Federal judge rules against Fayette County frack waste storage ban

CHARLESTON, W.Va. — A federal judge struck down key portions of an ordinance passed by the Fayette County Commission that essentially banned the practice of storage, disposal, or use of oil and natural gas waste in Fayette County on Friday.

In a 45-page ruling, U.S. District Judge John T. Copenhaver Jr found that the Fayette County ordinance violated portions of West Virginia Oil and Gas Act and the Safe Drinking Water Act, was unenforceable in allowing for civil enforcement actions against violators of the ordinance, and that jurisdiction for this type of regulation belongs to the WV DEP.

“The judge ruled in their favor because he felt that the county ordinance didn’t have the weight of federal or state law,” Fayette County Commission President Matthew Wender said.

The suit was brought by Pennsylvania-based gas firm EQT. They operate one underground injection control well in Fayette County to store fracking waste.

Judge Copenhaver issued the ruling Friday morning–several hours before the start of the afternoon hearing. Wender said the Commission’s attorneys were hoping to argue and provide testimony to the fact that the ordinance was in the best interest of public health, but the judge chose not to hear testimony.

“Fayette County Commission’s ordinance is based on state law that gives counties the right to pass ordinances that protect the public health and welfare, and that’s exactly how we approached it,” he said.

Wender said the judge’s decision was a disappointment for the defendants.

“I would like to have seen a full-blown hearing on the matter, whereby the Fayette County Commission could have put forth the evidence that we knew and considered as part of our decision to pass the ordinance,” he said.

The Fayette County Commission made their decision to pass the ordinance in January based on research done on fracking waste and water in the county. In April, the full study, which found potentially harmful endocrine disrupting chemicals in Wolf Creek, was published in April.

“That to me was a big disappointment. That would have made this whole process a little more meaningful had we at least had the chance to share with the public at large the research that was done and given to us.”

The judge provided the attorneys for each party a week to confer and determine what the next steps are. Wender said the Fayette County Commission will likely discuss the possibility of appealing the ruling.

“I think that that conversation definitely will take place very soon,” he said. “The decision may very well be to appeal it.”

He added that it was a discussion that the entire Commission and it’s legal counsel must have together.

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