Presentation at an Ohio Environmental Council 'fracking forum' in Ravenna, Ohio, by Dr. Julie Rice-Weatherington.

1. Mineral Exploration & Extraction in
Public Water Well Fields: an Ohio
Legal & Public Policy Perspective
Julie Weatherington-Rice, PhD, CPG, CPSS
Bennett & Williams Environmental
Consultants Inc.
Adj. Asst. Prof,
Ohio State U.
Food, Ag & Bio Eng.
An Ohio Fracture Flow
Working Group Presentation
June 21, 2012

2. Oil & Gas Drilling in Ohio, 1860 - Present
Prime Class II
Brine
Injection
Wells
Mt. Simon SS
SW Ohio
~13,000’
Locations
~2,000’
Cincinnati Arch

3. Mineral Exploration &
Extraction in Public
Water Well Fields & Their
Recharge Area 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

4. 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

5. 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

6. 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/FactS
heets/BarnesvilleWaterCase02.pdf)

7. 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

8. 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

9. More Changes Coming
Sub 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)

10. Progress on Revising Rules
Finalized
• 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.asp
x?fileticket=cmfCggUBals%3d&tabid=502
4

11. Progress on Revising Rules
Sent/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

12. 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/Defa
ult.aspx

13. 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

14. 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

15. 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

16. 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.

17. Test Your Water Before They Drill
• Test before drilling
• Test after drilling
• Test regularly after
well is installed &
producing
• Pros & Cons of
fingerprinting
methane

18. 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

19. 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 activities
Nothing 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

20. 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

21. 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

22. 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

23. 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

24. 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, Keeping Ohio’s Water Clean
Ohio Fracture Flow Working
www.epa.ohio.gov/ddagw/swap_ssa.aspx Group