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Commonwealth Court allows Challenge to Zoning Ordinance Affecting Waste Fluid Injection Well

On March 8, the Commonwealth Court held that a well operator could challenge Plum Borough’s zoning ordinance restricting the location of underground injection wells without waiting for state and federal permits to be issued.  In Appeal of Penneco Environmental Solutions, LLC, the court considered the operator’s proposal to convert an existing gas production well originally permitted in 1989 to an underground injection well to dispose of exploration and production fluids from other oil and gas operations.

In a substantive challenge filed with the Plum Borough Zoning Hearing Board (ZHB) while its EPA environmental permit application was still pending, Penneco attacked the borough’s zoning ordinance for not allowing underground injection in any zoning district, also arguing that zoning regulation of injection wells is preempted by state and federal law. After hearing, the ZHB rejected Penneco’s challenge as premature, since it did not currently possess the EPA and DEP environmental permits needed to operate such a well. On appeal, the Common Pleas Court for Allegheny County ruled that the company’s challenge was ripe and that the zoning ordinance was exclusionary and invalid. As a result, “the trial court determined Penneco was entitled to site-specific relief as to its proposed underground injection well on the property.”  The borough appealed.

Ruling for the operator, Commonwealth Court held that municipalities may not require outside agency permits before providing zoning approval; although they may condition a zoning approval on the subsequent issuance of necessary permits. Because the Borough raised only the procedural issue of “ripeness” for review in its brief on appeal, Commonwealth Court did not review or disturb the decision of the Court of Common Pleas to grant site-specific relief.

Pennsylvania municipalities will need to be prepared to address such zoning concerns early, and should not wait for applications, permits, and other actions before reviewing their zoning ordinances with respect to management and siting of potential oil and gas and waste disposal operations.

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