On November 8, Commonwealth Court reported a memorandum opinion that turns back a challenge to special exception permits granted by a township for unconventional natural gas drilling based on concerns about the storage of drilling wastewater and alleged violations of the state’s Environmental Rights Amendment.

The Court said the objector presented “no credible evidence of harm” and the claims made are unsupported by the “accepted evidence of record.”

The case involves a challenge to local zoning ordinance decisions in Penn Township, Westmoreland County that granted 4 special exception applications to Apex Energy PA for unconventional gas wells in a Rural Resource Zoning District which also lie in the Township’s Mineral Extraction Overlay District.

Three of the applications were denied initially by the Board, but Apex Energy PA filed suit in federal court and in a settlement agreement allowed the applications to proceed under a set of conditions in exchange for the Township agreeing to be bound by certain interpretations of the zoning ordinance under the state’s Environmental Rights Amendment.

The objector in the case then challenged the special exception decisions in Westmoreland County Court, which, without taking additional evidence, affirmed the Zoning Hearing Board’s decisions.

The objector raised three issues on the appeal of the County court ruling--

-- Wastewater Storage: The record lacks substantial evidence that Apex Energy PA’s drilling permit applications satisfies Section 190-635(D)(1) of the Zoning Ordinance of Penn Township relating to the storage of “toxic-produced waste.”

Commonwealth Court noted the local Zoning Hearing Board did explicitly determine the applicant meet the performance standards included in the zoning ordinance on the storage of drilling wastewater.

The Board also did not determine the proposed drilling operations involved the storage of toxic liquids.

Commonwealth Court said the objector’s attempt to characterize “wastewater” as a “toxic liquid” is not supported by the provisions of the zoning ordinance and noted the liquid was brine as in “water with salt.”

The Court rejected this argument.

-- Environmental Rights: The record lacks substantial evidence Apex Energy PA’s proposal satisfies Section 190-641(D) of the zoning ordinance relating to the protection of citizens’ environmental rights.

Commonwealth Court quoted a long series of findings by the local Zoning Hearing Board on the Apex Energy PA drilling applications, including one specific finding in the federal court settlement of the earlier appeal that a consultant’s report demonstrates the drilling operation “will not violate citizens’ right to clean air and water as guaranteed” by the Environmental Rights Amendment.

As a result, the Court rejected this argument by the objector.

-- High Probability Of Adverse Effects: The record contains substantial evidence that shows Apex Energy PA’s proposal would create a high probability of an adverse, abnormal or detrimental effect to the public health, safety, and welfare therefore violating the Environmental Rights Amendment.

Commonwealth Court noted the case before them did not involve a constitutional or substantive validity challenge like in the PA Environmental Defense Foundation and Robinson Township cases, but rather court review of a local Zoning Hearing Board decisions on special exemptions.

The Court said the objector presented “no credible evidence of harm” and assertions are unsupported by the “accepted evidence of record.”

In addition, the Court said the Zoning Hearing Board attached several detailed conditions in granting the special exemptions in order to mitigate adverse effects associated with the drilling.

Click Here for a copy of the opinion.

This decision is one of a series of decisions recently by Commonwealth Court on challenges to local ordinances regulating drilling operations based on the Environmental Rights Amendment.

Related Story:

Commonwealth Court Upholds Local Zoning Ordinance Allowing Drilling In All Districts As Long As They Meet Standards

[Posted: Nov. 9 2018]

11/12/2018