Indiana, PA - Indiana County

Grant Township unbowed by PGE lawsuit

by on August 29, 2014 10:54 AM

EAST RUN — Officials in Grant Township have accepted an offer of outside legal help to defend a controversial local ordinance meant to halt the disposal of well drilling wastewater in the township.

With local residents filling their meeting room in rural northern Indiana County, the board of supervisors formally voted Thursday to retain Community Environmental Legal Defense Fund after being sued in federal court by a north-central Pennsylvania gas well drilling company.

At issue is the township’s “Community Bill of Rights” that asserts local authority to decide on the use of land and natural resources within the township borders, an ordinance enacted June 3 as the supervisors and area residents scrambled for a means to prevent Pennsylvania General Energy from dumping brine in an abandoned well not far from the township office building.

The company has contracted to start the injection well on property owned by the Marjorie Yanity family along East Run Road.

CELDF drafted the ordinance for the township’s consideration, and offered earlier this month to represent the township after PGE went to U.S. District Court for Western Pennsylvania to have it overturned.

In a 19-page complaint, PGE lists a dozen challenges to the ordinance. The company says the ordinance violates the Supremacy Clause of the U.S. Constitution, which prevents legislation on lower levels from trumping federal law.

PGE also charges a violation of the equal protection clause of the Fourteenth Amendment and violation of the First Amendment because the ordinance treats wastewater disposal companies differently than others, and would suppress the company’s right to have its grievance heard.

The suit also charges the Grant Township supervisors went outside their authority under the second-class township code and the Pennsylvania Oil and Gas Act, and that the ordinance violates principles of zoning by completely excluding brine dumping, rather than simply regulating it.

In the suit, PGE asks a federal judge to overturn the ordinance as unconstitutional and unenforceable.

Supervisor Chairman Fred Carlson said the township solicitor, Robert Manzi Jr., met with CELDF representatives and arranged a defense strategy that would prevent the legal fight from bankrupting the township. Before taking the vote, Carlson said the arrangement with CELDF was “a done deal, we’ve already signed up,” but that the supervisors sought consensus from township residents — with more than 25 crowding the meeting room last night — before moving ahead.

“The township is going to be fairly safe,” Carlson said. “My personal opinion is that we go through with the ordinance. I cannot see us not trying to stop this (lawsuit) some way or another. It would be ridiculous to put another problem in Grant Township” such as troubles experienced with turnback roads, he said.

“I’m willing to fight for the rights of Grant Township to keep this well out of here.”

In brief discussion by supervisors and spectators, township resident Martha Buckley said she is against the proposed injection well, but also believes the ordinance is unconstitutional and said the township and its residents should find other ways to halt it.

“This is not the best way to go,” Buckley said. “My point is we are going to lose, and when we lose, we are going to lose money.”

Sandy Kinter suggested enacting a cost-prohibitive fee on brine wells, or to loosen the ordinance to allow brine dumping only on state game lands “so the state will fight it,” but there was no support for the ideas.

“At this point in time, no judge has said this thing is unconstitutional,” Carlson said. “My feeling is let’s go find out what the judge says. He’s the man!

“It’s not going to cost us a fortune, but we can certainly try to stop this thing.”

Carlson said the supervisors expect the township to pay $5,000 to $8,000 to cover CELDF’s travel and other expenses in defending against the lawsuit.

Community relations representative Chad Nicholson of CELDF said the township’s ordinance should be ruled valid because it was not written as a way to restrict injection wells.

The fund has taken that approach, Nicholson said, because for many years the CELDF had little success in simply challenging permits legally issued by environmental officials.

“Certainly there have to be solutions or options within the system we have to get what we want to protect our communities, but we still haven’t found those,” Nicholson said. “That’s where the ‘Community Bill of Rights’ have come in. They’re recognizing that if we do live in a democracy, if we do have the consent of the governed … then we should be able to change the law.

“That’s what a democracy is about, and that’s what this community … is saying, that the existing system of law right now is denying the community its rights.

“And if the government at the state and federal levels are issuing policies or permits to deny our rights, then the duty falls to the local level to secure our rights, and that’s what the ordinance says,” Nicholson said.

PGE, of Warren, filed last year for federal and state permits to begin the disposal site as part of the government’s Underground Injection Control program.

The U.S. Environmental Protection Agency granted a permit in March, prompting three appeals from local residents. EPA rejected the appeals Aug. 22.

PGE also filed in April for a permit from Pennsylvania Department of Environmental Protection, but was given a notice of deficiency in May and filed a second application that remains under review.

Chauncey Ross is the Gazette’s fixture at Indiana Area and Homer-Center school board meetings, has been seen with pen and notepad in area police stations and courts, and is something of an Open Records Act and Sunshine Law advocate. He also manages the Gazette’s websites and answers your questions about them.
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