A federal judge last week ruled that an ordinance passed by a Southern West Virginia county banning the disposal of oil and natural gas wastewater in underground injection wells violates state laws and is preempted by the state’s regulatory primacy over the practice.
U.S. District Judge John T. Copenhaver Jr. wrote in his opinion that “all authority to oversee gas and oil exploitation in West Virginia resides with the [state Department of Environmental Protection]. At no point is any power to regulate such matters expressly granted to county commissions.”
The court granted a motion filed by an EQT Corp. subsidiary that operates an injection well in Fayette County. The company argued that the county exceeded its statutory authority and that the ban was preempted by federal and state laws regulating oil and gas drilling and underground injection wells, namely West Virginia’s Oil and Gas Act and Underground Injection Control program and the federal Safe Drinking Water Act.
The judge found that the ordinance, approved by the Fayette County Commission in January, violates the state’s regulatory primacy over Class II underground injection wells (see Shale Daily, Jan. 13). West Virginia is one of 41 states nationwide that oversee Class II wells. He also found that the ordinance was preempted by the state’s oil and gas act.
Commissioners passed the ordinance after receiving a petition with 5,000 signatures calling for the ban. The county is more than 100 miles away from active shale fields and there are no horizontal wells there. Just three injection wells are operated in the county, one by EQT and another two by a local company.
Copenhaver had previously granted an emergency motion filed by EQT that sought a temporary restraining order and preliminary injection of the ordinance, which prevented the county from enforcing its ban (see Shale Daily, Jan. 26).
Had the ordinance stood, it would have allowed the county to impose fines of up to $5 million and authorize citizen lawsuits against companies violating the ordinance. Copenhaver did not, however, order a permanent injunction and he found that EQT does not have legal standing to challenge a part of the ordinance banning wastewater storage at shale wells.
He found that EQT does not have standing because it does not operate any shale wells in the county.
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