CHARLESTON – The Fayette County Commission filed an appeal after the federal court ruled in June that the county’s fracking waste disposal ban was invalid.
On Aug. 15, a Notice of Appeal was filed in the U.S. District Court for the Southern District of West Virginia.
In it, the defendants, Fayette County Commission President Matthew D. Wender; and Commissioners Denise A. Scalph and John H. Lopez, gave notice that they were appealing the decision to the United States Court of Appeals for the Fourth Circuit.
The Aug. 8 agreed order granting permanent injunctive relief and declaratory judgment states that the court concluded that the ordinance is preempted by state and federal law and, therefore, unenforceable.
On June 10, District Judge John T. Copenhaver granted EQT Production Company’s motion for summary judgment, according to the court documents.
Copenhaver said that the ordinance, which was passed by the Fayette County Commission in January, violated portions of the West Virginia Oil and Gas Act and the Safe Drinking Water Act.
Copenhaver also found that the ordinance was unenforceable in allowing for civil enforcement actions against violators of the ordinance and that jurisdiction for this type of regulation belongs to the West Virginia Department of Environmental Protection.
In April, two studies led by the U.S. Geological Survey confirmed waste from oil and gas disposal was found in surface waters and sediments near a controversial underground injection control well in Lochgelly operated by Danny Webb Construction.
EQT is represented by Timothy M. Miller and Christopher B. Power of Babst Calland Clements and Zomnir PC.
Wender, Scalph and Lopez are represented by Derek O. Teaney of Appalachian Mountain Advocates Inc. and Thomas A. Rist of Rist Law Offices.
U.S. Court of Appeals for the Fourth Circuit case number: 16-1938