Argued: May 9, 2017
from the United States District Court for the Southern
District of West Virginia, at Charleston. John T. Copenhaver,
Jr., District Judge. (2:16-cv-00290)
Owen Teaney, APPALACHIAN MOUNTAIN ADVOCATES, INC., Lewisburg,
West Virginia, for Appellants.
Timothy M. Miller, BABST, CALLAND, CLEMENTS & ZOMNIR,
P.C., Charleston, West Virginia, for Appellee.
A. Rist, HUMPHREY & RIST, LLP, Fayetteville, West
Virginia, for Appellants.
Christopher B. Power, BABST, CALLAND, CLEMENTS & ZOMNIR,
P.C., Charleston, West Virginia, for Appellee.
G. Hanshaw, BOWLES RICE LLP, Charleston, West Virginia, for
NIEMEYER, WYNN, and HARRIS, Circuit Judges.
HARRIS, CIRCUIT JUDGE.
Production Company operates multiple oil and natural gas
wells in Fayette County, West Virginia. It also operates one
injection well, used to dispose of wastewater generated by
its extraction wells by "injecting" the fluid
underground. Although EQT's injection well is regulated
by the state and authorized by a state-issued permit, Fayette
County, concerned about potential health effects, sought to
bar its operation, passing an ordinance that prohibits the
disposal of wastewater anywhere within the County.
question in this case is whether the County's ordinance
is preempted, as EQT argues, by the web of state and federal
laws comprehensively regulating oil and gas production and
wastewater disposal in West Virginia. Emphasizing the limited
power of West Virginia's counties vis-à-vis the
state, the district court granted summary judgment to EQT,
holding that the County's ban on wastewater disposal is
preempted by the state and federal laws under which West
Virginia issues injection well permits.
agree with the district court that the West Virginia
legislature, in enacting its complex regulatory program for
injection wells, did not leave counties with the authority to
nullify permits issued by the state. Accordingly, we hold
that this central aspect of the County ordinance is preempted
by state law. And because we find related aspects of the
ordinance to be preempted as well, we affirm the judgment of
the district court in all respects.
begin by setting out the complex statutory framework that
governs the disposal of wastewater in West Virginia. Under
two distinct but overlapping regulatory regimes, the West
Virginia legislature has vested in its Department of
Environmental Protection ("DEP") the authority to
protect the state's water resources against contamination
from oil and gas production. Although those two regimes
differ in certain respects, they share the overarching
purpose of ensuring that wastewater disposal does not affect
West Virginia's water sources in a way that could
threaten human health or the environment.
under the West Virginia Oil and Gas Act, W.Va. Code §
22-6-1 et seq., the DEP is broadly responsible for
regulating and permitting oil and gas wells in West Virginia.
The Oil and Gas Act gives the DEP authority over the
"production, storage and recovery" of oil and gas
resources. Id. § 22-6-2(c)(12). In exercising
that authority, the DEP issues permits for the drilling of
conventional oil and gas wells, id. § 22-6-6,
and monitors wells in operation, see, e.g., W.Va.
Code R. § 35-4-11.
extraction process at conventional wells generates
"wastewater" as a byproduct,  which may contain dissolved waste
materials - including carcinogenic chemicals and heavy metals
like arsenic and mercury - that are harmful to human health.
The storage and disposal of that wastewater also is regulated
under the Oil and Gas Act, which charges the DEP specifically
with protecting against water pollution arising from oil and
gas production. W.Va. Code § 22-6-7. In order to operate
a "disposal well for the injection or reinjection
underground of any pollutant" - like EQT's injection
well - a separate DEP water-pollution control permit is
required. Id. § 22-6-7(b)(6). Disposal well
permits come with regulatory conditions that protect against
the contamination of water sources, including monitoring and
testing requirements to ensure against leaks. W.Va. Code R.
§ 35-4-7. Regulations under the Oil and Gas Act provide
that disposal wells also are subject to the permit
requirements of "applicable federal and state
laws." Id. § 35-4-7.2.
among those other "applicable" laws is the West
Virginia Water Pollution Control Act, W.Va. Code §
22-11-1 et seq., under which West Virginia has
enacted a permit program for underground injection control
wells ("UIC wells"). And federal law, too, plays a
role: To protect underground sources of drinking water, the
federal Safe Drinking Water Act, 42 U.S.C. § 300f et
seq., establishes national standards for regulating
injection wells, with which the states must comply. See
id. §§ 300h, 300h-1(b). West Virginia's
UIC permit program meets those federal standards,
see W.Va. Code R. § 47-13-1 et seq.,
and as a result, West Virginia has been granted primary
enforcement authority over regulation of UIC wells within the
state, see 42 U.S.C. § 300h-1(b)(3).
to the state Water Pollution Control Act, the DEP has
promulgated comprehensive regulations for the UIC permit
program, designed to ensure that injection wells will not
present a significant risk of harm to the public or to the
environment. Underground injection is prohibited if "the
presence of [a] contaminant may . . . adversely affect the
health of persons, " W.Va. Code R. § 47-13-13.1.b,
and if "water quality monitoring . . . indicates the
movement of any contaminant" into an underground
drinking water source, then the DEP must prescribe
"corrective action" that may include closure of the
well, id. § 47-13-13.1.c.
state Water Pollution Control Act covers a number of
different kinds of injection wells, including wells
associated with mineral extraction and hazardous materials
disposal. See id. § 47-13-4. Directly relevant
here, "Class 2" UIC wells - like EQT's -
dispose of oil and gas wastewater, or fluids "brought to
the surface in connection with conventional oil or natural
gas production" and "commingled with waste
waters." Id. § 47-13-4.2.a. Those Class 2
injection wells, as noted above, also are regulated and
permitted under the Oil and Gas Act. And the UIC regulations
promulgated under the Water Pollution Control Act recognize
that overlapping jurisdiction, cross-referencing the Oil and
Gas Act as a source of "criteria and standards" for
Class 2 UIC wells. See id. § 47-13-9. As a
result, EQT's Class 2 UIC permit references both Oil and
Gas Act regulations and Water Pollution Control Act
regulations, and is managed by the two corresponding sections
of the DEP - the Office of Oil and Gas and the Division of
Water and Waste Management.
conjunction with this elaborate state permitting scheme, the
Water Pollution Control Act - but not the Oil and Gas Act -
includes a "savings clause, " preserving certain
"[e]xisting rights and remedies." W.Va. Code §
22-11-27. The savings clause clarifies that it is the intent
of the Act to provide "additional and cumulative
remedies to abate [water] pollution, " and that the Act
does not estop municipalities - or the state, or private
persons - from exercising existing rights "to suppress
nuisances or to abate any pollution." Id.
operates approximately 200 oil and natural gas wells in
Fayette County, West Virginia. All are
"conventional" wells, meaning that they are drilled
vertically into the ground. And all were drilled under the
authority of permits issued by the state DEP under the state
Oil and Gas Act.
process by which EQT disposes of the wastewater generated by
these wells begins on site, at the wells themselves. During
production, wastewater is separated from the fuel product and
stored initially in tanks located at each conventional well
site. When those short-term storage tanks reach capacity, the
wastewater is transferred by truck to EQT's separate UIC
well. There, it is injected into a confined, underground
formation for permanent disposal. EQT's single UIC well
in Fayette County serves as the permanent disposal location
for the wastewater from hundreds of conventional wells, both
within and outside the county.
injection of wastewater into EQT's UIC well is separately
authorized by the state. Since 1986, EQT has held a permit
for a Class 2 UIC well, issued by the DEP under the state UIC
permit program. And under the Oil and Gas Act, as part of the
process by which EQT applies for conventional well permits,
the DEP reviews and approves EQT's plans for disposal of
wastewater generated by its wells, with EQT providing the
location and permit number for its licensed injection well.
See W.Va. Code R. § 35-4-5.2.a.4.
this extensive state regulatory apparatus, the Commissioners
of Fayette County - Matthew D. Wender, Denise A. Scalph, and
John H. Lopez (collectively, "the County") - became
concerned that two UIC wells, operated not by EQT but by a
third party, were leaking wastewater into local waterways.
And although there was no concern about contamination from
EQT's UIC well, the County responded with a blanket ban
on all permanent disposal of wastewater within County lines.
January 12, 2016, the County enacted an "Ordinance
Banning the Storage, Disposal, or Use of Oil and Natural Gas
Waste in Fayette County, West Virginia"
("Ordinance"). J.A. 27; see J.A. 95.
Section 1 of the Ordinance broadly prohibits the
"storage, treatment, injection, processing or permanent
disposal" of wastewater "onto or into the land, air
or waters within Fayette County[.]" J.A.
97. And although it seems clear
enough that a ban on "injection" and
"permanent disposal" of wastewater would cover the
operation of UIC wells, the next sentence of Section 1 spells
it out: "This prohibition shall specifically ...