CHARLESTON – A federal judge has ruled against an ordinance in Fayette County that bans the practice of storage, disposal or use of oil and natural gas waste in the county.
In his ruling, District Judge John T. Copenhaver Jr. 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.
Copenhaver issued the ruling on June 10.
To begin, the Safe Drinking Water Act specifically provides that a state’s underground injection control permitting program, whether run by the state or the EPA, may not prohibit “the underground injection of wastewater or other fluids which are brought to the surface in connection with oil or natural gas production…”
The ordinance, by prohibiting permanent disposal of wastewater in UIC wells, directly violates this statutory requirement.
“Although the SDWA savings clause permits local law to remain effective despite the existence of a UIC program, surely the prohibition above prevents such local law from altogether preventing UIC activity,” the ruling states. “Further, although the SDWA savings clause refers to both ‘[s]tate[s]’ and their ‘political subdivision[s],’ the superior, overriding power of the state must enable the state to occupy the field to the exclusion of its own subdivisions, lest its superiority be circumscribed.”
Copenhaver said that here, the state has undertaken to allow UIC wells, an action that operates to diminish the counties’ powers to prohibit them.
The suit was brought by Pennsylvania-based gas firm EQT Production Company and names Fayette County Commission President Matthew D. Wender and Commissioners Denise A. Scalph and John H. Lopez as defendants.
EQT operates one underground injection control well in Fayette County to store fracking waste.
Copenhaver provided the attorneys for each party a week to confer and determine what the next steps are.
U.S. District Court for the Southern District of West Virginia case number: 2:16-cv-00290