UPDATE: Judge Wilcox dropped the harassment charges filed by Smithfield Twp. supervisors against Carolyn Knapp on the account that the charges were reported privately by public officials, without a vote or discussion during a public meeting.
by Joshua B. Pribanic, Editor-in-Chief, Public Herald
this story is part 2 of 6 in the INVISIBLE HAND series
Rose Marie Grzinzic is neighbor to the “Lamb’s Farm Storage Facility,” a fracking wastewater site known locally as the “tank farm.” It’s one of 28 WMGR123 permits issued by the Pennsylvania Department of Environmental Protection (DEP) for the north central region and allows roughly 40 yellow trailers to hold up to 756,000 gallons of wastewater produced by Chesapeake Appalachia above-ground for the next six years.
Directly downhill from the storage facility, Rose Marie has a pond where she and her sister have stocked fish. It’s where her grandchildren and great-grandchildren swim.
“Shear the top of the hill off, that dump site is parallel with my pond,” Grzinzic says. “There is a possibility of a leak somewhere — I don’t like it. My daughter already moved out with her two children because she worked for Chesapeake and she drove a freshwater truck. She told me, regardless of how careful you are, you deposit or pick up anything off that truck, it leaks.”
In April, nine concerned residents, including Grzinzic, filed an appeal to the DEP permit, as detailed in a previous Public Herald report.
At 78 and on full-time oxygen, Grzinzic says she can’t make it out to the township meetings to comment about the appeal, or down to Williamsport for a deposition with Chesapeake’s lawyers. So she gave a letter to Carolyn Knapp, from neighboring Ulster Township, to take to the Smithfield board that designated Knapp as her representative at public meetings.
“I just can’t sit and do nothing about it. This is my home,” Grzinzic says. “We bought nightcrawlers for the kids to feed to the fish, because they’re pets, and now we’re going to lose that too.”
But when Knapp presented the letter from Grzinzic to the supervisors at the October Smithfield Twp. meeting during public comment, supervisor Russel Burkett refused to allow Knapp to speak, stating that she’s not a taxpaying resident of Smithfield. Knapp and Burkett made emotional exchanges, and Knapp informed him she had a legal standing to speak.
In a video obtained by Public Herald from a resident at the meeting, Burkett can be heard exclaiming, “You will leave the meeting right now… as long as you’re here the meeting is adjourned.”
Another person at the meeting states, “I want to speak for her,” when Burkett says, “Well, I’m sorry. As long as you’re here [meaning Knapp] the meeting is adjourned.”
Knapp retreats in reaction to the resident, “I will be quiet, but read that [pointing to the letter].” She’s quickly silenced by Burkett, “You’re out! Get out, right now! You’re done.”
“I won’t. I won’t get out,” Knapp sharply responded. Burkett then made a motion to adjourn and the meeting ended. Two residents with the appeal group approached the supervisors table, but the confrontation continued.
Burkett: “You are not a resident, and you are not a taxpayer. And you are asked to stand down, and you can leave.”
Knapp: “I am a taxpayer of the Commonweatlh [repeated]! And I am a taxpayer of the Athens school district.”
Burkett: “You’re going to follow protocol or you’re going to leave. And if you don’t the meeting is adjourned.”
Knapp: “You don’t follow protocol, I’m not going to follow protocol!”
Burkett: “Well then, you’re going to be removed by the state police. That’s the next step.”
Days after this exchange, Knapp received a letter in the mail summoning her to appear in court for criminal harassment charges filed by the Smithfield Twp. supervisors: Russel Burkett, Jacqueline Kingsley and John Allford. The charges stated Knapp acted “with no legitimate purpose” and had acted the same in previous meetings.
However, in a video of the May 2014 Smithfield meeting recorded by Public Herald, the supervisors can be heard giving Knapp permission to speak on behalf of Grzinzic. Knapp holds up the letter in the May video and asks, “So, is that permissible?” — referring to her right to speak — and Burkett responds, “Sure. Yeah, absolutely.”
Furthermore, the supervisors can be heard agreeing to allow Knapp five minutes to speak if she signed up on the agenda.
The harassment charge later filed by the supervisors states that it was “necessary” to adjourn the meeting due to Knapp’s “outrageous conduct.” But the video recording sent to Public Herald shows Knapp retreating from comment after a resident stands up to speak on her behalf. Burkett then adjourns the meeting because Knapp wouldn’t leave the building.
In a phone call with presiding Judge Jonathon Wilcox, who’ll be hearing the harassment case, if found guilty, Knapp could face 90 days in jail or a fine up to $300.
When asked about the charges during a phone call Supervisor Burkett would not answer questions but did refer Public Herald to the township solicitor, who was not present at the October meeting. He could not recall another time in his position when harassment charges were filed against someone attending Smithfield Twp. meetings.
Open Meeting Open for Debate
“The Sunshine Act in Pennsylvania allows local agencies to limit public comment to residents and taxpayers. However, there is still the first amendment to consider,” says Melissa Melewsky of the Media Law Counsel for the Pennsylvania News Media Association. “But arguably, public comment at a public meeting would be considered a public forum for first amendment purposes; under that, the right to speak is considerable.”
Melewsky is not aware of any case where criminal charges were brought against public comment and a ruling was made based on first amendment rights. “I’m aware of other cases where people have been cited criminally for making comment, but ultimately those charges were dismissed.”
According to the Sunshine Act, the question for a judge would be whether or not the agency, in this case the municipality, is acting reasonably by prohibiting public comment or participation at an open meeting.
For Knapp, her legal standing to speak at the request of a resident who’s unable to do so could be protected.
“The power of attorney in Pennsylvania statutes allows somebody to use an executed document to act on someone’s behalf,” says attorney John Smith, who currently represents the Kiskadden family in southwestern Pennsylvania on a drinking water contamination case resulting from fracking wastewater.
“When you have a project on a municipal boundary line that’s going to affect the other municipality’s residents, are you telling me they’re shut out of the process? Pennsylvania law looks at whether you’re an aggrieved or an affected landowner,” and this, according to Smith, dictates whether a nonresident can speak on those issues.
“Because I pay taxes and the township benefits from it, the township should allow me to speak,” Knapp told Public Herald. “Because of what they’re doing at that facility, I believe it has the potential of contaminating waterways in our state, so why shouldn’t I speak about it?”
During a meeting in September, time was allowed for a supervisor from another township to speak. “Other people get to talk about these things because they’re so-called experts,” Stedge says. “We have a title after our name, too: it’s C-I-T-I-Z-E-N.” The supervisors stated that the visitor was a ‘professional’ and legally could be given time to speak at the meeting.
“This kind of situation, the resident vs. non-resident, creates significant first amendment issues. It’s not a rule,” said Melewsky. “The law doesn’t say an agency has to limit to residents and taxpayers. They can if they want. An agency can allow anyone to speak, it’s unusual for them to say ‘you’re not a resident, you don’t have the opportunity to speak here.’”
Carol French, who works with Knapp on the Smithfield appeal, recalls trying to argue in a previous meeting that her standing for a seat in the state House of Representatives qualified her as an ‘expert’ or a fellow official, but the supervisors rejected her request. “I don’t want to ever find myself asking a question and then getting slapped with charges. What they’re trying to say is don’t interfere and don’t ask questions.”
Pennsylvania Sunshine Act Protocol
In April, Smithfield Township Supervisors filed their own appeal with DEP — alongside the residents’ appeal — which they then withdrew by a unanimous vote five months later at their September meeting. That vote occurred only a few hours after the three supervisors toured the Lamb’s Farm Storage Facility with officials from Chesapeake and Lamb family members.
“I guess it played a part,” Kingsley says, when asked whether the unannounced and private tour affected the township’s decision to drop their appeal. The supervisors were satisfied with what they saw at the storage site, which had no wastewater at the time.
The Pennsylvania Sunshine Act says that whenever a quorum of public officials deliberate — defined as “the discussion of agency business for making a decision” — by protocol, the meeting must be public and notice should be posted.
Whether the Smithfield supervisors violated the Sunshine Act is a question that would have to be determined by a judge, says Kim de Bourbon, executive director of the Pennsylvania Freedom of Information Coalition.
“Boards are kind of free to ignore the Sunshine Act until you’re willing to take them to court,” de Bourbon says.
The Smithfield supervisors maintain they withdrew their appeal because no questions were offered by residents, despite township meetings in April and May where several residents asked questions about the wastewater site. In fact, so many questions were asked at the meeting in April that it prompted the supervisors to motion for the appeal in the first place.
“The major thing that affected our decision [to withdraw] was we had gone with the appeal to get questions answered, in May I believe, and in that length of time we didn’t have any questions,” Kingsley said.
The supervisors left out a tablet at the township office for questions, which by September had one comment on it from Richard Stedge, one of the private appellants. In recordings by Public Herald of those meetings, the supervisors never stated that the township’s appeal would not proceed if questions were not written on the tablet.
“They said they appealed to find out information,” Stedge says. “If you appeal to DEP, and then decide to go with Chesapeake to the site, and then come back and tell your people everything is fine and you’re dropping the appeal — that left a lot of questions in our minds.”
The supervisors say they assuaged any concerns by asking consultant Greg Myers, of DMS Environmental Services about the WGMR123 permit issued to Chesapeake. Myers said the process contained nothing out of the ordinary. The 564-page permit Myers referred to has been scanned by Public Herald and is available for review at the #fileroom.
“When this facility came through it didn’t raise any red flags,” Kingsley told Public Herald. “Yes, they’re storing frackwaters. The same waters that are all coming up on the same wells that are being drilled and fracked in this township and no one has ever said a word. Our understanding it will be stored temporarily.”
The permit allows for wastewater storage for up to six years.
Kingsley told Public Herald that more drilling activity is expected to return to her township: “Maybe they want this water to be available locally to frack these wells,” she says. “I’m far more in favor of recycling dirty water than using that much more fresh water.”
In a township where, Kingsley estimates, 90 to 95% of people have gas leases, the supervisors’ approach is to stay out of the way.
“Everybody wants their personal freedoms until they get in a bind and now they want the government responsible,” she says. “You can’t have it both ways.”
Kingsley expressed to Public Herald that residents exaggerate dangers such as radiation. “We had one gentleman who said these things have radiation levels beyond all radiation levels. I think that’s just an expression. They’re just throwing things out there. And we can’t base our decisions on people just throwing out these assertions.”
However, a recent Duke University study found that radiation levels in fracking wastewater from the Marcellus shale are in fact far above regulated levels, even when treated. And the permit file for the storage facility clearly states that the site will be exposed to waste with radiation.
Experts or not, the concerned citizens are not just “whiny people,” French says. “They’ve done a lot of digging, a lot of research of this. These residents are very qualified to ask these questions.”
Residents of Smithfield Twp. see the supervisors’ position as ‘hands off’ when it comes to environmental issues that can affect neighbors. But when it comes to money matters, more than one supervisor has taken up the fight.
Most recently, Burkett is the lead plaintiff named on an arbitration suit filed in September 2013 to stop Chesapeake from taking company costs out of landowners’ royalty checks.
For Grzinzic, knowing what she knows now about the industry, the storage of potentially radioactive waste next to her home makes her fear for her grandchildren’s lives, which are priceless.