Legal battle continues over drilling and fracking wastewater well by Don Hopey, Oct 5, 2019, Pittsburgh Post-Gazette
Grant Township, a tiny, rolling swath of rural Indiana County, doesn’t trust the state Department of Environmental Protection to protect the water wells of its 700 residents.
That much was clear at Friday’s Commonwealth Court hearing in Pittsburgh where the DEP sought dismissal of the township’s challenge to a state permit that will allow a shale gas wastewater injection well to operate in the community.
The long-running legal battle, which is being watched statewide for its potentially precedent-setting outcome, pits the township, which wants to protect water wells from contamination, against the DEP, which approved a permit for the injection well in 2014 and again in 2017.
“We’re trying to protect our constituents’ water from toxic waste produced by the shale gas drilling industry,” said Jon Perry, a township supervisor, speaking at an impromptu news conference following the hearing. “We’re fighting tooth and nail to keep the poisonous water out of our township. There is no ‘Plan B.’”
The township’s lawsuit was prompted by a Pennsylvania General Energy Co. proposal to convert one of its former shale gas production wells to a 7,500-foot-deep injection well for the disposal of liquid drilling and fracking waste from other gas well drilling sites.
Similar plans for disposal wells have met strong opposition in elsewhere in Pennsylvania and Ohio where residents depend on private well water, and about 50 supporters packed the courtroom for the hearing, including several from the gas fields of eastern Ohio. .
The injection wells pump water laden with salt, chemicals and metals into gas voids below the shallow aquifers tapped by residential water wells. The practice has caused minor earthquakes in Ohio, Oklahoma, Texas, Arkansas and Colorado.
Grant Township commissioners approved a community bill of rights ordinance in 2014 to attempt to block the injection well, prompting PGE to file a federal lawsuit that was decided in favor of the company but is being appealed. In 2015, the township adopted its Home Rule Charter by overwhelming popular vote.
DEP attorney Richard Watling declined to comment after the hearing but told the court that the township should have enacted a zoning ordinance to regulate where wastewater injection wells could operate, not a home rule charter.
“This is de facto zoning and it’s unlawful,” Mr. Watling told the judges, referring to the charter. “The commonwealth is not against the township fulfilling its duties, this is just not the right way to do it.”
But Karen Hoffman, an attorney representing Grant Township, called the zoning issue a “red herring,” and said the second-class township has the authority under the police powers of its home rule charter to protect the health, safety and welfare of its residents.
“The DEP doesn’t know what’s in the drilling and fracking wastewater, so how can it protect Grant Township?” Ms. Hoffman said. “The DEP is falling down on its duty to protect the residents of Pennsylvania.”
She said Pittsburgh has exercised its authority under its home rule charter to ban shale gas fracking wells, and the township “has the same authority to enact this kind of law.”
A federal appellate court hearing scheduled for Friday in Philadelphia was postponed. In that case, Grant Township is appealing a court ruling awarding PGE more than $102,000 in attorney fees. Township officials say the ruling would bankrupt the municipality, which has annual revenues of approximately $150,000 and operating expenses of about $140,000.
Ms. Hoffman said the federal lawsuit filed by PGE challenged the old, 2014 township ordinance and is separate from the township’s challenge to DEP’s permitting authority.
“The township’s home rule charter is still in place and it’s good law,” Ms. Hoffman said.
Nationwide, there are about 30,000 deep injection wells used for drilling wastewater disposal, handling about 2 billion gallons a day. Ohio has about 200, West Virginia has 65, Oklahoma about 4,000, and Texas about 12,000.
Because of Pennsylvania’s geology, only about a dozen injection wells have been permitted in the state. But there is pressure from the drilling industry to permit more.
“A lot of municipalities are watching this case,” said Stacy Long, a Grant Township supervisor. “Everyone in Pennsylvania is watching because the DEP keeps cramming these harmful wastes into our backyards and that’s not a remedy. The waste contains radioactive material and unknown chemicals. The regulations are failing our people.”
Ms. Hoffman said there was no time frame for Commonwealth Court to issue its decision.
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“By any responsible account,” Chief Justice Castille wrote, “the exploitation of the Marcellus Shale Formation will produce a detrimental effect on the environment, on the people, their children, and the future generations, and potentially on the public purse, perhaps rivaling the environmental effects of coal extraction.”