IN THE COMMONWEALTH COURT OF PENNSYLVANIA

United Refining Company, :

Petitioner :

:

v. : No. 1321 C.D. 2016

: Argued: April 4, 2017

Department of Environmental :

Protection, :

Respondent :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

OPINION BY JUDGE BROBSON FILED: June 12, 2017

Petitioner United Refining Company petitions for review of an order 

of the Environmental Hearing Board (Board), dated July 7, 2016, which dismissed 

Petitioner’s appeal of an oil permit issued by Respondent Department of 

Environmental Protection (Department) to Intervenor John D. Branch (Branch). 

Petitioner contends that the Board’s decision is not supported by substantial 

evidence and violates Pennsylvania environmental law and Article I, Section 27 of 

the Pennsylvania Constitution, commonly referred to as the Environmental Rights 

Amendment. We now affirm. 

I. BACKGROUND

The following facts are undisputed based upon the parties’ stipulation 

of facts and the filings of record. Since 1902, Petitioner has owned and operated 

an 83-acre petroleum refinery in Warren, Pennsylvania (Property), which extends 

approximately 1.6 miles along the north shore of the Allegheny River. The 

subsurface below the Property includes the Warren 1st and Warren 2nd Sands, and 
2

the Glade and Clarendon Sands. The top of the Clarendon Sands is approximately 

780 feet below the surface of the Property. Petitioner has constructed several 

aboveground storage tanks on the Property, including Tank 234 located on the 

northern portion of the Property. Tank 234 has the capacity to contain 3.6 million 

gallons of gasoline. Tank 234 has a steel floor, concrete ring wall, and an earthen 

dike designed to contain 110% of its contents. It sits on fill materials, soils, 

gravels, silt sands, and clays, and the bedrock is approximately 75 feet below the 

bottom of the tank. Petitioner inspects Tank 234 every four years, and it last 

inspected the tank in November 2014 and discovered no problems. 

Since 1990, Petitioner has installed over 100 monitoring wells on the 

Property. Petitioner has never drilled an oil or natural gas well on the Property, 

although the Department’s records indicate that four oil or natural gas wells were 

previously drilled on the Property. In 2001, Petitioner discovered an oil plume 

below Tank 234, and the plume measured approximately 265 feet long by 180 feet 

wide at the time the parties entered into their stipulation. Petitioner has recovered 

in excess of 12,500 gallons of oil from the plume. Petitioner has used crude oil at 

the Property but not in the area of Tank 234. There is no direct evidence of 

unplugged wells near or under Tank 234 or anywhere else on the Property, and 

Petitioner is unaware of any property damage, surface damage, or environmental 

harm caused by hydraulically fracturing wells in the Glade or Clarendon Sands in 

Warren, Pennsylvania. 

Branch has been in the oil and gas business for 31 years and in the 

drilling business for 15 years. He has drilled approximately 60 oil and gas wells 

within the City of Warren, Pennsylvania. On September 16, 2014, Branch 

submitted a permit application to the Department for authorization to drill an oil 
3

well—Well 61—in Warren, Pennsylvania. Pursuant to the application, Branch 

planned to drill Well 61 on a slant, with the top-hole location across the street from 

the Property and the bottom-hole location under the Property. At the time Branch 

submitted the permit application, he also submitted five other permit applications 

for wells located near the Property. Prior to the Department’s approval of the 

permit for Well 61, Branch met with representatives of Petitioner to tour the plant 

and discuss his proposed drilling plans under the Property. 

On October 24, 2014, Petitioner expressed concerns to the 

Department regarding Branch’s proposed Well 61 and other proposed wells closest 

to Tank 234, including a concern that fracking pressures could reach historic wells 

and be released through unplugged wells to the surface. On November 5, 2014, 

Branch responded to the Department regarding Petitioner’s concerns. In so doing, 

Branch informed the Department that it was his opinion that any wells in the area 

that were not plugged with cement would likely already have been plugged 

naturally, as there is anywhere from 55 feet to 95 feet of gravel in the valley of 

Warren. To avoid risks in response to Petitioner’s concerns, Branch stated that he 

would not frack in the Warren 1st or Warren 2nd formations and that he would 

utilize conductivity and video logs when he drilled the new wells and would avoid 

hydraulically fracturing in the vicinity of zones indicated by these logs as having 

excessive water. Branch stated that he and his team would closely watch the 

pressure gauges when hydraulically fracturing and, if the gauges indicated 

connection with another well, would cease operations immediately. Finally, 

Branch advised the Department that he would conduct hydraulic fracturing with 

smaller amounts of sand and water to control the length of the fractures. Branch 
4

also altered the proposed termination point of Well 61, so as to avoid the vicinity 

of the oil plume below Tank 234. 

The Department issued permits for the six wells on 

November 12, 2014, including the permit for Well 61.1 One of the special 

conditions for the permits was that fracking operations would not be conducted in 

the Warren 1st or Warren 2nd formations. Thereafter, Petitioner appealed the 

issuances of the permits to the Board, identifying its concern that energy released 

by Branch’s fracking could be conveyed through an unplugged well and result in 

damage to Petitioner and the surrounding community, including potentially a 

large-scale fire or explosion, as well as a release of oil into the water of the 

Commonwealth. 

The Honorable Thomas W. Renwand, Chief Judge and Chairman of 

the Board, conducted a hearing at which the parties presented their stipulation of 

facts and the testimony of Timothy Ruth (Ruth), a geologist and employee of 

Petitioner; Craig Lobins (Lobins), a professional geologist who is employed by the 

Department as the Northwest District Oil & Gas Manager; and Branch. Following 

the hearing, the Board issued an adjudication, dated July 7, 2016, dismissing the 

appeal relating to Well 61 and upholding the permit issued by the Department for 

Well 61. 

In addition to findings based upon the facts summarized above, the 

Board made findings based upon the testimony received during the hearing. For 

instance, with regard to the geology, the Board found that there are various layers 

 

1 Although the Department granted all of the well permits, Branch allowed the permits 

for the wells other than Well 61 to expire without drilling the wells. 
5

of bedrock between 75 and 750 feet below the surface of the Property, and that 

fracking would take place at various depths between 750 and 850 feet below the 

Property. Well 61 would be located a little less than 300 feet from Tank 234, the 

distance between Tank 234 and where the hydraulic fracturing would occur in 

Well 61 is approximately 300 to 360 feet, and the fractures would travel 150 feet 

horizontally and would be 600 to 800 feet below the surface of the Property. With 

regard to the oil plume, the Board found that it consists of multiple components 

and is likely from multiple sources. 

With regard to the testimony of Lobins, presented on behalf of the 

Department, the Board found that Lobins was very familiar with conventional well 

drilling and instances where conventional wells fracked into abandoned oil and gas 

wells. Lobins issued the permit for Well 61, was aware that Branch planned to use 

a slant drilling technique, and had no problem with the use of that technique. 

Furthermore, Lobins testified that the fracking of Well 61 would break away from 

Tank 234 and would be too far underground to impact Tank 234, the plume, or the 

Property. He opined that, because no fracturing would occur in the Warren 1st or 

Warren 2nd formations and because fractures would stay in the zones being 

fractured, there would be no effects on Tank 234 or the plume. The Board also 

found that both Lobins and Branch testified that the drilling of Well 61 is unlikely 

to create fractures impacting the plume or Tank 234, communicate with any 

undocumented wells, impact groundwater, or impact the surface. 

Based on its findings, the Board concluded that Petitioner had not met 

its burden to prove by a preponderance of the evidence that the Department abused 

its discretion by acting unreasonably and/or in violation of the laws of the 

Commonwealth when issuing the permit. In so doing, the Board explained that it 
6

dismissed Petitioner’s appeal on the basis that Petitioner had not met its burden of 

proof because Petitioner failed to present sufficient expert testimony to 

demonstrate actual risks associated with the drilling. 

II. ANALYSIS

On appeal to this Court,

2

the issues are as follows:3 (1) whether the 

Board incorrectly applied the burden of proof; (2) whether the Board erred in 

concluding that the Department’s issuance of the permit for Well 61 was 

reasonable and in accordance with the law; and (3) whether issuance of the permit 

violates Article I, Section 27 of the Pennsylvania Constitution.4 

 

2

“Our scope of review of an order of the Board is whether the Board committed an error 

of law or a constitutional violation, or whether any necessary findings of fact are not supported 

by substantial evidence.” The Ainjar Trust v. Dep’t of Envtl. Prot., 806 A.2d 482, 487 

(Pa. Cmwlth. 2002). 

3

Petitioner’s brief includes a statement of the questions involved, and the Department’s 

and Branch’s briefs contain counter-statements of the questions involved, all of which phrase the 

issues differently. The issues now set forth by the Court fairly represent the issues presented by 

the parties. 

4 On March 14, 2017, during the pendency of this appeal, Branch filed with this Court a 

motion to dismiss this appeal on the basis of mootness, asserting that he “spud” Well 61 on 

November 9, 2015, to avoid expiration of the permit; drilled Well 61 to total depth as of 

September 27, 2016; received written approval from the Department to hydraulically fracture 

Well 61 on December 27, 2016; began hydraulically fracturing Well 61 on March 2, 2017; and 

finished hydraulically fracturing Well 61 on March 3, 2017, without incident or any known 

adverse effect to the environment, Tank 234, the surface, or anything else. Branch argued that in 

light of the completion of the fracturing, the appeal became moot. The Department joined in 

Branch’s motion. Petitioner objected to the dismissal, contending that the matter is not moot 

because the permit authorizes Branch to engage in future fracking and operations of Well 61, 

thereby causing Petitioner to remain at risk. Petitioner also appeared to disagree with Branch’s 

contention that no harm resulted from hydraulically fracturing Well 61. By order dated 

March 24, 2017, the Court denied the motion to dismiss. 
7

At the outset, we note that Petitioner’s overarching theme in this 

appeal is that the Department’s approval of the permit for Well 61 is at odds with 

the purposes of what is commonly referred to as the Oil and Gas Act, 58 Pa. C.S. 

§§ 3201-3274, which Petitioner characterizes as assuring safe oil and gas 

development. Petitioner even suggests that “this is not a case . . . that requires a 

close reading of statutory language or an analysis of legislative intent.” 

(Petitioner’s Br. at 19.) While Petitioner asserts that the permit violates the 

purposes of the Oil and Gas Act by threatening the health and safety of the 

environment, its personnel and facilities, and the surrounding residents, Petitioner 

does not assert that issuance of the permit actually violates a substantive provision 

of the Oil and Gas Act. 

Pursuant to Section 3211(e.1) of the Oil and Gas Act, 58 Pa. C.S. 

§ 3211(e.1), the Department may deny a permit for an oil or gas well for any of the 

following reasons: 

(1) The well site for which a permit is requested is in 

violation of any of this chapter or issuance of the permit 

would result in a violation of this chapter or other 

applicable law. 

(2) The permit application is incomplete. 

(3) Unresolved objections to the well location by the coal 

mine owner or operator remain. 

(4) The requirements of section 3225 (relating to 

bonding) have not been met. 

(5) The department finds that the applicant, or any parent 

or subsidiary corporation of the applicant, is in 

continuing violation of this chapter, any other statute 

administered by the department, any regulation 

promulgated under this chapter or a statute administered 

by the department or any plan approval, permit or order 

of the department, unless the violation is being corrected 

to the satisfaction of the department. . . . 
8

(6) The applicant failed to pay the fee or file a report 

under section 2303(c) (relating to administration), unless 

an appeal is pending. . . . 

If none of the six statutory reasons for denial exist, then the Department is required 

to issue the permit within 45 days. Section 3211(e) of the Oil and Gas Act, 58 Pa. 

C.S. § 3211(e). Third parties, such as Petitioner, have a right to appeal to the 

Board the Department’s issuance of a permit. Section 4 of the Environmental 

Hearing Board Act, Act of July 13, 1988, P.L. 530, 35 P.S. § 7514. The Board 

must determine whether a party appealing the issuance of a permit has 

demonstrated its case by a preponderance of the evidence. See 25 Pa. Code 

§ 1021.122(a). Petitioner had the burden before the Board to show by a 

preponderance of the evidence that the Department acted arbitrarily or abused its 

discretion when it issued the permit for Well 61. See 25 Pa. Code § 1021.122;

Pa. Trout v. Dep’t of Envtl. Prot., 863 A.2d 93, 105 (Pa. Cmwlth. 2004) (“[A] 

party protesting [the Department’s] issuance of a permit has the burden to show, on 

the record produced before the [Board], issuance of the permit was arbitrary or was 

an abuse of discretion.”). 

A. Whether the Board Incorrectly Applied the Burden of Proof

Petitioner argues that the Board incorrectly applied the burden of 

proof by requiring Petitioner to establish that damage to persons or the 

environment from the drilling of Well 61 was more likely than not. Petitioner 

contends that the Board should have required Petitioner to show, by a 

preponderance of the evidence, only that the Department’s decision to grant the 

permit was unreasonable, arbitrary and capricious, an abuse of discretion, or 

contrary to law. Petitioner relies on one passage of the Board’s opinion, which 

provides: “In other words, a party cannot simply come forward with a laundry list 
9

of potential problems, and then rest their case. They must prove by a 

preponderance of the evidence that these problems are likely to occur.” (Board’s 

Adjudication at 8, attached to Petitioner’s Br. as Ex. “A.”) Petitioner contends that 

by focusing on the likelihood of harm rather than the Department’s decision, the 

Board asked the wrong question. Under this faulty approach, as characterized by 

Petitioner, any risky activity, no matter the magnitude of harm that could 

potentially result, would be deemed to be acceptable unless a party could prove 

that it likely would occur. Petitioner argues that this standard is incorrect, because 

in order to meet its burden of proof, it is not necessary for Petitioner to show that a 

release or explosion at Tank 234 is more likely than not to occur or is a scientific 

certainty. Thus, Petitioner asserts that the Department erred by evaluating the 

preponderance of the evidence in the context of whether it had been shown that a 

catastrophic event was more likely to occur than not, rather than the question 

presented by the appeal—i.e., whether the Department’s action in granting the 

permit under these circumstances was unreasonable or contrary to law. 

In a similar vein, Petitioner also contends that the Board applied the 

wrong burden of proof to Petitioner’s evidence regarding the existence of the old 

wells, which it claims are generating the oil plume. It asserts that instead of 

requiring Petitioner to show the existence of an unplugged well with a 

preponderance of the evidence, the Board imposed a higher standard by requiring 

Petitioner to prove the existence of an unplugged well as an “established scientific 

fact.” (Petitioner’s Br. at 32.) Petitioner contends that, at most, it needed only to 

show that the well is likely to exist. Specifically, Petitioner maintains that it 

provided extensive testimony regarding the underground plume of oil below 

Tank 234 that had been detected, sampled, and studied for a period of many years. 
10

It also provided evidence to show that the plume exists and that it is highly 

unlikely to have originated from a spill or release of oil from the refinery. 

Petitioner asserts that, overall, it provided evidence that the most reasonable and 

likely explanation for the oil plume is an abandoned well, yet the Board did not 

consider the existence of an unplugged well causing or contributing to the 

underground plume because it was not shown by Petitioner to be a “scientific fact.” 

This is a key issue because, according to Petitioner, once there is recognition of the 

existence of an unplugged well, then the entire analysis of the reasonableness of 

the Department’s issuance of the permit changes. The unplugged well establishes 

a clear prime pathway for the impact and energy of the fracking to be 

communicated outside of the planned zone of fracturing and presents a much 

greater risk to Tank 234. Thus, Petitioner maintains that the application of the 

wrong burden of proof as to whether an abandoned or unplugged well exists on the 

Property changed the entire dynamic of the Board’s analysis of the likelihood of 

the risk presented by the permit and the reasonableness of the Department’s action 

in issuing the permit. 

The Board, in its opinion, set forth a detailed explanation of the 

burden of proof when it wrote: 

The burden to show that the permit should not have been 

issued is on the party challenging the permit. 

[Petitioner], therefore, must prove by a preponderance of 

the evidence that the permits should not have been 

issued. To prove one’s case by a “preponderance of the 

evidence” means that the “evidence in favor of the 

proposition must be greater than that opposed to it. . . . It 

must be sufficient to satisfy an unprejudiced mind as to 

the existence of the factual scenario sought to be 

established.” Therefore, [Petitioner] was required to 

present evidence that the Department’s issuance of the 

permit to . . . Branch was not appropriate or did not 
11

conform with the applicable law or was unreasonable, 

and its evidence must be greater than the evidence 

showing that the issuance of the permit was appropriate 

or in accordance with the applicable law. 

In other words, an appellant must come forward 

and prove their allegations by a preponderance of the 

evidence. They may not simply raise an issue and then 

speculate that all types of unforeseen calamities may 

occur. When they raise technical issues they must come 

forward with technical evidence. In many cases, such as 

this one, they need expert testimony to prove their 

claims. In other words, a party cannot simply come 

forward with a laundry list of potential problems and then 

rest their case. They must prove by a preponderance of 

the evidence that these problems are likely to occur. 

(Board’s Adjudication at 8 (internal citations omitted) (emphasis added).) 

With regard to its application of the burden of proof, the Board then 

further explained that it recognized Petitioner’s witness, Ruth, as an expert in the 

field of geology but not in the area of drilling oil and gas wells or the intricacies of 

hydraulic fracturing. Although Ruth raised legitimate concerns about the risks of 

drilling a well at the proposed location, his testimony was not sufficient to satisfy 

the burden of proof. The Board wrote:

The evidence regarding unplugged wells in the vicinity 

of Tank 234 is speculative, rather than established 

scientific fact. [Petitioner] concedes that there may not 

be any wells in that location. Even more importantly, the 

testimony does not provide a scientific basis for how the 

drilling of Well . . . 61 would impact either the plume or 

Tank 234. 

(Board’s Adjudication at 9 (emphasis added).) Thus, Ruth’s concerns were not 

supported by his testimony. 

It is important to note that Ruth’s testimony regarding his concerns 

was not the only testimony considered by the Board. Rather, the Board considered 
12

the expert testimony of the Department’s witness, Lobins, and the testimony of

Branch. The Board wrote:

Mr. Lobins testified that the safeguards in the permit that 

allow hydraulic fracturing to occur in only certain zones 

will allow the drilling to take place without any impact to 

the surface or the structures on it. Mr. Lobins testified 

that even if there are unplugged wells and even if those 

unplugged wells were impacted by the drilling (big if’s 

based on his testimony), he opined that there would be 

little or no impact to any of the structures on [Petitioner’s 

P]roperty and that any impacts could be quickly and 

easily addressed. Mr. Branch, an experienced oil and gas 

operator, who also was qualified as an expert, testified as 

to his drilling plan and about the many wells he has 

drilled without incident in this locale. The expert 

testimony as a whole leads us to conclude that there is 

justification under the law to issue the oil and gas permit 

under appeal. 

(Board’s Adjudication at 9 (emphasis added).) 

The Board finished its preponderance of the evidence analysis by 

concluding that the weight of evidence did not demonstrate that Branch’s drilling 

of an oil and gas well is likely to impact Tank 234 or the Property adversely. It 

noted that “[t]he facts and expert testimony do not prove by a preponderance of the 

evidence that drilling would damage or otherwise impact [Tank 234, the] plume, or 

[the P]roperty.” (Board’s Adjudication at 10.) 

We agree with Petitioner that, to the extent that the Board’s discussion 

of the burden of proof could be interpreted to require Petitioner to prove every 

factual detail by a preponderance of evidence or require Petitioner to prove that it 

was more likely than not that harm would occur, such an interpretation would 

impose a higher burden than required. The Board was required to determine 

whether, based upon its factual findings, Petitioner proved by a preponderance of 
13

the evidence that the Department acted arbitrarily or abused its discretion. We can 

envision a scenario where the likelihood of the harm occurring is significant but 

less than fifty percent likely. The severity of the possible harm, however, could be 

so immense that issuing a permit could be determined to be abuse of discretion. 

To require a petitioner to prove a fifty percent or greater likelihood that the harm 

will occur would unduly restrict the Board’s ability to consider the reasonableness 

of the issuance of a permit under this or any other similar scenario. 

We are not convinced that the Board in this case, however, wrongly 

applied the burden of proof to the evidence presented. Petitioner had the burden to 

prove, by a preponderance of evidence, that the Board’s issuance of the permit was 

arbitrary or an abuse of discretion. 25 Pa. Code § 1021.122; Brockway Borough 

Mun. Auth., 131 A.3d at 587; Pa. Trout, 863 A.2d at 105. The appeal involved 

technical issues, and expert testimony is required where the issues require 

scientific or specialized knowledge or experience to understand. Dep’t of Transp. 

v. Agric. Lands Condemnation Approval Bd., 5 A.3d 821, 828-29 (Pa.

Cmwlth. 2010). After weighing the evidence and testimony presented, the Board 

found that Petitioner did “not provide a scientific basis for how the drilling of 

Well 61 will impact either the plume or Tank 234.” (Board’s Adjudication at 9.) 

The Board essentially found that even if it were to accept that an unplugged well 

existed in the vicinity of Tank 234 or Well 61, Petitioner still did not present 

testimony as to how the drilling or fracturing of Well 61 could communicate with 

the unplugged well or negatively impact either the plume or Tank 234. Absent 

some supporting expert testimony or facts, Petitioner could not prove by a 

preponderance of the evidence that the permit for Well 61 should not have been 

issued. In other words, Petitioner did not support its claims with credible expert 
14

testimony and, thus, failed to meet its burden of proof. By contrast, the 

Department and Branch provided credible testimony from expert witnesses that 

refuted Petitioner’s concerns.

5

B. Whether the Department’s Issuance of the Permit for Well 61 Was 

Reasonable and in Accordance With the Law

1. Abnormally Dangerous Activity

With regard to whether the Board erred in concluding that the 

Department’s issuance of the permit for Well 61 was reasonable and in accordance 

with the law, Petitioner approaches this issue by focusing on what it characterizes 

as the “unique characteristics of Branch’s proposed project” and by asserting that 

the nature of the project requires a greater deal of scrutiny. (Petitioner’s Br. at 34.) 

Petitioner points out that even the Board recognized that this was a “unique” 

permitting situation. (Board’s Adjudication at 10.) Petitioner analogizes Branch’s

proposed project—drilling and fracking underneath an oil refinery and a 

3.6 million gallon gasoline storage tank in close proximity to an underground oil 

plume evidencing the potential for an abandoned well and near a neighborhood—

which it characterizes as unique and dangerous, to the tort concept of an 

abnormally dangerous activity. As such, Petitioner asserts that issuance of the

permit for Well 61 should be subject to a higher degree of scrutiny and that the 

Department’s evaluation of the application was far below the appropriate level of 

 

5

The Board is the sole finder of fact and, as such, has sole discretion regarding witness 

credibility, weight of the evidence, and resolution of evidentiary conflicts. Brockway Borough 

Mun. Auth. v. Dep’t of Envtl. Prot., 131 A.3d 578, 587 (Pa. Cmwlth. 2016). On appeal of a 

Board decision, “this Court does not ‘accept invitations to reevaluate evidence and credibility 

determinations.’” Sunoco, Inc. v. Dep’t of Envtl. Prot., 865 A.2d 960, 969-70 (Pa. 

Cmwlth. 2005) (citing Birdsboro and Birdsboro Mun. Auth. v. Dep’t of Envtl. Prot., 865 A.2d 

969-70 (Pa. Cmwlth. 2005)). 
15

care under the circumstances of this case, such that issuance of the permit 

constitutes arbitrary, capricious, and unreasonable decision-making. 

The concept of abnormally dangerous activity applies to strict liability 

causes of action and is inapplicable to the instant matter which is governed by 

statute. Also, while not binding on this Court, the United States District Court for 

the Middle District of Pennsylvania has held that hydraulic fracturing is not an 

abnormally dangerous activity under Pennsylvania law. See Ely v. Cabot Oil & 

Gas Corp., 38 F. Supp. 3d 518, 534 (M.D. Pa. 2014). Thus, we reject Petitioner’s 

argument. 

2. Reasonable Level of Scrutiny

Petitioner contends that even if the Department was not required to 

apply strict scrutiny, the Board still erred in affirming the issuance of the permit for 

Well 61 because the Department failed to apply a reasonable level of scrutiny. 

Specifically, Petitioner points to: (1) what it refers to as the “lack of evaluation” 

by the Department’s program manager, Lobins;

6

(2) the uniqueness of the situation

(i.e., use of a slant drill under a large gasoline tank near an oil plume);7(3) the 

Department’s “faulty” analysis of the risk posed by the proximity of Well 61 to

 

6 With regard to this point, Petitioner refers to Lobins’ uncertainty as to whether he was 

aware of Petitioner’s concerns at the time the Department issued the permit and lack of 

understanding as to how those concerns had been evaluated.

7

Petitioner asserts that the potential for encountering an abandoned well is greater for a 

slant well that travels a distance horizontally compared to a vertical well that is in a single, fixed 

location. Petitioner argues that the Department improperly utilized Branch’s prior well projects 

in Warren, Pennsylvania, as a basis to evaluate the permit application for Well 61, because those 

projects did not involve circumstances similar to those in the matter now before the Court. In 

fact, Lobins testified that of the 41,000 well permits he had been involved in issuing, the permit 

for Well 61 was the only one that involved drilling under a refinery. (R.R. at 373a.)
16

Tank 234, which was prepared only for purposes of this litigation;

8

(4) the 

Department’s “deficient Zone of Capture calculation”;9(5) an overreliance on the 

hope that any abandoned wells would have been naturally plugged; and (6) the 

Department’s implicit knowledge that risk is presented by these circumstances. 

(Petitioner’s Br. at 37, 41.) 

Petitioner’s contention that the Board erred in concluding that the 

issuance of the permit was not unreasonable due to lack of adequate scrutiny by the 

Department appears to be based in part on Petitioner’s misperception that the 

Board, in considering the reasonableness and legality of a permit, must confine its 

review to the information considered by the Department at the time it issued the 

permit. It is important to remember that the Board is not tasked with the duty to 

review the Department’s decision-making process. Rather, the Board reviews the 

Department’s issuance of a permit de novo, meaning it can properly consider 

evidence produced after the Department’s action in question and in anticipation of 

litigation. On appeal from a decision of the Board, the Court “must review the 

adjudication of the Board rather than the administrative action which was reviewed 

by the Board.” Warren Sand & Gravel Co., Inc. v. Dep’t of Envtl. Prot., 

341 A.2d 556, 565 (Pa. Cmwlth. 1975). The Board’s de novo review allows it to 

 

8

Petitioner contends that the Department’s evaluation of the risk was erroneous. An 

exhibit introduced by the Department depicting a 200-foot radius around the endpoint of Well 61 

is, according to Petitioner, inaccurate and misleading because the zone of capture should have 

been placed at a different location. Petitioner notes that the Department, during the hearing, 

admitted that the zone of capture should have been placed at a different location. (R.R. at 348a, 

386a.) 

9

Petitioner contends that the Department further erred by using just a 200-foot zone of 

capture and asserts that the Department should have used a 500-foot zone of capture based on 

proposed 2013 regulations that were never adopted. 
17

admit and consider evidence that was not before the Department when it made its 

initial decision, including evidence developed since the filing of the appeal. The 

Board determines the reasonableness and legality of the Department’s actions 

based upon the record developed before the Board. 

Here, the Board heard testimony regarding the concerns expressed by 

Petitioner, including those identified by Petitioner in connection with the lack of 

scrutiny argument Petitioner now raises. Those concerns involve factual matters, 

and the Board considered the evidence before it in reaching its decision.10 As 

discussed above, it is immaterial whether the Department considered the same 

matters when issuing the permit. 

3. Issuance of Permit Without Further Special Conditions

Petitioner contends that the Department erred by issuing the permit to 

Branch without including, as express permit conditions, safe drilling and operating 

practices that Branch proposed and upon which the Department relied in making 

its decision to grant the permit. 

The Department’s authority to attach special conditions to a permit is 

discretionary, and the Board can properly substitute its own discretion for that of 

the Department and thereby order the issuance of permits subject to certain special 

conditions. Pequea Twp. v. Herr, 716 A.2d 678, 686 (Pa. Cmwlth. 1998). It 

appears that the Board chose not to substitute its discretion in this case because, 

 

10 “[Q]uestions of resolving conflicts in the evidence, witness credibility, and evidentiary 

weight are within the exclusive discretion of the [Board], the fact finding agency, and are not 

matters for a reviewing court.” Pa. Trout, 863 A.2d at 104. Thus, we may not substitute our 

judgment for that of the Board. Id. To the extent that Petitioner invites us to do just that—i.e., 

reconsider the evidence in a light more favorable to its position—we cannot do so. 
18

having weighed the evidence, including expert testimony, it concluded that there 

was insufficient evidence of harm to justify imposition of additional special 

conditions.

11

 By asking this Court to conclude that special conditions were 

necessary, Petitioner is essentially asking this Court to reweigh the evidence and 

make credibility determinations regarding the validity of Petitioner’s concerns, 

which is beyond our purview. The Board already weighed this evidence and made 

credibility determinations that properly supported its decision. The Board accepted 

Lobins’ and Branch’s testimony that communication was unlikely to occur 

between Well 61 and the plume, an unplugged well, or Tank 234. Conversely, the 

Board found that Ruth’s testimony regarding the existence of unplugged wells in 

the vicinity of Tank 234 or the plume was speculative, and Petitioner failed to 

present evidence supporting a “scientific basis for how the drilling of Well . . . 61 

will impact either the plume or Tank 234.” (Board’s Adjudication at 9.)

 Moreover, Petitioner provides no evidence showing that the 

additional conditions were necessary to ensure the permit’s compliance with the 

law. Branch testified that these measures were added safety precautions; he did 

not testify that they were necessary to drill. (R.R. at 262a.) Lobins testified that 

the only special condition that he believed should be added to the permit was the 

condition that Branch would not hydraulically fracture in the Warren 1st or Warren 

2nd formations. Thus, the Board did not err in concluding that the Department did 

not act unreasonably in failing to impose additional conditions on the permit for 

 

11 The Department did include in the permit for Well 61 a prohibition against drilling in 

the Warren 1st and Warren 2nd formations. 
19

Well 61, and the Board did not err in not imposing those additional conditions on 

the permit itself. 

C. Whether Issuance of the Permit Violates Article I, Section 27 of the 

Pennsylvania Constitution

As to the alleged violation of the Pennsylvania Constitution, Petitioner 

argues that the Board erred in allowing the Department to issue Branch the permit 

for Well 61 because the Commonwealth’s natural resources will be injured in 

violation of Article I, Section 27 of the Pennsylvania Constitution, which provides:

The people have a right to clean air, pure water, and to 

the preservation of the natural, scenic, historic and 

esthetic values of the environment. Pennsylvania’s 

public natural resources are the common property of all 

the people, including generations yet to come. As trustee 

of these resources, the Commonwealth shall conserve 

and maintain them for the benefit of all the people.

We agree with the Department and Branch, however, that Petitioner failed to raise 

his constitutional claim before the Board. Issues not raised before the Board are 

waived before the Commonwealth Court.12 Ingram v. Dep’t of Envtl. Prot., 

595 A.2d 733, 738 (Pa. Cmwlth. 1991). 

 

12 When determining whether an action violates Article I, Section 27 of the Pennsylvania 

Constitution, this Court must weigh the following considerations:

(1) Was there compliance with all applicable statutes and regulations relevant to 

the protection of the Commonwealth’s public natural resources? (2) Does the 

record demonstrate a reasonable effort to reduce the environmental incursion to a 

minimum? (3) Does the environmental harm which will result from the 

challenged decision or action so clearly outweigh the benefits to be derived 

therefrom that to proceed further would be an abuse of discretion?

Payne v. Kassab, 312 A.2d 86, 94 (Pa. Cmwlth. 1973), aff’d, 361 A.2d 263 (Pa. 1976). If we 

were to consider this argument, we would conclude that all of the prongs of the Payne test weigh 

in favor of constitutionality, and the Board did not err in concluding that the Department did not 

violate Article I, Section 27 by issuing the permit for Well 61 to Branch. 
20

III. CONCLUSION

For the reasons set forth above, the Board did not err in concluding 

that Petitioner failed to establish that the Department’s issuance of a permit for 

Well 61 to Branch was unreasonable or contrary to law. Accordingly, the order of 

the Board is affirmed. 

 

 P. KEVIN BROBSON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

United Refining Company, :

Petitioner :

:

v. : No. 1321 C.D. 2016

:

Department of Environmental :

Protection, :

Respondent :

O R D E R

AND NOW, this 12th day of June, 2017, the order of the 

Environmental Hearing Board is AFFIRMED. 

 

 P. KEVIN BROBSON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

United Refining Company, :

Petitioner :

: No. 1321 C.D. 2016

v. :

: Argued: April 4, 2017

Department of Environmental :

Protection, :

Respondent :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

DISSENTING OPINION BY

JUDGE McCULLOUGH FILED: June 12, 2017

As recognized by the Environmental Hearing Board (Board), this

matter involves a unique and unprecedented process of slant drilling by John D, 

Branch (Applicant), posing unknown dangers, particularly in the area near an 

active refinery. The Board’s decision reflects these concerns where it states:

“[T]his case is unique as Mr. Lobins [the expert testifying for the Department of 

Environmental Protection (Department)], himself, indicated. It is out of the 

ordinary for the Department to receive an application for an oil and gas permit that 

allows drilling by a third party underneath an oil and gas refining company in full 

operation and in close proximity to a 3.6 million gallon gasoline storage tank.” 

(Board op. at 10.)

Despite dismissing the appeal of United Refining Company (United 

Refining), the Board further expressed concern for the process in which the 
PAM - 2

Department engaged, calling for a “more transparent” process and improved 

communication among the parties, which the Board suggested as “a more robust 

permitting application process.” (Board op. at 11.) The Majority aptly cites 

section 3211(e.1) of the Oil and Gas Act, 58 Pa.C.S. §3211(e.1), dealing with the 

sole grounds on which the Department may deny a well permit. Subsection (3) 

states as a specific ground for denial: “Unresolved objections to the well location 

by the coal mine owner or operator.” 58 Pa.C.S. §3211(e.1)(3) (emphasis 

added). 

Notwithstanding the above, the Board identified two significant 

questions or objections left unresolved by the Department when it granted the 

application for the permit: (1) “[H]ow would the fracking of the well impact the 

surface?” and, (2) “How would the fracks propagate into the unplugged wells at 

the depths and distances where the fracking would take place?” (Board op. at 10.) 

Clearly, under the Board’s own analysis, there are “unresolved objections” which 

need to be answered by the Board. 

This Court’s review under the Oil and Gas Act is to ascertain whether 

the permitted use was shown to have been “necessary for the safe operation of a 

particular mine. . . .” Foundation Coal Resources Corporation v. Department of 

Environmental Protection, 993 A.2d 1277, 1290 (Pa. Cmwlth. 2010) (dealing with 

the prior version of this statute and applying the standards for denial in a case in 

which this Court affirmed the issuance of oil and gas drilling permits). 

Here, the unprecedented and unique method of fracking was to occur

underneath an active refinery. United Refining raised concerns about safe drilling 

and operating practices and the Board expressed concerns and questions about the 

issuance of the permits. Applicant proposed five safeguards to address United 

Refining’s expressed concerns about Applicant’s operations: (1) there would be no 

fracking in the Warren 1st or Warren 2nd formations; (2) conductivity and video 
PAM - 3

logs would be used when new wells were drilled and hydraulic fracturing in the 

vicinity of zones indicated by the logs as having excessive water would be 

avoided; (3) the pressure gauges would be closely monitored while fracking, and if 

the gauges indicated connection with another well, operations would cease 

immediately; (4) fracking would be conducted with smaller amounts of sand and 

water to control the length of the fractures; and, (5) the proposed termination point 

of Well 61 was altered to avoid the vicinity of the oil plume below Tank 234. 

Nonetheless, when the Department issued the permits, it imposed only 

the first of these special conditions proposed by Applicant. In light of the 

unresolved objections and the unprecedented use of this fracking method in a 

potentially dangerous zone, it is incumbent upon the Board to address the 

remaining four proposals as special conditions to the permits. 

Accordingly, I would vacate and remand to the Board to resolve the 

unresolved objections and questions identified by the Board in its dismissal of the

appeal, and to impose any special conditions necessary to alleviate the same upon 

remand. 

________________________________

PATRICIA A. McCULLOUGH, Judge