FAYETTEVILLE — Taking a stand against the disposal of hydraulic fracking brine and drill cuttings, the Fayette County Commission is moving forward with an ordinance that would ban the storage, disposal or use of oil and natural gas waste countywide.
The with a quorum of two, commissioners Denise Scalph and Matt Wender passed the ordinance on first reading Tuesday, and it must be passed on second reading at a January 12 meeting before taking effect. Commissioner John Henry Lopez was not in attendance Tuesday.
The ordinance is in response to a longstanding controversy over an injection well site in Lochgelly, 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.
The ordinance interprets state code as allowing county commissions to pass ordinances to protect public health and safety and eliminate public nuisances.
Reviewing the ordinance, county commission attorney Larry Harrah explained that no state or federal permit, license, charter or corporation operating under state charter will be allowed to violate the county ban.
The enforcement for the ordinance will come through the court system, said Harrah.
The commission as well as individual citizens can sue those who violate the ordinance. 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.
Lochgelly resident Brad Keenan has property bordering Danny Webb Construction and the controversial underground injection wells. Keenan said this ordinance gives him a platform to seek legal action against the site. He said he has fought to remedy chronic fracking waste spills on neighboring property since 2004.
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.
“I think this is our best attempt and best shot to do something that can withstand legal challenge. I think it is our best opportunity,” Harrah said.
Headwaters Defense members Tom Rhule and Brandon Richardson worked with Harrah to develop the ordinance.
Richardson congratulated the Fayette County Commission for taking a stand for the many residents who oppose the disposal of oil and gas industry waste in the county.
“They are picking up where the state and federal regulators have dropped the ball and help us reclaim control over our basic human rights,” he said.
Rhule, who is also communication director for the West Virginia Mountain Party, said this is the first time state code allowing the commission to pass an ordinance protecting health and preventing nuisances has been applied to fossil fuel waste.
If the ordinance is not changed before its second reading, he believes it has the ability to make a real difference.
Fayetteville resident Mary Rahall said she would like to see the minimum fine raised to at least $100,000, which is comparable to similar ordinances that have been passed in New York. Water testing to differentiate between acid mine drainage and fracking waste alone costs more than $10,000, she said.
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, has not recognize the county’s local authority over injection well permitting.
Calls made to Danny Webb Construction’s Corporate Office were not immediately returned Tuesday.
(c)2015 The Register-Herald (Beckley, W.Va.)
This article was written by SARAH PLUMMER from The Register-Herald, Beckley, W.Va. and was legally licensed through the NewsCred publisher network.