This week, the Ohio Department of Natural Resources (“ODNR”) proposed changes to three sets of rules that govern oil and gas development: OAC 1501:9-7 (Class III Solution Mining), OAC 1501:9-6 (Waste Facilities), and OAC 1501:9-1 (Oil Well Drilling). These rules serve as yet another example of efforts in Ohio to facilitate industrial expansion while greatly restricting the ability of citizens to participate in the rule-making process, all under the guise of “cutting red tape.” The proposed changes would continue the Division of Oil and Gas’s practice of limiting citizen interaction to a meaningless formality, to the extent it’s allowed at all. ODNR further limited citizen engagement in this instance by only allowing seven days for commenting on roughly 100 pages of rules that will greatly affect Ohioans’ health and safety. We have spent the last 3 days reviewing and commenting on all 100 pages on behalf of our client Buckeye Environmental Network. Given the lack of public participation we felt the need to summarize our thoughts and provide them to the public to provide a digestible opinion on all three documents.
OAC 1501:9-7 (Class III Solution Mining)
The Class III Solution Mining Rules oversee the permitting process for the creation of underground salt caverns for storing natural gas liquids (“NGL”) as well as Solution Mining permits. These rule amendments are especially significant in light of the anticipated increase in the amount of NGL storage in Ohio over the next several years due to the expected construction of two NGL storage facilities: the Mountaineer Storage Facility and Hopedale NGL Caverns. The proposed changes to the Class III Solution Mining Rules will halve the time-period for public comment and roll back important safety regulations for solution mining wells, such as protective setback requirements and requiring permits for the construction of solution mining wells. Ohioans should not have to worry about fewer regulatory protections just as more underground storage and solution mining come to the state.
OAC 1501:9-6 (Waste Facilities)
The Ohio Legislature instructed ODNR to issue rules governing oil and gas waste disposal facilities over five years ago. As such, the new proposed Waste Facilities Rules have been long-awaited by Ohioans impacted by this sector of industry. However, there are serious concerns about the proposed rules. The proposed rule for radioactive materials is not protective enough for the environment or for human health because it does not require all materials that are known to be radioactive, such as drill cuttings, to be disposed of at appropriate waste facilities. Also, many waste facilities will be able to accept radioactive materials without having proper monitoring, tracking, and safety requirements. The rules do not require public notice and comment from the public in order for the Chief to change permit amendments or construction modifications. Existing oil and gas facilities are also exempt from the application process, including public notice and comment requirements. Finally, and perhaps most alarmingly, even though the rules as they are written do not do enough to protect the environment and human health, the rules give the Chief of ODNR discretion to waive safety and health requirements rules as he sees fit.
OAC 1501:9-1 (Oil Well Drilling)
ODNR has also proposed an update to the Oil Well Drilling Rules (which, despite their somewhat misleading name, actually apply comprehensively to all oil and gas wells). As with the other rule packages, the new Oil Well Drilling Rules impose woefully brief permit-review periods that functionally eviscerate any opportunity for public input. Substantively, the proposed rules are inadequate to protect human health and the environment. For instance, the rules require water sampling to be conducted a drastically smaller distance from a proposed wellhead than the sampling size required in other states. It is unclear why ODNR has determined that Ohioans require less assurance than citizens of other states that they water they consume is safe. The proposed update also eliminates a rule entitled “Safety,” which, in ODNR’s telling, is “duplicative.” However, the supposedly “duplicated” rule is incredibly lax and allows gas wells within 100 feet of occupied private residences, far too insufficient a distance to be protective of citizen’s health. The rules also provide for surety bonds in the paltry amount of $5,000, which will assuredly will leave Ohio taxpayers on the hook for the costs of plugging, cleanup, or remediation for wells that are no longer in use.
Lack of Public Review
Echoing in the background of ODNR’s efforts to hurry along all of these new rule proposals is the impending “two-for-one” burden being added to the Ohio rule-making process. The “two-for-one” restriction, which becomes effective in mid-October of this year, prohibits an agency from adopting a new regulatory restriction unless it simultaneously removes two or more existing regulatory restrictions. In order for ODNR’s proposed rules to become effective without the need for rescinding rules in a two-for-one manner, ODNR must begin the formal rule-making process by August 12th. Because ODNR’s proposed deadline for commenting at the informal stage of proceedings was August 8th, ODNR has effectively left itself no time for any meaningful review of any comments it receives. The 7-day time period for informal review is also alarming and has severely limited the ability of Ohioans to raise all their concerns with the proposed rules. The proposed rules pose serious risks to the human health and environment of Ohio and the extremely short informal rule-making process has left many Ohio citizens out of the conversation.
You can read the full comment submitted here.
