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Environmental Violations Can Be Considered in Land Use Decisions, Judge Rules

An Allegheny County township’s decision to deny a conditional use permit for a well pad based partly on state environmental records was recently upheld by a county judge. Olympus Energy had appealed the West Deer Township decision to the Allegheny County Common Pleas Court, arguing that the decision was improper and that the Department of Environmental Protection data was not indicative of its track record. A group of township residents, called Concerned Residents of West Deer (CROWD), made several arguments against issuing the permit, and presented a summary of state Department of Environmental Protection notices of violations issued to Olympus and compared it with the record of other companies. They argued that the well would cause more detrimental impacts on the health, safety, and welfare of residents than would normally be expected with a conditional use. In a five-page opinion, the court upheld the township’s denial of the application, writing that CROWD “established that the proposed use would endanger the health, safety, morals, and welfare of the township.” Olympus argued in its court appeal that notices of violation (NOVs) issued by the DEP are “essentially administrative allegations by DEP personnel of varying degrees of training and experience,” and that more than 90 percent of the NOVs were for erosion and sedimentation or other administrative issues that were minor. The company also argued that DEP enforcement varied dramatically and that the agency had a practice of “stacking” violations for the same incident. Formal corrective actions and consent orders, of which the company had few, are more indicative of environmental performance, it said. The judge also determined that the township’s denial was valid because the entire pad boundary was not 650 feet from any building. A small telecommunications shed was within the boundary, and although Olympus argued that it should not be considered a building, the judge disagreed. The ruling could allow other municipalities to take a company’s environmental record into consideration when a well pad is proposed; however Olympus has the option to appeal the ruling to a higher court.

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