To Prevent Fracking and Wastewater Injection, Athens County Shall Become a Charter Government
By Bernhard Debatin
The Athens Bill of Rights Committee (BORC) has prepared a petition to turn Athens County into a charter government, to be voted on in the November election (full text see below). The charter form of government would give residents of Athens County a broader range of self-determination than the current form does. To be on the November ballot, 1440 signatures from voting-age Athens County residents are needed by June 24 (follow this link for a PDF of the Petition with a signature list).
In particular, the Charter would allow Athens County to prohibit the disposal of toxic fracking wastewater and also the extraction of water to be used for fracking. Under the current form of government, the State of Ohio, represented by the Oil and Gas Division of ODNR, permits and regulates fracking and wastewater injection.
This issue has become particularly relevant since the recent permit for a third injection well at the K&H facility near Torch, which will make Athens Ohio’s number one destination for wastewater disposal once it is online. With this new well, Athens County has eight active injection wells. In 2014, Athens County was second in Ohio with 2.7 million barrels, topped only by Coshocton County with 3.5 million barrels of fracking wastewater. With the new K&H #3 well, the annual amount could go up to a total of 7.3 million barrels.
Due to the lack of specific local geological and seismic studies, is unclear whether the large amount of wasterwater injected into the K&H facility will be sufficiently contained or migrate into higher strata, where it could contaminate aquifers. It is also unclear if and when the large amounts of wastewater will induce earthquakes in our area, which would also increase the risk of uncontrolled wastewater migration. According to a recent New York Times report, the USGS has mapped and assessed the areas with earthquakes induced by fracking and wastewater injection, stating that “they were at risk for more shaking in the future.”
While the Charter does not prohibit fracking in and by itself, it has a clear ban on wastewater injection, the main problem in Athens County, which has not seen any horizontal fracking due to its unproductive geology. According to Section 2.01.1. of the proposed Charter of the County of Athens, Ohio, it shall be unlawful to
Deposit, store, treat, inject, dispose of, or process wastewater, produced water, “frack” water, brine or other substances, chemicals, or by-products that have been used in, or result from, the extraction of shale gas and oil by high-volume horizontal hydraulic fracturing, on or into the land, air or waters of the County of Athens. However, this prohibition shall not include wastewater produced in the County of Athens by conventional shallow vertical drilling methods. (p. 3)
In its Article I (sections 1.01 to 1.15), the Charter also defines 15 basic community rights of the residents of Athens County, including the right right of community self-government, the right to municipal autonomy, the right to clean air, water, and soil, and the right to be free from chemical trespass by toxic substances.
In a statement, the Athens Bill Of Rights Committee declared: “By this Charter, we propose to protect our right to live in a clean and safe environment. We propose to end the shameful practice of using Athens County as a ‘sacrifice zone’ and dumping ground for waste products of unknown, secret, highly suspicious and possibly radioactive content that are produced as flowback from horizontal fracturing of shale deposits to extract gas and oil.”
The petition was presented to the public at a press conference by the Athens Bill of Rights Committee on April 21.
The full text of the petition and the proposed Charter is documented below. You can also download a PDF version of it.
PETITION FOR SUBMISSION OF PROPOSED COUNTY CHARTER
Constitution of Ohio, Article X, Sections 3 and 4; Revised Code §§ 307.94, 307.95, 307.96, 3501.38, 3513.261.
To be filed with the board of county commissioners not later than 110 days before the date of a general election; or in the alternative, to be filed with the county board of elections not later than 130 days before the date of a general election.
NOTICE – Whoever knowingly signs this petition more than once, signs a name other than his own, or signs when not a legal voter, is liable to prosecution.
To the Board of County Commissioners of the County of Athens, Ohio:
We, the undersigned, qualified electors of the County of Athens, Ohio, respectfully petition the Board of County Commissioners to forthwith provide by Resolution, for the submission to the electors of said county, the question of adopting a county charter in the form attached to this petition, that question being: “SHALL THE ATTACHED COUNTY CHARTER BE ENACTED?”
CHARTER OF THE COUNTY OF ATHENS, OHIO
We, the people of the County of Athens, Ohio, by this Charter secure the right of all County residents to participate in local government, which right is presently unavailable to residents under the statutory form of County government.
The Ohio Constitution, Article I, Section 2 declares that “All political power is inherent in the people. Government is instituted for their equal protection and benefit, and they have the right to alter, reform, or abolish the same, whenever they may deem it necessary . . . .” By this Charter, we exercise this right.
We hereby declare that we deem it necessary to alter the current County government in order to institute one that will guarantee to all of the people their equal protection and benefit. We secure for ourselves and for our successors the right of self-determination, by establishing a County government that provides for initiative and referendum rights, the exercise by the people of the County through their local representatives of all powers vested in but not limited to municipalities, and the power to articulate and protect fundamental rights free from preemption by other levels of government. Therefore, in accordance with Article X, Section 3 of the Ohio Constitution, as well as our inherent right of local, community self-government, we form this Charter so that the people in all incorporated and unincorporated parts of the county may exercise all powers including, but not limited to, those vested by the Constitution and laws of Ohio in home rule municipalities.
We, the people, adopt this home rule Charter to secure the right of local, community self-government for all residents of the County, to elevate the consent of the governed above administrative dictates and preemptions that serve special privileges rather than general rights, to secure fundamental rights, and to end the violation of those rights by private and public entities.
Article I—COMMUNITY BILL OF RIGHTS (Community Rights)
Section 1.01 Rights Unalienable, Self-Executing, and Enforceable. All rights delineated and secured by this Charter are inherent, fundamental, irrevocable, unalienable, and shall be self-executing and enforceable against private and public entities. Every resident of the County of Athens shall be secure in these rights, and may bring an action to enforce these rights.
Section 1.02 Rights Retained by People. The enumeration of rights in this Charter and elsewhere shall not be construed as a limitation upon rights of the people of the County of Athens, and rights not enumerated are retained by the people. The rights of the people, as secured by this charter, shall not be limited, infringed, or abridged by any law, judicial ruling, preemption, regulation, process, permit, license, Charter, or delegation of privilege or authority.
Section 1.03 Governmental Legitimacy. All governments in the United States owe their existence to the people of the community that those governments serve, and governments exist to secure and protect the rights of the people and those communities. Any system of government that becomes destructive of those ends is not legitimate, lawful, or constitutional.
Section 1.04 Right of Local, Community Self-Government. The people of the County of Athens possess both a collective and individual right of self-government in their community, a right to a system of government that embodies that right, and the right to a system of government that protects and secures their human, civil, and collective rights.
Section 1.05 Right to Assert the Right of Self-Government. The people of the County of Athens possess the right to use their local government to make law, and the making and enforcement of law by the people through a municipal corporation or any other institution shall not eliminate, limit, or reduce their sovereign right of local, community self-government.
Section 1.06 Right to Municipal Autonomy. The residents of every municipality (incorporated City, Village, and Township) in the County of Athens shall retain the right to local self-government and other rights as secured by this Charter. The adoption of this Charter shall not preempt the exercise of power by the people within any municipality in the County, and in case of conflict between the exercise of powers granted by this Charter and the exercise of powers by municipalities, the powers of the municipality shall prevail within its jurisdiction.
Section 1.07 Right to Untainted Elections, Initiative, Referendum, and Recall. Elections shall be free and equal, and no power or association, civil or military – including chartered corporations – shall at any time interfere to prevent or influence the free exercise of the right of suffrage or the outcomes of elections. The people at all times retain the right to exercise direct democratic action, including participation in democratic decision-making by initiative, referendum, and recall.
Section 1.08 Right to Clean Air, Water, and Soil. All residents of the County of Athens, along with ecosystems within the County, possess the right to clean air, water, and soil.
Section 1.09 Rights of Nature. Ecosystems within the County of Athens, including, but not limited to, rivers, streams, wetlands, and aquifers, possess the right to exist, flourish, and naturally evolve, free from activities prohibited by this Charter and other local enactments.
Section 1.10 Right to be Free from Chemical Trespass. All residents of the County of Athens, along with ecosystems within the County, possess the right to be free from chemical trespass by toxic substances.
Section 1.11 Right to Govern Corporate Activities. As corporations are chartered and licensed by the State in the name of the people, and as all political power is inherent in the people, the people of this County retain the power to make laws, rules, and regulations directly, or through their local representatives, to deny the rights, powers, privileges, immunities, or duties of corporations that act within the County when those corporate rights, powers, privileges, immunities, or duties conflict with the rights of the people.
Section 1.12 Rights Secured against Corporations. As corporations are created and empowered to act through the State’s issuance of charters, licenses, and permits, and thus are creatures of the State and state actors, corporations and other business entities that violate rights secured by this Charter or other local enactment, or seek to violate those rights or enactments, shall not be deemed to be “persons” to the extent that such treatment would interfere with the rights, or protections of rights, secured by this Charter or other local enactments, nor possess any other legal rights, powers, privileges, immunities, or duties that would interfere with the rights enumerated for people and nature by State and federal constitutions, this Charter, or other local enactments. “Rights, powers, privileges, or immunities” shall include standing to challenge this Charter or other local enactments, the power to assert state or federal preemptive laws in an attempt to overturn this Charter or other local enactments, and the power to assert that the people of the County lack the authority to adopt this Charter or other local enactments. In addition, no permit, license, privilege, charter, or other authority issued by any state, federal, or international entity shall be deemed valid within the County if it limits or reverses the rights, prohibitions and regulations secured by this Charter or enacted by the County to protect rights.
Section 1.13 Right to a Sustainable Community. All residents of the County of Athens possess the right to a sustainable community, which includes, but is not limited to, the right to establish local laws establishing policies and prohibitions concerning energy, agriculture, water, construction, transportation, and other activities in order to further secure this right, and the right to be free from activities that may adversely impact the rights of human and natural communities.
Section 1.14 Right to Own Property. Each of the residents of the County of Athens possess a right to own property, subject to the rights and privileges of human and natural communities as recognized by this Charter, other local enactments, or by state and federal law.
Section 1.15 Rights against Eminent Domain. All residents of the County of Athens have the right to hold private property without threat of expropriation or taking by corporate entities for purposes of private gain rather than public use. The power of taking private property shall not be delegated. The taking of private property for development and transportation of oil and gas resources and/or waste products by corporations for profit does not constitute public use.
ARTICLE II—PROTECTION OF RIGHTS
Section 2.01 Prohibitions Necessary to Protect Rights. It shall be unlawful for any private or public entity to violate the rights recognized and secured by this Charter and its amendments, by engaging in the activities herein enumerated and activities as may be further provided by ordinance or resolution by the County Commissioners, by the people through initiative, or by Charter amendment. Accordingly, it shall be unlawful for any private or public entity to:
Section 2.01.1. Deposit, store, treat, inject, dispose of, or process wastewater, produced water, “frack” water, brine or other substances, chemicals, or by-products that have been used in, or result from, the extraction of shale gas and oil by high-volume horizontal hydraulic fracturing, on or into the land, air or waters of the County of Athens. However, this prohibition shall not include wastewater produced in the County of Athens by conventional shallow vertical drilling methods.
Section 2.01.2. Engage in the procurement or extraction of any water from any source, including public water sources, within the County of Athens for use in high-volume hydraulic fracturing for extraction of shale gas and oil.
ARTICLE III—COUNTY BOUNDARIES, POWERS, AUTHORITIES, RESPONSIBILITIES
Section 3.01 Name, Boundaries and Powers. The County of Athens, as its boundaries now are, or hereafter may be, shall be a body politic representative of and directly responsible to the residents of this county to be known by the name of “County of Athens” with all the powers, authorities, and responsibilities granted by this Charter and by general law, including but not limited to all or any powers vested in municipalities by the Ohio Constitution or by general law.
The County of Athens is responsible within its boundaries for the exercise of all powers vested in, and the performance of all duties imposed upon, counties and County officers by general law, provided that general law does not violate the rights of county residents, their County Charter, or other unalienable rights. In addition, the County may exercise all powers specifically conferred by this Charter or incidental to powers specifically conferred by this Charter, including, but not limited to, the concurrent exercise of all or any powers vested in municipalities by the Ohio Constitution or by general law. The County may create or recognize greater protections for human and natural communities than provided by state law.
All such powers shall be exercised and enforced by ordinance or resolution of the County Commissioners, through exercise of the initiative and referendum powers by the people, or by Charter amendment by the people.
When not prescribed by the Charter or by amendment to this Charter, by ordinance or resolution of the County Commissioners, or by ordinance enacted by the people, such powers shall be exercised in the manner prescribed by general law.
Section 3.02 Powers Limited. This Charter does not empower the County to exercise exclusively any municipal powers nor to provide for the succession by the County to any property or obligation of any municipality or township without the consent of the legislative authority of such municipality or township. In case of conflict between the exercise of powers granted by this Charter and the exercise of powers by municipalities or townships granted by the Constitution or general law, the exercise of powers by the municipality or township shall prevail. The County shall have power to levy only those taxes that counties are by general law authorized to levy.
Section 3.03 Construction. The powers of the County under this Charter shall be construed liberally in favor of the County, and the specific mention of particular powers in this Charter shall not be construed as limiting in any way the general powers granted under this Charter. The rules for statutory construction contained in the Ohio Revised Code shall govern the interpretation of the provisions of this Charter.
ARTICLE IV—FORM OF GOVERNMENT AND ELECTIONS
Section 4.01 County Officers, Duties, Powers, and Manner of Election. The offices and duties of those offices, as well as the manner of election to and removal from County offices, and every other aspect of county government not prescribed by this Charter, or by amendments to it, shall be continued without interruption or change in accord with the Ohio Constitution and the laws of Ohio that are in force at the time of the adoption of this Charter and as they may subsequently be modified or amended.
Section 4.02 Initiative, Referendum and Recall. The right of initiative and referendum is reserved to the people of the County on all matters that the County may now or hereafter be authorized to control by legislative action. The provisions of general law relating to such right applicable to municipalities in effect at the time of the adoption of this Charter shall govern the exercise of such right in the County of Athens, provided that all powers and duties respecting initiative or referendum petitions by general law shall be ministerial and mandatory and shall be exercised by the County Commission or its designee. The power of recall shall be exercised in the manner of an initiative as herein defined.
Section 4.03 Charter Amendment. Proposed amendments to this Charter shall be submitted to the electors of the County in the manner provided by the Ohio Constitution, Article X.
ARTICLE V—CONTINUANCE OF GOVERNMENT
Section 5.01 Pending Matters. All rights, claims, orders, contracts, and legal administrative proceedings shall continue except as modified pursuant to this Charter, and in each case shall be maintained, carried out, or dealt with by the County department, office, or agency as shall be appropriate under this Charter.
Section 5.02 Laws in Force. All County resolutions, orders and regulations that are in force when this Charter becomes fully effective are repealed only to the extent that they are inconsistent with the effective operation of this Charter or of ordinances or resolutions enacted pursuant hereto. All laws relating to or affecting the County or its officers, agencies, departments, or employees that are in force when this Charter becomes fully effective are superseded to the extent that they are inconsistent or interfere with the effective operation of this Charter or of ordinances or resolutions enacted pursuant hereto. The authority and power to enforce county laws, protect rights established by this Charter, and prosecute offenders shall not be abridged.
Section 6.01 Severability of Sections or Subsections. The provisions of this Charter are severable. If any court decides that any section, subsection, clause, sentence, part, or provision of this Charter is illegal, invalid, or unconstitutional, such decision shall not affect, impair, or invalidate any of the remaining sections, subsections, clauses, sentences, parts, or provisions of the Charter. _____________________________________________________________________________________________
We hereby designate the following persons as a committee to represent the petitioners in all matters relating to this petition or its circulation:
Sally Jo Wiley, 3050 Glen Finnan Drive, Albany, Ohio 45710 (Lee Township)
Austin Babrow, 12667 N. Peach Ridge Rd, Athens, OH 45701 (Dover Township)
Andrea Reik, 8474 Terrell Rd., Athens, OH 45701 (Canaan Township)
Michael O’Brien, 1492 Old Rte 33, Shade, OH 45776 (Lodi Township)
Richard E. Hogan, 2767 State Route 56, New Marshfield, Ohio 45766 (Waterloo Township)
Signatures on this petition must be from only one county and must be written in ink.