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Four years to the day after the Freedom Industries chemical spill, a landmark $151 million class-action settlement over the regional water crisis that followed the spill moved one step closer to final court approval during a hearing Tuesday morning in Charleston.

U.S. District Judge John Copenhaver said that, before granting that final approval, he wants to see updated numbers on how many claims have been filed and also receive a report from a court-appointed guardian whose role is to protect the interests of children who have claims to part of the settlement with West Virginia American Water Co. and Eastman Chemical Co.

The judge scheduled a hearing for Feb. 1 to consider that information.

The settlement seems almost certain to receive final approval, having prompted no formal objections from hundreds of thousands of residents, businesses and wage earners who are members of the class covered by the deal.

“It is extraordinary that there have been essentially no objections to the settlement.” Copenhaver said. “It is remarkable that there is such unanimity.”

Stuart Calwell, an attorney for the residents and businesses, said it is “astonishing” that there were no objections filed. He noted that only 76 potential class members had filed forms to “opt out” of the settlement.

A court filing from the settlement administrator indicated that there have been more than 50,000 residential and nearly 2,000 business claims for compensation filed as of Dec. 29. The settlement administrator indicated that, so far, about 43 percent of eligible residential households have filed claims, a figure attorneys in the case said far exceeds the standard response in similar class-action settlements.

Lawyers in the case have carried out an aggressive public-notice program and are planning additional efforts to encourage members of the class to file their claims.

Under the settlement, residential households — homeowners as well as renters — may file a simple claim form and obtain $550 for the first resident and $180 for each additional resident. Residents also may file more-detailed information about their losses — for things such as bottled water or replacement appliances — if they provide proof of those expenditures on a separate type of claim form.

Businesses and nonprofit organizations may likewise obtain flat payments, based on their size, or can submit documentation of specific losses to have those recouped.

The settlement also provides additional payments to women who were pregnant at the time of the chemical spill that sparked the water crisis, residents who had medical expenses and hourly-wage earners who lost money when businesses they worked in closed during the crisis. Government agencies also are eligible to submit claims.

The deadline for filing claims is Feb. 21, and distribution of claims money won’t start until after that. More information can be found and claims may be filed at www.wvwaterclaims.com.

More information also is available by calling 1-855-829-8121 or reading the “Frequently Asked Questions” list on the website.

Residents, businesses and others don’t have to have previously hired a lawyer or signed up for a lawsuit to be eligible, but they do have to file claims. Anyone who falls within the definition of the “class” covered by the settlement may file a claim for compensation. The class includes basically any business or resident who received tap water from the Elk River intake plant and any hourly-wage earner whose employer closed because of the spill and resulting water system contamination.

In the case, lawyers for residents and businesses had alleged that West Virginia American did not adequately prepare for or respond to the Jan. 9, 2014, spill just upstream from the company’s Elk River regional drinking water intake, and that MCHM-maker Eastman did not properly warn Freedom of the dangers of its chemical or take any action when Eastman officials learned that the Freedom facility was in disrepair.

West Virginia American and Eastman deny any liability. They say the blame for the crisis rests with Freedom Industries, which admitted to criminal pollution violations related to the spill.

Kevin Thompson, another attorney for the residents and businesses, said that, along with the settlement, steps taken as a result of Freedom’s bankruptcy case and a Public Service Commission investigation pressed by local citizens and consumer advocates had put in place reforms making it less likely a similar water crisis could occur again.

“I think it’s highly unlikely that a chemical contamination such as this coming down the river will threaten the city again,” Thompson told Copenhaver.

A case that is not part of the settlement, brought against the water company and Eastman by the West Virginia Hospitality and Travel Association, appears likely to also settle. Negotiations are ongoing and Eastman attorney Marc Williams told Copenhaver he is “confident” that an agreement can be reached.

Two Charleston restaurants, The Chop House and Tidewater, Grill had been part of that case but recently informed Copenhaver that they want to withdraw their “opt-out” notices so they may join in the larger settlement arrangement.

Reach Ken Ward Jr. at kward@wvgazettemail.com, 304-348-1702 or follow @kenwardjr on Twitter.

Environment Reporter

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