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This week I have decided to see what has happened over the past few weeks with the two controversial injection wells in Lochgelly, Fayette County, where waste produced from hydraulic fracturing is disposed of underground. Boy, a lot has happened since fall when I was last talking with my friend, Fayette County Commissioner, Matt Wender. Two injection disposal well operators, EQT Production Co and Danny Webb Construction have filed suit to overturn Fayette County’s ban on the disposal, storage or use of oil and gas waste within its borders, and both cases were to be heard jointly on Feb. 11 in Charleston but the hearing was cancelled because there was an injunction granted in favor of EQT Production Co and all parties agreed on the proposed order.
Let’s start back about a month ago. The Fayette county commission passed the ordinance to ban oil and gas industry waste on Jan. 12 with overwhelming public support. The ordinance interprets state code as allowing county commissions to pass ordinances to protect public health and safety and eliminate public nuisances. It is the first of its kind in West Virginia. Under the ordinance, no permit, order or charter issued by a state agency will be deemed valid in Fayette County, including permits issued by the Department of Environmental Protection.
Just a week later, on Jan. 19, Federal Judge John Copenhaver Jr. granted an injunction to prevent Fayette County from enforcing the ordinance. The Fayette County Commission agreed to be represented by two law firms with experience in environmental law Rist Law Office, out of Fayetteville and Appalachian Mountain Advocates in Lewisburg. County Prosecutor Larry Harrah said “Citizens should understand these law firms have agreed to represent us for free. They are very interested in the topic and interested in defending water quality here in Fayette County”. Harrah added that he believes the county has a strong argument and the support of “residents who don’t want Fayette to be a dumping ground for hazardous materials.”
EQT Production Co. and Danny Webb Construction are the only companies which operate disposal wells in Fayette County. These are located in Kingston and Lochgelly, respectively. Although their suits were filed separately, they have been heard jointly. Both suits claim the county ordinance is unconstitutional because it violates property rights which outlined in the Fifth Amendment. Ultimately, they assert property owners will be prevented from using their land without compensation.
The West Virginia Oil and Gas Act, West Virginia Code 22-6, established a program to permit and regulate oil and gas production, and the West Virginia Legislature has charged the Department of Environmental Protection’s Office of Oil and Gas to enact that program. Both suits assert the Oil and Gas Act does not allow local government to regulate the production and storage of oil and gas. Banning these wells contravenes provisions and regulations set down by state and federal agencies, according to court documents.
Webb’s suit claims the ordinance “exceeds the limit of government authority,” is an “abuse of official power” and “shocks the conscience.” Webb is represented by Roger Hanshaw, Bowles Rice in Charleston who also is also a member of the West Virginia House of Delegate from the 33 district representing Clay County. EQT is represented by Timothy Miller, Babst, Calland, Clements and Zomnir from Pittsburgh.
The Jan. 15 suit filed against the county commission states Webb operates two underground injection control wells in Fayette County on adjacent parcels — “Danny Webb Construction owns one parcel and has an existing long-term lease on the second parcel.” Both wells are permitted under the same DEP permit. On the same day, a suit was filed in Fayette County Circuit Court on behalf of Lochgelly property owner North Hills Group. North Hills Group Board President Patricia Hamilton sent a lease termination letter to Webb on July 24, 2015. The termination letter was also sent to Department of Environmental Protection Cabinet Secretary Randy Huffman. Hamilton sent a letter to DEP Office of Oil and Gas Chief James Martin on Sept. 1, 2015, to “inform the state emphatically for the record that a lease for property to Danny Webb Construction Inc. was terminated” and asked the DEP to revoke Webb’s permit. That letter states, “Any activity related to the injection of wastewater or using the pipeline … on our land is now considered both trespassing and illegal dumping, neither of which should be permitted by the DEP.” As of this time the permit has not been revoked, nor has Hamilton received a response from Martin.
The senate has taken up SB 508, Read the bill here, http://www.wvlegislature.gov/Bill_Status/bills_text.cfm?billdoc=SB508%20intr.htm&yr=2016&sesstype=RS&i=508 which establishes the standards applicable to the common law claim for private nuisance. The bills lead sponsor is Senator Ryan Ferns and has bi-partisan support it is in Senate judiciary as of today. This bill, if passed, which would prevent nuisance suits against any permitted activity. Stay tuned, because this could be a harbinger of things to come.