Pennsylvania Sludge Busters How Porter Township Set New Rules for Corporations

"We cannot have democracy when large corporations wield their legal rights against communities to deny the rights of citizens to build sustainable communities. ... That's what this is about— who is in charge." -- Thomas Linzey.

Across the country, rural communities face a dangerous predator—giant agribusiness corporations of a scale unseen before the age of industrial food production. The agribusiness assault comes in many forms, including 10,000 head hog farms and mountains of toxic sludge that are spread on farm fields, placing people in harm's way. Following the death of two children from exposure to sludge, several townships in Pennsylvania decided to restrict waste corporations' activities. In doing so, they discovered that corporations had a "secret weapon"—the U.S. Constitution, which guarantees big business the same rights as people. But one community, Porter Township, determined that in their town, the citizens, not corporations, would govern, setting in motion a new organizing model for communities nationwide.
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On a crisp fall day in October, 1994, 11-year old Tony Behun woke-up and, remembering it was not a school day, charged out of bed. His still-gleaming dirt bike, a birthday present, beckoned. The rural countryside of Osceola Mills, Pennsylvania, was glorious; the autumn leaves were in their prime, framing the country roads and sloping hills with bright magentas and dazzling hues of orange. Nothing about this pristine day could have foreshadowed what was to come, as Tony pedaled for hours through lonesome wooded paths and fields, and over the Al Hamilton Mountain Top Mine site.

What was known only to the mine owner and one of its business partners, was that the mine site on which Tony rode had been freshly spread with toxic sludge, also called "biosolids." By the time Tony cycled home, he was covered in a black muddy substance emanating a fetid stench. At his mother's instruction, he removed his clothing in the basement and immediately took a bath. His bike too, had to be hosed down.

Within two days, Tony began complaining of flu-like symptoms, which alone may not have stirred alarm, but which were accompanied by legions on his arms. After three more days his condition worsened and he was flown to Pittsburgh, where a medical team attempted to identify and treat the mysterious illness plaguing his small body. Had Tony been exposed to anything "out of the ordinary," the doctors wondered?

No one thought to question the safety of the Al Hamilton mountaintop. There had been no signs posted, warning Tony or anyone else of the dangers of a "Biosolids Utilization Area." And if the legally requisite signs had been posted, would a young boy—or almost anyone else—have understood the danger implied?

As the doctors struggled to understand what could have caused his condition, Tony slipped into a coma. He never awoke. In the morning hours of October 21, eight days after his jeopardy joyride, Tony died of kidney failure.

In the years that followed, news investigations connected Tony's death with the EPA-approved practice of sludge spreading, whereby sewage—including medical and industrial waste that is "treated" to remove some but not all of the deadly pathogens—is applied to farm land (See box.). (CDC sounds a warning on risk of sludge. By John Tuohy, USA TODAY - July 13, 2000) Eventually, miners working near the site of Tony's exposure would come forward to say they had become ill, too, but were afraid to speak out "for fear of losing their jobs." People in other communities across the state would also start complaining of illness and livestock loss attributed to sludge.

Tony Behun's death was followed, a year later, by the sludge-related death of another boy, Daniel Pennock, in Heidelberg Township, PA. The two tragedies, combined with a 1997 state law loosening the regulations around sludge application, ignited a grassroots movement in Central Pennsylvania to tighten local rules around the practice. When companies profiting from sludge spreading sued one of the towns that had tried to crackdown on the procedure, the movement turned into rebellion against the idea of corporate rights.

By seeking to prohibit the application of sludge, communities learned a painful lesson in civics -- that under our current system of law, local towns' authority to ban or control hazardous practices have been stripped, and that efforts to stop corporations from spreading sludge would violate the corporation's "rights" under the U.S. Constitution. Citizens throughout rural Pennsylvania were shocked to discover that the sludge corporations possessed more rights than the majorities in the communities in which they operated.

In one such community, Porter Township, shock quickly turned to anger and a resolve to assert the rights of residents—not corporations—over local control. With assistance from a local attorney named Thomas Linzey, the United Mine Workers, and other partners, Porter Township made history by becoming the first community in the United States to pass an ordinance stripping corporate constitutional protections within the township. Echoing the Boston Tea Party, a citizens' revolution for real democracy and local control has begun to sprout across the state of Pennsylvania, and is today spreading across the country.

Toxic Sludge Is Not Good For You Sludge is everything that passes through the sewage system—not just human waste flushed from toilets, but increasingly industrial waste, much of which is illegally dumped in municipal sewers. In 1991, Congress determined that sludge was too dangerous to continue dumping in oceans. Yet, two years later the EPA approved a Sludge Program, setting forth guidelines for sewage "treatment" and enabling the waste to be spread on land. The EPA teamed up with the clean-sounding Water Environment Federation, the sludge industry's lobbying and PR arm (previously known as the Federation of Sewage Works Associations), to re-brand sludge as environmentally-friendly fertilizer. Together, they hatched a million dollar PR campaign to change public perceptions about toxic sludge. This effort included euphemistically renaming sludge "biosolids," and describing it as a "safe fertilizer product." (www.ejnet.org) As a result, millions of tons of sludge are spread each year; some 60 percent of all sludge is now used as fertilizer for market crops. Under EPA regulations, sludge only needs to be tested for 10 heavy metals out of a possible 70,000 chemicals and deadly pathogens, before being applied to land or composted and sold. (www.vpirg.org/campaigns/environmentalHealth/toxic_sludge.php )

Sludge and the Corporate "Chilling Effect"

Most of the sludge entering rural Pennsylvania isn't local, but comes from the city Pittsburgh. With a metropolitan population of about 1.7 million people, Pittsburgh generates tons of waste each day, from homes, hospitals and industry. Dumping it in the landfill has always been an expensive proposition for waste management companies. So, following heavy industry lobbying, legislators in Pennsylvania lowered waste disposal standards in 1997 to accommodate the interests of big business.

The lowering of the statewide standard opened the floodgates for sludge spreading in rural areas. It also automatically repealed more than 100 existing local regulations that had restricted factory farms from setting up shop. Factory farms had been a problem for rural communities in other states, and many Pennsylvania towns had taken precautions to keep them out.

The loosed standards for sludge application caught the attention of an attorney named Thomas Linzey, who had founded the Community Environmental Legal Defense Fund (CELDF) as a law school graduate in 1995 to assist those who could not afford to challenge companies who were violating regulatory law. Linzey is no slick city lawyer.[S; would love a one-phrase physical description here] He's right at home in the kitchens and church halls in which he's likely to be found around Pennsylvania, talking to conservative farmers about the US Constitution and the rights of corporations. Despite being a non-local, he's well respected—not because he's a lawyer, or even because he's deeply knowledgeable about the law, but because he truly believes local communities have the right to determine the policies that affect their lives. .

Linzey explained that a community with a 10,000-head hog farm linked to a cancer cluster had very little ability to affect change, because proving the link between cancer and the corporation is very hard to do under our system of law, and because communities have no legal recourse to stop corporations from locating in their area. As Linzey told us: "What communities have been forced to do instead is to go through the regulatory system. Instead of talking about whether or not you want the corporation in your neighborhood, people are channeled into talking about 'parts per million'—about how high the perimeter walls must be, or how deep the waste pools can be, or how many. That is all citizens can do."

Linzey spent the better part of the 1990s in court. He watched communities win a small regulatory battle and celebrate their victories: higher walls, smaller and fewer waste pools, hooray! Then he'd witness the corporate attorneys return and threaten to bankrupt the town by appealing rulings and prolonging the battle—hopefully forcing communities to cave in and accept the existing conditions. From his vantage point, Linzey says he witnessed legislators eagerly meeting lobbyists, and corporate lawyers brazenly seeking to lower environmental and safety standards that impeded profits. He watched as corporate lawyers and legislators unabashedly drafted legislation together to benefit the corporation.

Through the years, Linzey began to see a disturbing pattern: the legal system favors the corporation. "We would go to court, time after time," Linzey told us, "and even if we won the day, the corporate boys would be back in the end."

Linzey's experiences led him to question whether the regulatory system was broken, or whether it was actually working perfectly. Who really was being regulated—the corporations or the people? "The whole thing about the permitting process is that you are in fact permitting a certain level of toxins in the first place. Why? And, who gets to say how many parts per million are safe? Is it citizens or is it corporations? Who is deciding these things, and for whose benefit?"

When the Pennsylvania legislature lowered the state's waste management standards, CEDF was flooded with calls. Soon, Linzey and his under-staffed and under-funded team were working with more than 100 communities statewide to tighten local standards for sludge applications

As residents in several Pennsylvania townships began investigating the issue, they found that state law required sludge to be tested only once every three months, and only for E. coli and heavy metals, not for the spectrum of deadly microorganisms that can live for months and even years. They also discovered that most batches were never tested at all. Additionally, once spread, biosolids were supposed to be restricted from humans for at least 30 days; however, the state's Department of the Environment was not enforcing this regulation.

Residents in a number of townships determined to protect loved ones and themselves from harm. Rush Township—a community of about 4,000 people in the heart of the state's coal belt—was the first to take action. Tony Behun had grown up near Rush, and locals still held painful memories of his death from sludge exposure. Although many residents wanted to ban sludge spreading entirely, state law prohibited them from going that far. So Rush leaders moved to ensure that every batch of sludge would be thoroughly tested before application. It took some time to get the ordinance in place, but in 1999 Rush approved a law mandating the testing of every batch of sludge that entered the township, and passed along the testing costs to the sludge haulers via a $40 per biosolid ton "tipping fee." The idea quickly spread, and within a year dozens of communities throughout Pennsylvania had adopted similar legislation. It seemed that the regulatory framework was working after all, at least in this case.

Then, in 2000, something happened that sent shockwaves through the loose network of rural communities battling sludge: Synagro corporation, based in Texas, and among the largest US sludge haulers, sued Rush Township, alleging that the tipping fee legislation violated the corporation's civil and constitutional rights. Then corporate attorneys went even further, personally suing Rush supervisors for $1 million each, and of course, the attorneys' fees. Explaining the effect of such a threat on a small town supervisor, Linzey told us, "These are the folks salting the roads in the winter and patching the roads in the summer. They're the ones sporting the John Deere hats. These are good community folks with families to provide for."

The Synagro lawyers' did not sue all of the towns that had passed tipping fee ordinances. Experience showed that coming down hard on one town would be enough to create a chilling effect throughout the farmlands of Pennsylvania. As Linzey recalled, "In Clarion County, about half the townships had passed the fee by now. They were all calling us. They were angry, confused, scared."

Spreading Their Story

Among those who were angry and confused were Russell and Antoinette Pennock of Heidelberg Township, PA, whose son, Daniel—a healthy boy of 17—had died in 1995 from a sudden and inexplicable staph infection.

In 2001, as the Rush case wound its way through the courts, Antoinette was sitting at her kitchen table, quietly drinking coffee and flipping through the morning paper, when she read a story about sludge exposure and Tony Behun's death. Her heart nearly stopped, but her mind was racing. She called out to her husband to read the article. The account of Tony Behun's suffering and death stirred a flood of memories and emotions within the Pennocks. Most striking were the similarities to their own son's painful last days. The Pennocks wondered if Danny had also succumbed to sludge exposure. For years they had unsuccessfully sought clues about his death, and suddenly, it seemed, the answer was there in print. Pieces of their lives that had never made sense—a decade of sinus infections, headaches, legions and other maladies combined with dead livestock and barn cats, and the strange and pungent fertilizer used by a neighboring farmer—began to click. They began making calls, to the newspaper, to the DEP, and to lawyers.

The Pennocks were soon in touch with Linzey, then in the midst of his campaign to restrict sludge spreading. Although for the Pennocks the 2-year statute of limitations for filing a wrongful death suit had expired, Linzey believed justice might be sought another way—by taking Danny's story to other Pennsylvania communities as a way of inspiring people to defend their local tipping fee ordinances.

The Pennocks were ready. They felt that trying to hold the waste companies accountable for their actions was the least they could do to serve their son's memory. Soon the Pennocks, often with Linzey in tow, were traveling the length of the state sharing their experience with townships struggling with the effects of sludge spreading. "We would go to talk to people, and explain how sludging is considered a normal agricultural practice," Russell Pennock told us. "A hundred people could walk across a sludged field, maybe only one would die, but who wants to be that one? If they had seen our son's suffering...no one should ever die like that."

The Legacy of Daniel Pennock Daniel Pennock was an engaging teenager with a future of promise until he mysteriously contracted the bacteria staphylococcus aureus and died. It would be years before his parents, Russell and Antoinette Pennock, discovered that the cause of Danny's infection was exposure to sludge. This is their story.

What kind of a young man was your son, Daniel? Daniel turned 17 on January 23 1995. Danny had light brown hair brown and eyes. He was a nice looking kid. ... Danny liked hunting, fishing, any outdoor sports. He was a leader, people were just drawn to him. If he had a story to tell you, he went on forever, he was very into details. Danny loved history as a kid; he was fascinated with the Civil War. ... His life was just starting, he had just gotten a part time job at a food market. He talked about going into Air Force. He had started going out with this girl about a month before he died. She was his first girlfriend. He was happy, and so inexperienced. One night, he was asking me [his mother] for advice about kissing her for the first time. I asked him, "What are you waiting for?"

Tell me about how Daniel got sick. It was a warm winter evening. Danny had shorts on and was playing basketball outside. He started getting sick right after that. It was so bizarre—on a Thursday evening he was playing basketball, on Sunday he was in the hospital. When we brought him in, he was ashen; it was 13 days of pure hell. They were asking us, "Does he have asthma? Does he smoke?" Danny was healthy. He didn't drink or smoke. Monday morning they did a culture, there was all this hushed conversation, doctors and nurses going in and out of his room. They told us he had a massive staph infection, but that he was young and strong and should pull through, but we knew...We knew. Nobody this young and strong should get sick from staph. They intubated him, and he never spoke again after Monday night. A hole had blown in his lung. The doctors had no clue what to do, they only reacted to his symptoms. Danny died on April 1, 1995. It would be years before we would find out why he really died. Our son, he never got a chance to be in love, he never graduated, he didn't get to see the world.

It took you a long time to identify the cause of his illness, can you tell me about that?
We blamed ourselves for a long time. We thought it must have been something we had done, so we did everything we could think of to do. Within a week we had our water checked. [Later] the DEP would say it was our water, but we had checked the well and our pool. We started eating differently, buying organic, in case that was it. ... It wasn't until 2001, when [Antoinette] opened the paper. There was an article, "Raising a Stink," it was on the 2nd or 3rd page, "A PA boy dies of sewage sludge." It was Tony Behun. When we read the article, what happened to him, it was all just too familiar. ... We hadn't even thought about the farm across the road before that. Then we learned they had been sludging right there for years. When we did find out, it was like 2 + 2 = sludge.

Did you understand the danger of sludge, that you were all exposed to it?
When Danny died, we didn't know about sludge, that it was dangerous, that the farmer spread it on his property. When we bought the house there was no warning. We found out much later they had been putting that stuff down for years and we were exposed to it—in fact we had his permission to hunt and cross through his land and had done so for years. We could see when they were spreading it, but at that time we didn't know what it was, we just thought it was fertilizer. [The farmer] certainly must have known. Antoinette called the reporter, and he came and talked to us. He connected us with Dave Lewis [a scientist with the EPA who would lose his job for speaking out about the toxicity of sludge]. Dave Lewis asked us questions like, "Did we have legions, boils, sore throats, allergies, sinus or ear infections?" We had had all of those things at different times over the years, our visitors too. ... After the sludge issue broke, we got many visitors. Two DEP investigators came out, they were very condescending, asking us if we knew what sewage sludge was. They wanted the hospital records, to find out what we knew. At one point Alvin Thomas [Executive Vice President] from Synagro [sludge hauling corporation] wanted to meet to explain why they had settled [another case about sludge] out of court. He thought we were interested in money. You can't put a dollar on your kid; you couldn't pay us enough.

How did you become involved in organizing and the Democracy Schools? We were looking for environmental lawyers. We got an email from someone about Thomas Linzey, that was probably fall of 2001. ... With Thomas, we went all the way up, we tried. Even the Supreme Court wouldn't hear this case. We didn't want revenge; we wanted justice. We've talked to lots of reporters, and Thomas would call and ask you to come tell your story to a community. [Russ] went the first time, in Bedford county. We told our story over and over. We went to many meetings like that. I know it doesn't sound like a lot, but we know other lives have been saved through the work that has been done. If someone had told us this stuff, maybe things would be different, we would have had an opportunity to act on it. Then Thomas told us about the Democracy Schools, that they were going to name them after Daniel. We thought that was great. The schools talk about how the citizen is getting screwed over by the government and the corporation, how the two work together. They tell you what your rights really are, what you can and can't do in this country, in your community. It's a great thing, an important thing that gives people the tools to fight for change.

THE PENNSYLVANIA MODEL

One of the places where the Pennock story took hold was Porter Township in Clarion County. In Tkyear, Porter citizens, working with the town's three elected commissioners, had adopted a sludge tipping fee similar to the one in Rush. In late 2002, the Alcosan corporation, the sludge haulers operating in Porter, threatened to take legal action, as Synagro had in Rush. Linzey was asked by the commissioners to attend a town meeting. He figured it was to discuss retreat. But the town wanted something else.

A Porter Town Hall was set up, and some 100 of the town's 1,500 citizens turned out. As Linzey recalled: "I never saw anything like it. Farmers came with the Constitution rolled up in their back pockets. They really got to the heart of it, asking what good it was to pass local laws if corporations have the power to use the system against them to nullify what they worked so hard to pass?"

Linzey listened intently as the town's residents engaged in a high-level discussion, not about sludge and tipping fees, but about rights, about democracy. "One supervisor asked, 'What in the hell are corporate personhood rights anyway?' ...The community were asking serious questions about the foundations of this country, and how corporations obtained the rights that were created for natural people," Linzey said.

Linzey explained that while at one time shareholders and executives could be held personally liable for a corporation's actions, they are now protected from such personal responsibility. For example, the First Amendment protecting citizens right to free speech allows corporations to make campaign contributions; the Fourth Amendment protecting citizens from unlawful police entry also shields corporations from unannounced inspections. The Fifth Amendment to due process, protects us against being tried twice for the same crime, but it also ensures a corporation's right to "just compensation" if its profits are hampered by community enacted laws for health and safety—such as a tipping fee for sludge haulers.

After much impassioned conversation, Linzey asked the people of Porter Township the million dollar question: "What do you want us to do?" Their response stunned him.

"Strategically, they were way ahead of us," Linzey said. "They wanted to refuse to recognize corporations' 'personhood rights'—to make law without being interfered with." What this conservative rural community was proposing was effectively civil disobedience using the legal system. It was radical. And it had never been done before.

What Porter Township wanted was local majority rule, not minority control in the form of a giant corporation. Linzey and the CELDF team, in partnership with Richard Grossman from the Program on Corporations Law and Democracy, put together the first Elimination of Corporate Personhood ordinance in the country. As Linzey recalls, "It was all about who was in control in Porter, about shifting the focus to basic concepts about power."

At a public hearing on December 9, 2002, the ordinance passed unanimously. It is a simple three-page document. Its essence is contained in a single paragraph stating that within Porter's limits, "Corporations shall not be considered to be persons protected by the Constitution of the United States or the Constitution of the Commonwealth of Pennsylvania."

News of Porter's Corporate Personhood Elimination ordinance spread fast and far. Communities throughout the state and around the nation immediately began contacting CELDF to find out how they could enact similar legislation. Model ordinances began popping up on the Internet. As Linzey points out, "Municipalities and community groups are now looking more to passing local laws rather than appealing state agency decisions, Because it has become obvious to communities facing these giant corporations that if they don't make their own law, others will do it for them."

Despite the town's radical role as corporate crime fighters, life in otherwise quiet Porter Township remains pretty much unchanged. The special at the diner is meatloaf on Wednesdays, and children playing tackle football in the fallow field across the road are not running through toxic sludge. The Alcosan corporation and its attorneys, willing to sue Porter into bankruptcy over a tipping fee, have been reluctant to challenge a law that is framed in the context of corporate rights versus people's rights.

At this writing, more than 100 rights-based ordinances and resolutions based on the framework of the Porter have been enacted across the state and the nation. This type of work is now often referred to as the "Pennsylvania model" of organizing. Other communities are taking the idea a step further and actually rewriting their town charters to include provisions that not only protect against corporate personhood, but also define in the affirmative what they want their town to aspire to—including open spaces that protect the rights of nature and putting local businesses first.

Though none of the corporations affected have yet challenged a community, Linzey expects to see the issue of corporate personhood before the Supreme Court within a decade, but says it will take "a very large movement of people, working on a number of issues, to focus on corporate power."

The work begun in Porter has changed CELDF too. The phones haven't stopped ringing yet. By way of spreading this work, CELDF has started running a 3-day intensive " democracy school" for communities answering the big questions: Why does the corporation have these rights? Where did it get them? And what did past people's movements do to secure their rights? The experience of these schools feels a bit like slowly unpeeling an onion—not just because it is a many-layered conversation about law, democracy and corporations, but because it almost makes your eyes water from the sting.

These are not easy questions, and they show that when communities feel cornered by the power of corporations, they are ready to come out kicking. The Demoracy School, named after Daniel Pennock, has "graduated" more than 1600 people in 23 different locations across the country, with more schools being added almost every weekend. As Linzey is fond of saying, "We don't have democracy in this county, and if we don't do something different we'll never have one."

Resources:

Community Environmental Legal Defense Fund
www.celdf.org
Phone: (717)709-0457

Program on Corporations, Law and Democracy
www.poclad.org
Phone: (508) 398-1145


Reclaim Democracy
http://reclaimdemocracy.org/
(406) 582-1224