Brockway Borough Municipal Authority v. Department of Environmental Protection
131 A.3d 578
| Pa. Commw. Ct. | 2016Background
- Brockway Borough Municipal Authority (Authority) operates surface reservoirs and three wells; Well No. 5 is a 200-foot artesian well feeding Rattlesnake Creek reservoir.
- Flatirons obtained surface rights and drilled 1H well ~960 feet from Well No. 5; during 1H drilling Well No. 5 ceased artesian flow for ~29 hours and turbidity rose.
- Department of Environmental Protection (Department) issued a Notice of Violation to Flatirons but later found no violation; Flatirons proposed mitigation measures and submitted a Well No. 5 Protection Plan.
- Department approved permit for a second well (2H) with nine special conditions (monitoring, underbalanced drilling, casing/cementing plan, contingency and disposal plans).
- Authority appealed the 2H permit to the Environmental Hearing Board (EHB), alleging violations of the Oil and Gas Act, Clean Streams Law, and Article I, §27; EHB held hearings, found Authority lacked probative expert evidence, and dismissed the appeal.
- Commonwealth Court affirmed, finding the Board’s factual findings supported by substantial evidence and that regulatory conditions and expert testimony showed no statutory or constitutional violation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether drilling 2H would violate Oil and Gas Act §3218 (diminution of water supply) | Drilling previously stopped Well No. 5’s artesian flow for 29 hours without alternate supply; likely repeat would diminish public water | Experts and Department: temporary pressure drop was not a true diminution; well could be pumped and system met demand | Held: No violation — diminution was not sufficient to trigger §3218 given evidence that supply and yield were not impaired |
| Whether drilling/discharges violated Clean Streams Law §401 (pollution) | Increased turbidity after 1H indicates pollution/discharge from drilling, so 2H will similarly pollute | Experts: turbidity increase within natural/seasonal variability and unrelated to drilling; mitigation and monitoring required by permit | Held: No violation — record supports that turbidity change was not shown to be pollutive discharge attributable to Flatirons |
| Whether Department violated Article I, §27 (Environmental Rights Amendment) by issuing permit | Permit will injure public natural resources and fails Payne balancing; prior incident shows insufficient protection | Department/Flatirons: complied with statutes/regulations, included mitigation and monitoring; Payne factors satisfied | Held: No violation — Payne three-part test satisfied (statutory compliance, reasonable minimization efforts, no harm clearly outweighs benefits) |
Key Cases Cited
- Payne v. Kassab, 312 A.2d 86 (Pa. Cmwlth. 1973) (framework for Article I, §27 balancing)
- Ainjar Trust v. Department of Environmental Protection, 806 A.2d 482 (Pa. Cmwlth. 2002) (agency factfinding and deference on credibility/weight of evidence)
- Department of Transportation v. Agricultural Lands Condemnation Approval Board, 5 A.3d 821 (Pa. Cmwlth. 2010) (expert testimony required for technical hydrogeologic issues)