Should Fracking Brine Be Disposed in Plum Borough Outside Pittsburgh?

Written By: Kate Sullivan

A local Pittsburgh suburb, Plum Borough, has fought its zoning hearing board (“ZHB”) on its approval of a request by Penneco Environmental Solutions, LLC (“Penneco”) to add another underground injection well on its property to dispose of fracking waste for customers.[1] There are limited means to dispose of the proppants used in fracking due to potential contamination and pollution of the surrounding environment. Although the ZHB stated that, as residents of the Borough, “they were gravely concerned with [Penneco’s] use of the property,”[2] they already felt a looming sense of helplessness, as one ZHB member represented, “[we] can’t stop this, we can’t regulate it, and we can’t prevent this expansion” which led to their approval of Penneco’s request.[3]

This sentiment and potential danger for the local residents and environment caused Plum Borough and an environmental advocacy group, Protect PT, to appeal the ZHB finding to the Common Pleas Court of Allegheny County.[4] The Common Pleas Court, largely following the logic of the ZHB, affirmed the findings.[5] Protect PT and the Borough then appealed the Common Pleas Court’s Order to the Commonwealth Court which remanded to the ZHB on January 29, 2024, with further instructions to acquire more evidence and hold more hearings. The court found that the ZHB made no findings with respect to traffic, health, safety, and general welfare of the local population.[6] The Commonwealth Court essentially reprimanded the ZHB by stating that it was not as powerless as it thought and that it cannot articulate a conclusion that is not “the product of principled reasoning or mere arbitrariness.”[7]

Penneco’s application to the ZHB was an application for a special exception to expand an existing nonconforming use on its property.[8] In Plum Borough, Penneco owns a 69-acre property located at 1815 Leechburg Road that is zoned as Rural Residential 2.[9] Penneco currently operates one underground injection well on its property, and the second underground injection well would be about 1,000 feet away and converted from an existing natural gas well.[10] Proppants, also known as brine, used in fracking are mostly composed of water and sand but around 0.5% are chemical additives, and possible leakage when disposing the brine poses an environmental risk to groundwater.[11] Much of the brine created by Pennsylvania fracking activities is transported to OH to be disposed.[12] Only a few injection wells exist in PA.[13] As Penneco only has one operating injection well, it has its customers ration the amount of brine that they can bring it on a daily basis, and an additional well would allow it to expand its operations which its customer base is demanding.[14]

At the initial zoning board hearing, Plum residents presented their current issues with the existing injection well and Penneco. Residents complained of the consistent high volume of traffic, bad acidic odors in the air, constant noise and light from the property, loss of sleep, water that tastes like mold, and the mental anguish that comes from all of these issues.[15] They are worried that an additional injection well will exacerbate these problems, especially with an increase in truck traffic from Penneco’s customers delivering the brine.[16]

Underground injection wells are not zoned for in Rural Residential areas, so Penneco’s existing use of an injection well on its property is a preexisting, nonconforming use.[17] If there is a preexisting, nonconforming use, then the property owner has the right of natural expansion which is recognized by the Pennsylvania Supreme Court in Silver.[18] The property owner must show that the right of expansion of the preexisting nonconforming use is necessary for “the accommodation of increased trade.”[19] The expansion of the business must be a necessity and not merely to take advantage of an economic increase.[20]

Further, municipalities often require an expansion of a preexisting nonconforming use to proceed via special exception.[21] The doctrine of natural expansion does not necessarily provide landowners, as the Commonwealth Court says, “carte blanche” to expand in violation of zoning ordinances.[22] In Plum Borough, special exception zoning applications must demonstrate that their request is “not detrimental to the health, safety, and welfare of the neighborhood.”[23]

The ZHB failed to explain its reasoning to support its conclusion that Penneco’s addition of a second well for underground injection is an allowable natural expansion of its existing use of the property and the necessity for the growth of its trade.[24] It also failed to consider each of the requirements for a special exception, including health, safety, and general welfare of Plum residents when making its factual findings or conclusion.[25] Thus, the Commonwealth Court remanded to the ZHB to make these factual findings to support a new conclusion.

ZHBs are the connection between local residents and the development of their municipality. If any development would impact the residents, a ZHB should consider what the impact would be and its extent. ZHBs are meant to foster a system of trust for its residents where their voices may be heard, and the Plum Borough Zoning Ordinance creates reasonable and duly enacted requirements of zoning.[26]

Plum Borough residents have a history of distrusting its utilities and related underground activity. [27] Multiple houses have exploded due to unknown causes, but many people suspect a continuing problem with the gas lines.[28] “Many [residents] are distrustful of the water quality, as well,” stated Ashtyn Sparrow, a Plum Borough resident, “I think storing fracking liquid under the land would be upsetting and cause more distrust.”[29] Plum Borough’s ZHB presented a defeatist attitude during its hearing with Penneco and its residents which may have furthered the distrust within the community.

Penneco called the Commonwealth Court ruling, “administrative in nature,”[30] which echoes Timothy Joyce, a member of the ZHB, calling the ZHB approval process, “only a formality.”[31] The ZHB has more power than it believes to challenge applications and to listen to its residents. Penneco’s application for reargument was denied on March 26, 2024, by the Commonwealth Court.[32] Therefore, the issue is back in the hands of the ZHB which hopefully will be swayed by the residents of Plum Borough.

[1] Michael Divittorio, Environmental group touts success against proposed injection well in Plum, TribLive (March 26, 2024), https://triblive.com/local/valley-news-dispatch/environmental-group-touts-success-against-proposed-injection-well-in-plum-asks-residents-to-join-appeal-to-epa/.

[2] Plum Borough v. Zoning Hearing Bd. of the Borough of Plum, 2024 Pa. Commw. LEXIS 39, 10 (Pa. Cmwlth. Jan. 29, 2024).

[3] Divittorio, supra note 1.

[4] Id.

[5] Plum Borough, supra note 2.

[6] Id. at 30.

[7] Id. at 24.

[8] Id. at 1.

[9] Id. at 2.

[10] Divittorio, supra note 1.

[11] Fracking, ed. R. E. Hester and R. M. Harrison, Royal Society of Chemistry, 17 (2014), https://ebookcentral.proquest.com/lib/duquesne-ebooks/detail.action?docID=2012208.

[12] Plum Borough, supra note 2 at 3.

[13] Id.

[14] Id. at 4.

[15] Id. at 6.

[16] Id.

[17] Id. at 9, 20.

[18] Silver v. Zoning Board of Adjustment, 255 A.2d 506, 507 (Pa. 1969).

[19] Harrisburg Gardens, Inc. v. Susquehanna Twp. Zoning Hearing Bd., 981 A.2d 405, 411-12 (Pa. Cmwlth. 2009).

[20] Richards v. Borough of Coudersport Zoning Hearing Bd., 979 A.2d 957, 967 (Pa. Cmwlth. 2009).

[21] Plum Borough, supra note 2 at 26.

[22] Id. at 31.

[23] Id. at 29 (quoting ORDINANCE, § 404(A)(6)).