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January 28, 2005
 
Techsol Claims in 40-page Answer It Met All Federal, State Regulations; Asserts That Chemical Spilled Wasn’t Hazardous or Capable of Sickening Nearby Residents
 
by Tony Rutherford
Huntington News Network Writer
 
Huntington (HNN) — Do you remember the evacuation of residents in Westmoreland in October 2004 when 22,000 gallons of a chemical spilled at a plant site along the railroad?
 
Despite the evacuation of residents for days from their homes, Techsol Chemical Co. has responded to a class action civil complaint from residents with contentions that it complied with all state and federal laws, that brief exposure to the chemical does not make you sick, that the chemical is not hazardous, that “medical monitoring” claims were not sufficiently presented, and that the plaintiffs should pay for the company’s legal fees and attorney costs.
 
The company’s 40-page answer, which consists of a repetitive series of factual and legal denials of allegations, demands “strict proof” of all the claims.
 
Two civil actions have resulted from the October 28, 2004 spill of Coal Tar Light Oil (CTLO) which contains 70 percent benzene. In addition to the above complaint filed by residents Ronald Bush, Michelle Hardwick and Deborah Gavazzi, the West Virginia Department of Environmental Protection filed a complaint Nov. 22, 2004 alleging that the company violated Air Pollution Control Act, West Virginia Water Pollution Control Act, the Groundwater Protection Act, the Solid Waste Management Act, the Hazardous Waste Management Act, and the Hazardous Waste Emergency Response Act.
 
The state action demands reimbursement of clean-up costs and injunctive relief to prevent the repetition of further incidents. An answer to the state EPA complaint has also been filed. HNN is in the process of obtaining a copy of that answer.
 
Responding to the Bush/Hardwick action, Techsol Chemical Co., through its counsel, Jon D. Hoover, asserted that the company’s transfer of chemicals from rail car to tanker or vice versa (a process called “transloading”) had been “in accordance with medical and scientific knowledge reasonably available to the defendants and in accordance with state and federal statutory regulatory requirements.”
 
The company challenges labeling the CTLO process as an “ultra-hazardous” or “inherently dangerous” activity. In addition, the answer stated that any illnesses or damages suffered by Westmoreland residents “were not related to, affected by or produced by contact with such CTLO” due to “brief and not substantial” exposure.
 
Since an answer to a civil complaint generally attempts to deny monetary or other liabilities on all possible grounds where a defendant could be found liable, the format. allows the company’s answer to cover a host of alternative circumstances. As such, this answer maintains that should the company be found liable under any of the claims, such as negligence and strict liability, that residents assumed a portion of the risk of exposure to the chemicals by their choice of residency or other actions. (Legally, this is called contributory negligence.)
 
Currently, the class action suit has been sent to Wayne County Judge Darrell Pratt for pre-trial scheduling orders. One plaintiff, Gary Beckett, withdrew from the proceedings on Nov. 17, 2004, but may at a later date have his name added back to the suit, if he so chooses.
 
These legal documents are on file at the Wayne County Courthouse, Wayne, W.Va.. They are available for members of the public to read at the Courthouse. Copies, however, are fifty cents per page. The case(s) are identified as Ronald Bush and Michelle Hardwick, et. al. v. Techsol Chemical Company, et. al., Case 04-C-261, and Stephanie R Timmermeyer, WV Dept. of Environmental Protection v. Techsol Chemical Co., Case 04-C-284. (The Circuit Clerk tracks the filings by case number, so if you want to read the documents the pertinent ID’s are simply 04-C-261 and 04-C-284.)
 
Related:
— 12/06/04 HNN INVESTIGATES: Documents Reveal TechSol Had Been Cited Before Oct. 28 Spill in Westmoreland; Many Residents Complained About Strong Odors
— 02/14/05 Techsol Chemical Co. Tells State EPA It Complied with Federal Laws, That Other Parties Were Liable for Oct. 28, 2004 Westmoreland Spill
 
Editor’s Note: A civil suit seeks monetary or other relief against a defendant. Thus, no “guilt” or “innocence” is determined. The standard for determining liability is a “preponderance of the evidence,” which a 51-49 percent ratio. (Criminal cases use a rather “beyond a reasonable doubt” standard which is a 99 percent ratio.) The filing of the civil action does not guarantee a case will go to a jury. Numerous pre-trial procedures allow both sides to obtain documents and testimony before the trial date. The judge determines the significance of the circumstances based on legal standards during the pre-trial state. If the case is set for trial and no settlement occurs, a jury will determine what facts are believable and whether to assess monetary or other penalties.
 
The writer, Tony Rutherford, can be reached by email at .
 
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