(Posted by Trent Dougherty, Ohio Environmental Council)
After two short but intense months of debate, Senate Bill 315 (SB315), Governor Kasich’s MBR Energy Bill, passed the General Assembly this week. The bill seeks to implement many of the proposals discussed in the Governor’s 21st Century Energy Summit this past September.
SB315 was actually a tale of two approaches to the legislative process. The issues dealing with renewable energy, co-generation, and energy efficiency were a lesson in compromise, communication, cooperation between various stakeholders. Wind Energy Advocates, environmental groups, business groups, the legislators, and the administration worked together to insure that fossil fuels would not become eligible to meet renewable energy requirements – with a limited exception, that is, for combined heat and power projects in two state universities.
The oil and gas provisions, on the other hand, consisted of (1) the Governor offering a decent, but modest proposal to strengthen fracking waste injection well regulations and updating Ohio’s drilling laws in light of boom of shale drilling and horizontal drilling; (2) followed by, as Director Jim Zehringer testified, 10 meetings between industry and the Administration to put industry’s stamp on the legislation; and finally (3) the inclusion of an 11th hour amendment, with no discussion nor debate, to weaken chemical disclosure.
Chairman Peter Stautberg (R-Anderson Twp.), during the House Floor debates on the bill, stated that the bill’s oil and gas provisions were a “balance between the Administration and the industry.” Unfortunately, he is correct. In order to reach that balance landowners’ rights, public accountability, and environment and human health protections had to be left off the scale.
Governor Kasich has promised that we are going to drill-baby-drill, but we are going to do it right, by the environment and by the citizens of Ohio. However, important and significant amendments and additions that were offered by environmental and conservation organizations as well as members of the House and Senate were tabled, trashed, or tanked.
Still, to the Governor’s credit, there are updates to Ohio’s waste injection well oversight, as well as provisions that provide for pre-drilling testing of private water wells and higher penalties for lawbreakers. Yet, without the protections dismissed and discarded by the General Assembly, SB315 does not fulfill the promise.
Unlike the fracking chemical suppliers, OEC provided full disclosure. In both the Senate and House we offered nearly two dozen amendments to begin to strengthen protections for water quality and water use; make the permitting process more transparent, and make the industry accountable to Ohio’s gasland communities and property owners. The bill got a little better with the Senate’s inclusion of increased penalties for violation, and providing some limitations on well pad construction in floodplains and public drinking water areas — thanks in no small part to the efforts of Senator Frank LaRose (R-Akron).
However, the House’s inclusion of the Halliburton Amendment that kept that forces citizens to prove injury from a non-disclosed chemical – an unprecedented hurdle if not bar to the court house to challenge the validity of trade secrets, and forces medical professionals to get the necessary information to protect their patients from the driller and not the state regulator was the last straw. The Halliburton Amendment coupled with the Bill’s removal of the ability for an oil and gas permit to be appealed to the Oil and Gas Commission, the doors to gasland justice are slammed shut — two strikes against the civil justice system in one bill!
Here is just a small glimpse of the amendments that were discounted, and left on the cutting room floor by the General Assembly:
- Public right to know, comment, and appeal a permit
Objective: Give the public a voice in decisions that will affect their property and communities.
Require public notice and public comment for at least 30 days prior to making a final decision on a production well or waste injection well permit. Also, permit aggrieved parties to appeal permits to the Oil and Gas Commission. Current law slams the courthouse door on permit appeals.
- Public water source protection – Protect Water Quality
Objective: Protect public well fields and floodplains from risk of surface spills
Prohibit the placement of a well drilling pad in a public water source protection area or a 100-year floodplain.
- Public water source protection – Protect Water Quantity
Objective: Protect public water sources (rivers and reservoirs) and groundwater from being over tapped for oil/gas production, and limit reliance on waste injection wells.
Require drillers to develop a plan to recycle or otherwise treat wastewater
- Accountability and representation on the Ohio Oil and Gas Commission
Objective: Assure that the public representative to the Ohio Oil and Gas Commission has no allegiance to anyone other than the public
Prohibit the public member of the Ohio Oil and Gas Commission from having any financial interest in the oil and gas industry
- Public oversight and accountability of drilling activity, violations, and inspections
Objective: Enable the public to have ready access to information about incidents, investigations, inspections, and violations involving oil and gas activity
Require ODNR to report on its website a summary of each incident reported by any person and a summary of investigations, inspections, and violations involving oil and gas activity.
- Private well water protection
Objective: Protect property owners’ well water from contamination
Entitle property owners to post-drilling water well sampling, at the oil/gas well owner’s expense.
- Property Owners Bill of Rights
Objection: Establish consumer rights to protect property owners from unscrupulous landmen.
Guarantee an honest leasing process by requiring the “landmen” who secure leases on behalf of drillers to be subject to new registration, licensing, and disclosure requirements, and establish the right of property owners to:
- a “cooling off period” that enables a property owner up to 5 business days to cancel a leas
- right to audit production records;
- require immediate notice to landowner if lessee assigns or transfers mineral rights