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Appeals court agrees Fayette drilling waste ban invalid

A federal appeals court on Wednesday upheld a lower court decision that threw out an effort by Fayette County officials to ban the disposal of natural gas production wastes in the county, agreeing that the county’s rules were pre-empted by West Virginia law.

The 4th U.S. Circuit Court of Appeals ruled in favor of EQT Production Company, a natural gas firm that had challenged a local ordinance passed by the Fayette County Commission. U.S. District Judge John Copenhaver had previously ruled for EQT in the case and Fayette County officials had appealed.

In a 2-1 decision, the 4th Circuit ruled that the Fayette County ordinance conflicted with provisions of West Virginia’s Oil and Gas Act and the state Department of Environmental Protection’s underground injection control, or UIC, program that issues permits for disposal of natural gas industry and other wastes under the state’s water pollution law.

“We agree with the district court that the West Virginia Legislature, in enacting its complex regulatory program for injection wells, did not leave counties with the authority to nullify permits issued by the state,” the appeals court said.

Judge Pamela Harris wrote the opinion, in which Judge Paul Niemeyer joined.

Judge James Wynn dissented and said that a case with such “broad implications for environmental protection in West Virginia” should have been sent to the state Supreme Court for a decision for a more thorough review there about the balancing of state and local authority on the issue.

Wynn noted that a leading West Virginia case on the subject, a 1985 ruling over a hazardous waste disposal ban in Fairmont, left open the question of whether local governments in the state could simply act against improper handling of waste that had become a public nuisance, or enact broader regulatory rules designed to deal more generally with waste management and disposal.

“With these weighty matters in mind, and due to the relative paucity of guidance from the West Virginia courts on the question at hand — some of which is in tension with the majority opinion’s result — I write separately to express my view that this significant and dispositive question of state law would be best resolved through certification to the Supreme Court of Appeals of West Virginia,” Wynn wrote.

The 4th Circuit noted that the natural gas extraction process generates large amounts of wastewater, which contains “dissolved waste material — including carcinogenic chemicals and heavy metals like arsenic and mercury — that are harmful to human health.” The disposal of such wastes is regulated under the state’s oil and gas law and its water pollution statute, the 4th Circuit noted.

Fayette County passed its ordinance after residents and local leaders became concerned about the operation of two controversial waste injection wells operated not by EQT, but by a company called Danny Webb Construction. Residents and officials were concerned about “evidence of potential contamination of local waterways,” and the impacts on drinking water and on the local tourism industry, according to the country’s appeals court brief.

Harris wrote that the county could have brought an action against the Danny Webb wells, and could do the same in the future with EQT’s well in the county “if the risks that concern the county actually materialize” at that operation.

“What the county may not do is override the state’s licensing decisions by imposing a blanket ban on the operation of properly operating UIC wells within its borders,” the appeals court said.

Because it ruled based on the state’s oil and gas law and its water pollution statute, the 4th Circuit said it did not need to address of whether the county’s ordinance also was preempted by the federal Safe Drinking Water Act. The court also did not specifically address another part of the Fayette County ordinance that bans “horizontal” drilling for natural gas. Copenhaver had ruled that because EQT was not conducting that type of drilling in the county the company did not have standing to challenge that part of the ban.

Harris and Wynn are Obama administration appointees. Niemeyer was appointed to a U.S. District Court seat by President Ronald Reagan and to the 4th Circuit by President George H.W. Bush.

Reach Ken Ward Jr. at kward@wvgazettemail.com, 304-348-1702 or follow @kenwardjr on Twitter.

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