WASTE DISPOSAL NOT A TRESPASS IN WEST VIRGINIA

By TONI ELLINGTON

Earlier, it was reported on this blog that in Texas, a disposal well operator whose waste fluids injected through the operator’s well migrated to the deep subsurface underlying an adjacent property could be liable for trespass. See FPL Farming, Ltd. v. Environmental Processing Systems, L.C., 351 S.W. 3d 306 (Tex. 2011); FPL Farming, Ltd. v. Environmental Processing Systems, L.C., 383 S.W. 3d 274 (Tex. App.-Beaumont 2012)(trespass found following remand).  However, at least one state has ruled that a company’s disposal of drilling waste in pits on the plaintiffs’ land was not a trespass.

In Whiteman v. Chesapeake Appalachia, LLC, 873 F. Supp. 2d 767 (D. W. Va. Jun. 7, 2012), the Whitemans owned the surface of a 101-acre parcel in Wetzel County, West Virginia, but did not own the mineral estate.  Chesapeake operated three natural gas wells on the property, subject to well work permits and pit waste discharge permits from the West Virginia Department of Environmental Protection  (“WVADEP”).  During its operations, Chesapeake placed rock and earth from the drilling operations, mud, and chemical additives in two lined pits on the plaintiffs’ property.  Chesapeake eventually removed the liners and covered the pits with clean soil.  Whiteman, 873 F. Supp. 2d at 771.  The plaintiffs sued, claiming, among other things, that this was a trespass.

The court considered the lease executed between the plaintiffs and Chesapeake, and found that the documents did not provide expressly that Chesapeake had the right to construct pits to collect drill cuttings and other materials on plaintiffs’ land.  Thus, the question became whether the severance deed and oil and gas leases created an “implied right to create pits for drill cuttings,” because those pits were considered a “necessary right appertaining to the exploration, development, production or measurement of the oil and gas.”  Id., at 773.  The court considered the permit issued by WVADEP and the West Virginia Code, which requires that within six months after completion of the drilling, “the operator shall fill all the pits for containing muds, cuttings, salt water, and oil that are not needed for production purposes . . . ."  Id., at 775, quoting W. Va. Code §22-6-30(a).  Therefore, the court found, “Chesapeake’s decision to fill in the pits on the Whiteman’s property was an act contemplated by West Virginia law.”  Id., at 775.

The court also found that the Whitemans “were given an opportunity to file comments regarding the permits and attached documents, which included a permit for oil and gas waste pit discharge and maps with pit locations drawn.”  Id.

Based on the facts, and after considering a ruling on the use of waste pits issued by the United States District Court for the District of North Dakota in Kartch v. EOG Res., Inc., No. 4:10-cv-014, 845 F. Supp. 2d 995 (D. N.D. Feb. 29, 2012), along with a number of mining waste cases, the district court in Whiteman found the plaintiffs’ trespass claim failed under West Virginia law.  Id., at 777.  The court did not grant summary judgment and dismiss the plaintiffs’ other common law claims of nuisance, negligence, strict liability, recklessness, intentional infliction of emotional distress, and negligent infliction of emotional distress.  Id., at 779.

For updates or further information, contact Toni J. Ellington, Esq. at (504) 599-8500.