(Posted by Trent Dougherty, Ohio Environmental Council)

On Friday, in Cuyahoga County Court of Common Pleas, the Ohio Association for Justice (formerly the Ohio Academy of Trial Lawyers) filed suit against the State of Ohio for violation of the state’s constitutional “single subject” rule regarding legislation.

The OAJ lawsuit cites the recent passage of Ohio House Bill 487 (HB487), the mid-biennium budget review bill, and specifically  the bill’s section (4123.57) that eliminates the right of Ohio workers who have suffered catastrophic injury (i.e. injuries in which someone loses their hand, arm, leg or worse) to receive their intended benefit in a lump-sum without reduction.

However, the stated purpose of HB 487 was “to make operating and other appropriations and to provide authorization and conditions for the operation of state programs,” and not necessarily to alter the rights of seriously injured workers (or for that matter a list of other non-budgetary issues listed in the compliant ).  According to OAJ, that’s unconstitutional violation of Ohio’s “single subject rule”:

No bill shall contain more than one subject, which shall be clearly expressed in its title. No law shall be revived or amended unless the new act contains the entire act revived, or the section or sections amended, and the section or sections amended shall be repealed. OH Constitution Art. II, Sec. 15(D)

The single subject rule is a check on the legislature not to “hide the ball”  – to make sure that legislators don’t tack on unpopular provisions onto more popular bills without public discussion in the committee process. This rule, which dates back to the state’s second constitution in 1851, works to stop   any attempt to sneak last minute amendments into bills outside of full public knowledge and debate.

While this case focuses on a singularly important concern with protecting the rights of seriously injured workers and not necessarily an environmental law, the “single subject” violation claim will have important practical ramifications for environmental and conservation legislation.

The most recent example in the environmental context, was this past Spring’s last minute amendment in SB315 (the governor’s energy bill).  In that 200-plus page bill, on the final day of hearing, with no testimony nor full discussion of the merits, the House of Representatives added an amendment that put unnecessary barriers to challenging non-disclosure of fracking chemicals.  While not a violation of the single subject rule, it was the type of unaccountable legislating that the Constitutional provision means to stop.

This litigation, hopefully will end in the reinstitution of basic injured workers’ rights, but perhaps just as important, give notice to the state legislators that sneaking provisions into unrelated or even related legislation without full public notice and debate, shall not stand.

OELC will keep you up to date on the status of this litigation, and its impact (if any) on the debate on the next biennial budget bill that will begin in early 2013.

(Posted by Melanie Houston, OEC Director of Water Policy & Environmental Health)

The United States Forest Service announced on Monday that shale drilling, or “fracking” will be allowed in the Wayne National Forest.

In a statement issued by the agency, Anne Carey, Wayne National Forest Supervisor, concluded that there was no need to amend the 2006 Forest   Plan for the Wayne to incorporate potential surface level impacts associated with horizontal drilling. Carey stated “I have reviewed the new information contained in the Supplemental Information Report, and determined that further environmental analysis is not needed.” She further stated “I believe that the existing Forest Plan direction is adequate to   address the surface effects anticipated from the potential development of horizontal wells as projected by the Bureau of Land Management (BLM).” According to an analysis done by the U.S. Bureau of Land Management, shale wells could be drilled in as many as 13 sites throughout the Wayne forest by 2016.

The Ohio Environmental Council (OEC), along with Buckeye Forest Council and other environmental organizations, oppose Forest Service’s decision to allow fracking in the Wayne, Ohio’s only national forest. “This decision is premature and inconsistent with the agency’s mission ‘to sustain the health, diversity, and productivity of the nation’s forests and grasslands to meet     the needs of present and future generations’,” stated Melanie Houston Director of Water Policy and Environmental Health.

In a statement after the Wayne decision, Nathan Johnson, staff attorney for the Buckeye Forest Council, stated, “The Wayne’s decision is extremely disappointing.”

“We believe the Wayne is violating federal law by failing to update their 2006 study and plan, and litigation is a distinct possibility,” added Johnson.

According to Buckeye Forest Council’s analysis, Federal law requires the Forest Service to conduct a new environmental study and update their plan whenever ‘significant new circumstances or information’ arise. High volume horizontal fracking is clearly a significant new circumstance demanding study and additional protections.

Trent Dougherty, Director of Legal Affairs at OEC stated, “The Forest Service has failed to conduct their due diligence in reviewing the environmental impacts associated with unconventional gas drilling in national forestland. They have decided to take a short-cut rather than fully assess fracking’s impacts on the long-term viability of this treasure of Southern Ohio.”

Ohio’s lone National Forest is now fertile ground for industrial-scale  fracking.

The Forest Service itself acknowledged in their supplemental informational report that there are drastic differences between  conventional oil and gas drilling and the new horizontal drilling: larger well pads, more surface area disturbance, and much greater water usage.

“There will also be more air emissions, more noise, and more light pollution, which will be disturbing not only to the surrounding public and    forest visitors, but also to the federally endangered Indiana bat and  sensitive species little brown bat.” added Houston.

Read the US Forest Service’s report:

(Posted by Trent Dougherty, Director of Legal Affairs)

One of the many jewels of Ohio’s State Park system is the Mohican Complex – Mohican State Park, Mohican Memorial State Forest, and the unique and inspiring Malabar State Park

Historic Malabar Farm was the heart and soul of Mansfield, Ohio’s own    Louis Bromfield and his work for conservation. Yet, did you know it  was in peril during his last days?

To chronicle  the importance of this public treasure, a 3 minute video was created by Tender Land Company to celebrate the work of Mansfield’s famous son and challenges us to re-think the management of  our Ohio State Parks. Look at the tough truth behind the story-book life of Bromfield and the peril that awaits his farm today.

Click the link below to view the movie: The Woods at Malabar.

Also, view Mohican Advocates film on Mohican State Park , entitled  Mohican: The Long View.

The threats: Drilling & Logging

More than a year has passed since the passage of HB 133, which opened Ohio’s State Parks to oil and gas drilling, and provisions in the State’s  Biennial Budget Bill that opened those same parks to commercial logging. Yet, while bill’s Leasing Board has yet to meet, and while no drill-bit has yet pierced our parks (yet), state officials are working hard.

As public records show (and we will feature on future posts on drilling in     our parks) officials have been working hard to abide by the mandates of      the new law: inventorying  and classifying state owned parcels; checking titles; and clearing any encumbrances.  All to make our parks primed and ready for drilling and logging.

But there is another group working hard as well.  The Coalition to Protect Ohio’s Parks, led by Mohican Advocates, Inc., has coalesced in an effort to reverse the decision of state lawmakers to open Ohio’s State Parks and Forests to drilling and fracking for gas and oil, and their decision to allow commercial logging in our State Parks for profit alone.

A focal point of the group’s effort is to shine an important light on the  reasons why the State Parks were set aside in the first place, and why, for generations, commercial logging and industrial scale drilling were denied.  The movies on Mohican and Malabar are just the start of CPOP’s efforts to protect the sanctity of small slices of public land we have in Ohio.

Please visit the Mohican Advocates, Inc. website and the Coalition to   Protect our Parks to sign the petition to protect our parks.

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!

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.’”

(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.

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

Earlier this month, Ohio Department of Natural Resources (“ODNR”) and its Division of Oil and Gas Resources Management (“DOGRM”) released draft rules to strengthen its regulation of fracking waste injection wells. These rules were proposed to establish more stringent regulations to protect public health and safety due to recent seismic events in the Youngstown area potentially caused by Class II brine injection.  (Read ODNR’s Report on the earthquakes).

It is important to note that the Youngstown-area injection well is NOT the only deep injection well in Ohio that has triggered associated earthquakes.  The Class I Hazardous Waste injection well (not a fracking waste well) in Ashtabula County is thought by researchers to have induced a series of earthquakes in 1987 (Seeber and Armbruster, 1993). There also appears to be a relationship between a series of earthquakes near Marietta at the Burning Springs Anticline and a set of active deep Class II injection wells in the area.

While the impetus may be the earthquakes, the true need for full overview of the Class II brine injection well regulations is due to the great influx of waste from Pennsylvania and the predicted boom of domestic shale production in Ohio.

Source: USEPA

According to ODNR’s Business Impact Analysis on the rule package:  Ohio currently has 196 Class II brine injection wells permitted to operate and nationally, there are 144,000 Class II brine injection wells disposing of in excess of two billion gallons of oilfield fluid wastes each day.

The industrial-scale deep shale oil and gas wells, projected to total in the thousands, will need a great amount of new injection well capacity for disposing of the millions of gallons of brine and wastewater.

WHAT’S IN THE PROPOSED RULE

  • Allows DOGRM to require specific tests or evaluations for new wells;
  • Prohibits an applicant from injecting fluid into an injection well until DOGRM has evaluated the results of any test performed;
  • Gives DOGRM the right to withhold the authority to inject fluids based upon the results of the tests performed;
  • Gives the DOGRM more time (fifteen days instead of the current five days) to review an application;
  • Increase the public notice requirements for brine injection well permit applications from one notice in a local newspaper to at least 5 consecutive days in one week;
  • Requires future injection wells to continuously monitor; and
  • Requires the injection well owner to install an automatic shut-off device set to terminate injection if injection pressure is exceeded.

OEC, on Monday, submitted its comments on the rules to ODNR, including a technical review undertaken by members of the Ohio Fracture Flow Working Group [1], an organization of highly qualified scientists and engineers, on behalf of the Ohio Environmental Council.

We stressed that these new rule changes are important, and ODNR should be commended for moving forward with them.  However, the proposed rules have FOUR overarching flaws:

  1. Too much discretion is given to the well operator to perform, or not perform, a test;
  2. Only new wells – not the nearly 200 current wells – are subject to continuous monitoring and other requirements;
  3. Far too little local community and local government notice and comment opportunity is afforded; and
  4. The rules focus only on mitigation of more earthquakes, and not the breadth of other issues concerning risks to human safety and water resources.

ISSUES NOT ADDRESSED IN THE PROPOSED DRAFT

Because state law gives ODNR broad authority to issue rules regulating brine injection, OEC urged the state to take the opportunity and look beyond earthquake prevention and immediately begin drafting – regulations to:

  • Provide for groundwater quality monitoring and  testing;
  • Require or otherwise incent recycling of wastewater;
  • Establish protective siting criteria for constructing wells on/near ecologically sensitive areas;
  • Require, where appropriate, chemical tracers to monitor migration of substances;
  • Increase notice, comment, and similar permit participation rights for local community members and local governments.

While it is easy to understand and appreciate the need and desire to finalize these proposed rules quickly in response to the 2011 earthquakes, the need for speed should not influence whether further protections are adopted.

RECENT FEDERAL REPORT SHOWS LINK

OEC also brought to ODNR’s attention a recent National Research Council report on induced seismicity from energy production and related operations.

The report examines the potential for energy technologies — including shale gas recovery, carbon capture and storage, geothermal energy production, and conventional oil and gas development — to cause earthquakes.

A conclusion of the 223-page report isthat although fracking has a low risk for causing earthquakes, underground injection wells – used to dispose of fracking wastes – present greater seismic risks. This report supports many of the technical concerns expressed over the past few months, and displaces the rhetoric that the Youngstown incidents were a mere “anomaly.”  Hopefully ODNR reviews the report, and that the report’s recommendations are incorporated into Ohio’s regulations. 

The rules will most likely be finalized this Summer.


[1] The Ohio Fracture Flow Working Group members contributing to the technical comments include:
Julie Weatherington-Rice, PhD, CPG, CPSS – Bennett & Williams
Linda Aller, RS, CPH, CGWP, CPGS – Bennett & Williams
Kerry Hughes Zwierschke, PhD, PE – Bennett & Williams
Stuart Smith – Ground Water Science
Al Kemerer – mechanical engineer/businessman Carrollton, Ohio