Eqt Prod. Co. v. Borough of Jefferson Hills

• Decision Date: 31 May 2019
• Docket Number: No. 4 WAP 2018,4 WAP 2018
• Citation: 208 A.3d 1010
• Parties: EQT PRODUCTION COMPANY and ET Blue Grass Clearing, LLC, Appellees v. BOROUGH OF JEFFERSON HILLS, Appellant
• Court: Pennsylvania Supreme Court

208 A.3d 1010

EQT PRODUCTION COMPANY and ET Blue Grass Clearing, LLC, Appellees

v.BOROUGH OF JEFFERSON HILLS, Appellant

No. 4 WAP 2018

Supreme Court of Pennsylvania.

Argued: October 23, 2018

Decided: May 31, 2019

OPINION

JUSTICE TODD

In this appeal, we consider the question of whether a municipality, in addressing a natural gas extraction company's conditional use application for the construction and operation of a well site, may consider as evidence the testimony of residents of another municipality regarding the impacts to their health, quality of life, and property which they attribute to a similar facility constructed and operated by the same company in their municipality. After careful review, we hold that such evidence may be received and considered by a municipality in deciding whether to approve a conditional use application, and, thus, we vacate the order of the Commonwealth Court and remand this matter to that court, with instructions to remand this matter to the trial court for further consideration.

I. Factual and Procedural History

In 2015, Appellees EQT and ET Blue Grass Clearing LLC, an affiliate of EQT (collectively, "EQT"), sought to construct, operate, and maintain a natural gas production complex on a 126-acre tract of property within the Borough of Jefferson Hills, Allegheny County ("Borough"), the Appellant in this matter. The proposed site for this facility, known as the Bickerton Well Site ("Bickerton site"), was a 29.7-acre site projected to include up to 16 "unconventional" gas wells, so described because they utilize the hydraulic fracturing production process ("fracking") to extract natural gas from a subjacent reservoir. This was to be the first unconventional well site in the Borough. According to its conditional use application filed with the Borough, the wells that EQT planned to drill would penetrate the subsurface vertically to a distance of 6,000 to 7,000 feet, and then extend horizontally for another 10,000 feet. Next to every well, impoundment ponds would be constructed, each with the capacity to store 3.4 million gallons of freshwater.¹ Additionally, all well sites were to have holding tanks for the wastewater that is returned from the well during the drilling process. Said tanks, also called flowback impoundments, which are open to the air, store the wastewater generated during the fracking process for one week, during which time a large portion of the water contained therein would evaporate into the atmosphere, after which any remaining water would be reused in the fracking process.² Jefferson Township Council Decision on EQT Conditional Use Application, 12/23/15, at 19.

The site is located in a zoning district of the Borough designated a Business Park, which is also an Oil and Gas Development Overlay District.³ In both districts, unconventional oil and gas well drilling is permitted by the Borough's zoning code as a conditional use. In September 2015, EQT filed an application with the Borough for conditional use approval so that it could commence construction of this facility. On October 26, 2015, the Borough Planning Commission provisionally recommended that the application be approved, contingent on EQT's furnishing to it additional detailed information regarding matters such as: notices of EQT's past violations from the Pennsylvania Department of Environmental Protection ("DEP"); the height of the structures utilized in the drilling and operation of the wells; descriptions and maps of how materials, equipment, and the water and other chemicals used in the fracking process would be transported to the site; the route through the Borough which vehicles servicing the site would take; and plans for the installation of fencing and warning signs. Id. at 1-2.

On November 10, 2015, the Borough Council ("Council") conducted a public hearing on the application, as required by the Municipalities Planning Code ("MPC").⁴ At this hearing, eight individuals ("objectors") testified in opposition to the conditional use application. Four of the objectors were Borough residents, one of whom lived within 1,000 feet of the Bickerton site. However, three of the objectors were, at that time, residents of Union Township, Washington County, which adjoins the Borough at its southern border, and were living near another unconventional natural gas well site known as "Trax Farm," which EQT had constructed and operated in Union Township since 2007 ("Trax Farm site"). Council also heard testimony from an objector who had recently moved to the Borough, but previously lived in Union Township in proximity to the Trax Farm site. As pertinent to the issue presented by this appeal, the present and former Union Township objectors gave evidence of their firsthand personal experiences with EQT's drilling and operational practices while living near its Trax Farm site, and they conveyed their perceptions of how EQT's activities at that site had negatively impacted their health and quality of life, and, also, their community's environment. Given its relevance herein, we will recount their testimony in detail.

Union Township resident Bob Domman related that because "the Trax site was probably the closest one to where I lived, we followed that pretty closely," and he testified that EQT had offered what he characterized as "gag agreements" to individuals who lived next to the site, and he provided Council with copies thereof which were entered into the evidentiary record. N.T. Jefferson Hills Council Public Hearing ("Hearing"), 11/10/15, at 138, 143. Because these individuals had apparently complained that EQT's extraction activities at the Trax Farm site constituted a nuisance which interfered with the use and enjoyment of their property, the agreements provided that, in exchange for a $ 50,000 cash payment, the residents would grant EQT easements and rights-of-way over their properties for "noise, dust, light, smoke, odors, fumes, soot or other pollution, [and] vibrations ... [and other] adverse impacts or other conditions or nuisances which may emanate or be caused by [EQT's] operations." Id. at 139-40. These easements were for varying lengths of time, ranging from one year to perpetuity. Id. at 140.

Domman additionally recounted that there were loud sounds associated with the banging of large pipes as they were being loaded into the drilling rigs during the extraction process, and, thus, he recommended that Jefferson Hills require the installation of sound walls between the drilling rigs and the three residential neighborhoods which would be nearest to the Bickerton site.⁵ Id. at 143-44. Domman also noted that one of the pronounced features of the Trax Farm site was the storage impoundments holding the substantial quantities of water used in the drilling process, and he recalled that Union Township had sufficient concern about the quality of the water contained therein to require that it be tested. Domman further related his observations that, whenever the wells were in operation, there would be a continuous series of at least 16 or 17 heavy diesel trucks traveling back and forth over township roads hauling water to the well site, generating noticeable air pollution in the process. Id. at 145-46. Lastly, Domman observed that each of the 12 well pads at the Trax Farm site had condensate tanks sitting on them, which he found to be an additional source of air pollution, and cautioned that such tanks would likely accompany the wells at the Bickerton site. Id. at 146.

Next, Union Township resident Gary Baumgartner, whose home was located less than a tenth of a mile from one of the well pads on the Trax Farm site, testified. Id. at 148. He began by encouraging Council to look into local accidents in Washington County that related to EQT's drilling activities there, one of which he asserted was a blowback of drilling mud from one of its wells. According to Baumgartner, this mud flowed into Mingo Creek and the Monongahela River and encrusted the bottoms of both watercourses. Id. at 149. Baumgartner then related, in detail, what he perceived as the deleterious effects of the fracking activities at the nearby well on both his and his family's health and quality of life during the 18-month period since it began operating. Id. at 150.

Baumgartner first described the intense vibrations that he and his family repeatedly endured inside of their home, as well as those experienced by his neighbors, which started once the well became operational. Baumgartner recalled that these vibrations were so powerful that, even while sitting on a couch or lying on his bed, he could feel them going through his entire body. He noted that these vibrations would routinely shake glasses of water sitting on tables or counters, and he even observed the same vibrational disturbances in the water of his neighbor's toilet after his neighbor became disturbed by the phenomenon, and, believing that the toilet was malfunctioning, requested that Baumgartner examine it. He indicated that many of his neighbors had the same experiences, and that they had shared videos and pictures with him of their household items shaking because of the vibrations. Id. at 150-51.

Baumgartner also told Council of the very high levels of noise which he and his family were repeatedly subjected to after the commencement of fracking activities, and which both he and his wife found made living conditions in their home intolerable. Id. at 156. Baumgartner testified that the noise was so intense it made it impossible for his wife to sleep in the master bedroom of their home, and that a sound monitor which was placed in that bedroom at one point registered 82 decibels, which he observed was nearly equivalent to the decibel level generated by a diesel locomotive at a distance of 100 feet. Id. Baumgartner related that whenever sound studies were done to assess the noise generated by the well site, drilling activities at the site were abruptly reduced, as well as the accompanying noise, such...