Brockway Borough Municipal Authority v. DEP , 131 A.3d 578 ( 2016 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Brockway Borough Municipal :
Authority, :
Petitioner :
:
v. : No. 789 C.D. 2015
: Submitted: November 16, 2015
Department of Environmental :
Protection, :
Respondent :
BEFORE: HONORABLE DAN PELLEGRINI, President Judge1
HONORABLE MARY HANNAH LEAVITT, Judge2
HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION
BY JUDGE LEAVITT FILED: January 6, 2016
The Brockway Borough Municipal Authority (Authority) appeals an
order of the Environmental Hearing Board (Board) that dismissed the Authority’s
challenge to the issuance of a gas drilling permit by the Department of
Environmental Protection (Department) to Flatirons Development Co. (Flatirons).
The Authority contends that the Board’s decision is not supported by substantial
evidence and violates Pennsylvania environmental law and Article I, Section 27 of
the Pennsylvania Constitution. For the reasons that follow, we affirm.
1
This case was assigned to the opinion writer before December 31, 2015, when President Judge
Pellegrini assumed the status of senior judge.
2
This case was assigned to the opinion writer before January 4, 2016, when Judge Leavitt
became President Judge.
Background
The Authority owns and operates a water system in Jefferson County.
The system consists of a surface water reservoir on the Whetstone Branch; a
surface water reservoir on Rattlesnake Creek; separate surface water treatment
facilities for each source; a storage and distribution system that serves customers in
the Borough; and three groundwater wells, Well Nos. 2, 5, and 6. Of those wells,
Well No. 5, which is relevant to this appeal, is a 200-foot deep water well that
produces an artesian flow of water to the ground surface, at a rate that generally
varies between 15 gallons per minute and 75 gallons per minute. Well No. 5 feeds
groundwater into the Rattlesnake Creek reservoir.
Flatirons is a Colorado-based company engaged in oil and gas
exploration in Pennsylvania and elsewhere. On July 14, 2010, the Authority and
Flatirons entered into a Surface Use and Damage Agreement and Easement that
granted Flatirons the right to drill for gas on the Authority’s land. Under this
agreement, Flatirons has agreed, inter alia, to cover the cost of quarterly water
quality monitoring of the Authority’s water system.
The genesis of the Authority’s concern was the drilling techniques
Flatirons employed while drilling its “1H Well” on Well Pad 6, which is located
960 feet from Well No. 5.3 On February 10, 2011, during the drilling of the 1H
Well, Well No. 5 stopped producing an artesian flow for approximately 29 hours.
3
The Department approved Flatirons’ permit application to drill the 1H Well on August 20,
2010.
2
When flow was restored, Well No. 5’s turbidity4 had quintupled, and the flow had
increased by five gallons a minute.
On February 15, 2011, the Department issued a Notice of Violation to
Flatirons for the 29-hour loss of flow from Well No. 5 on the basis that Flatirons
may have violated the statutes commonly referred to as the Clean Streams Law5
and the Oil and Gas Act.6 The purpose of the notice was to advise Flatirons that the
Department was investigating the water stoppage. In the end, however, the
Department’s investigation did not produce any evidence of wrongdoing by
Flatirons. As such, the Department did not fine or penalize Flatirons for the
stoppage of water flow.
On May 24, 2011, the Department approved a permit application filed
by Flatirons to drill a second well (the “2H Well”) on Well Pad 6, subject to the
condition that Flatirons submit a plan to minimize the impact on the Authority’s
Well No. 5. Flatirons hired an engineering consulting firm, Moody & Associates,
to prepare a plan to comply with the Department’s condition. Moody & Associates
prepared the “Brockway Borough Municipal Authority Well No. 5 Protection
Plan,” which was submitted to both the Department and the Authority. On August
3, 2011, the Department conducted a conference in which Flatirons, the Authority,
4
Turbidity is a measurement of pollution. It is measured in Nephlometric Turbidity Units
(NTU). At the hearing, an expert witness testified about how turbidity measurements are made:
Turbidity is an established measurement of the turbidity of the water, the
cloudiness of the water, like unit measurement of water. It is done through a
sampling technique that sends a light beam through a column of water and
essentially measures the amount of light that is reflected back out of the particles.
Reproduced Record at 645-46 (R.R. __).
5
Act of June 22, 1937, P.L. 1987, as amended, 35 P.S. §§691.1-691.1001.
6
58 Pa. C.S. §§3201-3274.
3
and members of the Brockway Area Clean Water Alliance participated. The
conference allowed concerned parties to voice objections and suggestions to
Flatirons’ plan. On January 26, 2012, Flatirons submitted a revised draft of its
protection plan that incorporated comments made at the August 3 rd conference.
Because the Authority was not satisfied with the revised plan, another public
meeting was held on February 22, 2012. Flatirons took note of the concerns raised
and incorporated them into a second revised protection plan.
On May 24, 2013, the Department issued Flatirons a permit to drill the
proposed 2H Well, subject to the following special conditions:
Flatirons will notify the [Authority] 24 hours before drilling of
the well commences;
Flatirons will implement the alternate method for casing the
well as outlined in the Proposed Alternate Method or Material
for Casing, Plugging, Venting or Equipping form, 5500-PM-
OG0024, submitted February 1, 2012;
Flatirons will implement the provisions in the ... Protection Plan
... for the following, as provided in the plan:
Under balanced drilling technique
Casing specifics and cementing plan
Pump testing plan
Water quality sampling and flow monitoring
Contingency measures
Flatirons will implement Green Completion flowback to
minimize flaring and/or venting of gas during completion
operations.
The permittee shall not withdraw or use water from water
sources within the Commonwealth of Pennsylvania, for well
drilling and fracing [hydraulic fracturing] activities unless the
4
permittee does so in accordance with a Water Management Plan
approved by the Department.
Permittee shall obtain a permit or Environmental Assessment
approval from the Department prior to the construction of any
dam, reservoir, water obstruction, and/or encroachment for
which a permit or Environmental Assessment approval is
required by 25 Pa. Code Chapter 105. Any dam embankment
including centralized dam embankments utilized to impound
freshwater or frac water associated with well fracing not
requiring a permit pursuant to 25 Pa. Code Chapter 105 will be
constructed in accordance with requirements of 25 Pa. Code
§§78.56-78.63 and Department guidelines 5500-PM-OG0085
entitled, Design, construction and maintenance standards for
dam embankments associated with impoundments for oil and
gas wells.
Prior to fracturing the well, as part of its Preparedness,
Prevention and Contingency Plan the permittee shall implement
a Control and Disposal Plan for the control and disposal of
fluids and residual wastes in accordance with 25 Pa. Code §
78.55. The Control and Disposal Plan shall identify the control
and disposal methods and practices utilized to prevent
pollutants from directly or indirectly reaching waters of the
Commonwealth during the impoundment, production,
processing and transportation of pollutants, including
identification of the permitted processing or disposal facilities
where residual wastes will be processed or disposed, in
accordance with 25 Pa. Code §§ 78.55 and 91.34.
Prior to transport of the residual wastewater off site, chemical
analysis and characterization of the waste shall be conducted
and provided to the processing or disposal facility intended for
acceptance of the waste in accordance with 25 Pa. Code §
287.54.
The operator shall run a complete angular deviation survey of
the intentionally deviated well. The deviation survey is to be
obtained by a responsible well surveying company and shall be
filed with the Department within thirty (30) days after drilling
is completed along with other regularly required reports. The
deviation report shall include a well location plat and vertical
section of the borehole as drilled.
5
Reproduced Record at 1064-1065 (R.R. ___).7
On June 25, 2013, the Authority filed a notice of appeal with the
Board, objecting to the Department’s issuance of the 2H Well Permit. The
Authority argued that, based on the environmental harm that occurred during the
drilling of the 1H Well, Flatirons’ drilling of the 2H Well will result in violations
of the Oil and Gas Act, the Clean Streams Law, and Article I, Section 27 of the
Pennsylvania Constitution, commonly referred to as the Environmental Rights
Amendment. Flatirons intervened, and hearings were held on May 20, 21, and 22,
2014.8
Michael Arnold, a member of the Authority, testified on behalf of the
Authority. He explained that the Authority’s water system needs a daily average
of 500,000 gallons of water to meet customer demand. According to Arnold, the
Authority’s water sources can supply a total of 1.5 million gallons per day. The
Whetstone Reservoir and its associated groundwater sources alone can supply one
million gallons per day. Because Well No. 5 feeds the Rattlesnake Reservoir, the
7
The Authority did not number the Reproduced Record in accordance with PA. R.A.P. 2173,
which requires a lowercase “a” to follow the numeric number on the page.
8
The following individuals testified on behalf of the Authority: Michael Arnold, the Chairman
of the Authority’s Board of Directors; August Genevro, one of the Authority’s Secretaries; Mike
Starr, a Field Supervisor for the Authority; Robert Reisinger, a Project Manager for Glace
Associates; Anthony Patruzzi, a waterman operator for the Authority; Frank Uhl, one of the
Authority’s Board members; and Steven Read, a hydrogeologist. The following individuals
testified on behalf of Flatirons: Andrew Esparza, the Manager Director of Flatirons; Todd Huey,
Flatirons’ Operations Superintendent; Jeffrey Jones, an employee of Flatirons; and Burt Waite, a
geologist with Moody & Associates. The following individuals testified on behalf of the
Department: Craig Lobins, a hydrogeologist employed by the Department; Joseph Brancato, an
employee of the Department; Joseph Lichtinger, a geologist employed by the Department; and
Brad Vanderhoof, the manager of the Department’s Safe Drinking Water Program.
6
Authority had no problem meeting customer demand while Well No. 5 stopped
producing water.
August Genevro, another member of the Authority, testified regarding
the turbidity levels of Well No. 5 immediately prior to and after the drilling of
Flatirons’ 1H Well. Specifically, Genevro testified that before Flatirons drilled the
1H Well, the turbidity in Well No. 5 was .27 NTU, whereas after the drilling, Well
No. 5 had a turbidity of 1.38 NTU. Genevro testified that the nearly fivefold jump
in turbidity worried him, but he did not elaborate on this worry. Genevro opined
that he believed the turbidity increase was caused by the 1H Well drilling.
The Authority presented the testimony of one expert witness, Steven
Read, a hydrogeologist who has worked extensively with the Authority’s water
supply system. Read admitted on cross-examination that he had never investigated
the impact of deep oil and gas drilling upon groundwater. As such, Read was not
asked to testify regarding what happened during the drilling of the 1H Well, nor
was he asked to give an expert opinion about what would happen during the
drilling of the 2H Well. Rather, Read was questioned only about “his general
knowledge and what he understands the parameters of [the] water system to be.”
R.R. 168. Read did not testify regarding the cause of Well No. 5’s water stoppage
or the increase in turbidity.
Flatirons presented the testimony of four witnesses, two of whom
were experts, and the Department presented the testimony of four witnesses, all of
whom were experts. One of Flatirons’ expert witnesses, Burt Waite, a geologist,
testified that his employer, Moody & Associates, was hired by Flatirons to
determine the cause of the 29-hour loss of water in Well No. 5. Accordingly,
7
Waite conducted an independent investigation of the incident. Ultimately, Waite
concluded that Flatirons had done nothing wrong.
Furthermore, Waite downplayed the significance of the water
stoppage by explaining that, even though Well No. 5 had stopped producing an
artesian flow, the well could still have been pumped if necessary. Thus, Waite was
not concerned that the drilling of the 2H Well could likely cause a similar loss in
artesian flow. R.R. 560-61. Waite also reached a different conclusion than
Genevro regarding the cause of the increase in turbidity of Well No. 5 after the
drilling of the 1H Well. Waite explained:
I think a solid conclusion [is] that what we are seeing … is not
as a result of drilling the 1H Well…. I think [1] it is natural
variability in groundwater and [2] a difference in sampling
locations and [3] the introduction of the possibility of oxidation
of iron in the water as it travels through that pipe.
R.R. 533-34.
In sum, Waite succinctly answered the following questions that go
straight to the heart of the dispute sub judice:
[Counsel for Flatirons]: [B]ased on your review of the events,
the facts we’ve just discussed, including your [reports], do you
have an opinion on what caused the temporary loss of water
flow of artesian flow from Well 5?
[Waite]: I think it was as a result of bringing water to the
surface during the drilling of the 1H Well.
[Counsel for Flatirons]: And do you have an opinion on
whether that temporary loss of the artesian flow affected the
Authority’s ability to serve customers from the Rattlesnake
system or water treatment system?
[Waite]: No, my understanding is it did not.
8
[Counsel for Flatirons]: Okay. Do you have an opinion on
whether the flow at Well 5 changed in quality after the artesian
flow resumed?
[Waite]: No, it did not.
[Counsel for Flatirons]: And do you have an opinion as to
whether it changed in quantity from pre-drilling conditions after
the well resumed flowing -- artesian flow began or resumed
flowing at Well 5?
[Waite]: No, it did not.
R.R. 541.
Craig Lobins, an expert witness and hydrogeologist for the
Department, testified about his investigation of Flatirons’ drilling methodology.
According to the results of Lobins’ investigation, Well No. 5 lost its flow as a
result of Flatirons’ use of the “underbalanced drilling” technique, a technique the
Department requires that Flatirons use. R.R. 583. Lobins explained that
underbalanced drilling is the Department’s preferred technique because it requires
pumping water out of the ground as the drill works its way to the oil. The
Department prefers this method over the “overbalanced drilling” technique because
overbalanced drilling requires pumping chemicals into the ground, instead of out
of the ground. Lobins admitted that the overbalanced method would not disrupt
the flow of Well No. 5, but argued that it is nevertheless a more environmentally
dangerous technique.
Lobins further testified about why the Notice of Violation did not
result in penalties or fines:
[Counsel for Flatirons]: I want to come back real quick to the
notice of violation the Department had issued to Flatirons
regarding the temporary interruption to the artesian flow to
Well Number 5. Based on all of the information that you and
your staff reviewed during the review of the 2H, do you have an
9
opinion as to whether that -- this Well Number 2[H] will cause
a violation?
[Lobins]: It will not cause a violation.
[Counsel for Flatirons]: Do you have an opinion as to whether
the interruption that was experienced during 1H was actually a
violation or not?
[Lobins]: No, it was not. After further understanding of the
problem, what happened, I don’t view that as a violation even
though I sent a notice of violation.
[Counsel for Flatirons]: Okay. And why is that?
[Lobins]: Because there is just a pressure drop. The piesimetric
surface was lower. There was not a loss of flow. It was not a
true diminution of a water supply.
[Counsel for Flatirons]: In essence, do you think the temporary
interruption to the artesian flow of Well Number 5 had any
impact to Well Number 5’s yield?...
[Lobins]: No, it did not. And that is why it is not a diminution.
R.R. 588-89. Moreover, Lobins stressed that the Department reviewed Flatirons’
permit application more thoroughly than any other application ever presented. As
such, Lobins was confident that the Department made the right decision in granting
Flatirons’ permit.
On April 24, 2015, the Board dismissed the Authority’s appeal. The
Board reasoned:
The Authority, of course, bears the burden of proof in its
appeals. The difficulty with the Authority’s case is that it gave
us very little to go on in the way of supported criticisms of the
Department’s conclusions. This is a very technical case
involving not only the intricacies of drilling but the science of
hydrogeology as well. We are highly dependent on expert
testimony in such cases. The only expert testimony offered by
the Authority was that of Steven Read, a hydrogeologist.…
[However,] Read could only generally opine on the types of
10
concerns that he would have with oil and gas drilling on the
Authority’s property.
Board Adjudication at 17-18. As such, the Board concluded that “without the
support of expert testimony, the Authority’s arguments that the 2H Well will cause
untoward harm amount to little more than conjecture.” Board Adjudication at 19.
However, not only did the Board conclude that the Authority did not
meet its burden, the Board held further that Flatirons and the Department supported
their positions with substantial and competent evidence. As such, the Board
determined that any effects on Well No. 5 from the drilling of the 2H Well would
not violate any Pennsylvania laws. Citing Payne v. Kassab, 312 A.2d 86 (Pa.
Cmwlth. 1973), aff’d, 361 A.2d 263 (Pa. 1976), the Board stated that “[it] is a fact
of life that normal development cannot be accomplished without some
environmental incursion.” Board Adjudication at 23 (emphasis in original).
Accordingly, the Board dismissed the Authority’s petition. The Authority
appealed to this Court shortly thereafter.
Issues
On appeal,9 the Authority contends that the Board’s conclusion that
the drilling of the 2H Well will not result in a violation of the Clean Streams Law
and the Oil and Gas Act is inconsistent with the record evidence. The Authority
argues that, to the contrary, the permit will result in violations of the Clean Streams
Law, the Oil and Gas Act or Article I, Section 27 of the Pennsylvania Constitution.
9
“Our scope of review of an order of the Board is whether the Board committed an error of law
or a constitutional violation, or whether any necessary findings of fact are not supported by
substantial evidence.” The Ainjar Trust v. Department of Environmental Protection, 806 A.2d
482, 487 (Pa. Cmwlth. 2002).
11
Flatirons and the Department disagree, noting that the Board’s factual findings are
supported by substantial evidence, including the testimony of six expert witnesses
who rebutted the Authority’s single expert. Likewise, the Board’s legal
conclusions on the Clean Streams Law, the Oil and Gas Act and Article I, Section
27 of the Pennsylvania Constitution are all fully consonant with the record
evidence.
The Clean Streams Law and the Oil and Gas Act
We begin with a review of the specific violations of the Oil and Gas
Act and the Clean Streams Law that the Authority contends Flatirons violated and
will violate again. Specifically, the Authority contends that Flatirons violated
Section 3218 of the Oil and Gas Act, which requires that
a well operator who affects a public or private water supply by
pollution or diminution shall restore or replace the affected
supply with an alternate source of water adequate in quantity or
quality for the purposes served by the supply.
58 Pa. C.S. §3218(a). The Authority reasons that because Flatirons stopped Well
No. 5 from flowing for 29 hours without supplying an alternative water supply,
Flatirons diminished the Authority’s water supply. As such, because the drilling of
the 2H Well will likely cause the same stoppage, the Department should have
denied Flatirons’ application pursuant to Section 3211(e.1) of the Oil and Gas Act,
which allows the Department to deny a permit where its issuance “would result in
a violation of this chapter or other applicable law.” 58 Pa. C.S. §3211(e.1).
The Authority also argues that Flatirons violated Section 401 of the
Clean Streams Law, which states:
It shall be unlawful for any person or municipality to put or
place into any of the waters of the Commonwealth, or allow or
12
permit to be discharged from property owned or occupied by
such person or municipality into any of the waters of the
Commonwealth, any substance of any kind or character
resulting in pollution as herein defined. Any such discharge is
hereby declared to be a nuisance.
35 P.S. §691.401. According to the Authority, the increase in turbidity in Well No.
5 is evidence that Flatirons was discharging pollution.10
The Authority’s arguments relate to the weight of the evidence, not
whether the Board’s findings of fact were supported by substantial evidence. The
Authority asks this Court, improperly, to re-weigh the evidence and make new,
independent findings of fact different from those of the Board. The Board is the
sole finder of fact and has discretion regarding witness credibility, weight of the
evidence, and resolution of conflicts of evidence. The Ainjar Trust v. Department
of Environmental Protection, 806 A.2d 482, 488 (Pa. Cmwlth. 2002). The
Authority cannot pull bits and pieces of evidence from the record to support
alternative findings of fact.
10
Section 1 of the Clean Streams Law defines “pollution” as:
[The] contamination of any waters of the Commonwealth such as will create or is
likely to create a nuisance or to render such waters harmful, detrimental or
injurious to public health, safety or welfare, or to domestic, municipal,
commercial, industrial, agricultural, recreational, or other legitimate beneficial
uses, or to livestock, wild animals, birds, fish or other aquatic life, including but
not limited to such contamination by alteration of the physical, chemical or
biological properties of such waters, or change in temperature, taste, color or odor
thereof, or the discharge of any liquid, gaseous, radioactive, solid or other
substances into such waters. The department shall determine when a discharge
constitutes pollution, as herein defined, and shall establish standards whereby and
wherefrom it can be ascertained and determined whether any such discharge does
or does not constitute pollution as herein defined.
35 P.S. §691.1.
13
Stated otherwise, the Authority had the burden to prove, by a
preponderance of evidence, that the Board’s issuance of the 2H Well Permit was
unreasonable and contrary to law. 25 Pa. Code §1021.122.11 The appeal involved
technical issues such as the intricacies of drilling and the science of hydrogeology.
Expert testimony is required where the issues require scientific or specialized
knowledge or experience to understand. Department of Transportation v.
11
This regulation states:
(a) In proceedings before the Board, the burden of proceeding and the burden of
proof shall be the same as at common law in that the burden shall normally rest
with the party asserting the affirmative of an issue. It shall generally be the burden
of the party asserting the affirmative of the issue to establish it by a
preponderance of the evidence. In cases where a party has the burden of proof to
establish the party’s case by a preponderance of the evidence, the Board may
nonetheless require the other party to assume the burden of proceeding with the
evidence in whole or in part if that party is in possession of facts or should have
knowledge of facts relevant to the issue.
(b) The Department has the burden of proof in the following cases:
(1) When it assesses or files a complaint for a civil penalty.
(2) When it files a complaint for any other purpose.
(3) When it revokes or suspends a license, permit, approval or
certification.
(4) When it issues an order.
(c) A party appealing an action of the Department shall have the burden of proof
in the following cases:
(1) When the Department denies a license, permit, approval or
certification.
(2) When a party who is not the recipient of an action by the Department
protests the action.
(3) When a party to whom a permit approval or certification is issued
protests one or more aspects of its issuance or modification.
(4) When a party appeals or objects to a settlement of a matter between the
Department and another private party.
25 Pa. Code. §1021.122.
14
Agricultural Lands Condemnation Approval Board, 5 A.3d 821, 828-29 (Pa.
Cmwlth. 2010). The Authority did not support its claims with credible expert
testimony and, thus, failed to meet its burden of proof. By contrast, Flatirons and
the Department provided ample credible testimony from six expert witnesses that
refuted all of the Authority’s allegations. We reject the Authority’s contention that
the Board’s findings of fact are not supported by substantial evidence.
The Authority next argues that the Board erred in concluding that the
drilling of the 2H Well will not result in a violation of the Cleans Streams Law or
the Oil and Gas Act. In support of its position, the Authority relies on the
uncontested fact that the drilling of the 2H Well will have an identical effect on
Well No. 5 as the drilling of the 1H Well. However, this argument is unpersuasive.
The Board did not base its conclusion on a lack of any environmental impact. The
Board merely concluded that the impact was not one that violated the Oil and Gas
Act or the Clean Streams Law. The Board astutely wrote:
It is a fact of life that normal development cannot be
accomplished without some environmental incursion. Payne v.
Kassab, 312 A.2d 86 (Pa. Cmwlth. 1973), aff’d, 361 A.2d 263
(Pa. 1976). One cannot walk across a stream without stirring
up some sedimentation, which might constitute a discharge of
pollutants in some pedantic sense. The point of the
environmental laws is not to prohibit the discharge of all
pollutants, but to intelligently regulate such activity so that
regulatory standards are met, environmental incursions are
minimized, and any remaining harms are justified Id.
Board Adjudication at 23 (emphasis in original). We agree with the Board that the
environmental incursion caused by the drilling of the 1H Well and projected to be
caused by the 2H Well does not trigger a violation of either the Clean Streams Law
or the Oil and Gas Act.
15
For instance, the Authority argues that Flatirons violated Section 3218
of the Oil and Gas Act because it affected “a public or private water supply by …
diminution.” 58 Pa. C.S. §3218. However, evidence was presented that, even
though Well No. 5 did not have an artesian flow for 29 hours, the well still could
have been pumped. See R.R. 536. Furthermore, the Authority’s other wells
produced sufficient water for the Authority to meet customer demand. See R.R.
120. For these reasons, the Department’s expert witness, Craig Lobins, testified
that the 29-hour loss “was not a true diminution of a water supply.” R.R. 589.
Thus, although Flatirons’ drilling activities may result in a diminution of artesian
flow from Well No. 5, the dimunition is not so severe as to constitute a violation of
Section 3218 of the Oil and Gas Act.
Similarly, we reject the Authority’s claim that Flatirons violated
Section 401 of the Clean Streams Law, 35 P.S. §691.401, because the turbidity of
Well No. 5 was higher after drilling the 1H Well than before. Flatirons presented
expert testimony that the rise in turbidity was not related to Flatirons’ drilling. See
R.R. 533-34. Rather, expert testimony showed that the higher turbidity levels were
actually within the normal seasonal range of variation for Well No. 5. See R.R.
533-34. Therefore, even though Well No. 5 may have higher turbidity after the 2H
Well is drilled, that fact alone does not prove that Flatirons discharged pollutants
into the water supply in violation of Section 401 of the Clean Streams Law.
Because the Board’s findings of fact support its conclusion that no
violations of either the Oil and Gas Act or the Clean Streams Law has occurred, or
will occur, we agree with the Department that the Board did not commit an error of
law.
16
Article I, Section 27 of the Pennsylvania Constitution
Finally, the Authority argues that the Board erred in allowing the
Department to issue Flatirons a permit because the Authority’s natural resources
will be injured in violation of Article I, Section 27 of the Pennsylvania
Constitution, which states:
The people have a right to clean air, pure water, and to the
preservation of the natural, scenic, historic and esthetic values
of the environment. Pennsylvania's public natural resources are
the common property of all the people, including generations
yet to come. As trustee of these resources, the Commonwealth
shall conserve and maintain them for the benefit of all the
people.
PA. CONST. art. I, §27. When determining whether an action violates Article I,
Section 27 of the Pennsylvania Constitution, this Court must weigh the following
considerations:
(1) Was there compliance with all applicable statutes and
regulations relevant to the protection of the Commonwealth’s
public natural resources? (2) Does the record demonstrate a
reasonable effort to reduce the environmental incursion to a
minimum? (3) Does the environmental harm which will result
from the challenged decision or action so clearly outweigh the
benefits to be derived therefrom that to proceed further would
be an abuse of discretion?
Payne, 312 A.2d at 94.
Regarding the first prong of the Payne test, the Authority claims that
issuing the 2H Well Permit violates the Oil and Gas Act and the Clean Streams
Law because it will result in diminution of the water supply and discharges of
industrial waste into the waters of the Commonwealth. However, as set forth
above, no violation of the Oil and Gas Act or the Clean Streams Law occurred
17
during the drilling of the 1H Well. Thus, the Board properly determined that the
Authority failed to meet its burden under the first prong of the Payne test.
Moreover, the Department’s issuance of the 2H Well Permit also
satisfied the second prong of the Payne test. Specifically, the Department included
nine special conditions in the 2H Well Permit to mitigate any potential harm to the
Authority’s water supply or the environment. Among the special conditions in the
2H Well Permit is the requirement for underbalanced drilling and the
implementation of the alternate cementing and casing plan designed to minimize
cement being lost into the aquifer. The Department’s other conditions require
Flatirons to study and monitor the aquifer before, during, and after the drilling of
the 2H Well. In short, the record shows that the Board properly determined that
the Department made a reasonable effort to minimize any environmental incursion.
The Authority failed to prove or even argue that any environmental
harm that will result from the drilling of the 2H Well will so clearly outweigh the
benefits to be derived from the drilling that issuance of the 2H Well Permit
constitutes an abuse of discretion. As such, no further analysis is necessary.
Accordingly, because all prongs of the Payne test weigh in favor of
constitutionality, the Board did not err in concluding that the Department did not
violate Article I, Section 27 by issuing the 2H Well Permit to Flatirons.
Conclusion
Because we find that the Board’s findings of fact are supported by
substantial evidence and its conclusions of law are consonant with those findings,
we affirm the Board’s adjudication.
______________________________
MARY HANNAH LEAVITT, Judge
18
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Brockway Borough Municipal :
Authority, :
Petitioner :
:
v. : No. 789 C.D. 2015
:
Department of Environmental :
Protection, :
Respondent :
ORDER
AND NOW, this 6th day of January, 2016, the order of the
Environmental Hearing Board dated April 24, 2015, in the above-captioned matter
is AFFIRMED.
______________________________
MARY HANNAH LEAVITT, Judge