A federal judge on Friday ruled that key parts of a Fayette County ordinance that banned the disposal of natural gas drilling waste in the county are invalid because they are pre-empted by West Virginia environmental protection laws.
U.S. District Judge John Copenhaver Jr. issued a 45-page opinion that granted a motion from EQT Production Co., a gas firm, that portions of the Fayette County measure were contrary to West Virginia's Oil and Gas Act and the state Department of Environmental Protection's program implementing the underground injection control, or UIC, provisions of the Safe Drinking Water Act.
Copenhaver wrote that lawmakers in West Virginia have "concluded that oil and natural gas extraction is a highly valuable economic activity subject to centralized regulation by the DEP."
"All authority to oversee gas and oil exploitation in West Virginia resides with the DEP," the judge wrote. "At no point is any power to regulate such matters expressly granted to county commissions."
The judge concluded that a provision of the local ordinance that banned disposal of gas-production wastewater in underground injection wells was pre-empted by the DEP's UIC program, which allows such disposal. Another part of the local ordinance, which regulated the storage of such wastes at conventional drilling sites, was pre-empted by the state's oil and gas law, which governs that issue, the judge said.
The ruling by Copenhaver came as the judge had scheduled a hearing for Friday at which he had planned to hear evidence about the ordinance and, perhaps, about growing concerns in the area - and the scientific community - about potential pollution from underground injection wells used for waste disposal related to the state's natural gas industry.
Drilling for and producing natural gas uses and generates significant amounts of water and produces large quantities of various types of wastewater. The wastewater can contain low-level radiation, heavy metals and other types of contaminants. While some water is reused by gas operations, large quantities are disposed of by injection underground.
Fayette residents and some local leaders, such as county commissioners who passed the ordinance at issue before Copenhaver, have been opposing the operation of two controversial injection wells by a company called Danny Webb Construction.
Earlier this week, Fayette Circuit Judge Paul Blake Jr. ordered that Danny Webb Construction cease operations at one of the two injection wells after ruling that the landowners where the well is located had terminated Webb's lease for the property. Blake concluded that the injection well "has the potential to create a liability situation . . . through potential contamination migration onto the properties of nearby landowners and adjacent streams of water."
"The weight of the evidence establishes that the petitioner's property is being used improperly for a hydraulic fracturing waste dump which is something not anticipated by the parties' lease agreement," Blake wrote. "The creation of a hydraulic fracturing waste site is a nuisance and interrupts the quiet and useful enjoyment of petitioner's property."
Copenhaver did rule that Pittsburgh-based EQT does not have legal standing to challenge another provision of the Fayette County ordinance that banned storage of wastewater at wells using advanced horizontal drilling techniques. EQT does not have any horizontal wells, which are regulated under a 2011 West Virginia law, operating in Fayette County, meaning any harm to the company from that part of the ordinance is too speculative to warrant action by the court, Copenhaver ruled.
EQT attorneys have depicted the ban on any wastewater storage, even if temporary, at horizontal drilling sites as effectively banning all horizontal drilling in Fayette County. While not specifically ruling on the matter, Copenhaver wrote that, "It appears that EQT's interpretation of the ordinance on this point is accurate."
There are no horizontal gas wells in Fayette County and the only injection wells are the two Danny Webb wells and the one EQT well, said DEP spokeswoman Kelley Gillenwater.
While Copenhaver ruled that the Fayette County ordinance is pre-empted by West Virginia law, the judge did not specifically issue a permanent injunction requested by EQT. The judge previously had issued a temporary restraining order, and then a preliminary injunction blocking enforcement of the ordinance.
In Friday's order, the judge said that remaining in the case "is the receipt of such further evidence" on the issues of EQT's entitlement to a permanent injunction, specifically "with respect to irreparability of harm, inadequacy of a remedy at law, the balancing of hardships, and the public interest."
Before Copenhaver's ruling, County Commission attorney Derek Teaney, of the group Appalachian Mountain Advocates, had hoped to present witnesses, including County Commissioner Matt Wender and Christopher Kassotis, a Duke University researcher who co-authored a recent scientific paper that found chemicals that disrupt the body's endocrine system downstream from one of Webb's Fayette County injections wells. Another recent study also found high levels of other pollutants linked to gas operations downstream from the site.
Friday's hearing, moved from 10 a.m. to 2 p.m., was fairly anticlimactic after Copenhaver issued his ruling. The judge gave lawyers for the two sides a week to confer and report back and what steps should be taken next. Tim Miller, a lawyer for EQT, told the judge that the County Commission's attorneys had indicated they wanted a final order from the judge so they could appeal the matter if the commission decides to do that.
Miller referred a request for further comment on Copenhaver's ruling to EQT's corporate headquarters, where officials did not respond to an email Friday afternoon.
After the short hearing, Wender said he had hoped the judge would go forward with hearing testimony about the concerns of the community and the scientific findings on potential risks from underground injection of gas drilling wastes.
"It's most disappointing," Wender said.
Several dozen Fayette County residents who support the local ordinance filled much of Copenhaver's courtroom. When those present rose to their feet as the judge left after the hearing, many of the residents held an arm in the air with a clenched fist. As they filed out of the courtroom, the residents were scolded by a court security officer for loudly humming "America the Beautiful."
Reach Ken Ward Jr. at kward@wvgazettemail.com, 304-348-1702 or follow @kenwardjr on Twitter.