Fracking-Legal & Public Policy Implications

Mineral Exploration & Extraction in Public Water Well Fields: an Ohio Legal & Public

Policy PerspectiveJulie Weatherington-Rice, PhD, CPG, CPSSBennett & Williams Environmental Consultants Inc.

An Ohio Fracture Flow Working Group

PresentationJune 21, 2012

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

Oil & Gas Drilling in Ohio, 1860 - Present

Prime Class II Brine Injection WellsMt. Simon SS SW OhioLocations

~2,000’Cincinnati Arch

~13,000’

Mineral Exploration & Extraction in Public Water Well Fields & Their Recharge Area are Non-Conforming, Potentially Polluting Land UsesThey 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

• Ohio Environmental Council fact sheet about cases on line (http://www.theoec.org/PDFs/FactSheets/BarnesvilleWaterCase02.pdf)

Current 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 water supply well fields or recharge areas

How Did Locals Loose 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

More Changes 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”* 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• Ohio Dept. Health: Radioactivity

(NORM & TENORM) – all authority reverts to Oil & Gas- may be more radioactive than man-made wastes or SDWA levels allow but because “natural” doesn’t count, allows down blending in landfills, no Ohio data yet http://www.epa.state.oh.us/LinkClick.aspx?fileticket=cmfCggUBals%3d&tabid=5024

Progress on Revising RulesSent/Heading to JCARR; OEC/OFFWG

comments submitted• Well Construction Rules – Just

Approved• Revision ORC 1501:9-1-01 thru

1501:9-11-04 (Hodge-podge of rules) checked w/ ODNR O&G 6-20-12 for updates but could not get one

• Ohio EPA wetlands reporting

Progress on Revising Rules

Coming Up• Class II Injection

Wells Revisions(above Pre-Cambrian basement rock now)Seismic rules just proposed 6-7-12

• Everything else• Check web sites

often http://www.ohiodnr.com/mineral/tabid/10352/Default.aspx

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

• 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

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

SB 315-Ohio Energy Bill-Now Signed

• 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• DOES NOT overturn

Pleasant City or Barnesville so may not hold up in court if challenged

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

Drilling Permit Issued in your Source Water Protection Area?Contact all applicable federal, state,

regional & local agencies to MAKE SURE relevant permits have been obtained- Wetlands/Stream crossings (OEPA/ACE)- Flood plains (local admin/conservancy district)- Setbacks from private wells (local health dept.)- Roads & Bridge weight limits (Co. Engineer, Twp., Municipality)- Water withdrawal permits (ODNR DSWR)

If permitted sites violate laws/rules, notify ODNR O&G (Driller responsible for obtaining permits) & local Senator/Rep.

Test Your Water Before They Drill• Test before

drilling• Test after drilling• Test regularly

after well is installed & producing

• Pros & Cons of fingerprinting methane

Learn from Munroe Falls • Using the courts

to protect water• Appeals to

prevent drilling in 5-yr TOT area; denied but permits expired

• Enforce building codes including permits for site construction; upheld & stiff fines collected

What are Your Rights?Local water suppliers can place an observer at drilling sites w/in 5-yr TOT if in Management Plan for all land-use activitiesNothing in Sub SB 165 to preclude O&G drilling sites• Observer needs OSHA certification

• Have all required oilfield safety equipment

• Stay out of way of drilling activities• Coordinate w/ ODNR O&G

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

Wellfield Recharge Area Leased?

• No Funding available to make communities whole if wellfield 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

Wellfield Recharge 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• Ask them to submit a plan to fund cost of

replacement and manage emergency supplies before drilling begins

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

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

Join Forces with your Neighbors

• Consider petitioning a Sole Source Aquifer

• 5 already in Ohio, parts of 20 counties

• NW Ohio MICHINDO SSA Petition still open

• Tuscarawas Watershed Combined SSA Petition in progress

• Documents replacement costs of ground water public water supplies on the Federal level

Contacts for Ohio Journal of Science Papers & this Presentation

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

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 CleanOhio Fracture Flow Working

Group