February 20, 2018

Commission Passes First Countywide Ban on Oil and Gas Waste in West Virginia

Fayette County bans the storage, disposal or use of oil and natural gas waste
By Sarah Plummer, Register-Herald Reporter, January 13, 2016

The Fayette County Commission’s chambers shook with cheers and applause Tuesday as commissioners unanimously passed an ordinance to ban the storage, disposal or use of oil and natural gas waste countywide.

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.

Citizens began urging the commission to pass a county ordinance due to controversy over an injection well site in Lochgelly operated by Danny Webb Construction, positioned just upstream from a drinking water intake on New River. As previously reported by The Register-Herald, water testing conducted by Duke University showed frack waste had infiltrated Wolf Creek, a tributary to the New River.

Newly appointed Commission President Matt Wender made it clear the county is acting protect its citizens’ health and the environment where the DEP has failed.

“While we looked for the DEP to protect the interest of our health, they have given us little or no confidence they are doing that. They allowed Danny Webb to operate for a year without a permit, which was a great undermining of any conviction we had that the state, through the office of the DEP, was looking out for the wellbeing of our citizens,” he said.

Commissioner Denise Scalph added that the county has been used a a dumping zone at the detriment of its citizens.

Twelve-year-old Eden Gilkey gave an impassioned plea for the commission to pass the ordinance, noting that many who have lived near the injection site, even her classmates, have become sick.

Speaking to the oil and gas representatives, she said, “This is our county, our land. Your wealth means nothing to me and we are tired of burying our grandparents, family and friends for you to have private jets.”

Brandon Richardson, organizer of local environmental group Headwaters Defense, delivered a petition with more than 5,000 signatures of residents asking for the ordinance to be passed.

Attorneys representing the oil and gas industry also spoke before the commission.

George Patterson, attorney for Bowles Rice in Charleston, representing Danny Webb Construction, told Gilky, “I hope as you grow you learn this is a pollution control device. You don’t discharge water and chemicals onto the surface, you inject them into the ground. This is an environmental practice that is for your health.”

Attorney Robert Stonestreet said his client EQT Production Company has one injection disposal well in Fayette. The ordinance unlawfully deprives property owners of the opportunity to use their land for economic gain.

Lastly, Charlie Burd, executive director for the Independent Oil and Gas Association, said this ban comes in the midst of a “shale gas revolution” that is already bringing million to West Virginia in infrastructure and employment He also noted that the natural gas industry has brought hundreds of millions to the state in severance tax.

Wender said he expects all three of the oil and gas representatives to try to overturn the ordinance.

“You may meet with success, but I don’t think the citizens will tolerate a public body turing its back on the residents of Fayette County, as the DEP has turned its back on the state as a whole,” he said.

“We are determined to protect the rights of the citizens of Fayette County and we are prepared to defend this ordinance in court,” added Richardson

The ordinance also prevents hydraulic fracturing brine from being used for alternative purposes, including as a salting agent on roadways in winter.

It also gives the county commission as well as individual citizens the authority to seek legal action against those who violate the law.

In addition to recuperative legal costs, Fayette County Circuit Court can impose a fine of between $1,000 and $5 million for the misdemeanor offense.

Those guilty of disposing or storing this kind of waste will also be made to remediate any environmental contamination or damage to public health.

In a severability clause, the ordinance also states that if one portion of the ordinance is successfully challenged in court, the rest of the ordinance remains intact.

The ordinance was developed after the Fayette County Commission voted in May to approve changes to the county Unified Development Code which requires county level permits for underground injection wells.

This change should have required county level permitting before permits were issued by the Department of Environmental Protection, which is a process already in place for Class D landfills in Fayette. The state, however, did not recognize the county’s local authority and reissued a permit for the Lochgelly well.