United Refining Co. v. Department of Environmental Protection
163 A.3d 1125
| Pa. Commw. Ct. | 2017Background
- United Refining operates a refinery with a 3.6M‑gallon Tank 234 and long‑standing underground oil plume beneath part of its property; Petitioner discovered and has been remediating the plume.
- John D. Branch applied for an oil well permit (Well 61) using slant drilling that would terminate beneath United’s property; Department of Environmental Protection (DEP) issued the permit with a condition prohibiting fracturing in two shallow formations.
- United appealed to the Environmental Hearing Board, asserting fracturing could communicate via undocumented/unplugged wells to the surface, threatening Tank 234 and the community.
- The Board held a hearing with expert testimony (United’s geologist; DEP’s oil & gas manager Lobins; Branch) and dismissed the appeal, finding United failed to prove by a preponderance that the permit was unreasonable or unlawful.
- Commonwealth Court affirmed: Board did not misapply the burden of proof, DEP’s permit decision was not arbitrary or an abuse of discretion given the evidentiary record, and the constitutional claim was waived for not being raised before the Board.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Burden of proof | United: Board required proof of probable harm (> | ||
| 50%) rather than that DEP’s decision was unreasonable or unlawful. | DEP/Branch: Challenger must prove by preponderance that permit was arbitrary/abuse of discretion; expert proof required for technical claims. | Court: Board’s framing proper; challengers bear preponderance burden and expert evidence was needed; no reversible misapplication. | |
| Reasonableness of permit / level of scrutiny | United: Unique, high‑risk slant/fracturing under a refinery/tank and near plume warranted heightened scrutiny and permit denial or stricter conditions. | DEP/Branch: Permit law sets discrete denial grounds; DEP discretion reviewed de novo by Board which found insufficient evidence of likely harm. | Court: DEP acted within statutory scheme; Board’s de novo review and credibility findings supported affirmance. |
| Need for additional permit special conditions | United: DEP relied on Branch’s proposed precautions but did not make them explicit permit conditions; this was unreasonable. | DEP/Branch: Attaching conditions is discretionary; evidence did not justify extra conditions and Branch characterized measures as precautions, not necessities. | Court: Board reasonably declined to impose extra conditions after weighing testimony; no error. |
| Article I, Section 27 (Environmental Rights Amendment) | United: Permit violates constitutional public‑trust duties because it risks significant environmental harm. | DEP/Branch: Constitutional claim not preserved before Board; merits not argued below. | Court: Claim waived for failure to raise before Board; if considered, Payne test would favor constitutionality. |
Key Cases Cited
- Pa. Trout v. Dep’t of Envtl. Prot., 863 A.2d 93 (Pa. Cmwlth. 2004) (challenger to DEP permit must prove issuance was arbitrary or an abuse of discretion)
- Brockway Borough Mun. Auth. v. Dep’t of Envtl. Prot., 131 A.3d 578 (Pa. Cmwlth. 2016) (Board is factfinder; credibility and weight of evidence are for the Board)
- Sunoco, Inc. v. Dep’t of Envtl. Prot., 865 A.2d 960 (Pa. Cmwlth. 2005) (appellate court will not reweigh evidence or reassess credibility determined by the Board)
- Payne v. Kassab, 312 A.2d 86 (Pa. Cmwlth. 1973) (three‑part test for Article I, § 27 challenges: statutory compliance, minimization effort, and harm vs. benefits)