POLITICS
04/17/2017 04:01 pm ET

They Told A Fracking Company To Go Away. 3 Years Later, They're Still in Court.

Grant Township, Pennsylvania, has been fighting to keep a wastewater disposal site out of town.
Signs in Grant Township, Pennsylvania, oppose a fracking wastewater injection well and advocate for "home rule," which g
Keith Boyer/The Contently Foundation
Signs in Grant Township, Pennsylvania, oppose a fracking wastewater injection well and advocate for "home rule," which gives the township broad power to legislate.

When Stacy Long learned in 2013 that a drilling company planned to dump its wastewater into an abandoned gas well two and a half miles from her house, she knew nothing about fracking, had never protested anything, and her legal knowledge amounted to zilch.

Long, 47, is a graphic designer from Grant Township, a rural enclave in western Pennsylvania about 70 miles from Pittsburgh. She’s an avid death metal fan who dresses mostly in black and lives with her husband in a house so deep in the woods they can’t see any neighbors. They call their home the Fishbowl, its giant windows offering sweeping views of their land.

She has long known that her home is something she wants to protect. “I’ve always seen the township as almost supernaturally beautiful: tranquil, lush, green,” Long said. “Any time of the night, you can see every star.”

Her family’s roots in the township go back four generations. Her mother, retired school teacher Judy Wanchisn, lives a mile away. Neither woman was thrilled about Pennsylvania General Energy’s plan to pump millions of gallons of water and toxic solvents into the well. They worried that the wastewater would leach into Little Mahoning Creek, the source of Grant’s pristine drinking water. 

At first, no one paid Stacy Long and her mother much mind. But three and a half years later, PGE’s project is still tied up in the courts. With the help of a crusading law firm, Long and Wanchisn have taken a novel approach to keeping the well out of their town ― essentially changing Grant’s charter to declare it an independent legal entity with the authority to define civil rights for its citizens, even if those rights conflict with state laws.

They’ve challenged PGE’s permit applications at every step, claimed their watershed should be recognized as having the same legal rights as a human being, and even helped legalize civil disobedience in their town to protect anyone who takes direct action to stop PGE’s plans.

Long and Wanchisn’s fight has inspired similar efforts in other communities facing fracking companies that want to set up shop within their borders, creating a new a blueprint for resistance that dozens of other towns have taken up. 

The women never expected any of this. To them, this fight was always about safeguarding the citizens of Grant Township.

“We’re up against an industry that enjoys every advantage,” said Long. “We’re tiny, we’re impoverished. Our economy is hanging by a thread. We’re the easiest and cheapest way for the gas industry to get rid of its crap.”

“But Grant is special,” she continued. “It’s the reason we’re fighting so hard.”

Stacy and Mark Long are fighting Pennsylvania General Energy's plan to convert an old well into an injection site for wastewa
Keith Boyer/The Contently Foundation
Stacy and Mark Long are fighting Pennsylvania General Energy's plan to convert an old well into an injection site for wastewater from the hydraulic fracturing process.

Hundreds of fracking wells dot the verdant hills and valleys of Indiana County, which were once the heart of coal country. The nearby Little Mahoning is a jewel of the landscape, and the source of Grant’s drinking water for as long as anyone can remember. The creek, which managed to avoid the ravages of the coal industry, remains the thriving home to a variety of fish, freshwater mussels and the largest aquatic salamander in North America.

Wanchisn first learned about the proposed wastewater injection well in October 2013, when a member of the local League of Women Voters called her about a public hearing at PGE’s request for a permit from the Environmental Protection Agency, which oversees wastewater injection under the Safe Drinking Water Act.

The company was seeking to convert an old gas well on Grant resident John Yanity’s property into a deep depository for fracking brine. PGE agreed to pay Yanity $20,000 for the rights to use his existing structure, which sits on a triangular piece of grass-covered land abutting the East Mahoning Baptist Church. The company offered Yanity an additional undisclosed amount for every 42-gallon barrel of wastewater it injected, projected to be 30,000 barrels each month.

“They’d planned to have the hearing under the radar, but the league got wind of it,” said Wanchisn.

We’re up against an industry that enjoys every advantage ... We’re the easiest and cheapest way for the gas industry to get rid of its crap. Stacy Long

Wanchisn began researching injection wells and interviewing experts on the subject. Dan Fisher, a geologist with the Wetstone Solutions environmental consulting firm in Freedom, Pennsylvania, agreed to work up a report on the seismology of the region, since fracking-related operations have been linked to spikes in earthquakes in some parts of the country. He found a fault line within a mile of the defunct well.

She also dug through piles of research into wastewater, finding that it commonly includes a mix of chemicals ― benzene, ethylbenzene, toluene and xylene ― that have been linked to leukemia, respiratory illness and diseases of the liver, kidney and reproductive organs. 

Wanchisn presented these findings at the hearing, but officials from the EPA’s regional office and PGE shrugged them off. Another resident expressed her concern that the old well might not hold up under the pounding pressure of disposal, but a PGE representative assured the group that any leak into the town’s aquifer was highly unlikely ― and even if one did occur, layers of rock would contain it. The PGE rep pointed out that his firm’s contract with Yanity allowed the company to use the well as it saw fit. (Yanity did not respond to requests for comment for this story.)    

Wanchisn reached out to other Grant residents after the hearing. Many had heard nothing of PGE’s plans. Among those who had, some were fearful. “There are a number of people here who used to haul fracking wastewater,” she said. “And they were saying, ‘Oh my god, you don’t want that here.’” They pointed out that a convoy of trucks would rumble through Grant’s narrow roads 12 hours a day, starting at 7 a.m., seven days a week, bringing tanks of wastewater to the disposal site.

Despite those concerns, the EPA quickly approved PGE’s permit request. Long and Wanchisn appealed that decision, on the grounds that the issues raised at the hearing had not been “fully and adequately answered.”

But the agency rejected their appeal in April 2014, which left PGE with only one more hurdle: It needed a permit from the state’s Department of Environmental Protection to activate the well.

Long and Wanchisn realized they needed help to make sure PGE didn’t get that last approval. They summoned their friends and neighbors to form an activist group, which they dubbed the East Run Hellbenders Society after the eastern hellbender, an orange-and-black salamander native to Little Mahoning that has been around for 65 million years. Because it breathes through its skin, the salamander would likely be the first casualty should the creek become contaminated.

A hellbender. 
Robert J Erwin via Getty Images
A hellbender. 

The Hellbenders then contacted the Community Environmental Legal Defense Fund, a nonprofit located just two hours away in Mercersburg with a reputation for battling oil and gas producers. Its founder, fiery former EPA researcher Thomas Linzey, put one of his top assistants on the case.

The group said Grant’s best chance was passing a local law, an ordinance known as a community bill of rights, to make it illegal to dump wastewater in Grant. Theirs would not be the first ― Pittsburgh famously barred waste injection in 2010 ― but Long and Wanchisn planned to add additional measures to their bill of rights that would also nullify any disposal permits that had already been awarded.  

“All residents of Grant Township, along with natural communities and ecosystems within the Township, possess the right to clean air, water, and soil, which shall include the right to be free from activities which may pose potential risks to clean air, water, and soil within the Township, including the depositing of waste from oil and gas extraction,” the bill of rights stated.

They presented the proposed ordinance to the town’s three-person board of supervisors on June 3, 2014.

PGE had apparently gotten word of the Hellbenders’ plans and sent an employee to the meeting as well, who warned that there would be legal action if the town adopted the bill of rights.

“They slapped down a sample complaint on the supervisors’ desk and said, ‘Don’t pass this, or you may get sued,’” said Chad Nicholson, the CELDF organizer who worked with Grant. “They tried to intimidate them.”

But Grant’s leaders weren’t swayed, and unanimously approved the bill of rights.

Two months later, PGE made good on its threat, filing a lawsuit against the township in federal court.

Hydraulic fracturing, which was invented in the 1860s, works by firing a highly pressurized stream of water, chemicals and sand into shale and other types of rock to crack it open and free the natural gas trapped inside. The wastewater then gets pumped back to the surface, picking up contaminants like lead, minerals and radium, which is radioactive, as well as petroleum chemicals from drilling machinery. An average well churns through 4.5 million gallons of this brackish broth ― enough to fill seven Olympic-sized swimming pools ― in the two weeks it typically takes to withdraw all the natural gas from a drilling site.

Up until the 1980s, untreated fracking wastewater was routinely discarded into public waterways, but concerns about the safety of that practice led the EPA to assume authority to permit, inspect and enforce operations in accordance with amendments to the Clean Water Act. But some states allow treated wastewater to be used in ways that alarm health advocates. For example, Pennsylvania and New York spread brine on wintry roads as a de-icer. In drought-stricken California, farmers have watered crops with it.

Municipal sewage treatment plants aren’t set up to handle fracking wastewater, which prompted the EPA to bar oil and gas companies last year from sending their waste there. And custom treatment facilities are expensive and still don’t sufficiently clean the water, according to Environment America and other watchdog groups. In 2013, a Duke University team found elevated levels of radium, chloride and bromide in the Blacklick Creek of Indiana County, downstream from a treatment plant that discharged brine into its waters.

This is why drillers and regulators alike have a strong preference for injection wells. In Pennsylvania ―  the second largest producer of natural gas after Texas ― there are only seven active deep-injection sites for fracking waste. The state sends most of its wastewater to neighboring Ohio for disposal. (By comparison, Texas has 50,000 injection wells.)   

Injection wells make sense on some level. Many of the potentially hazardous elements of wastewater come from the soil anyway, industry proponents argue. And drillers employ steel-lined concrete pipes to inject the water, a system meant to prevent brine from seeping into porous rock as it travels thousands of feet below groundwater aquifers, where it’s supposed to remain in perpetual quarantine.

But well records and state and federal documents show that leaks, broken pipes and spills plague this process and can contaminate groundwater. Between 2007 and 2010, state environmental agencies cited 1 in 6 disposal wells for “integrity violations,” according to ProPublica, with a total of 17,000 such violations nationwide.

For years, the EPA refused to acknowledge that injection wells could pose a public health threat. Then, last December, the agency released a much-anticipated final report that found that the fracking process does, in fact, pollute groundwater. “We found scientific evidence of impacts to drinking water resources at each stage of the hydraulic fracturing water cycle,” said Tom Burke, who was the deputy assistant administrator of the EPA’s office of research and development at the time. Industry lobbyists, however, denounced the EPA’s findings, claiming that reports of contamination were exaggerated and that injection disposal was largely safe.

All of this only added to Long and Wanchisn’s determination to keep injection wells out of their town. But the growing controversy over wastewater also fueled PGE’s desire to secure permits and get the well going as quickly as possible.  

In court filings against the town, PGE claimed that Grant’s ordinance violated its civil rights by impinging on guarantees in the First and 14th amendments, which ensure free speech and equal protection under the law, respectively. The township’s action was “deliberate, arbitrary [and] irrational,” PGE claimed, and “exceeds the limits of governmental authority, amounts to an abuse of official power, and shocks the conscience.”

The company’s argument relied on court precedent establishing that corporations are entitled to the same legal protections as individuals — such as in the 2010 Citizens United ruling. PGE’s lawyers asked federal magistrate Judge Susan Paradise Baxter of the U.S. District Court for the Western District of Pennsylvania to invalidate Grant’s ordinance and order the township to pay damages and cover PGE’s legal bills, an estimated $1 million.

The company’s insistence on its constitutional right to inject fracking wastewater gave the Grant activists an idea. If the court could grant companies civil rights, why not ecosystems as well?

In a hastily arranged conference call in October 2014, Linzey suggested that maybe they should try to intervene on behalf of the Mahoning watershed ― and offered to represent the creek as a person with a vested interest in the dispute. It was a daring legal gambit, one that asked courts to consider the “rights of nature” as on par with those of humans and corporations.

Even most mainstream environmentalists saw it as a tough case to make, though Linzey’s group and others have used similar arguments successfully in Ecuador and India. What he didn’t know was whether this position would work in the U.S.

Wanchisn took the conference call in a Pittsburgh hospital room, where her husband Paul had just learned he needed quintuple bypass surgery. Linzey’s enthusiasm tempered the family’s health worries. She and her daughter loved the idea. “My initial concern was for the watershed, anyway,” said Wanchisn.

The lawyers felt that the court recognizing the creek as a party ― and thus having civil rights guarantees ― would change the dynamic of the case. So the Hellbenders got to work on a motion to add their group and the Little Mahoning as parties in the case PGE had filed against the township. They also prepared a countersuit against PGE, alleging that in challenging their ordinance, the company was denying Grant residents the right to “community self-government.”

In October 2014, however, the DEP quietly approved the PGE’s permit to convert the well, giving the company everything it needed to proceed.

Wanchisn and Long fought back. They asked the DEP to investigate whether the PGE permit conformed to guidelines for deep-injection wells as outlined in the state’s Clean Streams Law. Six months later, the DEP revoked the permit, admitting it had not looked into this issue and needed time to do a review.   

Although defendant wishes it were not so, the development of oil and gas (which necessarily includes the management of waste materials generated at a well site) is a legitimate business activity and land use within Pennsylvania. U.S. Magistrate Judge Susan P. Baxter

No one could recall the department ever having canceled a permit previously. Linzey said it was likely because the state had elected a new governor, Democrat Tom Wolf, that November, and he’d taken a tougher stance on drilling activities during the campaign than his predecessor. The change brought PGE’s plans to a halt once again.

At that point, the company tried a new tactic: winning over the people. The firm, working with the DEP, arranged for a fresh public hearing, where they hoped to calm the locals and get their project back on track.

Wanchisn and Long saw this a new opportunity to drum up public outrage.

There was a packed house at the East Run Sportsman Club for the June 1, 2015 hearing. Residents filled rows of metal folding chairs, facing a row of representatives from PGE and the DEP. The company executives began the meeting by explaining how they would build the well and emphasizing how unlikely they thought it was that leaks or groundwater contamination would result.

The room was tense. Mark Long, seated in the back of the club, noticed several armed security men ― out-of-towners whom he figured PGE had hired. “I think they were afraid of physical violence,” he said.

“What’s in this fracking water?” asked one older man bluntly. A PGE representative assured him that issue was covered by the EPA permit. Others wanted to know about PGE’s record, after finding out the company had been fined $120,500 violations in 2014 ― more than all but eight other oil and gas companies in Pennsylvania. 

The less information residents got, the louder the rumble of unrest grew. Bill Woodcock, a friend and neighbor to the Longs, inquired about chemicals in the wastewater, mentioning hydrochloric acid, which has been found in fracking waste samples in other states. “Corrosive to flesh,” he announced. Woodcock named another potential contaminant, methanol: “Highly toxic, poisonous to the central nervous system.” The PGE reps remained stone-faced.

Sandy Kenner, a Grant resident, rose and glared at them. “If you lived here,” she said, “would you want to have an injection well?”

They looked at one another or the floor. “I can tell you that we have 10 professionals reviewing this,” one finally replied.

“I want a yes or a no,” Kenner insisted, marching to the front of the room to stand directly in front of the PGE representatives. “I may be a redneck, but I want to hear from each of you.” They declined. 

Meanwhile, PGE’s lawsuit against the township was slogging along, delayed by vacancies on the federal bench in the district and several reassignments of the case.

Baxter finally reached a decision in October 2015, in favor of PGE.

“Although defendant wishes it were not so,” Baxter wrote, “the development of oil and gas (which necessarily includes the management of waste materials generated at a well site) is a legitimate business activity and land use within Pennsylvania.” 

The judge struck down Grant’s ban on extraction waste and rejected Little Mahoning and the Hellbenders as parties to the suit, ruling that their interests were already represented by Grant’s municipal government. Baxter made no statement about whether the watershed could be considered a person.

“She punted on that question,” said Linzey.

That was good news for Grant, as was the judge’s decision not to award damages or legal fees to PGE ― though her finding that the township had overstepped its authority meant the fracking firm could pursue a monetary judgment later. CELDF quickly filed an appeal.

Fortunately for the Hellbenders, they had another plan to stop the well.

Stacy Long, 47, has been fighting an oil and gas company's attempt to put a wastewater injection well in her town for th
Keith Boyer/The Contently Foundation
Stacy Long, 47, has been fighting an oil and gas company's attempt to put a wastewater injection well in her town for three and a half years. 

If there’s one distinguishing aspect of the law in Pennsylvania, it’s a provision set forth by its founding father, William Penn, who in creating a state government worried it might intrude on the rights of small towns. So in 1681, Penn authored a decree that allowed any municipality to establish “home rule” ― to in essence govern itself ― if a majority of residents voted in favor of it. By doing so, a town was entitled to pass any local laws it wanted, so long as they didn’t allow activities specifically prohibited by the state.

The state didn’t get around to actually codifying Penn’s proposal until the early 20th century, when lawmakers passed a series of new measures, the latest coming in 1972. That law came with a caveat: Pennsylvania reserved the right to overrule a municipality if it believed a local law unfairly impinged on state interests.      

Even so, that was Grant’s lifeline. It would not be the first city or town to adopt home rule ― 70 others in Pennsylvania had already done so, including Philadelphia. Wanchisn and Long set out to create a new town charter that would not only give Grant Township broad power to legislate, but also include the wastewater ban and rights to clean air and water they’d outlined in the earlier ordinance that PGE and Baxter had challenged. 

“They basically told this federal judge, ‘Screw you,’” said Linzey. As a practical matter, their proposed change would challenge the DEP’s authority over well permits in Grant and render Baxter’s ruling moot, since PGE had filed its lawsuit against a township with standing only as an ordinary municipality.

Even so, there was uncertainty as to whether Grant’s residents would go for it.

Wanchisn and Long knew home rule had a downside: an escalation of the conflict with PGE, one of the county’s bigger employers, at a cost some feared could bankrupt the township. But they got their measure on the ballot for Nov. 3, 2015, and began lobbying residents for support.

The two women arrived at Grant’s polling place early on Election Day, setting up a welcome gazebo a permissible distance away to greet a steady flow of voters and ask them to check the home-rule box on their ballot.  

“They’re going to inject the waste right between two tributaries,” Wanchisn told one resident, tapping on a homemade posterboard map of Grant with a red dot for every natural gas well in its 27 square miles ―  a total of more than 400 wells ― along with a pink circle marking the proposed well site.

Thirteen hours later, the Hellbenders got the news they wanted: Home rule passed in a landslide. Of the total 257 ballots cast, 103 people voted for the measure and 25 against. “We screamed and hollered,” said Long.

Grant is at the forefront of something new that’s exciting. They are giving birth to a new movement, to expanding certain civil and political rights. Thomas Linzey, Community Environmental Legal Defense Fund

In the year and a half since Grant’s residents approved home rule, the town and PGE have continued to spar in court. Most of the news has not been good for the township and the Hellbenders.

A panel of the U.S. Court of Appeals for the Third Circuit upheld Baxter’s decision last summer, siding with her ruling that Grant’s ordinance violated PGE’s civil rights and that the township’s watershed and activists shouldn’t be allowed to join as parties in the case, because their interests were adequately represented.

Meanwhile, the DEP re-approved PGE’s permit last month, though it required seismic-reading monitors to be installed to make sure the new well doesn’t cause earthquakes. The DEP also filed its own lawsuit against Grant and another township ― Highland, which had instituted home rule in order to ban injection disposal ― arguing that the state governs fracking waste operations under Pennsylvania’s Oil and Gas Act, not these towns. The suit challenges the idea that home rule can be used to block oil and gas operations. 

“The state is asking for the courts to validate their own authority since they’ve already issued the permit,” said Linzey. “They’re contending that the home rule charter is invalid because the state has complete control over oil and gas extraction. It’s pitting the state directly against the locality.”

The DEP more or less agreed with that assessment. “State law says injection wells are a legal thing and DEP issues permits for them, and home rule says, ‘No, you can’t have them,’” said the agency’s press secretary, Neil Shader. “The reason we filed the petition was really for the court to make a judgment as to which set of laws stand here. We are not trying to retaliate against them for passing this home rule charter.”

PGE also asked Baxter to review its damage claims again, and in a March 31 ruling, the judge found PGE is entitled to compensation. Just how much they might get is yet to be decided; the jury trial on that subject awaits.

If they lose that case, Long says Grant likely can’t afford to pay. “We’re broke,” she said.

A PGE spokeswoman declined to comment on these cases or to make company officials available to be interviewed for this story. “It’s our company policy not to release information with regard to current projects that are in litigation,” said Karen Thomas, vice president of human resources.

But the Grant case has clearly struck a nerve.

One oil and gas industry advocate has suggested that Grant officials should face criminal charges for “official oppression” in denying PGE’s rights, a second-degree misdemeanor punishable by two years in prison and a $5,000 fine. “[T]hese officials are voting for ordinances that are based on a right to self-government that simply does not exist,” Kevin Moody, general counsel for the Pennsylvania Independent Oil & Gas Association, told the Pittsburgh Post-Gazette last fall. “Local governments aren’t sovereigns. They can’t have local constitutions.”

Though PGE could start work at the Yanity well any time, Long and Wanchisn aren’t out of options. If construction were to begin, the company would be in violation of Grant’s new charter, and to date, no court has ruled against their home-rule declaration. Linzey is encouraged that Baxter, despite ruling against Grant, twice issued opinions saying that the state’s Oil and Gas Act does not trump the township’s laws.

Grant residents, meanwhile, are ready to resist. Last May, the local board of supervisors, which by then included Long, voted to make civil disobedience legal in the town ― a first-of-its-kind law allowing residents to defend the town’s new charter with any “direct action,” as long as it’s not violent.  

But their fight has gotten a lot bigger than Grant. The battle between the rights of a corporation that wants an injection well and a town that wants to define for itself the rights of its citizens could have implications for other places that have tried to bar fracking-related activities. 

“Grant is at the forefront of something new that’s exciting,” said Linzey. “They are giving birth to a new movement, to expanding certain civil and political rights. We’re at the core elements of constitutional government, which emphasizes property and commerce above all else. In my opinion, that only changes with revolt. And that’s what Grant is doing.”

Whatever new court decisions might come, Long and Wanchisn say they’re not backing down. They recently joined a group of Grant residents in marching onto Yanity’s property to place flowers in his well ― before he called the cops and had them kicked off his land.

“Somebody said, ‘This is such a horrible thing. Why don’t you just move?’” said Wanchisn. “But here, you don’t move from the area where you were born and raised.”

This story was produced by the Contently Foundation, a New York-based nonprofit for investigative reporting.

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