lab rat studies.
Freedom had nothing to do with Eastman changing the breed of lab rat used in experiments and
Eastman’s abandonment of Good Laboratory Practices.

Freedom had nothing to do with

Eastman’s failure to inform the relevant agency with information it had obtained reasonably
supporting the view that Crude MCHM could cause a substantial risk of injury to human health
or to the environment. It is this conduct which is clearly “fairly traceable” to the alleged harm
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asserted by Plaintiffs. This range of complained-of conduct by Eastman stands alone and does
not depend upon the independent decisions of Freedom or any other party. DaimlerChrysler
Corp. v. Cuno, 547 U.S. 332, 344 (2006) (alleged injury hypothetical where it depends on
independent decisions of third parties). If Eastman had not engaged in the alleged unlawful
conduct, then the spill caused by Freedom would have been an event of a different character and
the harms experienced by Plaintiffs would have been less severe.
Moreover, to be “fairly traceable” means that the alleged cause need only be a “primary
factor” not the sole cause. Etuk v. Slattery, 936 F.2d 1433, 1441 (2d Cir. 1991) (causation prong
satisfied where alleged improper conduct of defendant plainly constituted a primary factor in
harm plaintiffs contend they have suffered and will continue to suffer). Undoubtedly, Freedom’s
role was not the sole cause and not, as Eastman disingenuously pretends, an “independent
action” that resulted in Plaintiffs’ injuries so as to negate any claim that the injuries “fairly can
be traced to the challenged action of the defendant.” Simon v. Eastern Kentucky Welfare Rights
Org., 426 U.S. 26, 41-42 (1976). Eastman’s arguments have no merit and the Court should find
that Plaintiffs have satisfied the fairly traceable element.
c. Plaintiffs’ injury will be redressed.
The redressability element focuses on the relationship between the remedy requested and
the alleged injury. Federation for American Immigration Reform, Inc. v. Reno, 897 F. Supp.
595, 604 (D.D.C. 1995). Certainty is not required, but rather, there must be a substantial
likelihood that the requested remedy will redress the alleged injury. Simon, 426 U.S. at 45.
Plainly, to meet the redressability prong the relief sought must redress the injury suffered by
Plaintiffs. Steel Company v. Citizens For a Better Environment, 523 U.S. 83, 107 (1998)
(“Relief that does not remedy the injury suffered cannot bootstrap a plaintiff into federal court;
that is the very essence of the redressability requirement”).
Eastman argues that the relief sought by Plaintiffs cannot redress any injury, maintaining
that the relief sought by Plaintiffs is not authorized by TSCA in a private citizen suit, because the
only relief available is “to restrain” current violations, but Plaintiffs instead seek an Order
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requiring Eastman to affirmatively act. Def. Mem. at 3-4. Eastman contends that ordering it to
remedy its violations of TSCA is beyond the scope of citizen suits, for the TSCA only authorizes
them “to restrain” violations of its substantive provisions. 15 U.S.C. §2619(a)(1)(B).
To “restrain” in the TSCA context has been held to mean “to ‘control or check’ or to
‘limit or restrict.’ Because the word is in the present tense, and you cannot control, check, limit,
or restrict anything that has already stopped, it is implied in the statutory language that a citizen
suit may seek ‘to restrain’ something that is ongoing or continuous, and that may continue in the
future.” Arbor Hill Concerned Citizens Neighborhood Ass’n v. City of Albany, N.Y., 250 F.
Supp.2d 48, 59 (N.D. N.Y. 2003) (internal citations omitted). Thus, injunctive relief “which
seeks to restrain the alleged ongoing violations of the TSCA and any future violations of the
TSCA, is permissible.” Id. at 60. This permissible injunctive relief is exactly what Plaintiff
seeks here. A favorable decision from this Court can redress this situation created by Eastman’s
TSCA violations.
B. Plaintiffs’ Claim is Not Moot.
A citizen suit for injunctive relief aimed at halting ongoing violations is not moot where
it is “absolutely clear” that the alleged wrongful behavior cannot reasonably be expected to
occur. Gwaltney, 484 U.S. at 66 (CWA citizen suit). A case is not moot if some stake in the
outcome remains, “notwithstanding the size of the dispute.” Firefighters Local 1784 v. Stotts,
467 U.S. 561, 571 (1984). Eastman argues that because all of the information that Plaintiffs seek
to have the Court order Eastman to disclose is “known to EPA and the public,” Def. Mem. at 5-6,
the issue is moot. None of the 22 items of information that Plaintiffs seek to disclose is of the
sort presumed by the statute to be in the possession of the Director and Eastman has not met its
burden to prove that the information at issue is actually in the possession of the Director.
Further, every day the Eastman fails to disclose the required information is another violation this
motion seeks to enjoin.
In Arbor Hill Concerned Citizens, supra, the defendants contended that because all
alleged violations of TSCA occurred in the past, the issues relating to injunctive relief were
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moot. The Arbor court rejected that argument, finding that whether the violations were ongoing
was “the heart of the dispute between the parties.” Arbor Hill Concerned Citizens, 250 F.
Supp.2d at 60 n. 4. A similar result is warranted here.
WHEREFORE, Plaintiffs respectfully request that the Court grant their Motion for
summary judgment, along with any other necessary or proper relief.
DATED: August 2, 2016.

By Counsel,
/s/ Kevin W. Thompson
Kevin W. Thompson, Esquire (W.Va. Bar No. 5062)
David R. Barney, Jr., Esquire (W.Va. Bar No. 7958)
Thompson Barney
2030 Kanawha Boulevard, East
Charleston, West Virginia 25311
Telephone: (304) 343-4401
Facsimile: (304) 343-4405
kwthompsonwv@gmail.com
Van Bunch, Esquire (W.Va. Bar No. 10608)
Bonnett Fairbourn Friedman & Balint PC
2325 E. Camelback Road, Suite 300
Phoenix, Arizona 85016
Telephone: (602) 274-1100
Facsimile: (602) 274-1199
vbunch@bffb.com
Stuart Calwell, Esquire (W.Va. Bar No. 0595)
Alex McLaughlin, Esquire (W.Va. Bar No. 9696)
D. Christopher Hedges, Esquire (W.Va. Bar No. 7894)
The Calwell Practice, LC
500 Randolph Street
Charleston, West Virginia 25302
Telephone: (304) 343-4323
Facsimile: (304) 344-3684
scalwell@calwelllaw.com
Class Counsel

CERTIFICATE OF SERVICE
The undersigned counsel for Plaintiffs hereby certifies that on August 2, 2016, the
foregoing “Plaintiffs’ Memorandum Of Law With Respect To Standing To Bring A Claim
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Seeking Relief Under The Toxic Substances Control Act” was served on all counsel of record
through the CM/ECF system which will send notification of the filing to all counsel of record.
/s/ Kevin W. Thompson
Kevin W. Thompson, Esquire (W.Va. Bar No. 5062)
Thompson Barney
2030 Kanawha Boulevard, East
Charleston, West Virginia 25311
Telephone: (304) 343-4401
Facsimile: (304) 343-4405
kwthompsonwv@gmail.com

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