Posts Tagged ‘Marcellus Shale’

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.’”

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

Today, State Representative Jay Goyal (D- Mansfield) introduced the first sweeping update of Ohio’s fracking waste disposal since the shale boom began, and the first reforms in reaction to the nearly dozen injection well induced earthquakes in Youngstown throughout 2011.

Ohio Environmental Council was honored to play a role in the crafting of the legislation, and the reforms in the bill echo many of the recommendations OEC made before the Youngstown City Council in January.

Here are some of the highlights of the legislation:

  •  Increase public notice and commenting requirements
  • Allows local entities (e.g. city councils, county commissioners, etc) to deny injection well permits
  • Require injection well owners to conduct chemical tests to determine what chemicals will be injected into the disposal well
  • Require injection well owners to conduct ground water monitoring
  • Require seismic testing
  • Requires background checks on operators;
  • Requires recycling of waste fluid FIRST, Disposal SECOND.

As horizontal drilling and fracking rip across much of Ohio, the need for safe disposal methods for the millions of gallons of waste fluid must be a top priority for Ohio.

Thank you, Representative Goyal for the foresight to introduce legislation to not only protect Ohioan’s right to be protected against the risks of fracking waste disposal, but give back citizens and local governments their voice.

For years Ohio has been the low rent, high risk dumping ground for out of state waste fluid.  This legislation will give Ohio the tools to protect our communities from health and safety risks of disposing this waste.

Beyond the much needed environmental and human health protections in this bill, Rep. Goyal’s proposal will provide the public with more and better notification of these and the ability for communities to say NO if their Sometimes whole communities do not know that an injection well until it’s drilled, or unfortunately, in rare occasions, the moving earth lets them know.

This bill will give the power to the people to be adequately notified, and for local citizens and governments be full participants in the permitting process.

Read Rep. Goyal’s Press release on the legislation.

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

Ohioans are six months removed from Governor Kasich’s 2-day Energy Summit, and everyone has been waiting with baited breath for his energy plan to hit the General Assembly. Rumors are bounding the halls of Capitol Square that the Energy Bill will be introduced with in the next couple weeks, with the rush put on to pass the bill by June 30.

The Governor previewed the plan to the Greater Cleveland Partnership last week.  As expected the 10-Pillar Plan has a little bit for everyone – increasing utilization of Waste Heat Recovery, renewable energy and energy efficiency, coal research, streamline energy related permitting, and alternative fuel vehicles.  But of course, the first pillar in Kasich’s plan (which also resonates throughout the ten pillars) is Shale Gas Extraction.  We are sure to have a few words to say about the other nine pillars once the bill is officially introduced, but the focus on shale needs special attention by OEC.

The Gov’s shale provisions in the energy plan will combine new taxes, fees and regulations on shale drillers. His plan will “modernize” ODNR and Ohio EPA rules on drilling impacts.   The translation: increasing the quantity and quality of the regulations, but also making permitting quicker and simpler — frackers will have to do less to get permits, but will have to meet a few additional regulatory protections.

These regulatory changes are sorely needed, especially as it concerns disposal of waste product into underground injection wells.  So too, are necessary increases in the fees and taxes the industry pays that hopefully will help curb the unfunded mandate on local communities.

The industry has already cried foul, and stated that they already pay their share.  But with the projections of billions of dollars of resources under our feet, a few extra bucks to make sure that local first responders and local infrastructure can carry the burden of protecting the health and safety of Ohio’s Gaslands is a solid investment.

A few ‘Green’ recommendations for Team Kasich’s Energy Bill
While OEC continues to call for a slowdown on permitting until proper regulations and environmental/safety protections are put in place, we are feverishly working on our own recommendations for the Shale Pillar of the energy bill.

OEC supported SB 165 (the much needed update and modernization of ODNR’s Oil and Gas Drilling laws in 2010) as a tremendous step forward in regulating drilling.  However, much of the focus was on fixing the problems with traditional vertical drilling, and more specifically with urban drilling in light of the Bainbridge Township explosion of December 2007.

OEC, among other groups, advocated for many changes to strengthen SB 165. Yet, only a few recommendations were incorporated into the final bill.

To supplement what SB 165 accomplished, especially in light of the huge influx of industrial scale, deep shale horizontal fracking, OEC believes that the regulations must increase regulations for safety, accountability, and liability.

Here is a snapshot of some concepts must be incorporated into Ohio law.

Public safety and environmental protection

  1. Prohibit open pits and the burial of hazardous waste and use of known toxic chemicals at drilling sites;
  2. Require monitoring of hydrogen sulfide gas and other air emissions; and
  3. Require monitoring and first alert warning technology to detect spills, leaks, or explosions that jeopardize human health.
  4. Prohibit drilling in 100-year floodplain, and prohibit tank battery to be located with in the 100-year floodplain;
  5. Expand the present law to require more extensive testing of well and stream water near the drilling site before and after drilling occurs. In advance of drilling, the Operator is required to test water (using a comprehensive wide-spectrum analysis) in multiple water-well locations as well as in streams and ponds within ¼ mile of the drilling location, and to submit these samples to an independent laboratory. Within 14 days of the completion of the drilling, tests of stream and pond and well water will be repeated. The operator will pay for all tests, and the results shall be submitted to ODNR.


  1. Revise composition of the Oil and Gas Commission and the Technical Advisory Council to include more true public representation to balance industry representatives.
  2. Require ODNR to maintain a website data base accessible to the public of all applications, proposed well locations, granted permits, and actual well locations with contact information for each applicant or permit holder. This allows residents to monitor leasing activity in their neighborhoods.
  3. Require full disclosure of violations from drillers.  Post all the violations and fines. Requirement for landmen and/or operators to disclose all of their violations on the contracts with landowners.
  4. Make granting (or denying) a permit an appealable action.  Currently, adversely affected landowners cannot appeal.
  5. Any drilling unit pool with public property in it would have to have a public hearing in that jurisdiction.
  6. Increase public notification and participation of drilling operations, increase notification to, and consultation with, local jurisdictions

Financial Liability

  1. Increase penalties for violations of ORC Chapter 1509 as suggested by Attorney General Mike DeWine.  Also, allow for the fines to increase to double the economic benefit received by the operator for violating 1509.
  2. SB 165 increases liability coverage to $3 million in urban areas and $1 million elsewhere.  In light of deepshale drilling and incidents of explosions, spills, and other risks, we feel that the liability should be increased substantially for these types of operations.   With the industrial scale drilling upon us, we support increased liability insurance requirements to $5 million bodily injury, $10 million property damage.  Further SB 165 only requires general liability insurance. General liability insurance usually EXCLUDES pollution / environmental insurance.
  3. SB 165 allows for surety bond in an amount determined by the chief.  With the vast amount of land disturbance involved in deep shale drilling Ohio needs to require a full cost bond to cover entire cost of reclamation.  Lessons need to be learned from the coal regulatory program which uses less than a full cost bond, and the legacy of unreclaimed sites that continue to blight eastern Ohio.


  1.  Require operators to recycle waste water or otherwise treat wastewater from drilling operations.
  2. Increase oversight of landfilling drill cuttings or other materials that may contain Radioactive material in landfills;
  3. Increase testing of wastewater injected into Ohio’s Class II injection wells; require chain of custody
  4. Increase public notification and participation of injection well operations, increase notification to, and consultation with, local jurisdictions
  5. Require seismic activity studies before permitting injection wells, and require monitors for seismic testing at well sites
  6. Increase budget and staffing of ODNR DIVISION OF GEOLOGICAL SURVEY
  7. Repeal current Ohio law that restricts ODNR from adopting any standard more stringent than federal standards for Class II injection wells
  8. Encourage alternative/beneficial uses of wastewater

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Ohioans want a Bridge Fuel, but don’t want ODNR to drive us over a Bridge to Nowhere

Hydrofracking in Ohio has become, if not a household term, then at the least a salient issue for Ohioans.  Recently, Quinnipiac University released a survey indicating that 7 out of 10 Ohioans believe that hydro-fracking (deep shale gas drilling) should be stopped until studies of its effects are completed.

The poll shows people are convinced that hydro-fracking brings economic development with support by a 64-29 margin that the economic benefits outweigh the environmental risks, and 85-11 support for the notion that it will bring jobs to the state.

The remainder of the poll portrays folks as with cognitive dissonance. The poll showed Ohioans anxious about its impact on the environment. By a margin of 72-23, Ohioans say the practice should be stopped until further study.

Ohio wants the bridge-fuel, big bucks promise of the Ohio Oil and Gas Industry spins our way, but they want ODNR to take it slow and get it right.  That is exactly what OEC and scores of other organizations have been saying for over a year.

Listen to OEC’s Jack Shaner’s reaction to the poll on Ohio Public Radio

Public polls not only take the pulse of how citizens feel about issues but also to predict in what ways citizens will act. And Ohioans recently demonstrated their willingness to organize and act with Senate Bill 5, putting a ballot initiative on the table. Further, swings in public opinion have occurred throughout history in response to environmental catastrophes such as the burning of the Cuyahoga River and the detrimental effects of DDT. These swings in public opinion have lead us to some of our strongest environmental protections.

The General Assembly should take heed of this voice of the people, and learn its lesson from Senate Bill 5 – the people govern. Such a swing shows that the people are worried.

And Ohioans have good reason to worry. High volume, horizontal hydraulic fracturing, currently being used to tap into the deep shale formations all over the United States, is very different from conventional drilling. This technique involves more water in the fracturing process, more chemical additives to the fracturing fluid, more air emissions with a higher density of wells and large numbers of wells, and more toxic waste and waste fluids, along with community impacts such as damage to roads with more truck traffic. The take home message is that deep shale gas drilling will very clearly be industrial-scale development, with industrial scale pollution and industrial scale accidents.

In the state of New York, citizens have had more time to get educated on hydro-fracking (deep shale gas drilling). This is due, in part, to the state’s SEPA, or mini (National) Environmental Policy Act, which requires an environmental impact statement be completed before the state’s Department of Environmental Conservation issues permits for drilling. But in Ohio this is not the case. Our very own Department of Natural Resources has forged ahead with permitting 113 deep shale gas wells (with 34 of these wells already drilled) before the regulations that guide industry and protect public health and the environment are in place. Ohio legislators take note: by a margin of 72 to 23 Ohioans want fracking stopped until further study.  Suffice it to say: public opinion has swung.

This poll shows that the people of Ohio are moving toward the NY model – full environmental review BEFORE there is a problem.  The natural gas has been underground for millions of years.  A few months to protect 11 million Ohioans is worth the deferred compensation.

Read Ohio SB 213 — Moratorium on Fracking 

* In 2010, respected public opinion polling analyst Nate Silver ranked the Quinnipiac University poll as most accurate among major polls conducting surveys in two states or more

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

Today, Ohio Environmental Council (OEC) and its allies submitted comments to the Ohio Environmental Protection Agency regarding their proposed General Permit to authorize Oil and Gas to impact wetlands and streams.

OEPA is working to establish a General Permit that lays the conditions under which an oil and natural gas drilling companies may impact streams and wetlands.  If an applicant is not able to meet the terms of the General Permit, they can still apply for an Individual Permit, but the process will be much longer and require more scrutiny from EPA.

This proposed Draft General Permit would allow an applicant to “impact” (meaning “fill in”) up to half an acre of Category 1 or Category 2 wetland, and up to 300 feet of stream.  The General Permit would not be available to cover impacts to the highest quality Category 3 wetlands and the highest quality streams and other water bodies. Any impacts would have to be “made up” by purchasing credits at a mitigation bank, which is an entity that will construct artificial wetlands to replace those that are impacted by new construction projects.   The permit would require a company to buy credits for at least 1.5 times the number of acres of wetland that they impacted.  In theory, applicants would be “making up” their impacts to our wetlands.

However, Ohio EPA published a discouraging self-assessment of its mitigation program in 2006 and another in 2010.

In spite of the mitigation ratios, the mitigation projects have been dismal failures in terms of replacing the valuable functions of wetlands.

The OEC, along with the Buckeye Forest Council , Sierra Club, and the Center for Health, Environment and Justice submitted comments to OEPA regarding the Draft General Permit, urging first and foremost that EPA put greater emphasis on the avoiding and minimizing impacts to our wetlands, and to treat mitigation as a last resort.   The coalition urged OEPA to:

  • Prevent applicants from inadvertently impacting certain wetlands that are difficult for the untrained eye to recognize as wetlands;
  • Notify local authorities – especially flood plain managers, of proposed drilling activity;
  • Ensure that drillers don’t use the streams or wetland as a water source, which would probably dry them out
  • Work with DNR to monitor impacts to streams and wetlands throughout the life of the drilling operation;
  • Prevent multiple drilling sites in the same wetland are from cumulatively causing large impacts by limiting total impacts to each wetland to 0.5 acres.

Read OEC/BFC/Sierra Club/CHEJ Joint Comments here.

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(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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(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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