Appeals court sends Plum injection well plan back to zoning board for review

Plans to add another injection well in Plum will go back to the borough’s zoning hearing board.

The zoning board in January of 2022 voted to approve the addition of a second injection well at Penneco Environmental Solutions’ existing facility on 69 acres on Old Leechburg Road because, the board said, it had no power to regulate such wells and a decision to reject the plans would be overturned in court.

Indeed, when borough council and an environmental group appealed the approval in Allegheny County Court of Common Pleas, the court sided with the zoning board.

But a three-member panel of the state’s Commonwealth Court disagreed, discarding the county court ruling and sending the matter back to the zoning board.

A 27-page opinion, authored by Commonwealth Court President Judge Renee Cohn Jubelirer, says the zoning board was not as powerless as it thought to add conditions to the approval of such wells, which are used to dispose of fluids, referred to as brine, from oil and gas operations.

The borough appealed the county court’s decision to Commonwealth Court with the support of a citizens group, Protect PT.

The appeals court ordered the zoning board to reconsider the necessity of the expansion and to consider whether additional requirements protecting public health, safety and welfare apply.

Borough Manager David Soboslay said the borough agrees with the court’s decision sending the case back to the zoning board. Council appealed because it disagreed with the zoning board’s decision, he said.

Penneco views the ruling as “administrative in nature,” said Ben Wallace, chief operating officer.

“We believe that the evidence in the hearing transcript adequately answered the questions the Commonwealth Court has,” he said. “We’re confident that once these administrative clarifications are made that ultimately the law will prevail on our side.”

Penneco has operated a gas well on the property since 1989. In 2016, it sought permission from the U.S. Environmental Protection Agency to operate an underground injection well there. In November 2021, it applied to add a second such well.

The second well would be a conversion of an existing natural gas well, Wallace said. The two wells would be about 1,000 feet apart.

At a zoning hearing board hearing in January 2022, Wallace testified that, while the company’s customers could bring it more fluid for disposal, it is limited in how much the single well can receive. A second well also would ensure at least one is operating should the other be down for service.

Having the new well would increase Penneco’s capacity by 50%, from 30 to 45 loads per day. While there would be no more noise from the well, more truck traffic could increase noise, Wallace testified.

Resident witnesses called by Protect PT raised concerns about truck traffic as well as impacts on water and air quality.

At the hearing’s end, zoning board member Timothy Joyce said their ruling didn’t matter.

“This was a formality,” he said, as quoted in the Commonwealth Court decision. “So, I am going to make a motion to vote yes on the motion (to approve the application), because to do otherwise would be a waste of money to the taxpayers of Plum Borough and to the manpower of Plum Borough, because we would be turned over in court anyway.”

Member Andy Zarroli said, “We can’t stop this, we can’t regulate it, and we can’t prevent this expansion,” echoing Joyce and calling their proceeding “a formality that Penneco has to go through,” the decision quotes him as saying.

However, the appeals court found the zoning board did not go far enough.

The board made no factual findings and did not explain its reasoning to support its conclusion that Penneco proved that adding a second well is an allowable natural expansion of its existing use of the property and needed for the growth of its trade, the decision states.

“In sum … we have a record before us, but we are unable to meaningfully review (the board’s) legal conclusion as to necessity of the expansion because (the board) made no specific findings to support that conclusion, nor did it spell out its reasons for arriving at it,” the judge wrote.

The decision requires the board to make adequate findings of fact and, at its discretion, take more evidence to support a conclusion on the necessity of the expansion and to fully explain its reasoning.

“Put simply, in the absence of factual findings and reasoning, we are unable to determine whether (the board’s) conclusion is the product of principled reasoning or mere arbitrariness,” the judge wrote.

On the application of additional requirements, the court found that the board made no findings regarding traffic and no specific finding on health, safety and general welfare.

While Penneco argued that the board’s silence should be taken in its favor, the court found the record says otherwise, as the board indicated it was “gravely concerned with (Penneco’s) use of the property,” the decision states.

The decision requires the board to consider requirements including health, safety and welfare and make appropriate findings.

“The doctrine of natural expansion does not provide landowners carte blanche to expand in violation of reasonable and duly enacted requirements of zoning ordinances,” the decision states.

The court said it can’t review whether Penneco met its burden on the requirements because the zoning hearing board did not make findings of fact on them.

The zoning board is required to reconsider the requirements and make findings of fact needed to reach a conclusion.