EAST RUN — Municipal leaders in Indiana County’s quiet northern tier ignored the threat of a lawsuit Tuesday and enacted an ordinance they hope will deter an oil and gas drilling company from starting an underground waste disposal site in their township.
Controversy has been brewing for months over a plan by Pennsylvania General Energy to convert a tapped out natural gas well into a brine dumping site under the federal government’s Underground Injection Control program, known as the UIC.
PGE, based in Warren, in March was granted a permit by the Environmental Protection Agency to construct an injection well on property owned by the Yanity family along East Run Road. But development has been put on hold while EPA reviews appeals filed by several Grant Township residents.
At the same time, PGE is waiting for similar permits from the Pennsylvania Department of Environmental Protection.
But backed by an overflow crowd of township residents, the Grant Township supervisors unanimously passed a Bill of Rights ordinance for the municipality, a measure that asserts local residents’ rights to enjoy natural resources trumps any “rights, privileges, powers and protections” claimed by corporations, including permits from higher levels of government.
PGE attorneys at the meeting Tuesday warned that the local ordinance would likely be ruled unconstitutional and overturned in court, and they urged the supervisors and residents to give the company a chance to “be a good neighbor.”
More than any other concern, township officials and residents said they were not satisfied that the applications, permits and construction procedures for an injection well could guarantee that the underground water supplies would be protected.
“The intent of this ordinance is to protect the water and the community of Grant Township,” said supervisor Chairman Fred Carlson, noting that he was speaking only for himself. “The only reason that I can see that you gentlemen are here is that Grant Township is a very small township, just 694 people. That’s the reason we’re being picked on. We’re not happy with it … I don’t like to see it, and I have all the reasons in the world to be concerned about what the gas and oil industry does.
“PGE has all the potential of starting this well, and if we let them get away with it, EPA is automatically going to let them do another one and another one and another one,” Carlson said. “… All (the wells) are starting to die, and you guys made your money on these wells. And we don’t want to be the suckers to hold all this type of water.”
Not unlike the deep wells drilled to extract gas from the Marcellus shale formation, injection wells are dug to depths of 7,000 feet or more, said attorney Kevin Garber, of the Pittsburgh law firm Babst Calland.
The wells are built with an 18-to-20-inch wide conductor pipe 50 to 60 feet deep, then a 12-inch surface casing pipe is installed through the conductor about 500 to 600 feet deep, taking it at least 50 feet below the underground waters that feed surface wells, Garber said.
Then an 8-inch intermediate casing is extended to between 1,000 and 1,500 feet below the surface, and finally a 4ﾽ-inch pipe, the production tube, is sunk to the “target area” where brine will be disposed.
Garber said brine collected from other productive gas and oil wells is forced, or injected, into the depleted well where it fills the space that gas or oil once occupied.
He said the injection process could continue for years before all the space is filled.
But before constructing an injection well for brine and other fluid disposal, PGE attorneys said EPA regulators study the local geology and only grant permits when the plans adequately protect underground freshwater supplies.
“We ask you to seriously consider not enacting this ordinance,” said attorney Blaine Lucas, also of the Babst Calland firm. “Our feeling is the ordinance is unnecessary and illegal.”
Similar ordinances adopted in other communities have been invalidated by courts or revoked by townships, Lucas said.
“PGE does not want to fight — I want to stress that,” Lucas said. “If it goes to federal court, and I don’t want to saber rattle here … there’s a possibility the township could be required to pay our attorney fees if you lose, and you don’t want that to happen.”
Lucas said Pennsylvania’s township code does not allow Grant Township to enact such an ordinance.
Other laws allow municipalities to regulate commerce under flood-plain rules or when a local zoning code has been adopted, but they still don’t allow townships to outlaw any kind of business or industry, according to Lucas.
“Constitutionally, you’ve got to allow these things. It doesn’t matter what the use is,” he said. “The law in Pennsylvania is that you have to allow that use somewhere within your boundaries.
“PGE wants to be a good neighbor,” Lucas said. “PGE wants to work with communities and have a cooperative relationship, but if someone is going to adopt an ordinance that strips all its property rights and says you can’t do it, what are the choices that are open at that point in time?” We urge the township to give some second thought ... as to whether this is really wise for the township, PGE and the residents.”
For almost an hour, residents peppered PGE’s attorneys with questions about the integrity of the proposed injection well.
Judy Wanchisn, of East Run, a leader of citizen opposition to the PGE proposal, said her research showed the EPA has granted permits for 11 other injection wells in Pennsylvania.
“Three are under appeal, two have had to be plugged,” Wanchisn said.
One was capped in 2009 in Indiana County, she said, but more recently an injection well near Mahaffey in Bell Township, Clearfield County, was idled because the operator failed to report a problem and the well leaked for four months.
“They were fined the maximum. … So the record is not too great as far as I’m concerned. They leak. We just don’t know what’s happening underground.”
Wanchisn and her daughter, Stacy Long, have filed one of the appeals now under review by EPA.
“What is PGE willing to do as a good neighbor, to prove to us the water is safe?” asked Martha Buckley.
Attorney Nate Schmidt, the general counsel at PGE, said the company would provide copies of its application and permitting documents for residents to check but also would arrange to fully explain the paperwork in plain English rather than the highly technical terms used in the documents.
Resident William Woodcock III asked Schmidt to more directly answer Buckley’s question about proving the safety of local water supplies.
“The bottom line is you’re asking us to drink the water from this aquifer. We’re expected to drink this water, and you have applied for permission to pour stuff through that aquifer down a mile and a half below,” Buckley asked. “Are you willing to drink water from that aquifer?”
“Sure,” Garber told her.
Woodcock, who also has lodged an appeal against the PGE permit from EPA, went on with his protest.
“We’ve been around long enough to know EPA has allowed things to pass that have, in the future, had problems,” Woodcock said. “What does it do but leave people in those communities with a problem on their hands. So what this community is trying to do is prevent failure in the future.
“If a leak or a problem or something happens underground, what do I do then?” Woodcock asked. “What do I do in 20 years? Who do I go to? And what will PGE do for me?”
Others asked how the company would assure safe transportation of wastewaters through the township to the proposed well site, and Buckley asked if the company could set up webcams at the well site so anyone could watch the site activities on the Internet.
Carlson questioned whether state or federal regulators would have enough manpower to regularly inspect the well, and another resident proposed that PGE contract with an outside testing company for ongoing monitoring of area water supplies.
“It sounds pretty rational … I’ll take that back for consideration,” Schmidt said.
Carlson cut off discussion and called for a show of hands. Most of the estimated 50 people at the meeting showed they favored the ordinance.
Earlier during the debate, Lucas told the supervisors that he is a solicitor for a township in Allegheny County and would have different advice for them.
“I would tell my client do not approve this ordinance,” Lucas said. “You will get sued and you will lose.”
But the Grant Township ordinance is different from others that have failed in court challenges, said Chad Nicholson, of the Community Environmental Legal Defense Fund.
CELDF, based in Franklin County, drafted the ordinance that Grant Township approved.
“This ordinance is very clear, that it doesn’t infringe on or take away property rights from anybody unless they are in violation of the ordinance, and it was written specifically at the request of the supervisors to deal only with the injection well,” he said. “And it’s a misnomer to say this is a property rights issue. Everybody knows property rights are sacrosanct in this country, but at the same time your property rights don’t bring with them the authority to harm someone else or their ability to enjoy their own property.”
Rather than empowering corporate boards of directors and permits issued by government offices, Nicholson said, the ordinance centers on preserving civil rights.
“The folks of Grant Township have rights to clean air and clean water and a right to self-government,” he said. “It’s the people that live in this township that should be the ones that get to make those decisions, not corporations. It has nothing to do with being a good neighbor. It’s about fundamental civil rights and who decides what happens within the township. That’s the basis of this ordinance.”
Supervisors Mike McCoy and Jon Perry joined Carlson in the official vote to approve it.
“You’ve heard our concerns,” Carlson told the PGE representatives following the vote. “Our ordinance is passed. You boys know where we’re at. If there’s a problem, go at it.”