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Pennsylvania Court Wades Into Injection Well Zoning Fight

The Pennsylvania Commonwealth Court has ruled that a wastewater disposal company was not required to wait to receive federal and state permits to convert a natural gas well into a wastewater injection well before challenging the validity of a local zoning ordinance.

According to court records, Penneco Environmental Solutions LLC applied to the U.S. Environmental Protection Agency (EPA) in March 2016 requesting permission to operate an injection well on property in Plum, a borough in Allegheny County. Penneco Oil Co. Inc., a Penneco affiliate, had operated a gas well on the property since about 1989.

About six months after petitioning the EPA, Penneco challenged the validity of a Plum zoning ordinance that claimed injection wells were forbidden. Both Penneco and Plum agreed to postpone a hearing before the borough’s Zoning Hearing Board (ZHB) on the validity challenge until after the EPA held a public hearing on the request to operate the injection well.

In 2017, Plum said it planned to adopt or propose a zoning ordinance, and the EPA held its public hearing. Penneco said at the time it would file an application with the Pennsylvania Department of Environmental Protection (DEP) for a permit to operate the injection well if EPA approved.

But in November 2017, the ZHB rejected Penneco's validity challenge on the grounds that the company had not yet received EPA and DEP approval for the project. Penneco subsequently appealed to the Court of Common Pleas of Allegheny County, which ruled in the company's favor. Plum then appealed to the Commonwealth Court, asserting the ZHB denied the validity challenge for lack of ripeness.

The Commonwealth Court upheld the lower court's ruling last Friday. Judge Robert Simpson wrote that the ZHB had "erred in denying Penneco's substantive validity challenge...In addition, Penneco will suffer hardship if consideration is delayed as it already expended resources surveying the site and creating a plat map in connection with its validity challenge...

"Moreover, it appears Penneco's inability to obtain a merits review by the ZHB will delay its ability to obtain a DEP permit because, prior to commencing review of a permit application, DEP requires information as to a proposal's compliance with applicable local ordinances."

Penneco Oil COO Ben Wallace told NGI's Shale Daily that the gas well proposed for conversion, the Sedat 3A, was a vertical well that targeted the Speechley Sandstone formation. The well was plugged a few years ago, he said.

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