Exchange of Email between Helane Shields and Sandy Smith, July, 2001

H. Shields wrote (July, 2001):
Dear Sandy ..... thank you very much for the explanation. I knew nothing about this situation.
I am sickened by what I read. The sludge corruption in Pennsylvania is simply overwhelming .... just about the worst in the country. They are nothing less than a gang of bullies .... poisoning land, people, water, and animals for profit.
Sandy, does the public record actually reveal that the farmers are actually being paid those amounts to take sludge .....$35 - $40 a ton? I simply cannot understand how taxpayer funds can be used to compensate people to conserve their farmland .... and yet they are still allowed to chop the land up into lots? Thanks, again, for the explanation. Hope you and Gibson are both well. Helane

----- Original Message ----- From: Sandy Smith
Sent: Saturday, July 28, 2001 10:06 PM
Subject: PA DEP sludge decision explained!

Hi! Helane brought to my attention that not everyone knows what Gibson, my attorney husband, was doing in the first place! Good point,Helane. :) The following will explain. Please feel free to pass this around to anyone I haven't and ask questions that I have not answered to your approval. Some of this may seem elementary but I hope to reach everyone.

This case is Heather Rogers & Damon Quinn et al. (about five other households) versus the Commonwealth of PA, the Dept. of Environmental Protection (DEP) and Springettsbury Twp.
John Marstellar is a farmer in East Hopewell Twp.(York Co.). He owns what he calls 6 farms with each farm having a number but calls them all Green Valley Farms.
In 1992 or '93 Marstellar got 1,163 acres put in Farmland Preservation(FP) and was paid $1,127,756.70. The idea of FP was supposed to preserve the "family farm" while stopping sprawl in the country.
However, "farmers" in the FP programs are still able to subdivid their land as long as the twp. ordences allow it and it doesn't "interfere" (in whose opinion!?) with the farmland!! Yes, he has sold off MANY lots from that one. On 6/15/01 John Marstellar put a newly purchased farm into the FP program--216.07 acres getting $301,417. I might add that $800,000. of York Co. tax dollars go into the FP yearly with the rest coming from state (PA) cigarett tax funds.
There is always a waiting lists of farmers for FP--about 40.
Simultaneously, Mr. Marstellar not only got approved for FP but permitted for Springettsburg Twp. Sludge!! He also has been sludging his other farms as does Rep. John Barley from Lancaster Co. who also owns FP farms in that to Marstellarn and in my twp. (Chanceford)!!
Marstellar is trying to sell off approx. nine lots and has sold five to date that are being built. Springettsbury Twp. is a large twp. in York Co. with many businesses (dry cleaners),industries(Harley Davison),hospital,sewage collection trucks and homes all going into their sewage treatment plant. The twp. never seems to want to stop developing and thus the sewage treatment plant has a tremendous amount of sludge to get rid of. To my knowledge they do not landfill it. They try to land apply as much as they can for the going price around here of paying farmers between $35. and $40. per ton to dump it on their farms.Even with those prices, it is hard to convince real farmers that this stuff is good for them! They also compost the sludge for the community which the sewage plant said, at the PA DEP Board Hearing, costs them $100. a ton more to do!! Yes, that is in the court record! Springettsbury is DESPERATE to get rid of their ever increasing sludge. (Do you think that might be a reason why Marstellar got bumped ahead of other farmers to get his land in FP since they knew it would take sludge? Over 10% of our FP land is sludged. York Co. preserves their dumps and sewers NOT farmland!) Meanwhile the folks that live around this newly sludge permitted farm,were notified that their backyards would soon become an extention of the Springettsburg Sewage Treatment Plant! They were up in arms.They knew a good deal about the toxic mix in sludge.One family had lived there over 20 years--farmers.A young couple together drives a tractor trailer for FedEx weekly from here to AZ and back so they can afford to live in their dream home which is a neat old log house. Another family with two small children have a lovely old stone home and pond and equally work hard to be there. Get the picture?? They got in touch with Gibson. Since the permit had just been granted, but not sludged and there were some glowing mistakes, Gibson said they had a chance to stop it before it started.
1.Everyone's home is downhill from where the sludged fields would be. The slopes involved are 25 - 30 degrees upgradient from surface water supplies (they get their water from spring houses not wells).
2.The aerial map does not indicate some of the houses or wells,water sources,grade levels or seal as to who did the map.
3.There must be a 1,000' set back for the land application of sludge near surface water (springs used for drinking)and it violates the environmental protection regs. 25 275.202(3).
4. No proper test for soil. The governor picks the three members of the Environmental Board. The Board will come and go with the governors. The governor also picks the judges. The judges then become Civil Service and can not loose their jobs as governors come and go or lower saleries but can be placed to work in different areas of the government in the state. In other words, they all reflect the wishes of the governor and the DEP as the governor runs the DEP as well. The only recourse, at this time, is to go in front of the Environmental Board which is made up on ONE judge hearing everything as a recorder writes it down in (saddly)the Rachal Carson Bld.
First, Gibson filed a Notice of Appeal to appeal the sludge permit.
Second, Gibson filed a Supersedeas to stop the sludging until all the above matter could be cleared up and the health and safety of the residents assured.
Because the Supersedeas meant that Springettsbury could not do anything until it was heard in front of the Environmental Board (ONE judge!),this happened quickly--last week.
Mr. Marstellar--let's figure low--gets $35. per ton at 3 ton per acre=$105 per acre.
Let's say he sludges only 180 acres of this new farm, he gets $18,900. per sludging AFTER he already got $301,417.00 for FP!
The people about to be sludged by a private business,had to hire a lawyer and an expert witness (for land degree slopes,etc.). Mr. Marstellar had to do nothing but sit there and smile. The DEP's attorney (our tax dollars)and Springettsbury twp.'s lawyer fought them.
DEP, who should be looking out for the law and health of everyone,represented Tom Sweeney and Springettsburry and sat right next to them.
Yes, Gibson did make Tom Sweeney sweat as Tom stated that he didn't need to measure slopes since he saw them all the time and knew what degrees to look for! Tom also okeyed Mr. Chronester's(the twp. manager)approvals which Tom was supposed to do along with a licensed engineer who is not only to be there but put his seal on the maps used.
Petition for Supersedeas

(1.) Appellant, files this petition for supersedeas, and in support thereof attaches the following affadavit, as ex #1 of Tony R. Bloom, Mason Dixon Environmental Service.
(2.) Springettsbury Twp. Permittee in above third party appeal is violating 25 PA Code Chapter 271 in the application for permit PA G-08-3505 in that the aerial map included in permit fails to show 9 springs, located on north side pf track 2, on appellants property that are intermittent streams,and perennial streams and which are within 33 feet and 100 feet of the proposed application area on tract 2.

(3.) The aerial map fails to show 2 perennial streams the source is located 56 feet south of the northern boundary of tract 2 in a grassed waterway running into appellants property. The aerial map shows the area as proposed application area, with no 100 foot set back, as provided in 25 PA Code Chapter 271.

(4.) John W. Marsteller Sr. has attempted to conceal the water flow in the grassed waterway by filling in the flowing streams with stone.

(5.) The application area (field 12,13,14) as shown on aerial map is within 300 feet of residential water sources located on Gun Club Road concerning Steven and Dawn Cropper and the adjoining residential lots (7) all with water supplies within 300 feet of proposed application area, in violation of 25 PA Code Chapter 271.

(6.) Appellant is of the opinion if a supersedeas in not imposed that the permittee will sludge the areas shown on aerial map and cause irreparable harm to the water supplies on petitioners property and the adjacent properties with water supplies within 300 feet of the proposed application areas.

The Judge, Bernard A. Labuskes, Jr.,on July 24th issued that the Supersedeas was denied.This does not mean that the Appeal is denied as that hasn't happened,yet.
It means that Springettsbury can go ahead and sludge. Why?
In short, the judge stated that he was not sure which reg. now covered the surface water supply--300' or 1,000' as neither have been removed or explained.
The DEP and Twp. lawyers argued that since sludge is safer than before, that is why the 300' reg. is newer!!
Of course,Gibson argued that the 1000' reg. was put there for a reason because to protect the surface water supply.
The twp. agrued that if they didn't get their sludge put on the farm soon they would have no place to go with it and would have to compost the sludge costing them $100. more per ton.
The judge did not feel that there was any real proof that sludge is harmful so one law or the other doesn't really matter.
As the judge went on to say,"There was no record evidence here of likely injury to the public or the environment more generally."
Thus, I am a judge and have decided there is no need to follow the law because sludge is alright and Springettsbury needs to get rid of it!
There have been no known 100% health problems due to sludge and therefore the regs.(which is the law) do not seems to matter!
Believe it or not...Once THE Board has made up their mind, that's it.
There is no other court to appeal to,no jury,no nothing--that's it.
Springettsburg Twp. can apply their toxic sludge with the state's blessings.Gibson was a little taken back due to the judges comments and considering all that was presented.
The next step in line will be when the Environmental Board (the same 1 judge) gives a date for the Appeal of the permit,but Gibson does not think he will follow through with this Appeal and that way of moving the case for a couple of reasons.
First,he will need a few very good Expert Witnesses just like a regular court trial and that will cost his clients money but will it be well spent?
In Gibson's brief he had the entire NH Rockingham County Superior Court Expert Witness report of Dr. David L. Lewis as it did seem to interest the Judge during the hearing.
So, if this judge (Board) can not be swayed to waite on the grounds of caution before allowing the twp. to sludge,what chance is there of overturning the permit once the twp. has already sludged? Not much, except take good witness's time and clients' money.
Second, if the Board (Judge) turns it down,there is no other place to go with this matter. That is it. Staying on this course would just end up being much to do about nothing in the end.
Gibson went on to say that if this were heard in a Federal Court (which it can not be right now) on Constitutional Deprivation, the Judge would let the jury decide which reg. applied in that there are two applicable regs. The people have no recourse at this point until there is an injury to person or property. Gibson knows there will be problems with some, if not all, the water supplies. The case then becomes a taking of one's rights--personal and property--which can be heard in Federal Court as Civil Rights,with a jury,expert witnesses,etc. The jury will not look as kindly on Tom Sweeney,our DEP, and Springettsbuy Twp.for bullying their way into people's life's by dumping sludge into their water !
At present the people are getting their water samples. Springettsbury wants to take them now, too! However, the folks are not too happy about having them do it--trust and otherwise. They might get a court order to do so as the twp. knows Gibson is not finished with this by any means! We will need PROOF and Expert Witnesses that damage has been done because of sludge. Expert Witnesses must be able to and say,"Within a reasonable degree of medical certainly, it is my opinion that this[whatever it is--death,sickness or pollution] was the cause." All Gibson has been able to read from medical test. is "I think" or "it is very possible". Those words will not cut it in court cases or get to a jury. The EPA and DEP can water the sludge regs. down all they want to,but our battle is to have PROOF of damage and harm if we are to stop this madness once and for all. Once this case goes to court and wins,we will have a much easier time with DEP and EPA singing a different song. Some of you reading this are already Expert Witnesses,please consider your services NEEDED in the near future in York Co. and everyone else think of other witnesses that might be useful. Gibson feels quite sure that if the twp. goes ahead with this sludging, a good sludge case will go on record that was won. I'll keep you posted and try to answer any questions you might have. Yours In Sludge! Sandy Smith 717-927-6412
BLO fecit 20010730