EQT Prod. Co. v. Wender, Civil Action No. 16-00290

• Court: United States District Courts. 4th Circuit. Southern District of West Virginia
• Writing for the Court: John T. Copenhaver, Jr., United States District Judge
• Citation: 191 F.Supp.3d 583
• Parties: EQT PRODUCTION COMPANY, Plaintiff, v. 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.
• Docket Number: Civil Action No. 16-00290
• Decision Date: 10 June 2016

191 F.Supp.3d 583

EQT PRODUCTION COMPANY, Plaintiff,
v.
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.

Civil Action No. 16-00290

United States District Court, S.D. West Virginia, at Charleston .

Singed June 10, 2016

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Christopher B. Power, Matthew S. Casto, Timothy M. Miller, Robert M. Stonestreet, Babst Calland Clements & Zomnir, Charleston, WV, for Plaintiff.

Derek O. Teaney, Appalachian Center for the Economy and the Environment, Lewisburg, WV, Larry E. Harrah, II,

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Thomas A. Rist, Rist Law Offices, Fayetteville, WV, for Defendants.

MEMORANDUM OPINION AND ORDER

John T. Copenhaver, Jr., United States District Judge

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"). Rev. Stip. ¶ 3; see also O. Stip., Ex. A, UIC Permit, pp. 1-8. 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. Rev. Stip. ¶ 5. 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, 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. See id.; see also 40 C.F.R. §§ 144.6(b), 144.28(f). 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." See Complaint ("Compl."), Ex. 1, p. 6. The Commission

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later enacted an amended version of the ordinance on March 25, 2016. 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. See Ordinance§ 1.1, 1.5. 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) 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 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

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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 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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962). 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, 477–78, 82 S.Ct. 894, 8 L.Ed.2d 44 (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, 126 S.Ct. 1837, 164 L.Ed.2d 641 (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, 99 S.Ct. 2545, 61 L.Ed.2d 176 (1979) )). In other words, a permanent injunction must "carefully...