WVFA recently received a telephone call about the nuisance ordinance that Lincoln County recently adopted. It was prepared by attorneys (includingMike Callaghan, former DEP Secretary). The ordinance sounds to us like an ex post facto mechanism to address WV American Water and Eastman Chemical for the January 2014 spill of MCHM (crude 4- methylcyclohexanemethanol) into the Elk River that contaminated WV American’s water supply… but may have consequences for all WV businesses.
The nuisance ordinance makes many waste disposal practices illegal and allows enforcement through criminal sanctions, civil actions, and administrative penalties. It is very broad and cumbersome, and gives the Lincoln County Commission – and boards it would create – extensive investigative powers. Under the ordinance, Lincoln County would become in many ways a mini-Department of Environmental Protection; i.e., perhaps effectively initiating a patchwork of county environmental rules across the state.
Eastman Chemical has filed a (declaratory action/injunctive relief) lawsuit in federal court; the first lawsuit filed under the ordinance by Lincoln County in state court. The Lincoln County lawsuit is directed against WV American Water and Eastman Chemical, but could apply to a host of other situations. Some trade associations have expressed interest in challenging the ordinance, perhaps as an intervenor in the federal court action.
