Archive for December, 2011

(Posted by Trent A. Dougherty, Director of Legal Affairs, Ohio Environmental Council, Director of Ohio Environmental Law Center)

Today, Green Groups led by Buckeye Forest Council, Ohio Environmental Council, Citizens for Health Environment and Justice, and Sierra Club submitted extensive legal and technical comments to Ohio Department of Natural Resources (ODNR) for the second time in as many weeks  concerning the regulation of deep shale oil and gas drilling. ODNR’s Division of Oil and Gas Resources Management proposed amendments to 22 of its existing rules, which have been drafted pursuant to Senate Bill 165, effective June 30, 2010 and to complete the required five-year review of these rules. The public comment period on these rules ended just less than two weeks after the Division’s well construction rules.

DNR’s proposed modifications to its rules touch on a variety of issues.  With a team of technical experts, responded to the draft rule amendments with a number of suggestions to improve the proposed rules.  The most glaring concern for the coalition focused on recent reports that a gaping loophole in Ohio law that allows for radioactive material to be disposed of in solid waste landfills. Many landfills across Ohio ultimately dispose of their leachate at public waste-water treatment plants . . .  and then the radioactive waste may appear in the state’s waters.

Adding  insult to this possible health injury, three agencies (ODNR, OEPA, and Department of Health) point to the others passing off responsibility.  Above all, this is a loophole that ODNR needs to fix, now with these rules.

Specifically, the coalition urged DNR to, among other things:

  • regulate radioactive waste products that result from shale drilling, including drill cuttings,
  • enact a number of changes to adequately protect our water resources
  • clarify the “due diligence” time period for the completion of drilling
  • prohibit open-pit storage of waste and flowback products, except for the limited purpose of spill prevention
  • adopt more rigorous protections related to the surface application of brine water

These are just the latest of many more rule packages to come. However, there are nearly 100 deep shale fracking wells permitted under old, and thus less protective, rules. Further, with the previous ODNR Well Construction Rules, OEPA’s Air permit (and upcoming wetland impact permit), and ODNR rule packages set for early 2012 drafts which include spill prevention and pipelines, it is becoming clearer that even ODNR believes that the rules they permitted are not as protective as they should be.

Read OEC, BFC, CHEJ, and Sierra Club’s joint comments — and have a wonderful Holiday.

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The fifth installment in the OELC’s report on the State of Clean Water Act Violations in Ohio

(Posted by Trent A. Dougherty, Director of Legal Affairs, Ohio Environmental Council, Director of Ohio Environmental Law Center)

As the any year comes to a close, reflections and musings on the good and not-so-good is expected. As it is the end of the first year of a gubernatorial administration, it is fitting, to me at least, to reflect on the regulatory enforcement of the past year.   When it comes to water quality enforcement, the Director of Ohio EPA is granted broad enforcement authority under ORC 6111.03) to issue orders to prevent, control, or abate water pollution– short of calling on the Attorney General.  With 43 finalized “Director’s Orders,” this year has been a statistical success compared to the 24 last year. And for the first year of a new gubenatorial administration that began the year with a “regulatory reform” initaiative aimed to aid businesses, it is a solid showing.  However, with the an estimated 25% of the 3,000 state discharge permits being violated and untold numbers of pollution incidents happening without a permit, it’s difficult to say if the enforcement process is really working.

While the agency does not have a “prioritization process” for enforcement, 2011 Director’s Orders do show a trend toward focusing enforcement on public water treatment and sewage issues.  Nearly 40% of the Directors Orders from public permit holders.  As I sit in Columbus today, hearing the rain hit my window, and imagine the havoc that rain is having on the storm sewers, I am glad they have tried to make this a priority.  Although, it’s a Citizen Suit that is addressing Franklin County’s sewage issues (see previous post).

Here is a snapshot:

Just last month, the Director issued Findings and Orders against the Village of Cecil for pollution discharge  exceedences, ordering the Village to develop a treatment improvement plan in 120 days, and achieve compliance with their permit in 18 months (along with a $2k fine).

In the City of Toledo, Ohio EPA finalized a multi- year effort to abate a public health nuisance, which included unhealthy inundations of E. coli and fecal coliform, in some of the City’s non-sewered areas.  Dearden Place and Birdsall road area is an unsewered location within the corporation limits of Toledo.  The properties in this area dispose of their sewage through a sewer network that empties into a private septic tank, with an outlet to the City’s storm sewers and leading to Silver Creek (a water of the state).  This network of sewers was discovered in 2003, but existed previously.

The City was notified of the sewer network and Ohio EPA requested that the City stop the unsanitary conditions by providing public sewers.  The City applied twice to build the sewers, was approved, but never began construction.

The  Orders against the City included an 18 month schedule to initiate construction of sewer plans to abate the unsanitary conditions at the site, and a 28 month schedule to construct a completed sewer.

A Spring Order against the City of Vermilion for the City to provide OEPA with sewer rate report; create a schedule for elimination of SSOs; and Pay OEPA civil penalty of $15,000.00.  The City was cited for:


  1. Separate Sanitary Overflows from three pump stations; did not remedy according to schedule in NPDES permit; several effluent violations from wastewater treatment plant (Total Suspended Solids; pH; low level Mercury)
  2. Failed to apply for a proper sludge permit; Notice of Violation sent
  3. Wastewater Treatment Plant was not properly maintained

City of Crestline violated sampling requirements of its NPDES permit; had Sanitary Sewer Overflows present (SSO); did not correct SSOs within timeframe of the permit; and failed to submit plan for improvement.  Samples collected showed toxicity to C. Dubia.  As a result, the Director hit the City with multiple orders, including a strict timeline for fixing the SSO problem and a $14,000 penalty.

The Enforcement Process
According to the Agency, the docket for the enforcement section consists of around 70 administrative cases active and 62 active referred cases sent to the AG.  Enforcementprocess begins at the District Office (DO).  The district office, whether at the behest of a complaining citizen or through review of compliance reports, identifies violators of clean water laws.  The DO Enforcement Coordinator drafts referral to Central Office. CO enforcement section’s four staff along with the four water attorneys review the referral.  From this referral options for enforcement are developed, which include: Unilateral orders by OEPA with no penalty can be assessed; Proposed action with a penalty under $125,000 (anything over $125K in penalty must be referred to AGs office); or Referral to AG’s office for possible prosecution.

There have been some good results, but,  is this process working?  The number of of these Director’s orders are increasing, seemingly, with the increase in violators.   As we have seen in preparation for the 60-day notice filed on Franklin County’s unsewered townships, that the big enforcement needs are not always addressed by one District Office, but a similar but smaller issue (like Toledo, above), gets Director’s level enforcement. While not even the TV cops can catch every crook in the act, there needs to be a step that gets some of the minor sources in line before the long process of formal enforcement (and thus continued violations).

Governor John Kasich, in his first biennial budget, suggested a priority for Ohio EPA streamline permitting and enforcement.  According to discussions with Director Scott Nally of Ohio EPA, streamlined enforcement means simply to give the Agency more tools to gain compliance without using formal Findings and Orders and/or referral to the Office of the Ohio Attorney General.  Such tools could be a stiff ticketing system to allow enforcement personnel to charge a monetary fine after a failed, informal enforcement measure.  The goal, according to Director Nally, is to use quick monetary enforcement to motivate management of the violating entity or corporation to prioritize their environmental permitting responsibilities – a proverbial hit to the pocket to get attention.  We believe that such chief level enforcement is essential and is a long way past due.

Since it is the Holiday Season, I will give (slight) praise to the Agency.  One huge advancement for the Ohio EPA DSW enforcement section over the past few years, and through it an advancement for the people of Ohio, is the section’s transparency. The section has put their enforcement cases on the web. Further, the Division’s interactive maps allow citizens to pinpoint discharge violators in their counties and review the permits and compliance information for thousands of permits.

Going into 2012, John Kasich’s OEPA needs to continue with, and increase, transparency of its enforcement; expand the prioritization to the sectors referenced in previous posts (schools, trailer parks, etc.); and use tough penalties early to push compliance.

Next installment: “When they call in the Big Guns: The Ohio’s  Attorney General’s Clean Water Enforcement

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(Posted by Trent A. Dougherty, Director of Legal Affairs, Ohio Environmental Council, Director of Ohio Environmental Law Center)

Earlier this week, a coalition of statewide, national, and regional environmental organizations and local community groups from around Ohio, submitted substantial comments in response to Ohio Department of Natural Resources’ (ODNR) proposed regulations of oil and gas well construction.

The coalition was led by Natural Resources Defense Council, along with Sierra Club and Ohio Environmental Council,  and includes Earthjustice, Buckeye Forest Council, Concerned Citizens of Portage County, CHEJ, Green Environmental Coalition, Guernsey County Citizens Support on Drilling Issues, Progress Ohio, Fracking Interest Group, Carroll Concerned Citizens, Inc., Concerned Citizens Ohio, Environment Ohio, Network for Oil & Gas Accountability & Protection, and the concerned citizens of Ohio they represent.

Source: ODNR

These rules were drafted pursuant to Senate Bill 165, effective June 30, 2010 [O.R.C 1509.17], the state’s first major overhaul of the oil and gas drilling law since its original drafting in the 1960’s.  Senate Bill 165 was initiated mainly on the heels of the 2007 explosion that resulted in property damage and lengthy water impacts in Bainbridge Township, Geauga County.   The Bainbridge incident was to a degree the result of defective or improper well casing, an issue the current rules are meant to solve. [Read ODNR’s analysis of the Bainbridge incident]   However, with the onslaught of deep shale, Utica and Marcellus, drilling in Ohio, the importance of these rules has intensified.

While the coalition provided a number of technical comments, the general crux of the message was BE AT LEAST AS PROTECTIVE AS OTHER SHALE DRILLING STATES.  The proposed rules fall short of that quite reasonable request. While the coalition certainly does not want to blindly follow the lead of Pennsylvania, it is important to learn from those mistakes.  The following line sums up much of the 22-page comments:

The draft rules require substantial revision as the standards proposed are less protective than other states that are experienced in deep shale gas drilling and are considerably behind the state of the art.  

For more, read the joint comments as well as the  Expert Report of Susan L. Harvey of Harvey Consulting, LLC filed by the coalition.

Also, late last month, OEC filed an initial set of regulatory comments on the proposed regulations — drafted by a team of 7 technical experts from around the state.  OEC’s technical comments we accompanied with the group’s suggested areas of ODNR focus for further development of rules and procedures to properly regulate deep shale drilling — including those suggested by the US Department of Energy.

ODNR suggests that the rules will be finalized in early 2012, and a number of other regulatory revisions (namely those concerning pipelines, spill prevention, and spacing requirements) will be proposed next year.  Stay tuned.

Read The Columbus Dispatch story on the environmental community reaction to the proposed rules.

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The fourth installment in the OELC’s report on the State of Clean Water Act Violations in Ohio

(Posted by Trent A. Dougherty, Director of Legal Affairs, Ohio Environmental Council, Director of Ohio Environmental Law Center)

The first three installments of the Ohio Environmental Law Center’s Series on the State of Clean Water Act enforcement in Ohio has been focused on the large number of NPDES discharge violations.  Yet, there is another big problem facing the Ohio EPA’s enforcement process – acres of wetlands and thousands of linear feet of streams being filled, requiring mitigation, but mitigation projects not being constructed.   In fact, when we asked Ohio EPA Division of Surface Water management what were the big enforcement issues facing Ohio EPA — lack of mitigation second only to the great number pollutant discharge violations.

Before a housing developer, mining operation, municipality or any other entity fills a wetland or stream, Section 401(a) of the Clean Water Act (CWA) requires them to obtain from the state, a certification that the discharge is consistent with state water quality standards.  These certifications usually require, among other terms and conditions, that the developer mitigate their impacts by, for example, constructing a wetland to replace the size and water quality function of the wetland destroyed.

Of the thousands of mitigation projects in effect, a large number violate the simple requirement of reporting progress of constructed wetland and stream mitigation projects. As an example, see a list of Suspect Pending Mitigation Projects compiled from Ohio EPA records in Spring 2010.

These Ohio EPA records show a list of over 200 401 Certification holders who have been required to conduct compensatory mitigation to replace the size and function of the watercourses they have impacted, but at the time of the list had not sent monitoring reports as required, nor  had Ohio EPA any knowledge of whether the mitigation has begun.

In some instances, inclusion on this list of “suspect projects” can be a mere paperwork issue where the permittee simply forgot to file the necessary reports after mitigation had been constructed.  While such mistakes are Clean Water Act and Ohio Water Quality Law violations, they have not substantially impaired the waters of Ohio.  However, what appears as a  minor paperwork issue may be hiding other, more substantive violations of law.  Specifically, it may be hiding instances where a wetland has been filled but the creation of a replacement wetland has not occurred.

This problem speaks only to whether there has been mitigation constructed, not even to the quality (or lack thereof) of the mitigation – another huge issue impacting Ohio water quality.  It does, however, also underlie two larger problems with Ohio EPA enforcement.

First, it shines a light on how few resources Ohio EPA has to monitor these projects as they not only do not have the staff to verify whether mitigation is occurring, but further do not have the staff to always follow up on whether those constructed projects conducted according to technical and ecological requirements.  Secondly, there still considerable concern over whether constructed wetlands adequately replace the function as well as their naturally occurring counterpart.  If that construction is not conducted at all, the impact to the watershed is even more profound.

There is a way to combat the issue of 401 Certification violations through the Clean Water Act’s Citizen Suit provisions.  After a year of researching the Ohio EPA’s files concerning 401 certifications based on the list of suspect mitigation proposals, we noticed a large number of coal operators on the list of “suspect mitigation projects.”  While coal operations were not the largest class of suspects, the number was significant.

As a reaction, last December, Ohio Environmental Council filed a 60 –day notice against Oxford Mining for not filing annual reports and for not properly mitigating their impacts to thousands of linear feet of streams on a number of projects in Eastern Ohio.

In response to our 60-day notice, the Ohio EPA proceeded with enforcement due to the Company’s lack of reporting.  Also, Ohio EPA staff and management have expressed that they will pursue changes in the language of their certification terms and conditions that allows them more ability to go motivate coal operators to quickly mitigate their impacts as to have no net loss.  Further, the 60-day notice led to a very productive meeting between OEC and Oxford that assisted us in understanding the ways coal operators proceed with their projects, and influenced the way we responsibly advocate for appropriate EPA oversight of these mitigation projects.

However, citizen or government enforcement through the legal system need not be the only way to fix this problem.  This is truly an area where more staff and capacity with Ohio EPA to monitor and follow up on the thousands of mitigation projects is sorely needed.  More resources for the Ohio EPA mitigation staff would help compliance, make sure the watersheds are protected, and provide certainty to the regulated community.

While politicians now a days want to see leaner state government, when protecting our wetlands and streams, the state needs to pack on a few pounds.

For more information on Ohio EPA’s Mitigation program, check out the 2010 report.

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(Posted by Grant Maki, Law Fellow at the Ohio Environmental Council)

This Spring, the Ohio Environmental Council and 50 fellow environmental and community organizations sent a letter[link to letter] to state legislators urging them to issue a moratorium on horizontal fracturing until its impacts on the environment and public health are thoroughly studied and effective, science-based regulations can be put in place.  US EPA is conducting a study on these impacts—at a minimum we should wait for the study to be completed, then pass regulations based on sound science, and then go ahead with drilling.

These efforts led to a bill currently before the General Assembly.  However, the state seems ready to embrace the drilling boom first and do its due diligence second.   Horizontal fracturing has already commenced at 20 sites around the state, and 65 more have received a full go-ahead from Ohio DNR.[1]

So even while we push for a moratorium, we are working to ensure that the regulations that are put in place today are as strong as possible.   These efforts ran on all cylinders last week, as OEC and its allies submitted comments to both US EPA and Ohio EPA on their proposed regulations regarding air pollution emissions from natural gas drilling.

USEPA’ s Proposed Air Regulations

US EPA proposed a very broad set of rules aimed at the entire oil and natural gas sector.  Although the proposal involved many issues, our comments focused on just two of them.  Our first priority was to defend the proposed requirement that all new natural gas wells be constructed using a method called “reduced emissions completions. “  To understand this requirement, you have to know a little bit about shale gas drilling.

Shale gas wells are “drilled” primarily by forcing special fluids into shale rock formations at high pressure, which fractures the shale (hence the term: “hydrofracturing”).   After fracturing, operators release the water pressure, causing large amounts of fluid to flow back to the surface.  This flowback fluid contains a significant amount of natural gas, in addition to other potential pollutants.  Standard gas collection equipment can’t handle the flowback fluid, so it often sits in storage tanks for days while the gas is either vented into the atmosphere or burned off with a flare—either option causes significant air pollution.   A reduced emissions completion” uses separator equipment that can handle the flowback fluid and also capture (and sell) the natural gas that would otherwise be vented or flared.

We defended US EPA’s proposal to require “reduced emissions completion” against arguments from industry that it was too expensive or unduly burdensome.  We also focused on an issue that was flying under the radar: US EPA’s idea of using industry-funded third parties to do some of the oversight and monitoring.  Although we recognize potential benefits if third-party verifiers are truly independent, such a system could lead to serious conflicts of interest.   Thus we suggested ways for EPA to minimize conflicts of interest.

Ohio EPA’s Air Pollution General Permit

At the same time that the federal regulations were coming down the pipe, Ohio EPA sought public comments on a proposed General Permit that will allow companies to start drilling whenever they meet certain qualifying criteria and agree to abide by certain emissions and operational standards.

Given that the state has decided to go ahead with drilling before learning from the mistakes of other states, we are pleased to see that Ohio EPA is at least showing willingness to start regulating using the knowledge we have.  Unfortunately, Ohio EPA’s proposed General Permit had a number of holes in it that could mean a lot of pollution in Eastern Ohio.  OEC, the Buckeye Forest Council, the Center for Health Environment & Justice, and the Group Against Smog and Pollution (GASP) submitted two rounds of comments to OEPA, addressing a number of issues.  GASP’s expertise and experience with the same issues in Western Pennsylvania we hope will educate Ohio EPA to  learn from hiccups to our east, and fix the deficiencies with the proposed permit.

Revisions are Necessary for the Final General Permit

For one, the draft General Permit put no requirements on well completions.  We urged Ohio EPA to require Reduced Emissions Completions.  US EPA has come under fire from industry for their proposal to require reduced emissions completions, and the requirement might be struck from the final federal rule.  Ohio EPA should play it safe and enact the same requirement, especially in a General Permit that specifies conditions where a drilling proposal can be approved with no stakeholder input and no further scrutiny from Ohio EPA.

For another thing, the draft General Permit is silent on produced water storage tanks.  “Produced water” is a saline fluid that occurs naturally in the shale formations and flows to the surface during fracking.  Produced water storage tanks produce emissions that can’t be overlooked, as states like Colorado and Wyoming have recognized.[1],[2]

Another issue we had is that the General Permit would allow significant drilling operations to commence without stakeholder input.  We pushed the agency to give the public an opportunity to be heard when industry proposes large-scale drilling operations, and for proposals to drill near “urbanized areas” which is defined as a town of more than 5,000 in OAC 1501:9-1-01(A).

Among other comments, we also pushed the agency to require drillers to notify them before undertaking any action that would produce significant emissions, in order to help the agency develop better information about the fracking industry.

We at the OEC will continue to work on this issue until Ohio’s air and water are protected by scientifically sound regulations.  Check back to this blog for updates.

See OEC’s Comments to Ohio EPA on its General PermitG.A.S.P.’sComments on the General Permit; and Comments to US EPA’s Air Proposed Regulations

[1] Id.

[2] Wyoming DEQ, Oil and Gas Production Facilities Chapter 6, Section 2 Permitting Guidance (Mar. 2010) at 11,

16, & 20, available at:

[1] These numbers are current as of Nov. 28, 2011.  Lists of Utica and Marcellus shale permits are available at and, respectively.

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The third installment in the OELC’s report on the State of Clean Water Act Violations in Ohio

(Posted by Trent A. Dougherty, Director of Legal Affairs, Ohio Environmental Council, Director of the Ohio Environmental Law Center)

A few weeks back, in our first two installments on the state of Ohio’s Clean Water Act enforcement, OELC shined its light on the Five Biggest discharge limit violators as well as the concern over Ohio schools and their contribution to water pollution.  Another group of Clean Water Act violators in Ohio are Mobile Home Parks.

These Mobile Home Parks have been a thorn in the side of water quality regulators (and water quality for that matter) for decades.  I have talked with attorneys who were on the very first Ohio EPA staff in the early 1970’s, and retired Assistant Attorneys General from the Environmental Enforcement Section, and they tell me the same thing, sewage discharges from trailer parks are constantly a problem.  In many cases, they say, the biggest culprits are those parks that are operated by out of state corporations that own multiple facilities throughout the country.  The feeling is, from these conglomerate owned parks, as long as the sign is lit and the grass is mowed, the wastewater system takes a backseat.  The result?  Effluent exceedences of Fecal Coliform, Nitrogen, and Total Suspended Solids of hundreds of times beyond the acceptable limits.

While definitely not the situation with every mobile home park, the number of violations, and recalcitrant violators make them a necessary target for compliance monitoring.  These parks thus account for a great share of the workload for Environmental Enforcement Section and in-house Ohio EPA lawyers.  Earlier this year, the AG’s office entered into a Consent Decree with Knollwood Mobile Home Park in Athens County, for a civil penalty of $100,000 from a Clean Water Act enforcement action.  In 2010, the Agency enforced violations through Director’s Findings and Orders against Chateau Estates Mobile Home Park (Springfield), and Hockingport MHP (Hockingport); and the AG’s Office secured judgment in Lake County against Sands Trailer Park & Sales Inc. , and a Consent Order in Stark County in a case against Hillview MHP.

What to do? What to do? – As a consistent water quality problem, the regulators must make these operations a priority.  Ohio EPA enforcement staff must continue to assist the operators to reach and sustain compliance with their discharge permits.  In many cases, that means forcing elimination of the discharge and hooking up to public sewers.  This is a costly proposition for many of the small operators, but a necessity for Ohio’s water quality.

For those who are constant repeat offenders, the Attorney General’s office should continue to make it a priority to investigate these operations, and prosecute these recalcitrants to the fullest extent to achieve future compliance.  Further, the state must seek penalties in amounts that are far greater than the benefit received from not following the law.  This is necessary tool in not only the state’s Clean Water Enforcement, but must be a staple in all enforcement of environmental, natural resource, and health laws.

Here are the four Mobile Home Parks that are giving Ohio’s watersheds a hard way to go.


Located in Lowellville, OH, Stateline’s discharge outfall  drains to Kings Lake Tributary of Mill Creek (Mahoning River watershed).  While more sporadic than the parks listed below over the past three years, Stateline’s exceedences have been large at times.  For example, the exceedences from this outfall have been as high as 12,900% and 29,900% for Fecal Coliform, and 41,872 for Total Suspended Solids.


Millborne Manor, in the Tuscarawas River Watershed near Orville, has seen 107 effluent exceedences over the past 12 Quarters from its two discharge outfalls.  These exceedenses have been for Total Suspended Solids, Nitrogen, Fecal Coliform, and Phosphorous.


Located in Girard, OH, this park discharges to Squaw Creek (Mahoning River watershed).  Consistently throughout the past three years (at least) Vintage Village Estates has exceeded its maximum enforceable limits of nitrogen (from 30-735%) and Total Suspended Solids (up to 817% above permit limit)


This MHP, located in Sunbury, OH, discharges into Perfect Creek in the Upper Scioto Watershed.  The three years worth of discharges from Country View include exceedences of 2680% above its nitrogen limits, 350% of  its total suspended solids, and 680% of its fecal coliform.

*All four of these operations discharge into Section 303(d) listed, already impaired waters.


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