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.
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.
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.
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.
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.
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.
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.

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