Plum Borough v. Zoning Hearing Bd. of Borough of Plum

310 A.3d 815

PLUM BOROUGH, Appellant

v.ZONING HEARING BOARD OF the BOROUGH OF PLUM, Penneco Environmental Solutions, LLC and Protect PT

No. 1198 C.D. 2022

Commonwealth Court of Pennsylvania.

Argued October 10, 2023

Decided January 29, 2024

Reargument Denied March 26, 2024

Appealed from No. SA-22-000104, Common Pleas Court of the County of Allegheny, Joseph M. James, J.

Dayne F. Dice, Pittsburgh, for Appellant.

Amanda R. Cashman, Pittsburgh, for Appellee Penneco Environmental Solutions, LLC.

Tim Fitchett, Pittsburgh, for Appellee Protect PT.

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, honorable CHRISTINE FIZZANO CANNON, Judge

OPINION BY PRESIDENT JUDGE COHN JUBELIRER

Appellant Plum Borough (Borough) and Intervenor Protect PT (together, Objectors) appeal from the Order of the Court of Common Pleas of Allegheny County (common pleas) affirming the decision of the Zoning Hearing Board of the Borough of Plum (ZHB), which granted Intervenor Penneco Environmental Solutions, LLC’s (Penneco) application for a special exception to expand a preexisting nonconforming use (Application). After careful review, we vacate common pleas’ Order and remand with instructions to further remand to the ZHB to make findings of fact and conclusions of law sufficient to grant or deny the Application and enable appellate review.

I. BACKGROUND

At issue in this appeal is Penneco’s 69-acre property located at 1815 Old Leechburg Road within Plum Borough (property) and zoned as Rural Residential (RR) per the Plum Borough Zoning Ordinance. Ordinance No. 916-17 (2017), as amended (Ordinance). (ZHB Decision, Findings of Fact (FOF) ¶¶ 1-4.) Penneco (or predecessor-in-interest Sedat, Inc.) has operated a production gas well on the property since 1989. (Id. ¶ 5.) In 2016, Penneco sought permission from the United States Environmental Protection Agency (EPA) to operate an underground injection well (also known as an Underground Injection Control well, or UIC well) on the property, the subject of this Court’s decision in In re Penneco Environmental Solutions, LLC, 205 A.3d 401, 402 (Pa. Cmwlth. 2019). (See also FOF ¶ 6.) There, we explained that "[a]n underground injection well serves to dispose of exploration and production fluids from oil and gas operations by placing the fluids into porous geologic formation[,] … [which] is subject to the oversight of the [EPA]." Penneco, 205 A.3d at 402. (See also FOF ¶¶ 7-8.) Those fluids are also referred to as brine. (Reproduced Record (R.R.) at 14a.) Common pleas granted site-specific relief to Penneco as to the first proposed injection well, which was affirmed. Penneco, 205 A.3d at 410.¹

After securing the necessary approval from the EPA and the Pennsylvania Department of Environmental Protection (DEP), Penneco began operating a UIC well on the property. (FOF ¶¶ 18-19.) Specifically, it converted a well it refers to as "Sedat 3A" from a natural gas production well to an injection well. (R.R. at 17a, 164a.) In November 2021, Penneco submitted its Application, styled as a "Special Exception Application … for the expansion of a non[ ]conforming use," seeking to "add another [UIC well] and observation well to be serviced by the already[ ]existing … [f]acilit[ies]." (Id. at 155a; FOF ¶¶ 22-23.) The Application refers to the proposed injection well as "Sedat 4A." (R.R. at 17a, 164a.)

The ZHB held a hearing on the Application in January 2022. Penneco called its Chief Operating Officer Ben Wallace (Wallace), who testified that "much of the brine in Pennsylvania is exported to Ohio. So, there is [sic] millions of gallons of brine moving around the state, and there are only a few injection wells in Pennsylvania that accept these brines." (Id. at 15a.) Wallace further explained that Penneco’s "customers could easily deliver us more fluid. We are constrained by our ability to receive fluid" and "have our customers currently rationed on the amount of fluid that they can bring us on a daily basis." (Id. at 22a.) He also testified that Penneco would benefit from having both wells be UIC wells. (Id. at 25a.) That is because, in part, Penneco could service customers more effectively if it could "operate either well in the event that either well is being serviced," which he referred to as creating an important "redundancy" in its UIC well operations. (Id.) Wallace also indicated no new roads would be required, but the pipeline would have to be replaced with a new injection pipeline. (Id. at 18a.) He further testified that the EPA application for the proposed injection well was administratively complete, and he expected the EPA to schedule hearings on that application within six months. (Id. at 26a.) He explained that bringing the proposed injection well online would increase its capacity by 50%, from the then-30 loads to 45 loads per day. (Id.) Wallace also confirmed there would be no additional noise from the injection well itself, but an increase in truck traffic could increase the noise level. (Id. at 27a-28a.)

Protect PT called witnesses to testify about their concerns regarding Penneco’s current operations and the contemplated expansion thereof. One community member testified that she has had issues with air quality and water quality since July 2021, for which she requested a report from Duquesne University and filed a complaint with DEP. (Id. at 62a.) She indicated she filed a complaint with the Borough related to water, air quality control, and truck traffic, with Allegheny County related to air quality, and with the state police related to truck traffic. (Id. at 62a-63a.) She testified further that since the injection well began operating, truck traffic has increased, sometimes a truck every 30 minutes in the middle of the night. (Id. at 63a.) Moreover, she testified to "a chemical odor in the air that has caused headaches." (Id.) Generally, she indicated that she is "just concerned for [her] health, for [her] family’s health, [and] for the community’s health." (Id. at 64a.)

Two other residents who live on the same road as the property testified. One indicated concerns about his property be coming "swampy," and truck traffic "com[ing] up and down that road 24 hours a day." (Id. at 110a-11a.) Another community member indicated that "we have had some very bad acid odors that will make your eyes water, [create a] bad taste in your mouth. We actually had to leave at times[ ] because it is so bad." (Id. at 111a.) He also testified about his concerns regarding light and noise from the property, as well as truck traffic. (Id. at 111a-12a.)

Another resident testified as to his concerns with residential properties being within 500 feet of the property. (Id. at 114a.) Yet another resident testified to the "mental anguish" resulting from the increased truck traffic and lost sleep. (Id. at 115a.) Another community member testified that, at one point, his water began tasting like mold. (Id. at 67a.) He explained that he called Penneco’s president for help, who brought water and ultimately made arrangements for "water buffaloes" to supply water. (Id. at 67a-68a.) He said that in "40 years of drinking water from that spigot, [he] never had an issue prior to them working across the street." (Id. at 69a.) He also expressed a concern about the increased truck traffic. (Id.)

Finally, Protect PT called registered nurse Laura Dagley who serves as "medical advocacy coordinator for Physicians for Social Responsibility."² (Id. at 77a.) She testified that she had "reviewed dozens of studies, health studies, as well as EPA and DEP documents and studies, just over the course of [her] working years and in preparation for this." (Id. at 78a.) She testified about the relationship between air quality and health, (id. at 84a), and chemicals from fracking and their negative health impacts, (id. at 85a), as well as chemicals present in fracking wastewater that might cause health problems, (id. at 87a-92a).

The Borough called Tysen Miller, who had served as Borough engineer for the past 30 years. (Id. at 116a.) He testified that the proposed UIC well is approximately 325 feet away from the nearest property line, and approximately 430 feet from the nearest existing structure. (Id. at 117a.)

At the end of the hearing, Timothy Joyce, a member of the ZHB, commented that

no matter what we rule tonight as a local [ZHB], it doesn’t matter. This was a formality. … 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.

(Id. at 120a-21a.)

Another ZHB member, Andy Zarroli, stated, "we can’t stop this, we can’t regulate it, and we can’t prevent this expansion," echoing Joyce’s characterization of the proceeding as "a formality that Penneco has to go through." (Id. at 122a.)

Finally, Michelle Chapkis, chairperson of the ZHB, explained to those in attendance that "we have been informed that this is not a special exception … [so] all the various elements in the [Ordinance, and in Section 403 [of the Ordinance, Ordinance, § 403,] under special exception, that, indeed, is not applicable this evening." (Id. at 124a.) The ZHB then voted to approve Penneco’s Application. (Id. at 126a-27a.)

The ZHB issued a written decision. In its findings of fact, the ZHB found that

Penneco presented evidence that the new injection point and observation well would require no new roads and no new construction, as the footprint of its operation would not change, and the necessary changes would occur underground. (FOF ¶¶ 25-26, 29.) Further, it found that Penneco predicted that track traffic to its property would increase from 30 to 45 loads per day, and that its product capacity would increase by 50% as a result of the proposed expansion. (Id. ¶¶ 27-28.) The ZHB explained that such use qualifies as "a preexisting nonconforming use because … ...