Fayette ban has significant local and regional impact

Brad Keenan chats with the Register-Herald prior to a Headwaters Defense rally to celebrate Fayette County's recently passed fracking waste and storage ban last Tuesday at Oak Hill's Brethren Fellowship Center.

A decade ago, Brad Keenan called emergency services about a gas leak in Lochgelly.

Several homes in the community were evacuated before the source of the smell was determined to be an open pit of oil and gas waste at Danny Webb Construction, whose property borders Keenan's.

At that time Keenan said he knew very little about the industry or oil and gas waste disposal practices, but it was just the beginning of efforts to protect the integrity of his land, which has a creek running through it downhill from Webb's operation.

Water samples that Keenan collected and tested himself from the creek showed oil and gas-based contamination, he said, preventing its sale as a horse farm in 2007.

Danny Webb Construction and two injection control wells used to dispose of hydraulic fracturing waste have been at the center of Lochgelly residents' concern for years, but it wasn't until Webb began operating without a permit that the county took notice.

The Department of Environmental Protection submitted an order to allow Webb to operate without a permit on March 17, 2014.

Keenan appealed the order to the West Virginia Environmental Quality Board, a quasi-judicial board appointed by the governor and an office under the DEP.

"It was troubling for Webb to be operating under an order," explained Keenan. "A permit runs out and goes through a process with public comment. An order just goes on forever without public input. You begin to feel useless. That there's nothing else to do. Every time you go to the DEP, it's a runaround."

More than a year later, the board ruled in April 2015 the DEP violated the law by allowing the wells to operate without a permit. The board gave the DEP 30 days to issue Danny Webb Construction a new permit or shut down operations.

Hundreds attended a public hearing in April and submitted comments to the DEP. At that time, speakers felt the DEP would ultimately reissue the permit despite water samples taken by Duke University that showed fracking waste had infiltrated Wolf Creek, a tributary of the New River.

Speakers urged those in attendance to push for a county ordinance to ban fracking waste disposal in Fayette County.

In early May, the DEP issued an order to stop all operations at Danny Webb Construction. That order, however, was reversed by the West Virginia Environmental Quality Board less than a week later.

Meeting transcripts revealed the environmental board would be willing to allow Webb to operate without a permit until the DEP reissued the permit, which the agency did in August.

An ordinance was passed last Tuesday by the Fayette County commissioners to ban the storage, use or disposal of any oil and gas waste within the county. The ordinance was a collaboration among residents, the county commission, area attorneys and citizen action groups.

For Keenan, this ordinance gives him the power to challenge activities he deems hazardous in judicial court.

"It gives you an avenue to take it to a third party. It's not the DEP judging themselves. It gives us oversight, as simple as that," he said.

But the ordinance has already been challenged by the oil and gas industry. Attorneys representing EQT Production Co. filed a suit on Jan. 13, claiming the countywide ban violates the state Oil and Gas Act as well as property rights outlined in the Fifth Amendment.

The suit was filed before the county could issue cease and desist notices for injection disposal well operators.

EQT operates oil production and injection disposal wells in Fayette County.

Corky DeMarco, executive director of the West Virginia Oil and Natural Gas Association, expressed concern that the ordinance penalizes an entire industry because of issues with one operator.

"I don't think it is reasonable to penalize an industry if it is not an industry mistake. I believe the agencies who regulate these wells can be a cure for operators not following regulations," he said.

Fayette County Commission Attorney Larry Harrah said he doesn't know what the outcome will be of these legal challenges, but the ordinance was crafted with the health and safety of Fayette County citizens in mind.

"This is a unique situation," Harrah said. "We are the first county in West Virginia to try to address the dumping of this kind of waste. We don't have fracking in this county. We get no benefit from the industry and are becoming a landfill. That's a problem."

Vivian Stockman, of the Ohio Valley Environmental Coalition, said regardless of impending litigation, Fayette has been an inspiration to other communities.

"It has been inspiring to see people organized on a local level making change," Stockman said. "The folk involved have been tenacious and committed to their health and their kids' health."

Bill Hughes, who heads the solid waste authority in Wetzel County, said drilling waste is an issue statewide.

Wetzel County is home to some of the very first Marcellus Shale production wells and has seen substantial economic benefit. Gas severance for the county last year was around $1.8 million, he said.

"For Fayette, you are seeing waste disposal wells but no active production," Hughes said. "It's big risk and no reward. Fayette has just as much potential for groundwater contamination as other counties with minimal rewards."

For that reason, Hughes believes a similar ordinance could not be successful in Wetzel, but concerns remain regarding drilling waste.

For instance, his landfill takes hundreds of thousands of pounds of drilling mud, the solid waste product of hydraulic fracturing. Landfills in northern West Virginia accept this waste above and beyond their tonnage caps due to legislation passed in 2014.

Waste is piling up before regulations and laws can fully address it, and little is known about risk factors associated with the waste, Hughes said.

There are campaigns similar to Fayette County's moving forward in the Marcellus and Utica Shale regions of Ohio.

Athens County, Ohio, has passed similar bans that were overthrown by the Ohio Supreme Court. Athens County then placed a charter issue on the ballot for voters to consider, which would allowing local control over fracking activities via home rule. The issue was removed from the ballot by the Ohio secretary of state, according to The Athens News.

Bans against gas production wells have been successful in New York State, where the Court of Appeals ruled the state's Oil, Gas and Solution Mining Law does not pre-empt local zoning ordinances that ban oil and gas extraction.

Grant Township, a Pennsylvania community, had a hydraulic fracturing ban struck down in October 2015 in federal court. The town has since designated itself under a Home Rule Charter to again try to ban fracking waste disposal, according to Pittsburgh Business Times.

— Email: splummer@register-herald.com; follow on Twitter @Sarah_E_Plummer

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