A Confirmation and a Correction
By Bernhard Debatin
Responding to the letter campaign to ODNR, Heidi Hetzel-Evans of the Ohio Department of Natural Resources, stated today that the amendments and changes to the oil and gas regulations in the Ohio Administrative Code (OAC) 1501:9 are a mere “house keeping” exercise to keep up with changes in the law. She also said that “we’re definitely strengthening the rules, not reducing or relaxing them.”
However, while the new oil and gas regulations in the Ohio Revised Code (ORC) 1509 do indeed have some provisions that strengthen regulation, there are many areas where things remain unregulated, or worse, as criticized in this blog, actually loosen or rescind previous rules.
To recapitulate, ODNR invited the public to comment on the changes and many people, including the owners of this website, decided to submit their comments. Unfortunately, ODNR only provided the raw draft document showing their changes in OAC 1501 without any reference to the respective parallel passages in the Ohio Revised Code (ORC) 1509. Based on the ODNR website, one had to assume that the changes to OAC were what they appeared to be: a relaxation and rescission of existing rules. Though it stated that these changes were “drafted pursuant to Senate Bill 165, effective June 30, 2010 and to complete the required five-year review of these rules,” there were no comments or explanations regarding SB 165, so it was not quite obvious why ODNR was updating the OAC rules.
Nevertheless, when drafting the post about the relaxation of fracking rules and the letter to ODNR, we did go through some of the language in ORC 1509 to make sure we would not be barking up the wrong tree. Upon revisiting ORC 1509 and receiving some feedback from legally trained folks, we can confirm that most of what we said about the relaxation of the rules is in fact true, but we also have to issue an important correction:
The claim “Safety Distances: Tanks, fire heaters, and mechanical separators no longer need to be set at a defined safety distance to wells, roads, and inhabited buildings” is wrong. Though technically indeed removed from OAC, this reappears in a somewhat strengthened form in ORC 1509. 021. We deeply regret this error, which was caused by enemy #1 of good journalism, time pressure.
The truth is that the safety distances for wells, tanks, heaters, and mechanical separators are actually the same or better and also more specific in ORC 1509.021 than they used to be in the old, rescinded OAC 1501:9-9-05 regulations.
We are glad to see that the law does require minimum safety distances for equipment that is known to cause fires and explosions.
Let’s hope they are sufficient.
ORC Regulations Remain too lax
That said, we also want to issue an important confirmation: The other claims made about Property Value, Wastewater Disposal, and Time Limits hold up completely or need to be modified only marginally. Let’s take a closer look at them:
1. Property Value. Fracking companies do indeed no longer need to provide an independent appraisal or the county auditor’s assessment of all real estate above the twenty-thousand dollar value. Apparently, the ODNR Division of of Oil and Gas Resources Management at some point simply stopped requesting appraisals and thus now proposed to remove the requirement. The question remains to be answered, though, whether a sloppy practice should shape formal policies and laws.
2. Wastewater Disposal. It is indeed true that that permit applicants do no longer need to declare in advance how, where, and with whom they’ll dispose their wastewater. ORC 1509 has no provision in lieu of the rescinded OAC section 1501:9-1-02 (A)(3). Instead, ORC 1509.222, Section (A)(2), now only requires a permit for the brine transportation company, including the requirement for “a plan for disposal that provides for compliance with the requirements of this chapter and (…) that lists all disposal sites that the applicant intends to use.”
While it is laudable that the transportation of wastewater is supervised in this way, there’s a clear problem with moving ODNR monitoring to the end of the process. Vanessa Pesec, president of the Network for Oil and Gas Accountability and Protection, is quoted in the Youngstown Vindicator saying that regulations should require more planning when it comes to drilling decisions: “We should be reviewing the companies up front that they have a plan to dispose of brine” (…) “I think that much of this stuff should be done before hand.”
Moreover, ORC 1509.226, which should be called the surface application loophole (rather than “Surface applications of brine by local governments”), allows surface application of brine for dust and ice control on roads and highways if local authorities issue a permit for it. Given the desperate budget situation in Southeast Ohio communities, this will be a welcome way for many communities to get free dust control in summer and free road salting in winter. And since the wastewater is not classified as toxic waste (even though it contains toxic and radioactive substances), it will be perfectly legal to dispose wastewater in this way!
So, the bottom line is, that under the new wastewater disposal law,
- the drilling operator no longer has to submit a plan for wastewater disposal, which basically means that they are released from responsibility for a large part of the side-effects of their operation;
- responsibility for wastewater disposal is shifted to transportation companies who must provide a plan for transportation and disposal;
- the surface application loophole makes it virtually impossible to track the whereabouts of at least a certain part of the wastewater, as long as enough communities are willing (or forced due to budget constraints) to accept brine on their roads;
- there’s no closed and monitored chain of custody for harmful materials: the chain is started too late (with the transport instead of production of wastewater) and rendered meaningless by the surface application loophole.
3. Time Limits. The various time limits in OAC (usually 12 months) on permit expiration, operation commencement, and well plugging were indeed either lifted or extended, particularly in rural areas. Only in one instance, the closing of pits and removal of equipment (ORC 1509.072), was the time limit for urban areas moved from 30 days to 14 days. However, at the same time, it was extended from 30 days to two months for non-urban areas.
And while the old regulations in OAC (1501:9-11-02, Permit to plug) had clear time limits on completion of well plugging, ORC does not mandate time periods by which plugging has to be concluded. According to ORC 1509.13, the operator has to apply for a permit to plug a well and once that permit is granted, it is valid for 24 months. However, it does not state that the operator must plug the well within 24 months, which implies that the operator simply has to reapply for a permit if he commenced but did not complete the plugging within 24 months, and then “plugging shall be continued with due diligence” (OAC 1501:9-11-02).
This allows operators to stretch out the process almost indefinitely, which provides more “flexibility” for the drillers and less protection for citizens. After all, an unplugged, open well always means more air pollution due to fugitive methane gas, even at the end of commercially usable production.
Members of the Ohio Buckeye Forest Council have pointed out that even after the ORC revisions, Ohio’s oil and gas regulations are still grossly insufficient for the protection of human health and the environment. In particular, the following rule deficiencies should be improved through amendments:
- Water sampling of water wells is only mandated in urban areas where water wells are located within 300 feet of the oil or gas well. The limited sampling that is required in urban areas does not test for toxic substances or other materials that would demonstrate contamination due to oil and gas operations. Ohio Administrative Code (OAC) 1509:9-1-02(F).
- Waste pits containing oil, radioactive drill cuttings, brine and dangerous chemicals need only be fenced in urban areas or when within 150 feet of a home or other inhabited structure. OAC 1501:9-9-03(H).
- Inspection: There’s no requirement that ODNR inspector be on site to inspect commencement of construction, pit construction and closure, drilling of the borehole, placement of casings. In these cases only notification within 48 hours of commencement is required. [proposed amendments would reduce notice to 24 hours]. OAC 1501:9-1-02(C). This period should be extended to 72 (seventy-two) hours to accommodate better scheduling and availability of the Division’s limited number of inspectors.
- Best management practices for oil and gas well site construction are only required in urban areas. OAC 1501:9-1-02(D).
- Blow out preventers are only required in urban areas or when the well is located within 200 feet of a home. OAC 1501:9-9-03.
- Emergency responders need to be notified of expected flaring only just prior to flaring or when flaring has been ignited, but only if in an urban area. OAC 1501:9-9-03(K).
- Weak Surety Bonds — For an individual bond covering a single well, five thousand dollars; for a blanket bond covering all such wells operated by the principal, fifteen thousand dollars. OAC 1501:9-1-03(A). Other states require much larger bonds.
- Burial of drilling muds and cuttings: There are no rules preventing the burial of drilling muds and cuttings on-site or in landfills.
- Surface application loophole: Road applications of brine should be tested for radioactivity, heavy metals, and other contaminants and only be permitted if no toxic substances are in the brine.