Source: The Charleston Gazette (WV), December 26, 2015
Posted on: http://www.advisen.com
At least 90 residents will see the value of their property diminish when crude MCHM leaks out of a Putnam County landfill and into Hurricane Creek, according to attorneys who represent a woman who lives in the area.
Those attorneys have asked a judge to allow them to represent all residents who live along and nearby Hurricane Creek in a class action lawsuit against Disposal Services Inc.
Last year, Patricia Carole Jones filed suit against Disposal Services, which owns the Hurricane landfill where more than 36,000 gallons of MCHM was dumped.
MCHM tainted the drinking water of more than 300,000 people when it leaked in January 2014 from Freedom Industries and into the Elk River.
G. Fred Lee, who has a doctorate degree in environmental engineering and public health and aquatic chemistry from Harvard University, used information provided by attorneys for the landfill to determine that there are multiple pathways for MCHM to leach from the landfill and contaminate Hurricane Creek.
Lee’s affidavit is attached to a motion for class certification filed by attorneys earlier this month with The Calwell Practice.
The motion asks that Stuart Calwell and attorneys from his firm, who already represent Jones, be allowed to represent the entire proposed class.
They argue it would be difficult and inconvenient for the estimated 90 property owners to file separate lawsuits. The motion also argues that the class should be certified because Lee’s opinion is the same for all of the members of the proposed class.
It would be a substantial waste of resources for Lee to repeatedly testify at countless individual trials, the motion states.
Lee writes that his investigation found that the landfill’s efforts to control the MCHM waste won’t prevent it from ending up in the creek.
“Lee concluded that it is likely that crude MCHM will ultimately be released from the landfill and make its way into Hurricane Creek,” the motion states.
To get class action approval, “We have to be able to demonstrate there are common issues that affect all the proposed class members,” said attorney David Carriger, with Calwell’s firm.
“We have proposed that people who live along the creek and own property along the creek have the right to use and enjoy the creek as part of their bundle of property.
“When that creek gets contaminated by crude MCHM those people won’t be able to use their property to its full extent,” Carriger said.
Lee reviewed information from the landfill, including how it operates and how it is designed, which allowed him to find that it’s probable MCHM will get into the creek at some point in the future, Carriger said.
A lawsuit brought by the City of Hurricane over the dumping of MCHM was settled earlier this year.
However, its terms don’t include removing MCHM from the site. Rather, the settlement will require five years of chemical testing and the repayment of legal fees to the city.