Company linked to 2014 water crisis sues Lincoln Co. over ordinance

By Kyla Asbury and Chris Dickerson | Apr 12, 2017

CHARLESTON – Eastman Chemical Company has filed a lawsuit against the Lincoln County Commission for passing an illegal ordinance it claims is an attempt to recover money from the company three years after the chemical contaminated the water supply in West Virginia.

Lincoln County Commissioners Charles Vance, Kerry Matthew Jr. and Phoebe Harless also are named as defendants, as are Lincoln County Prosecuting Attorney James Gabehart and attorneys Michael O. Callaghan of Charleston and Michael C. Donovan of California. Both are named as assistant prosecuting attorneys in the complaint.

Eastman claims Lincoln County purported to assure adequate protection of public health, safety, welfare and the environment within Lincoln County, but the effort is actually an effort to extract cash payments for conduct that allegedly occurred prior to its enactment, according to the April 7 filing in federal court.

Eastman wants to enjoin enforcement of the ordinance, as it does not provide for retroactive application and would be unconstitutional applied retroactively as to Eastman in relation to the chemical spill that occurred in January 2014.

On March 16, the commission adopted the ordinance, and the objective of the ordinance is to establish a regulatory mechanism to allow the commission to pursue civil and/or criminal proceedings against Eastman for an alleged “public nuisance” that somehow purportedly exists 39 months after the Elk River spill occurred, according to the suit.

Eastman claims it is its belief that there is an immediate threat of litigation and/or prosecution pursuant to the ordinance and that Callaghan forwarded the company a proposed final consent decree, order and judgment in an attempt to coerce Eastman into a pre-suit settlement.

“Mr. Callaghan stated to Eastman’s counsel that the intent of the commission is to file suit against Eastman if Eastman did not acquiesce to the commission’s demand and execute the consent decree,” the complaint states.

Eastman claims that despite the commission’s supposed goal, as demonstrated by the consent decree, to have Eastman conduct a study to determine whether there are any alleged long-term health risks related to exposure to MCHM, the commission will forego a suit for public nuisance in exchange for a large cash settlement, in excess of the jurisdictional amount.

This ordinance is the first ordinance passed by the commission since at least 2008, according to the suit.

Eastman claims the ordinance was drafted by counsel, not to provide a mechanism to deal with public nuisances that might occur, but for the sole purpose of bringing litigation related to the Elk River spill, including a lawsuit against Eastman.

The ordinance is pre-empted by West Virginia law which, among other things, establishes a comprehensive program to ensure the safety of the state’s water supply. The law does not contain a “savings” provision that preserves the ability of local governments to regulate public health issues related to the safety of the public water supply, according to the suit.

Eastman is seeking for the court to declare that the ordinance does not provide for its retroactive application, that it’s unconstitutional and that it cannot be applied retroactively as to Eastman in relation to the Elk River spill. The company is being represented by Marc E. Williams, Robert L. Massie and Melissa Foster Bird of Nelson Mullins Riley & Scarborough.

On March 17, the day the ordinance passed, approximately 12 citizens voiced strong objections to the ordinance at a public hearing. Despite the objections, the commissioners voted 2-1 to enact the ordinance.

Those who spoke at the hearing included local business owners and civic leaders; attorneys; farmers; employs of gas, oil and coal companies; and employees of statewide industry groups.

The main provisions of the ordinance include declaring, prohibiting, and establishing the procedures for investigation and abating any public nuisance within the county or adversely affecting the county; the ordinance prohibits, as a public nuisance, the disposal of designated hazardous wastes and hazardous substances at any place within the county; the ordinance declares the existence of any permanent land disposal of any such hazardous wastes or prohibited hazardous substances at any place in Lincoln County to be public nuisance; the ordinance provides definitions; declares intent; provides for exemptions; provides for methods of investigation, enforcement, and abatement of public nuisances and any imminent and substantial endangerments to the public health, safety, welfare, or the environment within Lincoln County; the ordinance provides procedures for the recovery of public nuisance abatement costs incurred or to be incurred by Lincoln County from persons liable for the public nuisance condition; and the ordinance provides for civil and criminal penalties.

The 2014 chemical leak into the Elk River led to do-not-use notices for Hamlin residents and others in Lincoln County, along with citizens of eight other West Virginia counties.

Schools were closed for a period of time and bottled water was provided to citizens, as were flushing instructions. The do-not-use order was in effect for days afterward, while West Virginia American Water and others worked to flush the MCHM from the plant’s system.

U.S. District Court for the Southern District of West Virginia case number: 2:17-cv-02268

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Nelson Mullins Riley & Scarborough U.S. District Court for the Southern District of West Virginia Charleston Division

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