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Ohio Utica Shale

Warren's Patriot Water case is muddled, for now

By Bob Downing Published: July 12, 2012

On July 3, a state appeals board ruled in the case involving the city of Warren, Patriot Water Treatment and the Ohio Environmental Protection Agency.

The ruling by the Ohio Environmental Review Appeals Commission appeared to open the way for fracking liquids to be discharged to Ohio streams, a possibility that upset Ohio environmentalists.

But it is not that clear.

The Ohio Department of Natural Resources is the agency that may be the key to determining what happens next and whether brine will be discharged to the Mahoning River.

Here is a good July 9  analysis of a confusing situation  by attorney Trent Dougherty on the Ohio Environmental Law Center blog:

Last week, a decision of the Ohio Environmental Review Appeals Commission (ERAC) opened the door for Patriot Water Treatment Inc. to treat brine and fracking wastewater in its facility, and the City of Warren to discharge the brine through its wastewater treatment plant into the Mahoning River.

Under a 2010 modification to the City of Warren’s wastewater discharge permit, treated brine water produced from oil and gas drilling activity could be sent to the city of Warren’s wastewater treatment plant. The city’s 2012 permit renewal from the Ohio Environmental Protection Agency, which took effect April 1, however, contained a provision that did not allow the city to accept the water from Patriot.

The change in permit terms came with the change of administrations, and a subsequent change (or more aptly, a clarification) of Ohio EPA policy toward discharge of drilling wastewater into waters of the state. The essential clarification was that it was the Ohio Department of Natural Resources (ODNR), and not Ohio EPA, who was the authority to permit disposal of drilling-related wastewater.

The commission’s decision thus hinged on whether that policy could be enforced through the city of Warren permit. The commission said no.

The commission’s ruling does not necessarily permit the brine to be accepted by Warren and discharged into the Mahoning (especially if you ask Ohio EPA). However, it does strike the provision that Ohio EPA inserted into Warren’s 2012 water quality permit that prohibited the discharge of brine unless and until ODNR approves of it as a disposal method.

Under current Ohio law, the only approved methods of disposing of brine and other wastefluids from oil and gas drilling is through Class II injection wells or application on roads for dust/ice control. Yet, that law does allow the ODNR to approve other methods of disposal, but has yet to ever do so. The main crux of the decision was that it was unlawful for Ohio EPA to enforce ODNR’s law through the City of Warren’s permit.

The ball, then, is squarely in ODNR’s court to definitively state whether discharging treated “brine” into waters of the State of Ohio is an acceptable and approved method of disposal. The Department has a choice:

  1. defend their statements that underground injection is the best and safest disposal method and prohibit Warren from discharging;
  2. approve the treatment and discharge through the wastewater treatment plant as an ODNR approved brine disposal method, and begin the, hopefully, public debate about which disposal method is the safest (if either);
  3. or do nothing, and let its executive agency cousin, Ohio EPA, fight the battle.

For almost a decade, Ohio law has put the “sole and exclusive authority to regulate the permitting, location, and spacing of oil and gas wells and production operations within the state” to ODNR’s Division of Oil and Gas Resources. However, that law also, exempts from that authority “those activities regulated under federal laws for which oversight has been delegated to the environmental protection agency and activities regulated under sections 6111.02 to 6111.029 of the Revised Code.” So there are three important questions that should be answered:

  1. Whether Patriot’s “treated” brine is still brine under Ohio’s law?
  2. Whether discharging it through a wastewater treatment plant is disposing of brine?
  3. Is regulating it an activity granted to Ohio EPA by the Clean Water Act, and thus not under ODNR’s authority at all?

The answer to those questions not only determines who has authority over these operations (left unanswered in last week’s decision), but where the great influx of shale drilling waste is headed for the foreseeable future.

The state can just add these to the list of other questions that need to be addressed as we ramp up to the 2000 shale permits envisioned by ODNR and the industry, and the hundreds of millions of gallons of wastewater that comes with it.

That's the way Dougherty sees it.

Click here  to read the EPA's post-decision statement.





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Utica and Marcellus shale web sites

Ohio Department of Natural Resources' Division of Oil and Gas Resources Management State agency Web site.

ODNR Division of Oil and Gas Resources Management. State drilling permits. List is updated weekly.

ODNR Division of Geological Survey.

Ohio Environmental Protection Agency.

Ohio State University Extension.

Ohio Farm Bureau.

Ohio Oil and Gas Association, a Granville-based group that represents 1,500 Ohio energy-related companies.

Ohio Oil & Gas Energy Education Program.

Energy In Depth, a trade group.

Marcellus and Utica Shale Resource Center by Ohio law firm Bricker & Eckler.

Utica Shale, a compilation of Utica shale activities.

Landman Report Card, a site that looks at companies involved in gas and oil leases.FracFocus, a compilation of chemicals used in fracking individual wells as reported voluntarily by some drillers.

Chesapeake Energy Corp,the Oklahoma-based firm is the No. 1 driller in Ohio.

Rig Count Interactive Map by Baker Hughes, an energy services company.

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Earthjustice, a national eco-group.

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Concerned Citizens of Medina County, a grass-roots group.

No Frack Ohio, a Columbus-based grass-roots group.

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Penn State Marcellus Center.

Pipeline, blog from Pittsburgh Post-Gazette on Marcellus shale drilling.

Allegheny Front, environmental public radio for Western Pennsylvania.