When Kim Mullins and her husband downsized in 2011, they moved to Orchard Estates, a community of manufactured homes in Beaver County.
The couple moved there from Cranberry Township in 2011, drawn to the safety and convenience of the relatively rural community in Economy Borough. Now she feels some of these qualities have been compromised.
“First of all, we are planning on moving,” said Mullins, 72, citing concerns over hydraulic fracturing, or fracking, planned fewer than a thousand feet from Orchard Estates. “I don’t want this in my neighborhood.”
She’s worried about the health consequences. She and her husband feel like prisoners in their own home, and she’s concerned she won’t even be able to take her dogs outside for fear that future pollution could cause nosebleeds.
She knows other residents share her worries, and some have already decided to leave the tree-lined neighborhood.
Though fracking has yet to begin, crews were working to clear-cut trees at the site in September, according to Mullins. Economy officials approved a zoning permit for the project a year ago, and in February, the Pennsylvania Department of Environmental Protection issued permits for the well site — known as well pad B50 — to Pittsburgh-based PennEnergy Resources.
A spokesperson for PennEnergy Resources declined a request for comment. Staff from the Economy Borough administrative office did not return a call requesting comment and borough council members either declined comment or did not return messages. Economy Borough Manager Randy Kunkle declined to comment in an email.
Some Economy residents say the borough should change its zoning ordinances to regulate fracking, like other nearby communities have done. Representatives from the oil and gas industry note that residents can see substantial financial benefit from fracking, which is already regulated by the state.
For municipalities in Western Pennsylvania, the question isn’t whether to ban fracking — a power they don’t have — but rather how to regulate it and reduce unwanted impacts on residents.
Differences among neighbors
The fact that municipalities like Economy can have different rules than their neighbors is tied to a 2013 decision from Pennsylvania’s Supreme Court.
Pennsylvania’s General Assembly in 2012 stripped local power to regulate fracking. But several boroughs fought back, and in December 2013, the Supreme Court in Robinson Township v. Pennsylvania Public Utility Commission ruled 4-2 that the new state law violated Pennsylvania’s constitution, which guarantees residents clean air and water. In 2016, the court reaffirmed the principles of the 2013 decision.
Since the Robinson Township decision, several municipalities in Western Pennsylvania have passed ordinances regulating natural gas development. Municipalities lack the authority to ban fracking outright, though they can put restrictions on where it is allowed. This year, Leet Township — which borders Economy — designated setback distances between fracking operations and certain protected structures like homes and schools. Leet also set conditional-use guidelines governing the approval process for drilling.
John Smith, an attorney at the law firm Smith Butz, LLC, argued on behalf of Pennsylvania municipalities in the Robinson Township case. In 2016, he helped the Bell Acres Planning Commission review and update the borough’s municipal oil and gas ordinances to give it more power to determine where fracking is allowed.
Diane Abell, who chairs the Bell Acres Planning Commission, said her committee’s understanding of the oil and gas industry began to change in 2015, when PennEnergy started conducting seismic testing in Bell Acres and elsewhere. That was a red flag that more industry activity may be coming.
Council passed an ordinance in 2016 that restricted oil and gas development to the borough’s heavy industrial district. No residents live in this district, Abell said.
“The first thing was to immediately remove oil and gas drilling from our RR-1 [rural-residential] zoning district,” she said.
Mullins said she wants Economy to update its zoning ordinances to prohibit drilling in the rural-agricultural zoning district that includes Orchard Estates.
“Now we are asking for that, but we can’t get it for us,” Mullins said.
Economy allows drilling as a permitted use in its rural-agricultural, commercial and industrial zoning districts. This means that plans for oil and gas operations are not subject to conditional-use procedures or a public hearing. Without a public hearing, local officials can approve a drilling operation without taking comment from affected residents.
According to Smith, the state Supreme Court has given municipalities the power to protect residents through zoning districts, allowing local officials to clearly define where a natural gas operation can go.
“Every single municipality before oil and gas came to town has designated which parts of their township is for which particular use,” Smith said. “The wild card is this is the only industry we’ve seen that certain municipalities are willing to allow to stray outside of those defined districts.”
Smith also noted that officials in some municipalities tend to prioritize the interests of oil and gas leaseholders over residents who may not stand to gain financially from fracking. Proponents of drilling cite the economic benefit to residents and the limits fracking ordinances put on residents making choices about their own land.
Jackie Root, a board member of the Pennsylvania Oil & Gas Landowner Alliance, opposes fracking regulations by municipal governments.
“For them to say, ‘It can now only be done in this area,’ would essentially say that you can’t develop your oil and gas rights,” said Root, who lives in Tioga County.
Royalty income from fracking has made a significant financial difference for Pennsylvania landowners and their families, helping to pay for college expenses, medical bills or retirement, Root added.
The natural gas industry supports “common-sense, predictable and workable” regulations, according to David Spigelmyer, president of the Marcellus Shale Coalition, which promotes natural gas drilling.
“We have a long and clear record of working collaboratively with stakeholders and governments at the local level to ensure our operations are conducted safely and responsibly while protecting the private property rights of citizens to realize the full value of their land,” Spigelmyer wrote in an emailed statement.
He added that organizations that oppose the industry have put forth model ordinances and zoning proposals which he called “back-door attempts at banning” of natural gas development that is already strongly regulated by the state.
Root said the Pennsylvania Department of Environmental Protection [DEP] has staff with a scientific understanding of the drilling process, something local governments usually lack.
“They have people trained to understand the drilling process, the permitting and the science behind it,” Root said. “There are regulations in place with DEP to control permits, to control setbacks and all that.”
Conflict in Franklin Park
Not all municipalities have an industrial district in which to sequester fracking operations.
Franklin Park Borough, an Allegheny County municipality that borders Economy to the southeast, has residential districts as well as three mixed-use districts that allow combinations of residential, commercial and light-industrial uses. The borough’s recently enacted ordinance involves the creation of an oil and gas recovery overlay district that includes a residential and mixed-use zone.
Robin Martin, a Western Pennsylvania-based organizer who works on the Municipal Ordinance Project for the nonprofit Food & Water Watch, has been working with Franklin Park residents since November 2018. She said overlay districts must be compatible with the base zoning of an area. This means an overlay district cannot accommodate a drastically different land use than the district it is located in, whether that district be industrial, residential or otherwise. As an example, Martin said a municipality can use an overlay district in a residential area to preserve a natural landscape. Food & Water Watch supports bans on fracking nationwide.
Smith said an overlay district in a residential area should protect public health and safety, no matter how many residents live in the district.
“By placing industrial use over a residential use, that’s called an incompatible use, and that nullifies the base zoning intent,” Martin said. “You can’t come right out and say it’s illegal, but given what the borough has dictated for their residential areas, it doesn’t make sense.”
In December, a group of residents formed a community organization called Protect Franklin Park in response to a proposal to lease shale gas rights underneath the borough’s Linbrook Park. Earlier this year, the group published a report containing recommendations on Franklin Park’s then-pending oil and gas ordinance. Borough council adopted an oil and gas ordinance on Sept. 18.
Members of the public have 30 days starting Oct. 4 to bring legal action challenging the ordinance.
Protect Franklin Park’s report suggests exploring joint land-use planning with other municipalities. Doug Shields, Western Pennsylvania outreach liaison for Food & Water Watch, said communities like Franklin Park should utilize joint planning.
Through a joint comprehensive plan, a group of municipalities can designate a portion of their collective land for industrial use. This would put them into compliance with the state Municipalities Planning Code, which requires municipalities to allow for resource extraction in their boundaries, Shields said.
“Prior to unconventional drilling, there was no impetus to do area-wide zoning,” Shields said, adding that the state has allowed joint planning since 1968.
For fracking wells, state law requires a minimum setback distance of 500 feet from occupied buildings, unless the owner consents to a shorter distance. Protect Franklin Park recommended a half-mile setback, citing a peer-reviewed study published by the University of Chicago and Princeton University. The study found increased risk of low birth weights for infants born to mothers who live very close to fracking sites.
Horizontal drilling, a common fracking technique that involves drilling laterally into a shale gas formation thousands of feet beneath the ground, has given energy companies some flexibility in where they locate well sites, Root said.
After first drilling vertically, a drill can be turned to penetrate horizontally through a shale formation, creating more fissures for gas to escape. Operators often drill multiple horizontal wells from a single site and can access reserves located miles away from a well pad.
From a zoning perspective, Smith said operators do not have to locate their operation in a residential district “and still there should be the ability to capture that gas.”
But he added that gas companies tend to view a piece of land according to its suitability for drilling and not its zoning designation.
Industrial zoning isn’t always an easy fix. Some Mon Valley residents have loudly opposed a well site proposed at U.S. Steel’s Edgar Thomson steel mill, which has industrial zoning. According to a permit application Merrion Oil & Gas filed with the DEP, the gas wells will be located on a section of U.S. Steel’s property in North Versailles Township. Supporting infrastructure for the site extends into East Pittsburgh and North Braddock.
Nearby residents worry the wells will bring increased truck traffic and degrade air quality in an industrial region that already suffers from high levels of pollution.
Municipal officials have approved permits for a well pad and supporting infrastructure. Approvals from DEP are pending.
More than 20,000 people live within 2 miles of the site, with many of these residents living in East Pittsburgh, North Braddock and Braddock, said Kelly Yagatich, who advocated on behalf of residents’ health in her past role as Southwest Pennsylvania outreach coordinator for the Clean Air Council.
If a municipality allows for drilling in an industrial district, it can still place conditions on the activity to protect residents’ health and limit disturbances.
According to Smith, local governments can require sound walls, limit hours of operation and require emissions studies as necessary steps for receiving a conditional-use permit, even in an industrial district.
The North Versailles gas well ordinance contains a conditional-use requirement and noise limits but does not require emissions studies or limit hours of operation.
In Economy, PennEnergy Resources has the approvals needed to move forward. But that hasn’t stopped some residents from demanding that the borough change its ordinances.
“The most basic fix, and that’s what Bell Acres did, is said, ‘No you’ve got to put this in an industrial-zoned area,’” said Economy resident Bryan Warren, who estimates that he lives about a thousand yards from well site B50. “Even if you did allow it, you could have a more significant setback rule.”
Warren lives close enough to the well site that he has concerns about noise disturbances.
“When I moved here, it was to live in a quiet, residential area,” he said.
For former Orchard Estates resident Laurel Beitsinger, the borough’s decision impacts the safety of residents. She moved from Orchard Estates to a nearby farm in 1975, and she worries about the harm residents could face from accidental fire or explosions as well as day-to-day health impacts. Now, she and her husband are planning to move, in part to get farther away from the fracking site.
While most of Pennsylvania’s roughly 10,000 active fracking wells operate safely, accidents have been reported at Western Pennsylvania sites, including in Greene, Washington and Mercer Counties, since 2014.
“I’m glad I don’t live in Orchard Estates,” Beitsinger said. “I would be terrified. They’re ground zero.”
Editor’s note: The Heinz Endowments provided funding to Food & Water Watch. The Heinz Endowments provides unrelated funding to PublicSource.
Update (10/16/2019): This story has been updated to include additional information on Food & Water Watch.
Sam Bojarski is a freelance journalist based in Pittsburgh’s East End. He can be reached at firstname.lastname@example.org.
This story was fact-checked by Juliette Rihl.