Archive for July, 2012

The Staff Attorneys at the William W. Ellis Ohio Environmental Law Center would like to invite you all to its Third Annual Open House TOMORROW Thursday July 26, 2012 from 5 – 7  p.m.  at the Ohio Environmental Council offices in Grandview Heights.

The Open House will be an opportunity to thank everyone who has been a part of OEC’s legal legacy (including, and especially, former interns) and introduce everyone to OEC’s legal future.  It’s also a great opportunity to meet  other attorneys inside and outside of the environmental law practice, current and former OELC interns, law and policy makers, and OEC members and friends.

It’s free and open to everyone.  We’ll enjoy hors d’oeuvres and beverages as we thank OELC supporters for another successful year, and introduce others to the work we do.

Hope to see you!

Read Full Post »

Columbus, OH – The Ohio Environmental Council (OEC) is praising State Representative Mark D. Okey (D-Carrollton) and echoing his call to action for state leaders to prevent exploitation of Ohio’s property owners and natural resources.  Today, Rep. Okey called on Governor John Kasich and legislative leaders to act on his proposed legislation to protect Ohio’s landowners from predatory leasing practices by the oil and gas industry.

“The OEC stands side by side with Rep. Okey in urging the Kasich administration and Statehouse leaders to put an end to predatory leasing and to establish consumer rights for property owners who wish to lease their land for oil and gas production,” said Trent Dougherty, Director of Legal Affairs for the Ohio Environmental Council.  “Land owners need better protection from unscrupulous oil and gas ‘landmen.’   The law should assure arms-length dealings for Ohio’s gasland communities.”

The call for strengthened consumer rights comes just days after a recent Wall Street Journal article chronicled Chesapeake Energy’s attempts to renegotiate Ohio landowners’ leases in an attempt to help the cash-strapped company.  The article cites that since 2008, more than 100 lawsuits have been filed across the country by landowners, who claim the company breached contracts.

Rep. Okey’s recently introduced “Truth in Leasing Act” (House Bill 493) would guarantee an honest leasing process by requiring “landmen” who secure leases on behalf of drillers to be subject to registration, licensing, and disclosure requirements, and establish consumer protection rights for property owners.

In February of this year, the state’s top lawyer, Attorney General Mike DeWine, urged, among other improvements in Ohio law, that his office or another state agency be empowered to help landowners with complaints about lease agreements for drilling.

“Arms-length lease negotiations will not only help protect landowners’ pocketbooks, but also protect the localized environment,” Dougherty added. “Absent fully protective regulations, effective lease negotiations can secure better protections for landowners’ safety and protection of their air, land, and water resources.

“From negotiating longer setbacks, to requiring post-drilling testing of water wells, to dictating how the land is reclaimed, the lease can be a powerful tool for a landowner to protect his or her property from environmental risks.  However, that is only the case if the landowner is on equal footing with the operator and the ‘landmen’ are held accountable,” said Dougherty.

OEC fully supports and endorses HB493. The OEC advocated for many of the bill’s provisions during the debate over the Governor’s Energy Bill (SB315).

“Gov. Kasich has renewed his push to make the 0il and gas industry pay its fair share in taxes.  The industry’s henchmen also should be ‘taxed’ with mandatory licensing, registration, and financial disclosure to protect landowners from the unscrupulous practices of predatory ‘landmen.’”

Read Full Post »

(Posted by Trent Dougherty, OEC Director of Legal Affairs)

Last week, a decision of the Ohio Environmental Review Appeals Commission (ERAC) opened the door for Patriot Water Treatment, Inc. to treat brine and fracking wastewater in its facility, and the City of Warren to discharge the brine through its wastewater treatment plant into the Mahoning River.

Under a 2010 modification to the City of Warren’s wastewater discharge permit, treated brine water produced from oil and gas drilling activity could be sent to the city of Warren’s wastewater treatment plant. The city’s 2012 permit renewal from the Ohio Environmental Protection Agency, which took effect April 1, however, contained a provision that did not allow the city to accept the water from Patriot.

The change in permit terms came with the change of Administrations, and a subsequent change (or more aptly, a clarification) of Ohio EPA policy toward discharge of drilling wastewater into waters of the state. The essential clarification was that it was the Ohio Department of Natural Resources (ODNR), and not Ohio EPA, who was the authority to permit disposal of drilling-related wastewater.

The Commission’s decision thus hinged on whether that policy could be enforced through the City of Warren permit. The Commission said no.

The Commission’s ruling does not necessarily permit the brine to be accepted by Warren and discharged into the Mahoning (especially if you ask Ohio EPA – read their reaction).  However, it does strike the provision that Ohio EPA inserted into Warren’s 2012 water quality permit that prohibited the discharge of brine unless and until ODNR approves of it as a disposal method.

Under current Ohio law (ORC 1509.22), the only approved methods of disposing of brine and other wastefluids from oil and gas drilling is through Class II injection wells or application on roads for dust/ice control.  Yet, that law does allow the ODNR to approve other methods of disposal, but has yet to ever do so.  The main crux of the decision was that it was unlawful for Ohio EPA to enforce ODNR’s law through the City of Warren’s permit.

The ball, then, is squarely in ODNR’s court to definitively state whether discharging treated “brine” into waters of the State of Ohio is an acceptable and approved method of disposal. The Department has a choice:

  1.  defend their statements that underground injection is the best and safest disposal method and prohibit Warren from discharging;
  2. approve the treatment and discharge through the wastewater treatment plant as an ODNR approved brine disposal method, and begin the, hopefully, public debate about which disposal method is the safest (if either);
  3. or do nothing, and let its executive agency cousin, Ohio EPA, fight the battle.

For almost a decade, Ohio law has put the “sole and exclusive authority to regulate the permitting, location, and spacing of oil and gas wells and production operations within the state” to ODNR’s Division of Oil and Gas Resources.  However, that law also, exempts from that authority “those activities regulated under federal laws for which oversight has been delegated to the environmental protection agency and activities regulated under sections 6111.02 to 6111.029 of the Revised Code.” So there are three important questions that should be answered:

  1. Whether Patriot’s “treated” brine is still brine under Ohio’s law?
  2. Whether discharging it through a wastewater treatment plant is disposing of brine?
  3. Is regulating it an activity granted to Ohio EPA by the Clean Water Act, and thus not under ODNR’s authority at all?

The answer to those questions not only determines who has authority over these operations (left unanswered in last week’s decision), but where the great influx of shale drilling waste is headed for the foreseeable future.

The state can just add these to the list of other questions that need to be addressed as we ramp up to the 2000 shale permits envisioned by ODNR and the industry, and the hundreds of millions of gallons of wastewater that comes with it.

Read Full Post »