PHILADELPHIA – Three Philadelphians have opted to dismiss a class action lawsuit in connection with a March spill of thousands of gallons of a chemical used to refine latex, from a Bristol plant into a tributary of the Delaware River.
Timothy McGraw, Emily Cohen and Danielle Byrd first filed suit in the Philadelphia County Court of Common Pleas on March 30 versus Altuglas, LLC of Bristol and Trinseo, LLC (a.k.a. Trinseo, PLC) of Wayne.
“On March 24, 2023, between 8,100 and 12,000 gallons of latex emulsion solution was released from the Altuglas chemical plant in Bristol, Pennsylvania into Otter Creek, a tributary of the Delaware River. The defendants have admitted that this toxic release resulted from an ‘equipment failure’ at their facility. The latex solution spilled by defendants contained butyl acetate, ethyl acetate, and methyl methacrylate,” the suit said.
“The facility from which the latex emulsion solution leaked has had at least four previous leaks dating back to 2010, with the most recent being a methyl methacrylate leak in early 2020. Butyl acetate can cause headaches, dizziness, nausea, and irritation of skin, respiratory passages and eyes. Ethyl acetate can cause headaches, irritation of respiratory passages and eyes, dizziness, nausea, weakness and loss of consciousness. Methyl methacrylate can cause irritation of skin, eyes, nose and throat, nausea and vomiting.”
The suit continued that the chemical spill occurred approximately eight miles upstream from the Baxter Drinking Water Treatment Plant, which supplies drinking water to residents of the City of Philadelphia from the Delaware River. The Delaware River serves as the primary source of drinking water to about 58 percent of Philadelphia’s residents, according to the suit.
“On March 26, 2023, as a direct response to defendants’ chemical spill, a mobile public safety alert was sent to phones throughout Philadelphia advising residents to use bottled water until further notice instead of potentially contaminated tap water sourced from the Delaware River. The public safety alert was as follows: City of Philadelphia recommends using bottled drinking water from 2 p.m. 3/26/2023 until further notice for all Philadelphia Water Department customers. Contaminants have not been found in the system at this time, but this is out of caution due to a spill in the Delaware River,” the suit stated.
“The chemical spill and potential contamination of drinking water prompted residents and businesses throughout Philadelphia to immediately purchase bottled water and incur other economic damages that they would not have otherwise incurred except for the spill. Plaintiffs and class members had no knowledge of how long the environmental effects would last and thus needed to stock up on bottled water to last for an unknown amount of time, whether it is hours, days, weeks or longer. Consequently, there was a run to purchase water products in the Philadelphia and surrounding areas as a result of the chemical spill. Plaintiffs and class members went to any store they could find that still had water and purchased as much as they could. Many stores were entirely sold out of bottled water within hours of the news of the chemical spill from defendants’ facility.”
Over the following hours and days, new reports indicated that tap water that had already been processed by Baxter Drinking Water Treatment Plant before the spill was safe to drink for a limited amount of time, with Philadelphia residents continuing to be informed in the aftermath of the chemical spill.
“Residents continue to live in fear that their tap water is not or will no longer be safe, thus requiring residents to go to the store and purchase bottled water or take other actions in response to the chemical spill, which they would not have taken absent the chemical spill. It is well known that the plastic used for bottled water can be harmful to the environment, and many consumers do not purchase bottled water for this reason but were forced to purchase bottled water in this instance regardless because of defendants’ chemical spill,” the suit stated.
“Furthermore, Philadelphia residents and businesses incurred additional economic damages besides the cost of bottled water as a result of defendants’ chemical spill, including, for example, the cost of gas for their vehicles to travel to stores to purchase bottled water, as well as the value of their time spent doing so. Philadelphia businesses also suffered lost business opportunities, lost revenues, and lost profits as a direct result of defendants’ chemical spill.”
In a press release issued subsequent to the spill, Trinseo replied that the Bristol facility where the spill took place did not have prior violations on its record.
“Trinseo, PLC took ownership of the facility in 2021. The facility has a history of compliance with environmental regulations. As indicated by EPA’s Enforcement and Compliance History Online (ECHO) database, the facility has had no significant violations, no quarters of non-compliance (3 years) and no formal enforcement actions (5 years),” the press release said.
“As a Responsible Care® company, the safety of our employees, our communities and our environment are a top priority for us, and we are taking all available measures to ensure that an incident of this kind is never repeated. We understand that we will be judged by our performance. We are committed to operate safely and without disturbance to our community.”
The company said that its statement “in no way minimizes the seriousness of the accidental release that occurred on Friday, March 24” and it was “dismayed by the release and by the knowledge that our community was disrupted as a result.”
On May 12, the defendants filed to remove the case to the U.S. District Court for the Eastern District of Pennsylvania under the Class Action Fairness Act (CAFA), pointing to the number of members in the putative class and the amount in damages at stake.
They filed up the removal notice with a motion to dismiss the case in its entirety on May 19.
“Plaintiffs do not plead any facts that they experienced any property damage or personal injury. Nor do plaintiffs allege the existence of a continuing release from the Altuglas facility or facts supporting a continuing threat to their drinking water. Plaintiffs assert causes of action individually and on behalf of a putative class, for negligence, private nuisance and public nuisance. All of plaintiffs’ claims are barred by Pennsylvania’s economic loss doctrine, which prohibits tort claims that result solely in economic damages. Because each of plaintiffs’ claims sound in tort and plaintiffs plead economic losses, Pennsylvania law precludes recovery,” the dismissal motion stated.
“Plaintiffs’ public nuisance claim also fails because plaintiffs have not alleged that they suffered a harm distinct from other members of the public, or that any continuing nuisance exists that must be abated. The right to bring public nuisance claims is generally reserved for governmental or public entities, with an exception for private citizens who have individually suffered harm that is different from the alleged harm experienced by other members of the public. Plaintiffs not only fail to plead any different or special injury, but they affirmatively allege that their claims are typical of and shared by the putative class of other residents. Accordingly, the complaint should be dismissed in its entirety because plaintiffs’ claims fail as a matter of law.”
Meanwhile, the plaintiffs filed a motion to remand the case to state court on June 2, arguing that the case falls under the “home state” and “local controversy” jurisdictional exceptions, contained in CAFA.
“Plaintiffs are three Pennsylvania citizens who reside in Philadelphia within the Baxter Service Area. The proposed class is defined as: ‘All persons and entities that reside in the area served by the Baxter Drinking Water Treatment Plant.’ The geographical area served by the Baxter Water Treatment Plant is located solely within the Commonwealth of Pennsylvania. All of the class members are Pennsylvania residents. At least two thirds of the proposed class are citizens of the state where the complaint was originally filed,” according to the motion to remand.
“Defendants Altuglas, LLC and Trinseo, LLC are Pennsylvania citizens for purposes of CAFA and their relevant facility is located in Pennsylvania. The alleged injuries were primarily incurred in the Baxter Service Area, which is located in Pennsylvania. Defendants admitted that the toxic release of chemicals resulted from an ‘equipment failure’ at their facility. Plaintiffs are unaware of any prior class actions concerning this event. As defendants are located in Pennsylvania and all members of the class are defined to be residents of Pennsylvania…this case meets the CAFA exception under 28 U.S.C. Section 1332(d).”
UPDATE
On Aug. 23, plaintiff counsel filed notice that the plaintiffs had voluntarily dismissed their case.
“Please take notice that pursuant to Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure, plaintiffs Timothy McGraw, Emily Cohen and Danielle Byrd, by and through their counsel, submit this notice of voluntary dismissal. Plaintiffs hereby dismiss all claims in the above-captioned action without prejudice,” per the notice.
The plaintiffs were represented by Shanon J. Carson, Y. Michael Twersky and Dena Young of Berger Montague, Daniel C. Levin, Charles E. Schaffer and Nicholas J. Elia of Levin Sedran & Berman, and Joseph C. Kohn, Elias Kohn, William E. Hoese and Zahra R. Dean of Kohn Swift & Graf, all in Philadelphia.
The defendants were represented by J. Gordon Cooney Jr., Kathryn E. Deal and Mark A. Fiore of Morgan Lewis, in Philadelphia and Princeton, N.J.
U.S. District Court for the Eastern District of Pennsylvania case 2:23-cv-01824
Philadelphia County Court of Common Pleas case 230303396
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com