ALEC and the Oil & Gas Industry v. Source Water Protection & Home Rule

in Ohio: How we got to where we are and what

we can do about it

Julie Weatherington-Rice, PhD, CPG, CPSS

Bennett & Williams Environmental Consultants Inc.

An Ohio Fracture Flow Working Group Presentation

January 26, 2015

Adj. Prof, Ohio State U. Food, Ag & Bio Eng.

Where are you getting your information?

• Cert Prof Soil Scientist, Ethics training requirements that certifies our information

• Most Cert & Reg Geologists, Sanitarians & Professional Engineers also have ethics standards that they have to meet

• Public Relations, Politicians and Political Appointments have no such bounds on their statements

• Political Spin is their bread and butter

Oil & Gas Drilling in Ohio, 1860 - Present

Prime Class II Brine Injection Wells

Mt. Simon SS SW Ohio

Locations

~2,000’

Cincinnati Arch

~13,000’

Mineral Exploration & Extraction in Public Source Water Protection Areas are Non-Conforming, Potentially Polluting Land Uses

They are the ONLY remaining major land uses of this category that are NOT either precluded / regulated by Federal / Ohio law in Source Water Protection Areas or subject to management under a local Source Water Protection Management Plan

Mineral Exploration & Extraction

Since NOT precluded or locally managed, the siting and mineral rights for extraction are based on Federal / Ohio mineral laws (O&G, coal, rock, S&G, etc.) which DO NOT traditionally recognize the importance of source water protection

After the Fact Damages

• Dewatering – Ohio Cline vs. American Aggregates

• Contamination – Federal Clean Water Act

• Both conditions require litigation in Civil Court

• Both require that damage has already occurred

• Both are unsecured claims in Bankruptcy Courts

Preventing Damages Before They Occur

• Ohio Courts typically find for the mineral owner

• Two major “Lands Unsuitable for Coal Mining” cases have shaped these decisions

• The Ohio Supreme Court case relating to the ODNR determination of “lands unsuitable” in the protection of the Pleasant City wellfield

• The Ohio Court of Appeals decision regarding ODNR’s decision NOT to grant “lands unsuitable” status to Barnesville’s reservoir watersheds

How Did Locals Lose Control on Oil & Gas?

• 1986, the Federal Emergency Planning & Community Right-to-Know Act (EPCRA) is passed. US EPA oversees the program. Ohio requires holders of toxic/hazardous materials to report annually to the State Emergency Response Commission, Local Emergency Planning Agency & Local First Responders.

How Did Locals Lose Control on Oil & Gas?

• Rider to Ohio HB 94, 2001 Budget Bill removed Oil & Gas Industry from the Federal 1986 EPCRA requirements in Ohio and carved out a sweetheart deal that had them report separately to ODNR Mineral Resources Management

• No one who cared about protecting water noticed the “slight of hand” and reported it to the Federal Government, became codified in the ORC & OAC

How Did Locals Lose Control on Oil & Gas?

• 2004, HB 278 (Tom Niehaus) pre-empts local communities from using local zoning authority to say where oil & gas wells and Class II injection wells can go, before 2004, local zoning applied

• 2010 Sub SB 165 (Tom Niehaus again) upholds HB 278 & strengthens ODNR Oil & Gas’s power even over other state agencies; removes rights of locals to appeal; does not address source water protection management requirements

Pre SB 315 (2012) Setbacks: Oil & Gas

• 50’ from streams and lakes (set by Sub SB 165) including in 100-yr floodplains and surface water source water protection areas

• 300’ from water wells public/private

• Nothing in the Ohio Revised Code or the Ohio Administrative Code to protect by exclusion public source water protection areas

SB 315-Ohio Energy Bill Revisions

• Allows ODNR to require additional permit requirements in the following areas if they so choose

• 100-year floodplains

• 5-year time-of-travel, public water supplies

• First time water protection ever mentioned in Ohio mineral resources law

• DOES NOT overturn Pleasant City or Barnesville so may not hold up in court if challenged

More Changes Still ComingSub SB 165 – Effective June 30, 2010

• Mostly about money

• “Grants the Division of Mineral Resources Management (now Oil & Gas) sole and exclusive authority to regulate production operations, as defined by the act, within the state”

• STILL Writing Rules from this bill

• Allows ODNR (ODH & OEPA) to revise rules through the Joint Committee on Agency Rule Review (JCARR)

Progress on Revising RulesFinalized

• Ohio EPA – Air permit set, Standard permit begins when well goes into production

• Ohio Dept. Health: Radioactivity (NORM & TENORM) – all authority reverts to Oil & Gas

- may be more radioactive than man-made wastes or Safe Drinking Water Act levels allow but because “natural” doesn’t count, allows down blending in landfills, very limited Ohio data; does NOT conform to US EPA definitions

Finalized / Progress on Revising Rules

Sent/Heading to JCARR; OEC/OFFWG comments submitted

• Well Construction Rules are Final

• Revision ORC 1501:9-1-01 thru 1501:9-11-04 (Hodge-podge of rules) ORC 1501:9-1-01 & -02 are Final

• Ohio EPA wetlands reporting – Are they being enforced?

Progress on Revising Rules• Class II Injection

Wells Revisions

(above Pre-Cambrian basement rock now)

Seismic rules proposed 6-7-12 (Finalized by Emergency Summer 2012)

• Everything else?

• Check web sites often http://oilandgas.ohiodnr.gov/

Remember the NORM – TENORM Confusion?

• Four National Definitions for NORM-TENORM

• Ohio uses Conference of Radiation Control Program Directors, 1990, before horizontal wells, least restrictive & amended even further in 2013

• US EPA, Nat. Academy Science and ANSI all add to NORM “potential for increased exposure”making whole waste stream TENORM & subject to testing

• 5 pCi/g (US EPA clean-up standard) & 5 pCi/L (US EPA Drinking Water MCL) would apply to whole waste stream

Ramifications of Am HB 59, 2013

• Most solids and semi-solids considered NORM, no testing or threshold of radioactivity limits before landfilling

• No requirements to track where these wastes are going or report them as drill cuttings, etc.

• Ohio EPA assigning “beneficial use”, can be used for landfill caps and surface repairs even above the final cap, no containment

Legal disposal for shale rock cuttings, drilling muds and associated wastes

Am. HB 59, 2013, requires downblendingif Ra levels above MCLs for TENORM only, NO TESTING for NORM

No requirement that chemical binding of radioactive materials to dilution materials must occur

Landfilling the Wastes

Appealing EPCRA Violations to US EPA - 2014

• When no one could find a local list of chemicals at a “stinky” oil well near St. Marys, Teresa Mills filed a petition to US EPA Region V to determine if Ohio was in compliance with EPCRA for oil & gas (http://www.acfan.org/2013/citizen-complaint-filed-with-usepa-ohio-in-violation-of-federal-law/ )

• US EPA responded that ORC Chapter 3750 & 1509 “Does not supersede the requirements of EPCRA” (4-30-14)

2014 Oil & Gas Events in Ohio

• US EPA orders ODNR to instruct Oil & Gas Industry to also report to SERC, LEPA and First Responders

• June 28th, StatOil Monroe County well pad explodes and burns for five days having previously only reported “production water and condensate”

• All life in Opossum Creek down to Ohio River killed

2014 Oil & Gas Events in Ohio

• US & Ohio EPAs finally get list of chemicals five days after fire starts

• ODNR had them two days after but did not share

• Public Water intake on Ohio River, West Virginia side, 1.7 miles down from mouth of Opossum Creek

• Plume days past when list of chemicals finally released – no water tests for some of the chemicals if they had known to test

New Rider in Sub HB 490 - 2014• Sub HB 490 is an Agricultural bill aimed at

addressing nutrient overloads in surface waters from farm fields – passed House

• Designed to curb Blue-Green algae growth in Lake Erie and other Ohio lakes

• Last minute rider added in the House to once again establish a special EPCRA carve-out for Oil & Gas

• No indication that this will change the non-compliance status of the Industry in Ohio if passed

New Rider in Sub HB 490 - 2014

• Bill quietly sunset in Senate Comm end of 2014

• Proposed replacement language from OEC http://www.theoec.org/sites/default/files/2014-12-3%20Memo%20to%20OH%20Senate%20Ag.pdf

• Information & testimony from OEC http://www.theoec.org/sites/default/files/2014_12_1_HB%20490%20Senate%20Testimony%20-%20FINAL.pdf - more testimony coming on OEC site

• Information & First-Responder testimony OCA http://ohiocitizen.org/first-responders-community-members-and-environmental-advocates-call-for-fracking-chemical-disclosure-for-first-responders/

Language expected to return early 2015

• Ohio House reportedly planning to break down Sub. HB 490 into four separate bills and assign sponsors (Cols. Dispatch 1/23/15)

• Also possible that the EPCRA section will be folded into the 2015 Budget Bill which will basically assure it’s passage

• Ohio passage does not cancel Federal EPCRA requirements

• Yearly reporting not sufficient for O&G accident management

Possible Options to Exclude Source Water Protection Areas from Drilling

• Currently ODNR O&G would have to buy the resource if they denied a permit & were challenged for a “takings”

• Overturn the Ohio Supreme Court decision on Pleasant City (State ex rel. R. T. G. v. State of Ohio) possibly using the new Ohio Constitutional Amendment, ground water

• Pass a bill through the Ohio House and Senate providing exemptions to drilling in Source Water Protection Areas & 100-year flood plains

What Can Locals Do?• Find out if you even

own your mineral rights (If there are old wells, the rights may have transferred)

• Find out who owns your lease –selling/swapping like sub-prime mortgages

• Remember, you can be bundled or pooled

Currently 13 Class II Injection wells in Central Ohio SWPAs

Source: Screen shot Ohio Fractracker Database

Develop your Source Water Protection Management Plan

• Make sure your inventory includes all oil & gas infrastructure, historic and current

• Make sure your public outreach and education program includes land owners in and near your Source Water Protection Area

• If active or planned drilling in your area, consider asking one of the Oil & Gas companies to assign a member to your Source Water Protection Management Committee –it’s only one member, they can be non-voting, and they will learn first hand about the risk to your resource & the huge cost to replace it

Be at the Rulemaking Table

• Advocate for your water system

• Comment on all rule changes, especially as they relate to YOUR supply

• Provide technical comments, especially those related to impacts to your well field

• Don’t comment, you may lose standing

• Make sure your local Ohio Rep/Senator have copies of your comments

Request they offer legislation to level the playing field and return local zoning & source water protection planning to the permitting process

Source Water Protection Area Leased?

• No Funding available to make communities whole if water source is damaged

• Establish replacement cost & water needs ahead of time

• Document service area, number of taps, average daily water usage

• Document alternative sources available to you & level of water rationing needed to maintain services

• Discuss plans needed to carry out emergency back-up water for your community including length of time to bring alternative system on line

Source Water Protection Area Leased?

• Notify ODNR O&G in writing of water supply replacement information

• CC your local Rep/Senator, ODNR Director & the Governor

• Send Certified copy to the Drilling Company and Permit Holder

• Make all responses part of the public record in case of future litigation

• Educate your customer base about your pro-active protection efforts

Communities Working to Ban Drilling or Injection Wells

• By Nov. 2012 elections, 30 communities in Ohio had some form of ban in place, more communities interested & several more have passed

• Athens updated Wellhead Protection Plan to exclude injection wells

• City of Cincinnati has banned all injection wells city-wide, threats of earthquakes & landslides

• Mansfield, Yellow Springs and others passed Charter Amendments, effort now for Columbus

• City of Dayton considering actions related to groundwater protection & public safety

Waiting to hear the Munroe Falls Case Ruling: Ohio Supreme Court

• Munroe Falls took a proactive position and sued each Oil & Gas permit holder for not applying for local construction and building permits within their jurisdiction

• Upheld each time at the county level

• Beck Oil challenged, now in the Ohio Supreme Court, decision due any time

• Even a split decision would drive a wedge into Oil & Gas Industrial control of Ohio’s government

Major O&G Events, Ohio 2014• March 2014 - Earthquakes in Poland, Ohio

connected to shale gas extraction wells

• May 4, 2014 – Morgan County, Well leak, Seven evacuated; “Shale well leaks during drilling process, forcing evacuations in Morgan County”, Columbus Dispatch, May 8, 2014

• June 25, 2014- Gas well blow out, Hall Drilling,

Monroe County.

• June 28, 2014 - Monroe County, fire, one injured; ”Fracking fire points out failings”, Columbus Dispatch, August 31, 2014

Major O&G Events, Ohio 2014• August 31, 2014 – Warren, Injection wells,

Earthquakes; “Ohio halts injections at two wells for fracking wastewater after quake”, Columbus Dispatch, September 6, 2014

• September 24, 2014 – Emissions violations at Carroll County Compressor Station

• October 2014 - Pipeline fire in Monroe County

• October 19, 2014 – Guernsey County, explosion, one injured; ”Drilling worker injured in Guernsey County explosion”, Akron Beacon Journal, October 27, 2014

Major O&G Events, Ohio 2014

• October 28, 2014 – Jefferson County, Well blowout, 400 families evacuated; “Most allowed back home after fracking-well blowout in eastern Ohio”, Columbus Dispatch, October 30, 2014

• November 12, 2014 – Noble County, Explosion, one dead; “Worker killed in explosion at Noble County oil and gas facility”, Columbus Dispatch, November 14, 2014

Major O&G Events, Ohio 2014

• December 13, 2014 – Monroe County, Large leak, several families evacuated; “Evacuated families in Monroe County await answers on fracking-well gas leak”, Columbus Dispatch, December 22, 2014

Updates on Radioactive testing of materials

• We have learned a whole lot since November, 2013 when we reviewed the radium data for the proposed Columbus Composting efforts

• Most of what we have learned is that the wrong tests are being run on samples for radiological levels, measured levels too low, count times too short

• While it is possible to modify these wrong tests to get good data, there are no standards for the modifications

EPAs & DEPs use SDW 900 Methods

• No “Official” US EPA method approved for shale

• Agencies & Labs know Finished Drinking Water 900 methods for radiologicals

• Lab certifications for technique in place

• Wet lab method, precipitate out the total dissolved solids and count for 2 hours.

• Required Rad Lab testings, 900 Methods

• For shale wastes, it’s the WRONG TEST

What is the 900 Method?

• Wet Chemistry• Precipitate solids out of solution• Evaporate the water out of the solids• Leave a thin layer of residue• Count the resulting radioactivity for 2

hours

USEPA July, 2014

Shale Wastes are NOT Finished Drinking Water

• Finished Drinking Water is clean, clear & ready to drink

• Shale wastes are ground rock cuttings, sludges, slurries, filter socks, flowbackwater, brines, scales and landfill leachates

• They are full of solids, total suspended solids, total dissolved solids, heavy metals & salts

• There is nothing clean, clear or ready to drink about them

The new USEPA & U of Iowa Study

July, 2014Publication Date

Ranking the lab tests against the DOE “Gold Standard”

The US EPA/U of Iowa Test

• 55 gal barrel flowback & produced water (brine)

• State Hygienic Lab, U of Iowa

• Major non-radchemistry

The U of Iowa Lab Results**http://pubs.acs.org/doi/pdfplus/10.1021/ez5000379

CurrentMethod

What Are the Tests?• BaSO4 = EPA Method 903 for Ra-226,

even modified too much precipitate

• MnO2 = Preconcentration of Ra on MnO2

• Rad Disk = 3M Empore RAD Radium filter disk

• RAD7 = Rn Emanation Measurement by RAD7, mineral oil extraction and liquid scintillation counting

• HPGe = Gamma Spectroscopy, 21-day hold and 16-hr count, the “Gold Standard”, can measure any state from solid to liquid w/out physical alterations of sample

PA DEP Radiation Study finally released

• Link to the Newsroom page; http://www.portal.state.pa.us/portal/server.pt/community/newsroom/14287?id=20677&typeid=1

• Link to the report web site; http://www.portal.state.pa.us/portal/server.pt/community/oil___gas_related_topics/20349/radiation_protection/986697

• Huge report, 200 pages plus appendices. General statement “no problems” but that’s not what the actual data shows

• Measures of radioactivity for Marcellus materials fit USGS max-min data, still reviewing

New Paper Ohio Journal of Science – hopefully soon

• Drilling the Utica & Marcellus Shales in Ohio

• What we know, what we don’t know

• Environmental & legal issues/controls

• Public health considerations

• Socio-economic considerations

• 11 authors, multiple backgrounds

• Ohio Journal of Science Web Link at OSU, https://kb.osu.edu/dspace/handle/1811/686

Contacts for this Presentation & Ohio Journal of Science Papers

OFFWG, Dr. Julie Weatherington-Rice, B&W, OSU FABE, weatherington-ri.1@osu.edu

OFFWG, Dr. Ann Christy, OSU FABE,christy.14@osu.edu

Bennett & Williams, Linda Aller RS,Laller@bennettandwilliams.com

Tuscarawas River Buried Valley Watershed Council, Freida Schott 330-340-6330, Jill Van Voorhis 330-31206152

Ohio Journal of Science Web Link at OSU, https://kb.osu.edu/dspace/handle/1811/686

Ohio EPA Division of Drinking and Ground Waters Source Water Assessment and Protection Program,

www.epa.ohio.gov/ddagw/swap_ssa.aspx

Keeping Ohio’s Water Clean

Ohio Fracture Flow Working

Group