SB 315: A Missed Opportunity

(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 11^th 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

For more see the testimony of NRDC, Sierra Club, and Buckeye Forest Council.

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Grand River listed as one of Americas Most Endangered Rivers

 Trent Dougherty, Director of Legal Affairs Ohio Environmental Council

The Grand River is the jewel of the Lake Erie Basin.  The Heart of Steelhead Alley.  According to the Ohio Department of Natural Resources, the Grand River represents one of the finest examples of a natural stream found anywhere in Ohio. It is designated a wild and scenic river and is an angler’s paradise—with some 90,000 steelhead trout stocked each year, and boasts “the most aquatic diversity of any Ohio Lake Erie tributary.”

In 1974, the Grand River became Ohio’s second wild and scenic river.   Now, it is the focal point of fracking in Ohio.

Not only has horizontal drilling inundated the Grand Watershed, but the watershed has also become a destination for contaminated fracking wastewater from other states.

So far, two permits for production wells have been issued less than 1,500 feet from a Grand River tributary, and approximately 12 permits for fracking wastewater disposal wells have been approved in the basin.

Just 1500 feet from the headwaters the Grand River, in Geauga County, Ohio, is one of two the first horizontal hydraulic fracturing well to be drilled in Geauga County.  This is the first of untold numbers of   wells that will engulf the Grand River which already is home to a dozen fracking waste injection wells, and this watershed (and watersheds around Ohio) needs the best protections possible.

With such colossal-scale drilling, it is imperative that we take a collective breath and make certain that regulations truly protect our gas-field communities.  Unfortunately, that is not the current state of the law.

When balancing the potential for impacts to a  watershed such as that of the Grand River with the realities of today’s economic climate, we must understand that the our watersheds are fragile and complex systems, NO amount of profit can fully restore such natural systems if we do not adequately protect them.

This week, the Ohio House of Representatives voted to pass SB315 that makes some movement toward properly regulating this industry.  The good provisions of the bill, however, will struggle to buffer the toxic loopholes, lapses and left-outs that the oil and gas industry has succeeded in elbowing into the bill. What’s missing?

• There are no rules requiring recycling fracking water to protect the Grand River Watershed from being sucked dry, or limiting the need to drill more disposal wells in the watershed.
• No requirements for post drilling/ post fracking testing of private water wells to secure the quality of landowners’ water; and
• No testing of what, exactly, is being disposed of in the fracking waste injection wells.

Ohio is outdriving its headlights when it comes to the shale boom, and watersheds missed a “Grand” opportunity with SB315 to really get our water protections in place.  Natural Gas can be a bridge fuel to cleaner and greener sources of energy, but the pace we are going, Ohio is building a bridge to nowhere.

Now in its 27th year, the annual America’s Most Endangered Rivers® report is a list of rivers at a crossroads, where key decisions in the coming months will determine the rivers’ fates. Over the years, the report has helped spur many successes including the removal of outdated dams, the protection of rivers with Wild and Scenic designations, and the prevention of harmful development and pollution.

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Ohio Groups Unite to Form “Coalition to Protect Ohio’s Parks”

Columbus-A press conference held this afternoon in the Ohio Statehouse announced the launch of the Coalition to Protect Ohio’s Parks (CPOP).  The Coalition was launched in response to recent legislation that, for the first time, have opened Ohio’s state parks to oil and gas drilling, including high volume horizontal hydraulic fracturing (HB 133) along with commercial logging, including clear-cutting (HB 153).

A shared concern of coalition members is the fact that state parks were, until recently, one of the very few places in Ohio protected from drilling.  “Ohio is 7^th in the nation in population, but ranks a mere 47^th in public lands available per capita,” said John Makley of Mohican Advocates.  “We have a duty to future generations to keep heavy development out of the relatively few public natural areas that exist in Ohio.”

The timing of the coalition’s launch comes a little more than a month before a new public lands leasing nomination process is set to take effect.  In addition to opening parks for drilling for the first time in their history, HB 133 created a new leasing process that requires state lands to be nominated to a new Oil and Gas Leasing Commission prior to leasing. “The Leasing Commission has authority to deny leases and will take public comments prior to making any leasing determinations; this makes the coalition’s work all the more important, as we will work to make sure the public is aware of and ready for specific nominations,” added Johnson.

Coalition members are concerned that ODNR has not been open with the public about plans to lease state lands and that the agency has pushed public interest groups to the side while consulting with industry in the development of its proposed leasing program. “Despite concerns about the legislation expressed by park lovers and environmental advocacy groups, ODNR has not been open in their implementation of the legislation,” said Loraine McCosker of Sierra Club. “Recent e-mails released by ODNR show that state officials have consulted with the oil and gas industry on lease terms and conditions, while ignoring the concerns of park users and advocates.”

Coalition members shared a list from ODNR outlining some of the parks and state forests targeted by ODNR for early leasing. Four state parks appear on the list of lands targeted for early leasing: Beaver Creek Park, Guilford Lake Park, Jefferson Lake State Park, and Barkcamp State Park.  In addition, five state forests appear on the list: Yellow Creek State Forest, Beaver Creek State Forest, Jefferson State Forest, Harrison State Forest, and Sunfish Creek State Forest. The list was recently obtained as the result of a lawsuit filed by the Ohio Sierra Club to compel ODNR to release public records. Prior to the suit, the agency had failed to disclose information for several months.

The coalition unveiled a new website as part of the launch, www.ProtectOhiosParks.org. The coalition website is intended to serve as an information and action hub for concerned members of the public.  “The new website will have information about the effects of fracking and logging on sensitive lands, but will also provide viewers access to a separate page for each state park and state forest, along with important dates and developments for each park and forest,” said Nathan Johnson, Staff Attorney for the Buckeye Forest Council.

“Ohioans don’t want to ‘get away from it all,’ only to discover drilling rigs, waste pits, haul roads, compressors, pipelines and all the other ‘wonders’ that drilling will plunk down in our parks and forests. Throughout this entire debate, the public has yet to be asked whether they even want their natural treasures opened to industrial development” said Jack Shaner,  Deputy Director of the Ohio Environmental Council.

Coalition members who spoke at the launch included Jed Thorp, Chapter Manager of the Sierra Club Ohio Chapter; John Makley of Mohican Advocates; Nathan Johnson, Staff Attorney for The Buckeye Forest Council; Jack Shaner, Deputy Director for the Ohio Environmental Council; and Loraine McCosker of Sierra Club. Ohio House Representative Denise Driehaus was also in attendance and spoke at the event.

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