EQT Production Company v. Wender et al

Filing 41

MEMORANDUM OPINION AND ORDER re: 33 MEMORANDUM by EQT Production Company in support of 1 Complaint for Declaratory Judgment; RESPONSE by John H. Lopez, Denise A. Scalph, Matthew D. Wender in opposition to 33 Memorandum In Support; directing tha t the motion for summary judgment, deemed filed by plaintiff EQT Production Company on 5/6/2016 is granted to the extent set forth herein; the Commission's motion for summary judgment deemed filed 5/20/2016, is denied. Signed by Judge John T. Copenhaver, Jr. on 6/10/2016. (cc: counsel of record; any unrepresented parties) (tmh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
EQT PRODUCTION COMPANY,
Plaintiff,
v.

Civil Action No. 16-00290

MATTHEW D. WENDER, in his official
capacity as President of the County
Commission of Fayette County, West Virginia,
DENISE A. SCALPH, in her official
capacity as a Commissioner of the County
Commission of Fayette County, West Virginia,
and JOHN H. LOPEZ, in his official
capacity as a Commissioner of the County
Commission of Fayette County, West Virginia,
Defendants.
MEMORANDUM OPINION AND ORDER
This case, in which the plaintiff seeks a permanent
injunction enjoining the enforcement of a county ordinance
enacted by the defendants, coupled with a judgment declaring,
inter alia, the ordinance preempted, is pending on cross-motions
for summary judgment.
I.

Factual and procedural background
A.

With respect to the plaintiff’s assertion of
preemption, the material facts are undisputed.

Plaintiff EQT

Production Company (“EQT”) operates approximately 200 producing

oil and natural gas extraction wells in Fayette County, West
Virginia.

See Revised Statement of Stipulated Facts (“Rev.

Stip.”), ¶ 2.

EQT also operates one “underground injection

control” (“UIC”) well in Fayette County.

Id. ¶ 3; see also

Original Stipulations (“O. Stip.”), Ex. C, p. 2 (map showing
location of extraction wells and UIC well).1

EQT runs the wells

under permits issued by the West Virginia Department of
Environmental Protection (“DEP”).
Stip., Ex. A, UIC Permit, pp. 1-8.

Rev. Stip. ¶ 3; see also O.
EQT’s UIC well permit was

first issued in 1986 and most recently renewed in 2013.

Rev.

Stip. ¶ 3.
The extraction wells generate significant quantities
of non-fuel fluids as part of the extraction process.
Stip. ¶ 5.

Rev.

These byproducts are referred to by various terms in

the briefing, the scientific literature, and the applicable
regulations.

The court concludes that the fluid is aptly termed

“wastewater,” and refers to it as such throughout this opinion.
The wastewater potentially contains various dissolved metals,

1
As noted later in this opinion, the parties filed two
stipulations of fact -- an original set and, some weeks later, a
revised one. The original stipulations were accompanied by three
attached exhibits, labelled Exhibits “A” through “C.”
In the
revised stipulations, the parties refer to the exhibits attached
to the original stipulations, but do not expressly incorporate
them by reference. In the interests of clarity and convenience,
the court deems them so incorporated.
2

metalloids, salts, organic compounds, and other substances, some
of which are believed to be injurious to human health.

See O.

Stip., Ex. A, p. 6 (listing maximum allowable levels of various
wastewater constituents); see also Response, Ex. 1.
Wastewater is separated from extracted fuel at the
wellheads and placed in storage tanks located at the drilling
sites.

Rev. Stip. ¶ 5.

EQT periodically transports the

wastewater stored at its drilling sites both in and outside of
Fayette County to its Fayette County UIC well for “disposal.”
Id. ¶ 5.

There, it is injected deep into the earth’s crust,

where it is separated by layers of impermeable rock from
underground sources of drinking water.
C.F.R. §§ 144.6(b), 144.28(f).

See id.; see also 40

The parties have stipulated that

the injected wastewater includes substances referred to in the
“Definitions” section of the Fayette County ordinance whose
enactment precipitated this case.

Rev. Stip. ¶¶ 4-5.

On January 12, 2016, defendants Matthew D. Wender,
Denise A. Scalph, and John H. Lopez (collectively, “the
Commission”), enacted the ordinance, entitled as “Ordinance
Banning the Storage, Disposal, or Use of Oil and Natural Gas
Waste in Fayette County, West Virginia.”
(“Compl.”), Ex. 1, p. 6.

See Complaint

The Commission later enacted an

amended version of the ordinance on March 25, 2016.
3

The parties

agree that the amended ordinance (hereinafter, simply “the
Ordinance”) superseded the original version.
The Ordinance purports, inter alia, to prohibit
anywhere in Fayette County (1) the storage of wastewater in UIC
wells, and (2) the temporary storage, handling, treatment, or
processing of wastewater unless it is at a site operating under
a permit for a conventional vertically-drilled well issued
pursuant to West Virginia Code section 22-6-6.
1.1, 1.5.

See Ordinance §

Violation of the Ordinance is a misdemeanor,

punishable by imprisonment in the “regional jail” for up to one
year and/or the imposition of a $1,000 fine per violation per
day.

Id. at §§ 3, 4.

The Ordinance also provides for civil

enforcement by county citizens, encouraged by a fee shifting
scheme, and by the county itself.

Id. at § 3.2, 3.3.

B.
EQT initiated this action with the filing of its
complaint on January 13, 2016.

See Compl.; TRO Motion, p. 1.

EQT challenges the following provisions of the Ordinance: (1)
the regulations of storage of wastewater at conventional
vertical drilling sites regulated under West Virginia Code
section 22-6-6; (2) the apparent ban on any storage of
wastewater produced by sites conducting horizontal drilling; (3)

4

the ban on storage of wastewater in UIC wells; (4) the extension
of enforcement authority to Fayette County residents; and (5) a
provision disallowing the use of a valid permit in defending
against an enforcement action.
The eight count complaint alleges that the Ordinance
is preempted by the West Virginia Oil and Gas Act, W. Va. Code
§§ 22-6 through 22-10, et seq. (Compl. ¶¶ 37-46), and the West
Virginia “underground injection of fluid” program, a state-run
UIC well permitting program established pursuant to the federal
Safe Drinking Water Act, 42 U.S.C. § 33f, et seq. (¶¶ 47-57).2
On January 13, 2016, EQT filed an emergency motion for
a temporary restraining order.

The court held a hearing on the

motion on January 19, see Hearing Transcript (“Tr.”), Doc. No.
23, and entered a temporary restraining order the following day.
On January 29, 2016, as directed by the court, the parties filed

2
EQT further asserts that the Ordinance constitutes an ultra
vires exercise of power by the Commission (¶¶ 58-67), an
unconstitutional “taking,” in violation of each the Fifth
Amendment to the United States Constitution and Article 3, section
9, of the West Virginia constitution (¶¶ 68-74 and 75-80,
respectively); an unconstitutional impairment of contract, in
violation of each Article I, section 10, of the United States
Constitution and Article 3, section 4, of the West Virginia
constitution (¶¶ 81-87 and 88-92, respectively); and an illegal
zoning ordinance, in violation of West Virginia Code section 8A7-1, et seq. (¶¶ 93-105).
In view of the disposition of this
action on preemption grounds, the court does not address these
claims.
5

a stipulation of facts, which was followed by an amended
stipulation on March 1.

In the meantime, the court entered an

agreed order granting EQT’s motion for a preliminary injunction.
See February 11, 2016, Order.

On May 6, 2016, EQT filed its

motion for summary judgment and preliminary injunction,3 followed
by the Commission’s deemed cross-motion on May 20, 2016.
II.

Governing standards
A.

Summary judgment is appropriate only “if the movant
shows that there is no genuine dispute as to any material fact

3 As a preliminary matter, EQT titled its brief as “Plaintiff’s
memorandum in support of motion for summary judgment and permanent
injunction,” although it did not file a freestanding motion seeking
such relief.
Nonetheless, inasmuch as EQT’s complaint seeks
declaratory and injunctive relief, and given that the court’s
February 11 and March 28, 2016, preliminary injunction orders
provided for briefing of EQT’s motion for permanent injunctive
relief prior to the final hearing on the merits of the request for
permanent injunctive relief, the court will treat EQT’s initial
brief as including a motion for summary judgment and permanent
injunctive relief.
In the Commission’s response brief, the
Commission requests that, “to the extent that the [c]ourt treats
[EQT’s] filing as a memorandum in support of a motion for summary
judgment, it should similarly treat [the Commission’s] instant
filing.” See Response, p. 1. Finding it appropriate to do so,
the court grants the Commission’s request. EQT’s objection to the
materials filed in support of the Commission’s deemed motion, in
which EQT objects to the admissibility of the declaration of
Matthew Wender and the attachments thereto, is sustained inasmuch
as those materials relate to wells operated by Danny Webb. To the
extent the materials help to clarify or explain the scientific
aspects of this case, EQT’s objection is denied.
6

and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a).

“Material” facts are those necessary to

establish the elements of a party’s cause of action.

Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also News
& Observer Publ’g Co. v. Raleigh-Durham Airport Auth., 597 F.3d
570, 576 (4th Cir. 2010) (same).
When examining the record, the court must neither
resolve disputes of material fact nor weigh the evidence,
Russell v. Microdyne Corp., 65 F.3d 1229, 1239 (4th Cir. 1995);
Sosebee v. Murphy, 797 F.2d 179, 182 (4th Cir. 1986).
Inferences that are “drawn from the underlying facts,” if any
“must be viewed in the light most favorable to the party
opposing” it.
(1962).

United States v. Diebold, Inc., 369 U.S. 654, 655

A party is entitled to summary judgment if the record

as a whole could not lead a rational trier of fact to find for
the non-moving party.

Williams v. Griffin, 952 F.2d 820, 823

(4th Cir. 1991).
B.
A permanent injunction is a form of equitable relief,
appropriately granted when the court has found for the plaintiff
on the merits of one or more of its claims and a legal remedy
would be insufficient.

Dairy Queen, Inc. v. Wood, 369 U.S. 469,

7

477-78 (1962).

To obtain a permanent injunction, EQT must

demonstrate “that it has suffered an irreparable injury; [] that
remedies at law, such as monetary damages, are inadequate to
compensate for that injury; [] that, considering the balance of
hardships between the plaintiff and defendant, a remedy in
equity is warranted; and [] that the public interest would not
be disserved by a permanent injunction.”

eBay Inc. v.

MercExchange, L.L.C., 547 U.S. 388, 391 (2006); see also PBM
Prods., LLC v. Mead Johnson & Co., 639 F.3d 111, 126 (4th Cir.
2011) (reciting the eBay factors).
The relief granted must be no more expansive or
burdensome than necessary to protect the plaintiff.

See

Kentuckians for the Commonwealth, Inc. v. Rivenburgh, 317 F.3d
425, 436 (4th Cir. 2003) (“It is well established that
‘injunctive relief should be no more burdensome to the defendant
than necessary to provide complete relief to the plaintiffs.’”
(quoting Califano v. Yamasaki, 442 U.S. 682, 702 (1979))).

In

other words, a permanent injunction must “carefully address only
the circumstances in the case,” without reaching farther than is
required “to provide complete relief to the plaintiff.”

Mead

Johnson & Co., 639 F.3d at 128 (internal quotation marks and
citation omitted).

8

III.

EQT’s standing to challenge the Ordinance

The Commission, in its response brief, suggests that
EQT lacks standing to challenge the Ordinance.

Specifically,

the Commission asserts that EQT cannot demonstrated that it has
suffered an injury caused by the challenged provisions, namely
the ban on disposal of wastewater in UIC wells, the regulation
of on-site storage at conventional vertical drilling sites, and
the apparent ban on storage of wastewater produced by sites
conducting horizontal drilling.

Inasmuch as standing is a

jurisdictional requirement the court addresses it at the outset.
The burden of demonstrating standing is on the party
who seeks the exercise of jurisdiction in his favor.”

McNutt v.

General Motors Acceptance Corp., 298 U.S. 178, 189 (1936).

The

Fourth Circuit has held that “a plaintiff must establish that he
has standing to challenge each provision of an ordinance by
showing that he was injured by application of those provisions.”
Covenant Media of S.C., LLC v. City of N. Charleston, 493 F.3d
421, 430 (4th Cir. 2007) (citing FW/PBS, Inc. v. City of Dallas,
493 U.S. 215, 230 (1990)).

As suggested above, only the element

of injury is in question.
“[T]he irreducible constitutional minimum of standing
contains three elements.”

Lujan v. Defenders of Wildlife, 504

9

U.S. 555, 560 (1992).

That is, “the plaintiff must have

suffered an injury in fact,” bearing a “causal connection to the
conduct complained of,” which is “likely” to be redressed by a
decision in his favor.

Id. at 560-61 (internal citations and

quotation marks omitted).

At bottom, standing “depends . . . on

whether the plaintiff is the proper party to bring the suit.”
White Tail Park, Inc. v. Stroube, 413 F.3d 451, 460 (4th Cir.
2005) (internal quotation marks, citation, and alteration
omitted).
To establish the first element of standing, “a
plaintiff ‘must show that he personally has suffered some actual
or threatened injury.’”
(1984).

Heckler v. Matthews, 465 U.S. 728, 736

An adequate injury, for standing purposes, consists in

“an invasion” of a legally protected interest” that is shown to
be both “concrete and particularized . . . and [] actual and
imminent.”

Defenders of Wildlife, 504 U.S. at 560.

These

requirements “‘ensure that the alleged injury is not too
speculative,’” remote, abstract, or imaginary.

Friends for

Ferrell Parkway, LLC v. Stasko, 282 F.3d 315, 322 (4th Cir.
2002) (citing Defenders of Wildlife, 504 U.S. at 564-65 n. 2)).
Future injury may confer standing.
Wildlife, 504 U.S. at 560.

Defenders of

Although a plaintiff need not prove

that he is guaranteed to suffer future injury, he must at least
10

be able to show “a sufficient likelihood” of encountering later
harm.

City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983);

see Schlesinger v. Reservists Committee to Stop the War, 418
U.S. 208, 216-27 (1974) (plaintiff’s injury -- whether past or
future -- must be “concrete” and not “abstract”); Defenders of
Wildlife, 504 U.S. at 560 (injury must not be “conjectural or
hypothetical”); see also Wright & Miller, 13A Federal Practice
and Procedure § 3531.4 (3d ed.) (“The anticipation of future
injury may itself inflict present injury.”).

But, because

potential future injury is inherently more uncertain than
accomplished past injury, courts must closely scrutinize such
claims to “filter the truly afflicted from the abstractly
distressed.”

Friends of the Earth, Inc. v. Gaston Copper

Recycling Corp., 204 F.3d 149, 154 (4th Cir. 2000) (en banc).
A. The Ordinance’s ban on disposal of wastewater in UIC wells
The Commission asserts that EQT cannot establish that
it faces a realistic threat of enforcement of the Ordinance’s
ban on the permanent storage of wastewater in UIC wells, and
thus lacks standing.

See Response, p. 4.

The impending burden of compliance with a new law
generally can constitute an actual injury for standing purposes.
See Lozano v. City of Hazleton, 620 F.3d 170, 188-92, 193-94 (3d

11

Cir. 2010) (landlord plaintiffs had standing to challenge
ordinance requiring proof of legal citizenship from prospective
renters; landlords were injured by increase in compliance
costs).

One seeking to challenge the validity of a criminal

statute in particular must “show a threat of prosecution under
the statute.”

Doe v. Duling, 782 F.2d 1202, 1206 (4th Cir.

1986) (citing, inter alia, Babbitt v. United Farm Workers Nat.
Union, 442 U.S. 289, 298-99 (1979) and Ellis v. Dyson, 421 U.S.
426, 433 (1975)).

But “persons having no fears of state

prosecution except those that are imaginary or speculative”
cannot make the requisite showing.
37, 42 (1974).

Younger v. Harris, 401 U.S.

Rather, the supposed threat of prosecution must

be “credible,” Babbitt, 442 U.S. at 298, and “alive at each
stage of the litigation,” Ellis, 421 U.S. at 435.

At minimum, a

plaintiff must be able to show a threat of prosecution that is
both real and immediate.

Golden v. Zwickler, 394 U.S. 103, 109-

10 (1969); see also Duling, 782 F.2d at 1206 (“[A] litigant must
show more than the fact that state officials stand ready to
perform their general duty to enforce laws.”).
The Commission points to Doe v. Duling, 782 F.2d 1202,
in support of its position.

See Response, p. 4.

Duling,

however, is the exception, not the rule, and its specific
holding lends little support to the Commission’s position.

12

The

court in Duling examined the plaintiffs’ standing to challenge a
state statute described by the court as “antique” and “largely
symbolic.”

782 F.2d at 1207.

The statute had last been applied

in the 19th century, and although it appeared that the
plaintiffs were in technical violation of its proscriptions, the
court concluded that they were in no real danger of prosecutions
and hence lacked standing.

Id. at 1208-09.

The situation here is quite different.

First, the

Ordinance is of very recent vintage, having been enacted on
January 12, 2016, followed the next day by the filing of this
action, prompting the amendment of the Ordinance on March 25,
2016, while the agreed preliminary injunction remained in place.
It is obviously meant to be used -- otherwise, why pass it and
refine it in the first place?

Further, the Commission has not

disavowed any intention of enforcing the Ordinance against EQT,
though even if it had, the Ordinance provides for civil
enforcement by Fayette County citizens, who would presumably be
free to proceed unilaterally.

The Ordinance is thus

distinguishable from the moth-eaten “antique” in Duling.
The parties’ amended stipulation of facts shows that
EQT operates one UIC well within Fayette County.
¶ 3.

See Rev. Stip.

As noted, that well is used for the permanent disposal of

wastewater generated by EQT’s producing oil and gas wells.
13

The

Ordinance, on the other hand, expressly bans permanent disposal
of wastewater, and promises serious consequences for
infractions.

A plaintiff challenging a constitutionally-dubious

statute should generally be afforded recourse to the courts as
soon as sanctions have been threatened, at least so long as the
supposed threat is more than the speculative worrying of an
anxious mind.

See Rhode Island Ass’n of Realtors, Inc. v.

Whitehouse, 199 F.3d 26, 30-33 (1st Cir. 1999) (threat of
prosecution was sufficiently real and imminent in light of clear
statutory prohibition); Peyote Way Church of God, Inc. v. Smith,
742 F.2d 193, 198-99 (5th Cir. 1984) (church had standing to
challenge statute banning religious use of peyote; there was
realistic and clear danger of imminent prosecution in light of
state’s firm position that statute applied and was valid); see
also Wright & Miller, 13A Federal Practice and Procedure §
3531.4 n. 163 (“A private party need not expose itself to actual
arrest and prosecution by violating [a] statute in order to
achieve standing.”).
speculative.

EQT’s concerns about prosecution are not

Although EQT has not shown the existence of a

literal threat to prosecute from county enforcers, under these
circumstances, the Ordinance itself is the threat.
Consequently, the court concludes that EQT has standing to

14

challenge the provision banning disposal of wastewater in UIC
wells.4
B. The Ordinance’s effective ban on any storage
of wastewater produced at horizontally-drilled wells
According to EQT, the Ordinance effectively outlaws
horizontal drilling anywhere in Fayette County.

EQT claims that

the Ordinance accomplishes this result by first establishing a
general, county-wide ban on all storage of wastewater, then
carves out an exception applicable to the temporary storage of
wastewater at drilling sites permitted under West Virginia Code
section 22-6-6.

Sites where oil and gas exploration is

proceeding under permits issued by the DEP pursuant to section
22-6-6 are by definition conducting conventional drilling -that is, drilling vertically into oil- or gas-bearing rock
formations, rather than horizontally.

See W. Va. Code § 22-6-6.

Because horizontally-drilled wells are regulated permitted under
section 22-6A-7, to which the Ordinance does not apply, EQT

4 The Commission maintains that EQT cannot establish actual injury
from the Ordinance’s citizen enforcement provision or the
provision precluding reliance on a state or federal permit as a
defense to prosecution under the Ordinance.
On the contrary,
because EQT has standing to challenge the portions of the statute
that prohibit permanent injection of waste and, as discussed below,
that regulate storage activity at conventional vertical drilling
sites, it also has standing to challenge the Ordinance’s related
enforcement provisions.
15

interprets the Ordinance to prohibit even temporary storage at
horizontally-drilled wells, effectively prohibiting their
operation altogether.

It appears that EQT’s interpretation of

the Ordinance on this point is accurate.
The Commission argues that because EQT does not engage
in horizontal drilling at any of its Fayette County extraction
wells, the Ordinance’s apparent ban on horizontal drilling -which interpretation of the Ordinance the Commission does not
concede -- poses no possibility injury to EQT.

See Resp., pp.

3-4.
The parties’ amended stipulation of facts establishes
that EQT’s extraction wells are “authorized by a permit issued
by the []DEP pursuant to W. Va. Code §§ 22-6-1 et seq.”

Rev.

Stip. ¶ 2; see also Tr. at 7:10-13 (Counsel for EQT: “These are
conventional wells, vertical wells.”).

As noted above, Chapter

22, Article 6, and in particular section 22-6-6, applies to
vertically-drilled extraction wells.

Horizontal drilling, on

the other hand, is regulated by the Natural Gas Horizontal Well
Control Act in Article 6A.

See W. Va. Code § 22-6A-1 et seq.

Where a statute does not impact the plaintiff in any
identifiable way, the plaintiff cannot show an injury in fact,
and hence lacks standing.

See, e.g., Wilcher v. City of Akron,

16

498 F.3d 516, 522 (6th Cir. 2007) (statute prohibited nonresidents from submitting tapes to local news channel; resident
plaintiff not prohibited from submitting a tape, and therefore
she suffered no injury); Texas Indep. Prod. and Royalty Owners
Assoc. v. E.P.A., 435 F.3d 758, 765-66 (7th Cir. 2006)
(association of oil and gas producers lacked standing because
statute made expressly clear that it did not apply to them);
Breaux v. U.S. Postal Service, 202 F.3d 820, 821 (5th Cir. 2000)
(plaintiff never suffered late delivery of express mail; he
therefore lacked standing to complain of late delivery or
failure to give adequate notice of late delivery).

Inasmuch as

EQT has not presented any evidence that the Ordinance’s
prohibition of temporary storage of horizontal-drilling
wastewater would affect its operations in Fayette County in any
way, the court concludes that EQT has not demonstrated an actual
injury caused by that provision of the statute, and hence lacks
standing to challenge it.

That EQT might seek in the future to

conduct horizontal drilling is not sufficient to demonstrate
actual injury, as this possibility is both highly speculative
and -- in view of the dense permitting system to be navigated -too remote.

17

C. The Ordinance’s regulation of storage
at conventional, vertically-drilled wells
The Commission asserts that EQT faces no actual injury
from the Ordinance’s regulation of wastewater storage at
conventional drilling sites operating under section 22-6-6
permits.

The Ordinance provides, in relevant part, as follows:

The
deposition,
storage,
treatment,
injection,
processing, or permanent disposal of natural gas waste
and oil waste onto or into the land, air, or waters
within Fayette County shall be prohibited. This
prohibition shall specifically apply to injection wells
for the purpose of permanently disposing of natural gas
waste and oil waste. Provided, however, that the
temporary disposition, temporary storage, treating, or
processing of natural gas waste and oil waste at a
facility or site where natural gas extraction activities
and/or oil extraction activities are occurring and are
regulated by a permit issued pursuant to W. Va. Code §
22-6-6 shall not be prohibited.
Ordinance, pp. 3-4.

The Ordinance defines “temporary storage”

as the “local containment of natural gas waste or oil waste
which will not be permanently stored or permanently disposed of
at any site in Fayette County.”

Id. at p. 3.

In support of its

position, the Commission points to evidence in the record
indicating that EQT does not permanently store wastewater at its
Fayette County drilling sites, instead storing it temporarily
on-site before eventually taking it to the UIC well for
permanent disposal.

See Response, pp. 2-3 (citing Rev. Stip. ¶¶

2, 5).
18

It is not clear on the face of the Ordinance when
“temporary” storage ends and “permanent” storage begins, as
“temporary storage” is defined tautologically as storage that is
not permanent.

See Ordinance, p. 3.

The record indicates,

however, that EQT stores wastewater at its drilling sites for
some amount of time before it is taken to the UIC well for
injection.

See Rev. Stip. ¶¶ 2, 3, 5; see also Reply, p. 7

(claiming this time to be potentially “many years”).
Because the court, for standing purposes, must look
not to the merits, but simply to whether EQT is the proper party
to challenge this provision, Jenkins v. McKeithen, 395 U.S. 411,
423 (1969), the Commission’s assurance that the Ordinance does
not affect EQT’s operations, see Response, p. 3, does not alter
the uncertainty of EQT’s position.

Such storage is legal under

state law, see, e.g., W. Va. Code § 22-6-19, but is potentially
forbidden by the Ordinance.

As discussed more fully below, EQT

claims that state law occupies the field of oil and gas
exploration as against local law.

If that were so, the

Ordinance would be void and EQT’s uncertainty would be
ameliorated.
standing.

Under the circumstances, this is enough to confer

Wright & Miller, 13A Federal Practice and Procedure §

3531.4 (“Living with fear and uncertainty is itself a burden,

19

and prudence may dictate efforts to avoid or reduce possible
injury.”).
IV.

Discussion of the merits

EQT’s primary contention on the merits is that the
Ordinance is preempted by state law.

According to EQT, those

portions of the Ordinance regulating the storage of wastewater
at conventional vertical extraction sites are preempted by the
West Virginia Oil and Gas Act, whereas those portions
prohibiting permanent storage of wastewater in UIC wells are
preempted by West Virginia’s UIC program, promulgated by the DEP
under the auspices of the federal Safe Drinking Water Act.
Plaintiff’s Memorandum (“Pl. Mem.”), pp. 9-14, 14-20.

See

The

Commission, in response, maintains that the Ordinance does not
conflict with the West Virginia Oil and Gas Act and, further,
that both state and federal law on the subject allow room for
local regulation.

The Ordinance, again, provides as follows:

The permanent disposal of natural gas [or] oil waste
. . . within Fayette County shall be prohibited. . . .
This prohibition shall specifically apply to injection
wells for the purpose of permanently disposing of
natural gas waste and oil waste. . . . [T]he temporary
. . . storage . . . or processing of natural gas waste
or oil waste at a facility . . . where . . . extraction
activities are occurring and are regulated by a [section
22-6-6] permit shall not be prohibited.
See Ordinance, pp. 3-4.
20

A.

The powers of county commissions, generally

County commissions, like municipalities, are
artificial entities created by state statute.
187 W. Va. 145, 150 (1992).

Butler v. Tucker,

As such, they possess only the

powers expressly granted to them by the state constitution or
legislature, or necessarily implied from those expressly given.
Id.

Article IX, section 11, of the West Virginia constitution

provides, in relevant part, as follows:
The county commissions, through their clerks, shall have
the custody of all deeds. . . . They shall also, under
such regulations as may be prescribed by law, have the
superintendence and administration of the internal
police and fiscal affairs of their counties, including
the establishment and regulation of roads . . . with
authority to lay and disburse the county levies:
Provided, That no license for the sale of intoxicating
liquors in any incorporated [municipality] shall be
granted without the consent of the municipal authorities
thereof. . . . Until otherwise prescribed by law, they
shall, in all cases of contest, be the judge of the
election, qualification and returns of their own members
. . . subject to such regulations . . . as may be
prescribed by law. Such commissions may exercise such
other powers, and perform such other duties, not of a
judicial nature, as may be prescribed by law. . . .
W. Va. Const., Art. IX, § 11.

The final sentence of section 11

has long been held to vest in the state legislature alone the
authority to expand the powers of county commissions beyond
those laid out in the constitution.

See, e.g., State ex rel.

Cty. Ct. of Cabell Cty. v. Arthur, 150 W. Va. 293, 296-96 (1965)

21

(“[I]n determining the powers of the count[ies] . . . we must
look to the constitution, which created th[ose] bod[ies], and to
the laws which were enacted by the legislature pursuant to the
constitutional provisions.”); Syllabus, Barbor v. Cty. Ct. of
Mercer Cty., 85 W. Va. 359 (1920) (same).
The legislature has not been miserly in doing so.
Exemplary selections of delegated powers, as set forth in
Chapter 7 of the state code, include the authority to construct
and maintain county transportation facilities, § 7-1-3o, to
“regulate the removal

. . . of refuse and debris,” § 7-1-

3ff(b), and to regulate the locations of businesses offering
nude dancing, § 7-1-3jj, among many others.

See W. Va. Code §§

7-1-3 through 7-1-3nn, 7-14 through 7-1-15; see also, e.g., Syl.
Pt. 1, State ex rel. State Line Sparkler of WV, Ltd. v. Teach,
187 W. Va. 271 (1992) (“By authorizing county commissions to
exercise the police power with regard to the safety and quality
of building construction . . . the legislature has, by
implication, granted counties the power to enforce violations of
[the] building code . . . by imposing a fine.”).

But at bottom,

county commissions “can only do such things as are authorized by
law,” and then only “in the mode prescribed.”

T. Weston, Inc.

v. Mineral Cty., 636 S.E.2d 167, 172 (W. Va. 2006) (quoting
Butler, 187 W. Va. at 150).

Local power is, by its nature,

22

neither inherent nor absolute.

Bissett v. Town of Littleton, 87

W. Va. 127, --, 104 S.E. 289, 290-91 (1920) (holding that local
government had no inherent power to regulate the hours of a
billiards parlor operating under state license in absence of
statutory grant of authority from state).
Here, the Commission maintains that the Ordinance
constitutes an exercise of its “sovereign” power, see Response,
pp. 1, 31, and claims the authority to make “legislative
judgments” to which the court must give “complete deference,”
id. at pp. 23, 32.

In the Ordinance, moreover, the Commission

included the finding that it possesses “plenary power to
eliminate hazards to public health” and abate nuisances.
Ordinance, p. 1.

See

Contrary to the Commission’s findings, its

powers -- far from plenary -- are either expressly granted,
necessarily implied, or else non-existent.

See Syl. Pt. 1,

Brackman’s Inc. v. City of Huntington, 126 W. Va. 21 (1943).
Perhaps in anticipation of this conclusion, the
Commission claims in the alternative that West Virginia Code
section 7-1-3kk acts as a specific grant of power from the state
legislature to regulate drilling wastewater.

Section 7-1-3kk

empowers county commissions to:
[E]nact ordinances, issue orders and take other
appropriate and necessary actions for the elimination of
23

hazards to public health and safety and to abate or cause
to be abated anything which the commission determines to
be a public nuisance. The ordinances may provide for a
misdemeanor penalty for its violation. The ordinances
may further be applicable to the county in its entirety
or to any portion of the county as considered appropriate
by the county commission.
W. Va. Code § 7-1-3kk.
B.

Preemption by state law, generally

Because local governments are creatures of the state,
and therefore possessed only of delegated power, local
ordinances are “inferior in status and subordinate to [state]
legislative acts.”

Am. Tower Corp. v. Common Council of City of

Beckley, 210 W. Va. 345, 350 (2001).

The inferior status of

local enactments may be expressly pronounced, Found. for Indep.
Living, Inc. v. Cabell-Huntington Bd. of Health, 214 W. Va. 818,
831 (2003) (“Without question, the regulatory authority of local
boards of health is limited by statute to be ‘consistent with
state public health laws. . . .’”); W. Va. Code § 16-9A-5, but
it is always at least implied, Brackman’s Inc., 126 W. Va. 21,
--, 27 S.E.2d 71, 78.
It is certainly the case under West Virginia law that,
“where [a local] ordinance is in conflict with a state law, the
former is invalid.”

Id. (citing Vector Co. v. Bd. of Zoning

Appeals, 155 W. Va. 362, 367 (1971)).
24

This is analogous to the

“impossibility” variant of conflict preemption under federal
law.

See California v. ARC Am. Corp., 490 U.S. 93, 100-01

(1989) (“[S]tate law is . . . pre-empted to the extent it
actually conflicts with federal law, that is, when compliance
with both state and federal law is impossible. . . .”) (internal
quotation marks and citations omitted); see also 15-103 Moore's
Federal Practice -- Civil § 103.45[2] (In the case of
“‘conflict’ preemption, the state cause of action is superseded
because it directly clashes with -- and therefore undermines -federal law.”).
“Direct” conflict between local and state law, in the
sense of it being impossible to comply with both, is not
required for local law to be preempted, however.

In Brackman’s,

the plaintiff sought an order requiring the defendant
municipality to issue it a license to serve non-alcoholic beer.
27 S.E.2d at 72-73.

The plaintiff was already in possession of

such a license issued by the state government, but the
municipality denied it issuance of a city license on the basis
of a provision in the municipality’s charter.

Id.

Observing

that “towns and cities are without power to adopt ordinances
which might, in any way, interfere with legislative enactment,”
the court stated that, inasmuch as local power is derived from
an express grant by the state government, “the power vested in

25

municipalities [cannot] extend to the refusal of a license where
proper application is made therefor[] and the applicant [holds]
a state license to carry on the business . . . for which he
seeks a municipal license[.]”

Id. at 76.

In short, the court

felt that “it [was] difficult to believe that it was ever
intended that any citizens should be induced by the state to pay
a license fee for particular privileges and, through another,
relatively inferior agency of the state be deprived of the use
of such privilege.”

Id. at 78.

Where an activity is sanctioned

by the state, a local governmental entity cannot legislate
independently to prohibit or impede that activity.
Brackman’s Inc., 27 S.E.2d at 78.

See

Thus, it can be said that

even if a local ordinance is merely “inconsistent . . . with a
statute enacted by the [state legislature,] the statute prevails
and the . . . ordinance is of no force and effect.”

Syl. Pt. 1,

Vector Co., 155 W. Va. 362; see also Syl. Pt. 3, State ex rel.
Foster v. City of Morgantown, 189 W. Va. 433 (1993) (same); Syl.
Pt. 2, State ex rel. Plymale v. City of Huntington, 147 W. Va.
728 (1963) (same).
In other words, “towns and cities,” as well as
counties, “are without power to adopt ordinances which might, in
any way, interfere with legislate enactment . . . passed in
carrying out a particular policy of the [state l]egislature.”

26

Brackman’s Inc., 27 S.E.2d at 78.

This is analogous to the

“obstacle” variant of conflict preemption in federal law.

See

Jones v. Rath Packing Co., 430 U.S. 519, ---, 97 S. Ct. 1305,
1318 (1977); see also ARC Am. Corp., 490 U.S. at 100-01
(“[S]tate law is . . . pre-empted to the extent it . . . stands
as an obstacle to the accomplishment and execution of the full
purposes and objectives of Congress.”) (internal quotation marks
and citations omitted). “Such subordination” of local power “‘to
the predominant power of the state is necessary to avoid serious
confusion and ofttimes absurd results.”

Found. for Indep.

Living, 214 W. Va. at 831 (quoting Brackmans Inc., 27 S.E.2d at
78) (internal alterations omitted).

Thus, “the fact that the

state has entered into the field of regulating [particular
conduct] by license” does not preclude local governments from
also licensing such conduct so long as the local ordinance
“conform[s] with, and is not in conflict with[,] state law.”
Alderson v. City of Huntington, 132 W. Va. 421, 429-30 (1949);
see also City of Morgantown v. Nuzum Trucking Co., --- S.E.2d
---, 2016 WL 1397287, No. 15-0127 (W. Va. 2016) (same).
The Commission asserts that “the doctrine of field
preemption does not exist as a matter of West Virginia law with
regard to the relationship between local and state law.”
Response, p. 7.

To support this assertion, the Commission

27

observes -- it seems accurately -- that no case decided by the
West Virginia Supreme Court of Appeals has turned expressly on
the application of field, as opposed to conflict, preemption.
See id. at pp. 7-8.

The court is indeed unable to locate a case

expressly applying the doctrine in this context.

It does find,

as the Commission concedes, that the Supreme Court of Appeals
has applied the doctrine when examining the relationship between
state law and federal law.

See Response, p. 7 n. 2.

Nonetheless, the court is satisfied that West Virginia’s highest
court would conclude that field preemption applies as between
state and local governments substantially in the same way it
does between the states and the federal government.

For just as

federal law will displace state law when the two meet, so, too,
is state law superior to local law.
155 W. Va. 362.

See Syl. Pt. 1, Vector Co.,

Put another way, “[a]ttached to every statute,

every charter, [and] every ordinance . . . affecting, or adopted
by, a municipality, is the implied condition that the same must
yield to the predominant power of the State[] when that power
has been exercised.”

Brackman’s Inc., 27 S.E.2d at 78; see also

City of Huntington v. State Water Commission, 137 W. Va. 786,
800 (1953).

28

1.

Preemption by the West Virginia Oil and Gas Act
West Virginia Code section 22-1-1(a)(2) provides that

“[t]he state has the primary responsibility for protecting the
environment,” whereas “other governmental entities, public and
private organizations, and [state] citizens have the primary
responsibility of supporting the state in its role as protector
of the environment.”

Id.

The state, in fulfilling its

responsibility, acts primarily through its environmental
protection agency, the DEP.

See W. Va. Code 22-1-1.

One

important purpose of the DEP is to “consolidate environmental
regulatory programs in a single state agency, while also
providing a comprehensive program for the conservation,
protection, exploration, development, enjoyment, and use of the
natural resources of the state of West Virginia.”

W. Va. Code §

22-1-1(b).
The West Virginia Oil and Gas Act constitutes the
state’s expression of its goals and concerns respecting the
exploitation of West Virginia’s oil and natural gas resources.
Section 22-6-2(c)(12) places upon the DEP the responsibility to
“[p]erform all duties as the permit issuing authority for the
state in all matters pertaining to the exploration, development,
production, storage, and recovery of th[e] state’s oil and
gas[.]”

To that end, the DEP is empowered to “[a]dopt rules
29

with respect to the issuance [and] denial . . . of permits [for
such activities], which rules shall . . . [be] adequate to
satisfy the purposes of . . . article[s] [six,] six-a
[horizontal drilling], seven [compensation for damage caused by
oil and gas exploitation], eight [transportation of oils], nine
[underground gas storage], ten [abandoned wells], and twenty-one
[coalbed methane wells].”

The rules promulgated under section

22-6-2 are to deal “particularly with . . . the consolidation of
various state and federal programs which place permitting
requirements on the exploration, development, production,
storage, and recovery of . . . oil and gas.”5

Id.

Section 22-6-6, for its part, consists of a detailed
set of requirements for receiving a DEP permit to engage in
conventional, vertically-drilled oil and gas extraction.

Other

sections of Chapter 22 reflect the state legislature’s intent to
create a centralized system for ensuring both environmental
protection and productive use of natural resources, organized
around the DEP.

Thus, West Virginia Code section 22-6-7

provides, in relevant part, as follows:
(a) In
22-6-6
either
permit

addition to a permit for well work [under sections
or 22-6-6a], the director [of the DEP] . . . may
issue a separate permit, general permit, or a
consolidated with the well work permit for the

5
These rules
Regulations.

appear

in

Chapter
30

35

of

the

Code

of

State

discharge or disposition of any pollutant into waters of
[West Virginia].
W. Va. Code § 22-6-7(a) (emphasis supplied).

Section 22-6-21

provides that a drilling permit “shall not be issued . . . if
the director determines that: (1) [t]he proposed well work will
constitute a hazard to persons; or . . . (4) [t]he proposed well
works fail to protect fresh water sources or supplies.”
(emphases supplied).
All authority to oversee gas and oil exploitation in
West Virginia resides with the DEP.
2(c)(12).

See W. Va. Code § 22-6-

At no point is any power to regulate such matters

expressly granted to county commissions.

Finally, the operator

of any oil or gas well must register with the DEP’s Division of
Water and Waste management any storage tank with a capacity of
1,320 gallons or more that is to be used for the storage of
wastewater.

See W. Va. Code §§ 22-30-3(1), 22-30-4.

If such a

tank is located within certain specified distances of public
drinking water sources, the tank is considered a “related tank”
under state law.

The owner of such a tank must file various

certifications with respect to tank design and construction,
spill prevention plans, and so on.
3(15), 22-30-5, 22-30-6, 22-30-9.

31

See W. Va. Code §§ 22-30-

Moreover, the Oil and Gas Act itself contains no
savings clause granting counties the power to regulate oil and
gas matters, including the storage of wastewater.

The sole

source of power to which the Commission can point is West
Virginia Code section 7-1-3kk.

Although section 7-1-3kk grants

counties the power to abate nuisances within their borders, the
Commission cannot use that general grant of power to interfere
with an area of the law that the state has expressly reserved
wholly to its own authority.

After all, “where both the state

and a [local government] enact legislation on the same subject
matter, it is generally held that if there are inconsistencies,
the [local] ordinance must yield.”

Davidson v. Shoney’s Big Boy

Rest., 181 W. Va. 65, 68 (1989); see also Chesapeake & Potomac
Tel. Co. of W. Va. v. City of Morgantown, 144 W. Va. 149, 161
(1959) (“When a municipal ordinance is opposed to the policy of
the state in relation to the subject-matter thereof and in
conflict with the statute of the state in relation thereto, the
ordinance is void to the extent of its conflict with the statute
and should not be enforced.”).

Here, the state has

comprehensively regulated this area, including storage activity
at drilling sites, and left no room for local control.
Consequently, the provisions of the Ordinance that purport to
regulate the on-site storage of wastewater at section 22-6-6
sites are preempted by state law.
32

2.

Preemption by the West Virginia UIC program

According to EQT, the West Virginia UIC program,
administered by the DEP pursuant to the federal Safe Drinking
Water Act (“SDWA”), permits the use of UIC wells for permanent
underground disposal of wastewater, and thus is in conflict with
the Ordinance’s prohibition on UIC disposal wells.

According to

the Commission, however, the SDWA, as well as the West Virginia
Water Pollution Control Act, each contain a savings clause that
operates to permit the Commission to exercise it power under
section 7-1-3kk, to abate nuisances, even in the face of state
and federal law regulating UIC wells.
Among other things, the SDWA establishes a national
program (“the UIC program”) for regulating injection wells in
order to protect underground sources of drinking water.
U.S.C. §§ 300g, 300h.

See 42

“Class II” wells, which are used

exclusively to inject fluids associated with natural gas and oil
extraction, are the type at issue here.

See 40 C.F.R. § 146.1

et seq.; see also W. Va. C.S.R. § 47-13-4.2.

In order to

protect underground sources of drinking water, the SDWA
authorizes EPA to issue regulations establishing standards for
UIC programs, and allows each state to seek approval to
administer its own UIC program based on those federal
requirements.

See 42 U.S.C. §§ 300h(a), 300h-1(b).
33

Under

section 1422, 42 U.S.C. § 300h-1, states must meet EPA’s minimum
requirements for regulating Class II wells.
300h-1(b)(2).

See 42 U.S.C. §

In turn, section 1421, 42 U.S.C. § 300h,

identifies the minimum requirements proposed state UIC
regulatory programs must meet in order for a state to be granted
primary enforcement authority (referred to as “primacy”) over
Class II well regulation.

Id.; see also 40 C.F.R. Part 144

(setting forth EPA regulations on contents of approvable state
UIC programs).
State programs authorized under section 1422 must
include requirements for well owners and operators governing
construction, operation, monitoring, testing, reporting, and
closure of Class II wells.

See 42 U.S.C. § 300h(b)(1)(C).

If a

state does not assume primacy over its UIC program, the EPA must
run the program in that state itself.
1(c).

See 42 U.S.C. § 300h-

The West Virginia legislature sought primacy over its UIC

program, and vested the DEP with authority to create and
administer the program.

See W. Va. Code § 22-11-4(a)(13).

West

Virginia’s UIC program was approved by the EPA on December 9,
1983, effective January 9, 1984.
1983).

See Fed. Reg. 55127 (Dec. 9,

DEP has subsequently promulgated regulations

implementing the state UIC program.
et seq.

34

See W. Va. C.S.R. § 47-13-1

The foregoing demonstrates that the SDWA requires the
state to have a UIC permitting program that allows underground
injection of wastewater, whether the program is run by the EPA
itself or the state.

See 42 U.S.C. §§ 300h(a), 300h-1(c)(1);

see also Bath Petroleum Storage, Inc. v. Sovas, 309 F. Supp. 2d
357, 366, 367-368 (N.D.N.Y. 2004) (holding that the SDWA savings
clause “reinforce[s] that Congress intended that states retain
authority respecting underground injection so long as it does
not impinge on the UIC program administered by the EPA”).
EQT cites Mattoon v. City of Pittsfield, 980 F.2d 1
(1st Cir. 1992) for the proposition that the SDWA occupies the
field of drinking water protection, and further that the savings
clause only allows local regulation consistent with the UIC
program.

See Pl. Mem., pp. 16, 19-20.

The Commission, in its

response, counters that Mattoon applies only to the preemptive
effect of the SDWA on federal common law claims, not its effect
on local enactments.

See Response, pp. 13-14.

In Mattoon, the plaintiffs, who allegedly contracted
giardiasis from drinking contaminated water, brought suit
against the defendant city, among other parties, for claimed
violations of federal and state law.

980 F.2d at pp. 2-3.

Count I of the complaint was labelled a “citizens’ action” under
the SDWA, and Count II alleged a “public nuisance” claim under
35

federal common law.

Id. at p. 3.

With respect to the latter,

the court held that the SDWA preempted federal common-law
nuisance claims, reasoning that, in light of the “comprehensive”
nature of the SDWA regulatory program, “the regulatory scheme
established under the SDWA evinces a clear congressional
intention to entrust the regulation of public drinking water
systems to an expert regulatory agency rather than the courts.”
Id. at pp. 4-5.

With regard to the SDWA savings clause, the

court observed, in a footnote, that similar savings provisions
in federal environmental protection statutes have been held by
the Supreme Court to “not preserve a federal common law remedy
in light of the comprehensiveness of the FWPCA as a whole.”
at p. 5. n. 4.

Id.

Thus, the court “ha[d] little hesitation in

concluding that Congress occupied the field of public drinking
water regulation with its enactment of the SDWA.”

Id. at 4.

Although the defendants assert, as noted, that Mattoon
concerned only the relationship between federal statutory and
common law, the court concludes that the principles underlying
the Mattoon decision apply equally to the relationship between
the SDWA and state or local enactments.

The court in Mattoon

observed that, “[w]ith minor exceptions, the SDWA applies ‘to
each public water system in each State[,]’ 42 U.S.C. § 300g,”
and that, among other powers, “[t]he SDWA enables the

36

Administrator of the [EPA] . . . to ‘publish maximum contaminant
level goals and promulgate national primary drinking water
regulations.’”

Id. at p. 4.

Those powers, centralized in the

EPA, allow the SDWA to preempt not just federal common law, but
contrary state and local law as well.
Nevertheless, as noted, the Commission suggests that
the SDWA savings clause operates to give the Commission the
authority to regulate UIC wells through its power, under West
Virginia Code section 7-1-3kk to abate nuisances.

The savings

clause provides as follows:
Nothing in this subchapter [that is, 42 U.S.C. § 300f et
seq.] shall diminish any authority of a State or
political subdivision to adopt or enforce any law or
regulation respecting underground injection but no such
law or regulation shall relieve any person of any
requirement otherwise applicable under this subchapter.
Id.

The Commission maintains that this provision exempts state

or local laws that prohibit underground injection from the
SDWA’s UIC program, which itself by definition permits UIC
injection.

See Response, p. 14.

EQT, however, contends that

the savings clause’s reference to local laws “respecting” UIC
wells cannot reasonably be read as an invitation to prohibit
wastewater injection.

See Reply, pp. 17-18.

37

To begin, the SDWA specifically provides that a
state’s UIC permitting program, whether run by the state or the
EPA, may not prohibit “the underground injection of wastewater
or other fluids which are brought to the surface in connection
with oil or natural gas production. . . .”
300h(b)(2), 300h-1(c)(1).

42 U.S.C. §§

The Ordinance, by prohibiting

permanent disposal of wastewater in UIC wells, directly violates
this statutory requirement.

Although the SDWA savings clause

permits local law to remain effective despite the existence of a
UIC program, surely the prohibition above prevents such local
law from altogether preventing UIC activity.

Further, although

the SDWA savings clause refers to both “[s]tate[s]” and their
“political subdivision[s],” the superior, overriding power of
the state must enable the state to occupy the field to the
exclusion of its own subdivisions, lest its superiority be
circumscribed.

Here, the state has undertaken to allow UIC

wells, an action that operates to diminish the counties’ powers
to prohibit them.
The Commission also argues that a savings provision
within the West Virginia Water Pollution Control Act, W. Va.
Code § 22-11-1, et seq. (“the WPCA”) applies to save the

38

Ordinance from preemption.6

See Response, p. 12.

That provision

indicates that the state, local governments, and private parties
may exercise whatever rights they have to bring an “action” to
“suppress” or “abate” nuisances and pollution.

W. Va. Code §

22-11-27.
The Commission cites Sharon Steel Corp. v. City of
Fairmont, 175 W. Va. 479 (1985), in support of its position that
the savings clause in the SDWA and the West Virginia Water
Pollution Control Act provide the county with authority to
exercise its power under West Virginia Code section 7-1-3kk to
enjoin nuisances.

In Sharon Steel, the City of Fairmont adopted

an ordinance that prohibited “the permanent disposal of
hazardous waste as a public nuisance.”

175 W. Va. at 482.

A

company that intended to construct a hazardous waste disposal
facility challenged the ordinance on the grounds that it was
preempted by federal and state law and that the city lacked the
authority to enact the ordinance, among others.

Id.

The West

Virginia Supreme Court of Appeals rejected the challenge and
held that the Fairmont ordinance was not preempted, in part
because it did not conflict with state or federal law, but

6
Although the state UIC program was promulgated under the
auspices of the Safe Drinking Water Act, the state program must
also comply with, among other laws, the WPCA.
39

primarily because of savings clauses in the federal and state
statutes.

Id. at 484-87.
The Fairmont ordinance banned the operation of

facilities used to permanently dispose of “hazardous wastes,” as
defined under the federal Resource Conservation and Recovery
Act, 42 U.S.C. § 6901, et seq. (“RCRA”).

Under the RCRA,

“hazardous wastes” are defined as wastes that may “cause or
significantly contribute to an increase in mortality or an
increase in serious irreversible or incapacitating reversible
illness, or pose a substantial present or potential hazard to
human health or the environment. . . .”

42 U.S.C. § 6903(5).

However, the RCRA includes a savings clause, which provides as
follows:
Nothing in this section shall restrict any right which
any person (or class of persons) may have under any
statute or common law to seek enforcement of any standard
or requirement relating to the management of solid waste
or hazardous waste, or to seek any other relief
(including relief against the Administrator [of the EPA]
or a State agency).
42 U.S.C. § 6972(f).

State law contains a related savings

clause, which provides that, “[n]otwithstanding any provision to
the contrary, and person may maintain an action to enjoin a
nuisance against any permit holder” disposing of hazardous
waste.

W. Va. Code § 20-5E-18(h).

40

The court held that those savings provisions
“indicate[d] that Congress and [the] State legislature intended
to preserve the rights of any person to file an action relating
to hazardous wastes based on either statutory or common law
grounds.”

175 W. Va. at 485.

Consequently, the court concluded

that Fairmont had the authority to enact the ordinance because
“a municipality has the authority to declare the improper
permanent disposal of hazardous wastes a public nuisance.”

Id.

at 487-88.
By contrast, drilling wastewater of the sort at issue
here is exempted expressly from the requirements of the RCRA.
See 42 U.S.C. § 6921(b)(2) (“[D]rilling fluids, produced waters,
and other wastes associated with the exploration, development,
or production of crude oil or natural gas” are exempt from the
definition of hazardous waste.).

That said, such wastewater may

be treated as “hazardous waste,” for purposes of RCRA, if the
EPA determines that such regulation is warranted.
6921(b)(2).

42 U.S.C. §

To that end, the EPA found evidence of damage

caused by natural gas and oil wastes, see 53 Fed. Reg. 25,446,
25,449 (July 6, 1988), including cases where wastewater harmed
people or the environment even “where wastes are managed in
accordance with currently applicable State and Federal
requirements.”

Id.

Nevertheless, EPA determined that its

41

regulation of oil and gas wastewater as “hazardous” waste was
not warranted because of cost concerns, among other things.
at 25,447.

Id.

Because wastewater has not been classified by the

EPA as a hazardous waste, the Commission’s reliance on the
court’s holding in Sharon Steel provides it little support.
The Commission’s primary concern with respect to
permanent wastewater disposal is the potential pollution of
underground sources of drinking water.

See Ordinance, pp. 1-2.

However, wastewater properly injected into UIC wells pursuant to
state and federal law does not become pollution simply because
the Commission says so.

The regulatory scheme demonstrates

that, to the contrary, wastewater injection is a permitted -- if
heavily regulated -- activity in West Virginia.

Indeed, W. Va.

C.S.R. § 47-13-13.16.b provides that a person with a UIC permit
may not cause injury or “infringe” upon state or local law, yet
avoid liability on the ground that the injurious conduct was
done under a valid UIC permit.

This subsection thus implicitly

assumes that a UIC permit has been issued.

The county cannot

unilaterally prohibit conduct that federal and state law both
expressly permit.
“Public health is a matter of statewide rather than
local or municipal interest or concern and in the regulation of
public health the power of the state is supreme.”
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Syl. Pt. 5,

City of Huntington v. State Water Commission, 73 S.E.2d 833.
Consequently, “[i]n matters which do not concern the inhabitants
of a municipality alone, but which are of statewide interest or
concern, a municipality can be compelled to carry out the plans
of the state and to perform the duties which it imposes.”

Id.

at Syl. Pt. 6.
In the present context, the state of West Virginia has
concluded that oil and natural gas extraction is a highly
valuable economic activity subject to centralized environmental
regulation by the DEP.

To that end, plenary power over oil and

gas activities in the state is given over to the DEP.

See W.

Va. Code § 22-6-2(c) (“The [director of the DEP] shall have full
charge of the oil and gas matters” set out in articles 6, 6A, 8,
9, 10, and 21 of Chapter 22 of the state code.).

In the absence

of an express grant of authority to the contrary, or the
necessary implication of such authority flowing from an express
grant, the Commission cannot interfere with, impede, or oppose
the state’s goals.

Consequently, the Commission lacks the power

to legislate in conflict with the state in this area.

Those

parts of the Ordinance that prohibit disposal of wastewater in
UIC wells conflict with and stand as obstacles to state law, and
hence are void.

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IV.

Conclusion

For the reasons set forth above, the court concludes
that, as to those provisions which EQT has standing to challenge
-- namely, (1) the ban on disposal of wastewater in UIC wells
and (2) the regulation of storage at conventional vertical
drilling sites -- the Ordinance is preempted by state and
federal law.

The provisions of the Ordinance that permit county

residents to bring civil enforcement actions against those in
violation of the Ordinance, as well as the provision that
disallows the use of state or federal permits in defense against
an enforcement action, are likewise unenforceable as to the two
provisions first above.
Consequently, it is ORDERED that the motion for
summary judgment, deemed filed by plaintiff EQT Production
Company on May 6, 2016, be, and it hereby is, granted to the
extent set forth above.

The Commission’s motion for summary

judgment deemed filed on May 20, 2016, is correspondingly
denied.

Remaining is the receipt of such further evidence as

may be meet on the issue of EQT’s entitlement to permanent
injunctive relief, specifically with respect to irreparability
of harm, inadequacy of a remedy at law, the balancing of
hardships, and the public interest.

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directed to appear.
02/29/2016

Entry of scheduling order.

03/08/2016

Last day to serve F.R. Civ. P 26(a)(1) disclosures.

The ClerkClerk is requested to transmit this Order and
The is requested to transmit copies of this
orderNotice to all counsel of record and to any unrepresented
to all counsel of record and any unrepresented parties.
parties.
DATED: June 10, 5, 2016
DATED: January 2016
John T. Copenhaver, Jr.
United States District Judge

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