Mickey Gniadek said he left his house in Union Township and spotted a white cloud hovering a little more than a yard above an EQT frack well pad across the street and smelled chlorine when he went to get his mail one day in 2013.
He later described the experience during a hearing concerning EQT’s application to build a similar pad in neighboring Jefferson Hills, Allegheny County, saying he started feeling an intense pressure in his chest that made breathing difficult.
“Gniadek testified that he staggered with great difficulty back to his home, and, once inside, collapsed against the wall, gasping for air,” according to a Supreme Court decision issued on Friday.
Justices found that Jefferson Hills’ borough council was allowed to evaluate Gniadek’s and several other Washington County residents’ allegations of problems at the Trax Farm site when they weighed EQT’s application to build a similar well pad known as the Bickerton site. The plans called for the pad to hold as many as 16 wells.
The 6-1 decision gives local officials who are considering companies’ land-use applications the authority to weigh testimony from private citizens of other municipalities about their experiences with similar facilities.
“Our client was thrilled and I think all Pennsylvania municipalities should be thrilled with this decision,” said attorney John Smith, who acted as Jefferson Hills’ special counsel during the litigation, “because it allows them to take in and evaluate relevant evidence prior to making their decisions.”
Jefferson Hills officials cited accounts from Gniadek – who also said his skin broke out in measles-like red spots after he saw the cloud – and others who described similar issues with air quality, traffic and intense noise as a reason for denying EQT a conditional-use permit for the Bickerton plans.
EQT successfully appealed that decision in Allegheny County Common Pleas Court.
The Commonwealth Court upheld a decision in favor of the gas driller in a 2017 decision. The Supreme Court’s decision reverses the lower appellate court’s and remands the case back to Allegheny County.
“This is a precedent-setting ruling that has far-reaching implications for communities throughout Pennsylvania,” said Lisa Graves-Marcucci, community outreach coordinator for the Environmental Integrity Project.
“This ruling by our state Supreme Court underscores local governments’ role in protecting public health, safety and welfare as a key factor in accepting or denying an application for an oil and gas operation,” Graves-Marcucci said.
EQT spokeswoman Linda Robertson said the company was “disappointed in the Supreme Court’s decision that upheld a zoning permit denial based on anecdotal evidence and involving an unrelated work site that caused temporary inconveniences for its nearby residents that EQT worked diligently at the time to address.”
Among those who testified before Jefferson Hills council was Gary Baumgartner, who testified problems with air quality at his house near the Trax wells meant that he and his wife had to leave “countless times” in the middle of the night, once staying at a hotel for two months.
His pregnant daughter and her husband moved out of the family home based on a physician’s recommendation, he said.
Baumgartner, Gniadek and others testified EQT had offered them payments of tens of thousands of dollars after they complained about problems from the Trax Farms wells.
In her 31-page opinion, Justice Debra Todd wrote that the Commonwealth Court had made a mistake when it agreed with EQT’s attorneys and dismissed the Washington County residents’ testimony as “speculative.”
Instead, she found the testimony “both relevant and probative as to the question of whether the grant of conditional use authorization to EQT for construction and operation of the Bickerton site would adversely impact the health, safety, and general welfare of the residents of Jefferson Borough.”
Todd also noted that Jefferson Hills officials had argued that the previous Commonwealth Court decision required the borough to ignore evidence about what had happened at a similar site – testimony that EQT hadn’t contradicted during the conditional-use hearing.
Justice Sallie Updyke Mundy was the sole dissenter in the Supreme Court decision. She posited her colleagues’ ruling “undermines long-established principles that a municipality may deny a conditional use only if the objectors’ evidence establishes a high degree of probability that the use will cause a substantial threat to the community.”