Case 2:16-cv-00290 Document 32-1 Filed 03/29/16 Page 1 of 6 PageID 252

IN THE COUNTY COMMISSION OF FAYETTE COUNTY, WEST VIRGINIA

ORDINANCE BANNING THE STORAGE, DISPOSAL, OR
USE OF OIL AND NATURAL GAS WASTE
IN FAYETTE COUNTY, WEST VIRGINIA

Be it enacted and ordained by the County Commission of Fayette County, West Virginia,
to provide as follows:

Short Title
Ordinance banning the storage, disposal or use of oil and natural gas waste, waste water
or any derivate thereof within Fayette County, WV.

Findings

WHEREAS oil and natural gas waste contains water, rock cuttings and sludge contaminated with
carcinogenic chemicals such as benzene, heavy metals such as arsenic and mercury, and
radioactive material such as radium, radon, uranium, thorium, polonium, and strontium;

WHEREAS oil and natural gas companies are seeking ways to dispose of trillions of gallons of
oil and natural gas waste annually;

WHEREAS West Virginia sewage treatment plants and centralized waste treatment plants are
possible sites for disposal of this waste;

WHEREAS disposal experience of oil and natural gas waste in West Virginia includes injecting
waste into the ground through wastewater injection wells;

WHEREAS road spreading of oil and natural gas waste water for dust control and de-icing
increases risk of exposure to drivers and pedestrians and contamination of nearby ?elds and
surface waters;

WHEREAS this County Commission finds that the injection of waste derived or resulting from
the extraction of oil and natural gas into the ground, as well as the disposal of such waste into
surface waters, onto the land or into the air in Fayette County poses a significant threat to the
health, safety and welfare of county residents;

WHEREAS this County Commission ?nds that it has plenary authority to eliminate hazards to
public health and safety and to abate or cause to be abated anything which this Commission
determines to be a public nuisance;

WHEREAS this County Commission has determined that the disposal of natural gas and oil
waste constitutes a hazard to the public health and safety of the citizens of Fayette County;

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WHEREAS this County Commission has determined that the disposal of mine waste constitutes
a hazard to the health and safety of the citizens of Fayette County;

WHEREAS this County Commission has determined that the mixing of natural gas and oil waste
with storm water runoff is both an intolerable public health and safety hazard and a nuisance;

WHEREAS this County Commission has determined that the permanent storage and disposal of
natural gas and oil waste, whether through underground injection or otherwise, constitutes a
public nuisance; and

Definitions

?Application? shall mean the physical act of placing or spreading natural gas waste or oil waste
on any road 01' real property located within Fayette County for any purpose other than temporary
storage at a facility or site where natural gas extraction activities or oil extraction activities are
occurring and are regulated by a permit issued pursuant to W. Va. Code 22-6-6.

?Corporations? shall include any corporation, limited partnership, limited liability partnership,
business trust, or Limited Liability Company organized under the laws of any state of the United
States 01' under the laws of any country, and any other business entity that possesses State
conferred limited liability attributes for its owners, directors, officers and/or managers.

?Hydraulic fracturing? shall mean the fracturing of underground rock formations, including shale
and non-shale formations, by mamnade ?uid-driven techniques for the purpose of stimulating
oil, natural gas or other subsurface hydrocarbon production.

?Natural gas extraction activities? shall mean all geologic or geophysical activities related to the
exploration for or extraction of natural gas, including, but not limited to, core and rotary drilling
and hydraulic fracturing, but not including the permanent storage or diSposal of natural gas waste
01' oil waste.

?Oil extraction activities? shall mean all geologic or geophysical activities related to the
exploration for or extraction of oil, including, but not limited to, core and rotary drilling and
hydraulic fracturing, but not including the permanent storage or disposal of natural gas waste or
oil waste.

?Natural gas waste? shall mean:
a. any liquid or solid waste or its constituents that is generated as a result of natural
gas extraction activities, which may consist of water, brine, chemicals, naturally
occurring radioactive materials, heavy metals or other contaminants;

b. leachate from solid wastes associated with natural gas extraction activities;

0. any waste that is generated as a result of 01' in association with the underground
storage of natural gas;

d. any waste that is generated as a result of or in association with liquefied petroleum

gas well storage operations; and

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e. any products or byproducts resulting from the treatment, processing, or
modification of any ofthe above wastes.

?Oil waste? shall mean:

a. any liquid or solid waste or its constituents that is generated as a result of oil
extraction activities, which may consist of water, brine, chemicals, naturally
occurring radioactive materials, heavy metals, or other contaminants;

b. leachate from solid wastes associated with oil extraction activities; and

c. any products or byproducts resulting from the treatment, processing, or
modification of any of the above wastes.

?Temporary storage? shall mean 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.

"Well" means any shaft or hole sunk, drilled, bored 01' dug into the earth or into underground
strata for the extraction or injection or placement of any liquid or gas, or any shaft or hole sunk
or used in conjunction with such extraction or injection or placement.

Section 1 Prohibitions

l. 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 speci?cally apply to injection wells for the purpose
of permanently disposing of natural gas waste and oil waste. Provided, however, that the
temporary deposition, temporary storage, treating, 01' 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.

2. The application of natural gas waste or oil waste, whether or not such waste has received
approval for use by the Department of Environmental Protection (DEP) or any other
regulatory body, on any road or real property located within Fayette County for any
purpose is prohibited.

3. The introduction of natural gas waste or oil waste into any wastewater treatment facility
within Fayette County is prohibited.

4. The introduction of natural gas waste or oil waste into any solid waste management
facility within Fayette County is prohibited.

5. The sale, acquisition, storage, handling, treatment and/or processing of natural gas waste
or oil waste within Fayette County is prohibited. Provided, however, that the sale,
acquisition, temporary storage, handling, treatment, and/or processing or natural gas
waste or oil waste at a site or facility at a site or facility where natural gas extraction
activities 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.

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Section 2 Provision to be included in bids and contracts

1. All bids and contracts related to the purchase or acquisition of materials to be used to
construct or maintain any publicly owned and/or maintained roads 01' real property within
Fayette County shall include a provision stating that no materials containing natural gas
waste or oil waste shall be provided to the County.

2. All bids and contracts related to the retention of services to construct or maintain any
publicly owned and/or maintained road or real property within the County shall include
a provision stating that no materials containing natural gas waste or oil waste shall be
utilized in providing such a service.

3. The following statement, which shall be a sworn statement under penalty of perjury, shall
be included in all bids related to the purchase or acquisition of materials to be used to
construct or maintain any publicly owned and or maintained road or real property within
the County and all bids related to the retention of services to construct or maintain any
publicly owned and/or maintained road or real property within the County:

?We hereby submit a bid for materials, equipment and/or labor
for Fayette County. The bid is for bid documents titled . We
hereby certify under penalty of perjury that no natural gas waste 01' oil waste will
be used by the undersigned bidder or any contractor, sub-contractor, agent or
vendor agent in connection with the bid; nor will the undersigned bidder or any
sub?contractor, agent or vendor agent thereof apply any natural gas waste or oil
waste to any road or real property within the County as a result of the submittal
of this bid if selected.?

Section 3 Enforcement

1. Any person, corporation, or other entity that violates any prohibition of this Ordinance
may be guilty of a misdemeanor. A separate offense shall arise for each day or portion
thereof in which a violation occurs and for each section of this Ordinance found to be
violated.

2. The Fayette County Commission may, at their discretion, also enforce this Ordinance
through an action in equity, including but not limited to injunctive relief, brought in the
Circuit Court 01' any court withjurisdiction. In such an action, the court may award costs
of litigation (including reasonable attorney and expert witness fees) to any prevailing or
substantially prevailing party, whenever the court determines such award is appropriate.

3. Any resident of Fayette County shall have the authority to enforce this Ordinance through
an action in equity brought in the Circuit Court of Fayette County. In such an action, the
court may award costs of litigation (including reasonable attorney and expert witness
fees) to any prevailing or substantially prevailing party, whenever the court determines
such award is appropriate.

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4. Compliance with or possession of a permit, license, privilege, or charter issued by any
State or federal agency, Commission or Board shall not constitute a defense to violations
of the prohibitions of this Ordinance in any civil or criminal proceeding brought to
enforce this Ordinance.

Section 4 - Penalties

1. Any person or corporation who disposes of such natural gas or oil waste, as heretofore
de?ned, is guilty of causing and maintaining a nuisance, a misdemeanor and, upon
conviction thereof, shall be fined not less than one thousand ($1,000) and may be
con?ned in the regional jail for not more than one (1) year for each offense. Said fine
shall be commensurate with the costs of remediation and abatement associated with said
offense.

2. This ordinance shall apply to any and all actions occurring on or after the effective date
of this ordinance. The County is empowered to issue ?Cease and Desist? orders in case
of any violation of the Prohibitions and Provisions stated above. It is further empowered
to require remediation of any damage done to any land, road, building, aquifer, well,
water course, air quality 01' other asset, be it public or private, within Fayette County.

3. Whether criminal or civil, a defendant found guilty or liable for Violating this ordinance
may be ordered to pay any costs of restitution or remediation of damages.

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Section 5 Severabilitv

The provisions of this Ordinance are severable. If any court ofcompetent jurisdiction decides
that any section, clause, sentence, part 01' provision of this Ordinance is illegal, invalid or
unconstitutional, such decision shall not affect, impair or invalidate any of the remaining
sections, clauses, sentences, parts 01' provisions of the Ordinance. The County Commissioners
of Fayette County hereby declare that in the event of such a decision and the determination that
the court?s ruling is legitimate, it would have enacted this Ordinance even without the section,
clause, sentence, part or provisions that the court decides is illegal, invalid or unconstitutional.

day am, 2016.

FAYETTE 0U YC MMISS 0N

 
 
 

Entered this

 
 

'3
President

9% aim.

J?Jin Lopez, Commissioner

 Jar/duh 4

Denise Scalph, Commissionefj

 

FIRST READING: March 17, 2016
SECOND READING: March 25, 2016

'00 18! Ci SE H?ii?l 

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