West Virginia: Judge rules Fayette County’s ordinance banning frac waste is invalid

Judge rules Fayette fracking ban invalid by Sarah Plummer, June 11, 2016, Register-Herald
CHARLESTON — A federal judge ruled Friday that Fayette County’s ordinance banning fracking waste disposal is invalid because such regulations are pre-empted by state and federal law.

Judge John T. Copenhaver issued the order hours before a hearing was scheduled between Pennsylvania-based petroleum company EQT Production Company and the Fayette County Commission, granting EQT’s motion for summary judgment.

He ruled provisions in the ordinance that supersede state or federal permits, like those issued by the Department of Environmental Protection, and allow residents to sue violators in circuit court, are not enforceable.

Tom Rhule, co-founder of Headwaters Defense, a local environmental group that helped craft the county ordinance, said he disagrees with the ruling.

Dick Cheney’s Energy Policy Act of 2005 has a loophole “big enough to drive a whole fleet of brine trucks through,” he said. “While it’s true that Congress exempted all gas and oil wastes from being regulated as hazardous, but that does not render all wastes harmless. In fact when Congress did so, it was purportedly to eliminate duplication of existing state laws. Congress is on record as having essentially charged all states to regulate the hazardous wastes accordingly.”

Rhule said West Virginia instead defers back to federal law, so the state does not have a regulatory structure. The county ordinance “complements the state’s deficiency” by closing the loophole, he said.

Commission President Matt Wender said he was surprised to receive a ruling without the chance to present evidence or testimony.

“I’m most disappointed that we cannot present information about the many health concerns about injection wells that have come to the commission’s attention,” he said.

“One real consequence of today’s hearing is that it did not allow for public awareness and dialogue about these health concerns.”

Fayette County’s ordinance is rooted in state code that allows commissions to develop regulations to eliminate hazards to public health and to abate nuisances.

Just this spring 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.

One of those studies is on endocrine-disruption, which can cause adverse health effects in aquatic organisms.

These 2016 studies confirm a 2014 Duke University study near the same well which found injectate in Wolf Creek, signaling a well leak or breach.

Litigation between Danny Webb Construction and the Fayette County Commission over the waste ban is still pending.

“When will anyone in West Virginia be able to decide if their community is going to be dumped on or not?,” asked Headwaters Defense co-founder Brandon Richardson. “Everyone deserved to see the evidence, hear the evidence, but this is just the beginning for us.”

Copenhaver must still determine if EQT is entitled to “permanent injunctive relief” from the county ordinance before an appeal can be filed.

Wender said the county commission will consider appealing the court’s decision, if it is suggested by its attorneys.

The commission is being represented pro bono by Charleston firm Appalachian Mountain Advocates and Rist Law Offices, Fayetteville.

EQT operates 200 oil and natural gas producing wells in Fayette and one waste disposal well. [Emphasis added]

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