Packer biosolids battle continues,
August 27th, 2008
The Packer Township Board of Supervisors is holding its ground in defense of its Local Control Sewage Sludge and Chemical Trespass Ordinance.
The ordinance, drafted by Ben Price of the Chambersberg-based Community Environmental Legal Defense Fund and adopted by the township on June 11, prohibits the use of treated sewage sludge, called biosolids, as fertilizer on township land. The ordinance also asserts the constitutional right of residents of the township to refuse “chemical bodily trespass” by corporations that would attempt to dump biosolids on the land.
In response to the township’s adoption of the ordinance, Packer Township dairy and crop farmer Clyde Hinkle Jr. requested that the office of Pennsylvania Attorney General Tom Corbett conduct a review of the ordinance.
The Hinkle family previously gained approval from the state Department of Environmental Protection to use biosolids as a soil conditioner on their 100-acre farm.
In nearby Tamaqua, public officials have contested DEP’s approval of biosolid use on the Hinkle property due to the farm’s close proximity to Still Creek Reservoir — a water supply source for Tamaqua.
Tamaqua Borough Councilwoman Cathy Miorelli, a vocal opponent of the land application of biosolids, encouraged the adoption of an anti-biosolid ordinance in the borough, and encouraged the Packer Township supervisors to do the same.
In response to Hinkle’s request for a review of the ordinance, the attorney general’s office recently notified Packer Township that a review is underway, and stated that Corbett’s office is authorized to file a lawsuit against the municipality if the office believes the ordinance “unlawfully limits or restricts a normal agricultural operation.”
In an “open letter” that has been distributed to daily newspapers in Hazleton, Harrisburg, Allentown and Reading as well as to the office of Tom Corbett, the Packer Township Board of Supervisors this week announced their intention to stand their ground in defense of the ordinance and the rights of township residents.
Pennsylvania’s ACRE (Agriculture, Communities and Rural Environment) Law, known as Act 38 of 2005, allows the attorney general to review local ordinances when petitioned to do so by farmers, and then either respond to the petitions or bring action in Commonwealth Court within 120 days. An ordinance can be struck down if the court finds it exceeds local government authority.
The board of supervisors charges that ACRE was drafted and adopted by agribusiness corporate interests using the legislature as a vehicle, and was not passed to aid family farmers.
“It is an undemocratic and illegitimate law under a system in which consent of the people directly affected by such governing decisions is made irrelevant. The Attorney General’s office is administering an illegitimate and therefore unconstitutional law, and we refuse to recognize its enforceability,” the township’s open letter states.
Board Chairman Thomas J. Gerhard said the biosolids ordinance and the open letter to the attorney general were actions taken in the best interest of township residents.
“This is Packer Township. We should be able to do what is in the best interest of the people of the township. We are going to go full bore in defense of this ordinance because we put it in place for a reason,” Gerhard said.
Niles Frederiksen, spokesman for the Attorney General’s Office, said Tuesday that a decision on the Packer Township position may have to come from the Pennsylvania Court of Common Pleas.
“If they want to proclaim themselves sovereign to the laws of the Commonwealth, they are free to do so until the courts determine otherwise. At the end of the day, the Commonwealth Court has the final say,” Frederiksen said.
In its letter, the board of supervisors says it is prepared to amend the ordinance and refuse to recognize the attorney general’s jurisdiction in the municipality and its attempts “to enforce a law which runs so contrary to democratic principles.”
“Additionally, should you determine it to be a matter of state interest to attempt to use the courts to deprive the people of Packer Township of their rights, including a right to self-government and a healthy environment, any offer to meet with the elected representatives of this community to negotiate a voluntary surrender of those rights will be rejected,” the letter states.
The letter is signed by chairman Gerhard and supervisors Grover Gerhard and William Swinesburg.
Frederiksen said that the ACRE Law is doing exactly what it was intended to do statewide: “level the playing field so that farmers don’t have the uphill task of going up against municipalities that might have passed an ordinance that restricts a farmer from doing business.”
Tending to the cows on their 100-acre farm on Quakake Road early Tuesday evening, Mary Ann Hinkle said that she and her son, Clyde, successfully fulfilled a plethora of state requirements in order to gain approval for the use of biosolid fertilizer on their farm.
Clyde declined to make further comment on the controversy.
“It’s in the attorney general’s hands,” he said.