Ohio fracking bill does not go far enough to protect human health and the environment
Posted May 19, 2012
A modern-day gold rush is on in Ohio. Oil and natural gas locked up in the Marcellus and Utica shale formations has attracted billions in investment from oil and gas companies ready to use new horizontal drilling and hydraulic fracturing, or “fracking,” techniques to access previously out-of-reach reserves. And Ohio Governor John Kasich, seeing this as a blessing in tough economic times, has made oil and gas drilling central to his economic development strategy for the state.
There's just one problem: there is growing evidence and concern about the risks that fracking poses to the environment and human health. Many of the substances used in the fracturing process or released into the environment by fracking are toxic. Some, like benzene, are known carcinogens. Drinking water wells have been contaminated by explosive levels of methane and other hazardous substances. Spills of fracturing fluids and other chemicals have polluted streams and lakes. And drilling operations produce large amounts of air pollution, including cancer-causing benzene, smog-forming volatile organic compounds (VOCs), and methane, a potent greenhouse gas.
To his credit, Governor Kasich has recognized the dangers associated with the fracking boom. For months now, Kasich has said a lot of the right things about the need for any oil and natural gas development in Ohio to incorporate the most stringent practices. We need to be good stewards of the Earth, Kasich has said, and ensure that the oil and gas industry in Ohio shows sustainable long-term growth that isn’t ruined by the actions of a handful of “yahoos” who take shortcuts and don’t follow state-of-the-art standards and best practices in their drilling.
Governor Kasich wants Ohio to be a leader in establishing strong safeguards on these inherently dangerous practices. Because of the speed with which shale wells are being drilled in Ohio and the enormous amount of the state’s ground water resources at risk, Ohio will only have one chance to get its regulatory oversight right.
NRDC has been working in Ohio to urge the Governor and the legislature to put the strongest possible safeguards in place – safeguards that, at a minimum, require that drillers across the board follow the industry’s own best practices and use the best technologies available. NRDC has also advocated for a significant upgrade of the decision-making rules and practices in Ohio, to secure a genuine role for citizen participation in process: including access to information, ability to comment on rules and regulations, right of appeal on the issuance of permits, and the capacity of local government to advance land use and zoning protection relating to oil and gas extraction in their jurisdictions.
What we have seen so far, however, is a fair amount of daylight between the lofty goals articulated by Governor Kasich and others about making Ohio a “leader” and the actual proposed laws and rules that have come out of the Administration and the legislative leadership. We have also seen to advance of legislative proposals to restrict participation in permit decisions, and restrict the ability of medical professionals to share information with the public.
Earlier this week, the Ohio Senate passed SB 315, the Governor’s energy bill, which includes provisions covering energy efficiency, renewable energy, and natural gas. NRDC has a number of concerns with the oil and gas provisions proposed in this bill, and we have been urging the Governor and the legislature to correct these and other significant problems with the bill before its final passage:
1. Chemical Disclosure.
The Senate bill contains some important provisions requiring disclosure of the chemicals used not only in fracking operations but also in some drilling fluids – which can use just as many if not more chemicals than fracking. But it does not go nearly far enough to make meaningful information available to the public about the chemicals that are being pumped under their feet – and potentially into their drinking water.
First, the bill doesn’t require any disclosures until 60 days after the drilling of a well is completed. By that time, any damage that might have occurred from the frack job will already have been set in motion, and neither Ohio Department of Natural Resources (“Ohio DNR”) nor local property owners and concerned citizens will have had any chance to prepare for it. Chemical disclosure should be required at the time that the company applies for a drilling permit, so as to allow for testing of nearby drinking water sources (to establish a baseline against which to measure any future contamination) and a real discussion, in advance of drilling and fracking, of whether there are less-dangerous alternatives available. Although the Senate bill requires baseline water testing, if the drilling company is not required to report the chemicals it is going to use before the well is drilled and fracked, it is virtually impossible for local property owners and concerned citizens to know what to test for. There are far too many chemicals used in drilling and fracking to test for all of them in advance.
Second, the Senate bill’s process for allowing companies to claim that some of the chemicals are “proprietary trade secrets” that should be kept confidential is too weak. The Senate bill gives companies the primary say over what is and isn’t a trade secret, rather than requiring Ohio DNR to make that determination based on evidence that the company submits. Without a stronger process in place requiring companies to justify any trade secret claims, there is a significant risk that in practice, the public will be denied access to sufficient information to identify what the real health risks are of the chemicals being used in drilling and fracking fluid.
Third, the Senate bill contains an unseemly provision that places a “gag order” on doctors who treat patients who might have been injured by exposure to drilling and fracking chemicals. The doctors are allowed to have access to information that the drilling company has designated as trade secrets, but only if the doctors agree not to disclose the information. Other states such as Pennsylvania that have adopted these kinds of provisions have seen an outcry from the medical community; laws like these potentially create situations where doctors have to choose between following their ethical code to do what’s best for their patients and breaking the law. Doctors should not be put in a position where they have to put the drillers’ need for secrecy over their patients’ need for sound medical advice. And the State of Ohio should not be in the business of potentially infringing on doctors’ First Amendment rights to freedom of speech.
2. Citizens’ Right to Appeal.
The Senate bill also contains a serious potential encroachment on citizens’ constitutional rights. As written, the bill would clearly and categorically prevent any Ohio citizen, local government or business from appealing any permit approving any oil or gas well, including any hydraulically fractured well, anywhere in the state.
Under current law, any permit issued by Ohio DNR is appealable by any Ohioan who can demonstrate that the permit could injure them or their property to the Ohio Oil and Gas Commission. That body now determines whether Ohio DNR acted lawfully in issuing the permit and thus safeguards the integrity of the Department’s permitting process. The Senate bill rewrites current law by redefining any issuance of a permit as not an “order” that can be appealed to the Commission. At the same time, the bill would continue to allow companies to appeal if their applications for permits are denied. This is completely unprecedented in Ohio law and we consider it to be dangerous and emphatically at odds with basic American values.
The right of citizens to appeal government decisions that might harm them, and to hold government accountable for its decisions, is a fundamental American freedom that is recognized and protected by the 14th Amendment to the U.S. Constitution. Without a right to appeal for citizens to appeal the issuance of permits, the permitting process would be completely exempt from any outside review or scrutiny. Ohio has never given such immunity to one of its bureaucracies before and the oversight of this new, fast moving, and potentially hazardous technology is the last place where such a rash experiment should begin.
3. Requiring Industry Best Practices.
Ohio DNR recently completed a process of revising its rules governing oil and gas well construction to meet the far greater engineering complexities and demands presented by horizontal drilling using high-volume hydraulic fracturing in Ohio’s deep shale formations. NRDC commented on those rules throughout the process, urging that Ohio DNR incorporate, as a starting point, industry best practices such as the current recommendations of the American Petroleum Institute.
Unfortunately, the final Ohio DNR rules that were approved a legislative committee on May 7 still fall short of requiring across-the-board compliance with industry best practices in several key areas.
For example, the American Petroleum Institute’s standards for hydraulic fracturing (HF1) adopted in 2009 include a minimum required safety zone between the base of a well’s surface casing and the lowest drinking water aquifer of 100 feet. The new Ohio DNR rules provide for only a 50 foot safety zone setback and are thus significantly weaker than the industry’s own best practices for what is one of the most critical protections in the entire program.
Equally troubling, the American Petroleum Institute’s hydraulic fracturing standards state that Formation Integrity Tests can reveal problems that are “critical to maintaining well integrity” and are thus mandatory at every well. These tests detect possible pathways for gas migration at the most critical and failure-prone point of the well at the bottom of a casing string, and help confirm that the casing and cement, which are critical to preventing the migration of gas and harmful contaminants, were properly designed and installed. However, Ohio DNR’s rules do not make the test mandatory and do not even provide any criteria for when it must be conducted. Instead, the new rules make this critical test entirely optional and subject only to the unlimited discretion of the program chief.
Ohio needs contemporary standards, based at a minimum on industry best practices, to protect our ground water from new and inherently more risky forms of drilling. It is critical that the best practices followed and technologies used by best actors in the industry be required of every actor in the industry. Otherwise, the door is left open for the “yahoos” that Governor Kasich is concerned about to come into Ohio and follow a lower standard of care that causes significant harm to human health and the environment and tarnishes the entire industry.
The bill that passed the Senate this week does not go far enough to protect Ohioans’ health and environment from the risks of fracking. NRDC will be testifying before the House Public Utilities Committee on Monday, urging that the bill be strengthened.
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