Apex Energy's approved well sites in Penn Twp. face court challenge

A Westmoreland County judge said he will rule before the end of the year on a lawsuit filed by local environmental group that contends the Penn Township Zoning Hearing Board improperly approved a special exemption for Marcellus shale gas wells.

Common Pleas Court Judge Anthony Marsili heard arguments Monday in which a lawyer for Protect PT said the zoning board erred when it granted permits to Apex Energy this year to begin drilling at four sites in the municipality.

Lawyers for Apex argued the township's fracking ordinance is among the nation's toughest and that state laws allow for the special zoning exceptions that were properly applied in this case.

The lawyers will reconvene before Marsili on Wednesday to argue the validity of the township's fracking ordinance.

In court on Monday, Protect PT attorney Ryan Hamilton said the zoning board's decision was capricious and arbitrary and did not properly consider environmental risks of the drilling.

“It was not possible for the board to make that decision. We quite frankly do not have enough information to make that evaluation,” Hamilton said.

The group argued that Apex's plan to store fracking water at the proposed well sites created a hazardous situation. Hamilton also said the township's fracking ordinance that places certain restrictions on drillers should not determine whether the zoning board acted appropriately in granting permits for the wells.

“The ordinance conditions are commendable, but they are a little too late,” Hamilton said.

Apex lawyer Jeffrey Wilhelm told Marsili the company met every requirement set by the zoning board and that the drilling activity is allowed under state law. He defended the board's decision, saying it reviewed 827 pages of testimony from the zoning hearing in which public comments were lodged and the company presented its proposal for the drilling.

“Unconventional oil and gas wells are permitted uses in Pennsylvania. All of these well sites are subjected to exemptions. The township's ordinance has protections that no other township in Westmoreland County has,” Wilhelm said.

Attorney John Sweeney, who serves as solicitor for the Penn Township Zoning Hearing Board, defended the approval. He said opposition to the special zoning exemptions for the Apex well sites had to be based on specific allegations of harm to the community.

“That didn't happen here,” Sweeney said.

Rich Cholodofsky is a Tribune-Review staff writer. Reach him at 724-830-6293 or rcholodofsky@tribweb.com.