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Chemical spill compensation bill pulled in committee

A bill that would have created a fund to compensate the 300,000 people affected by the Freedom Industries chemical spill likely won't make it to the Senate floor.

The bill's strongest proponent said Senate Bill 626 never made it out of committee because of successful lobbying efforts of West Virginia American Water.

Senate Majority Leader John Unger, D-Berkeley, introduced the bill Monday and said it gives victims a choice, other than joining a class action lawsuit, in how to recoup economic loss associated with the spill.

"The attempt is to give people an option," Unger said. "I know folks who don't want to file a lawsuit."

The bill would have created an Office of Elk River Spill Victims' Compensation in the state Department of Administration, which would oversee the Elk River Spill Victims' Compensation Fund, a special account that would be created in the State Treasury.

The fund would collect revenue from the "responsible parties," including but not limited to Freedom Industries, the manufacturers of all chemicals involved in the spill and American Water Co. and all of its affiliates.

It could also accept funds from the federal government, as well as donations from individuals and businesses.

Affected individuals would have to fill out an application detailing why they are eligible for compensation and how much aid they are seeking. Applicants would be able to receive compensation for both economic and non-economic losses suffered as a result of the spill.

Types of non-economic losses would include "physical and emotional pain, suffering, inconvenience, physical impairment, mental anguish, disfigurement, loss of enjoyment of life, loss of society and companionship, loss of consortium or domestic service, hedonic damages, injury to reputation and all other nonpecuniary losses of any kind or nature, any physical injury, long or short term health effects."

The office's director would then evaluate the person's claim and determine how much compensation they receive.

By going through this process, the person would waive their right to pursue a civil case against any of the parties involved in the spill.

But Laura Jordan, water company spokeswoman, said the bill violates both the state and U.S. constitutions.

"The list of due process rights SB 626 would deny to the 'responsible parties' is a long one," Jordan said in a statement. "In a common-law civil litigation process, a defendant has a range of procedural protections under West Virginia common law in any determination of liability and damages.

"These include the rights to appear and be represented by counsel, to seek discovery from the plaintiffs, to assert affirmative legal defenses, to seek procedural and substantive relief from the court, to confront and cross-examine the plaintiffs and their expert and lay witnesses, to have a properly instructed jury determine the plaintiff's entitlement to damages and their amount, and to seek judicial review of an adverse judgment."

Unger said the company's claims that the bill violates any portion of either constitution are untrue, although lobbyist Louis Southworth convinced some lawmakers otherwise.

"(The bill was rejected) because the lobbyists from West Virginia American Water company got to each of them and were saying things like it's unconstitutional and things like that, which are totally false," Unger said. "Because of the late hour and the timing, members didn't have an opportunity to really thoroughly discuss it in committee. I guess it spooked them."

The bill was double-referenced to the Committee on Natural Resources and the Finance Committee.

However, bills are due out of committee Friday in order for them to be read three times on the floor and put up for a vote before a key internal legislative deadline next week.

Wednesday is "crossover day," the day when bills are due out of their house of origin. Bills that don't make it out of committee by Friday or out of the house of origin by Wednesday are typically considered dead for the session.

Senate Natural Resources Committee Chairman Bill Laird, D-Fayette, said the bill was removed from his committee's agenda Wednesday because not enough members supported it.

"I had the opportunity to interact and discuss that legislation with the various members of the committee," Laird said. "It became apparent to me there was no clear consensus at this time on that piece of legislation.

"There were some concerns expressed as it related to the mechanism through which compensation would be distributed," he said. "It should be a product of the court system as opposed to an entity created by the Legislature."

Laird said he and Southworth never spoke about the bill and his conversations on the legislation were limited to members of the committee.

Although Unger said he's disappointed the bill was killed, he emphasized he does not blame Laird. Rather, he's upset with West Virginia American Water.

"The bill was an attempt to help the victims," Unger said.

"That's what we're going to have to do. The state of West Virginia will have to do something like this. I was very surprised the West Virginia American Water Company was against that."


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