A coalition of 27 environmental and civil rights groups has petitioned the U.S. EPA to take away Ohio’s authority to regulate oil and gas waste disposal wells. The groups, which includes the Sierra Club, Buckeye Environmental Network, Ohio NAACP chapters, and Ohio Poor People’s Campaign, claim that the state’s failure to take enforcement action against companies that violate regulations is endangering drinking water sources and disproportionately burdening low-income Appalachian communities.
What is primacy?
In 1983, the U.S. EPA granted the Ohio Department of Natural Resources (ODNR) primary enforcement authority, known as primacy. This gave ODNR oversight over the state’s Class II injection well program, which is part of the Safe Water Drinking Act. Class II wells are deep underground, where waste from the oil and gas industry is disposed. In some states, like Pennsylvania, EPA largely regulates these wells. “A lot has changed since then [1983],” said Earthjustice attorney Megan Hunter, whose name appears on the petition.
She’s talking about the rise of unconventional gas development, called fracking, in Ohio, and with it, the “enormous increase in the amount of oil and gas waste,” Hunter said at a press conference. “Operators currently produce billions of tons of waste annually, and much of this waste ends up in Class II wells in Ohio.”
“The waste injected into these wells is radioactive and contains toxic levels of various organic and inorganic pollutants, including PFAS, also known as forever chemicals,” she continued. “As this petition lays out, Ohio’s program has failed to safely manage this huge influx of waste.”
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The petition describes how the state’s Class II program contains numerous technical deficiencies, like over-pressurization of waste as it is pumped underground, and failure to locate migration pathways, require information on the local geology, and require characterization of the waste that is being injected, which has led to what the petition calls “serious” consequences.
“These consequences include oil and gas waste making its way to the surface miles away from injection well sites, polluting the environment, and endangering underground sources of drinking water,” Hunter said.
The petition describes how ODNR fails to enforce violations of the program, explaining that the agency lacks tools, “such as unilateral penalty authority, that are necessary to bring violators into compliance,” said another Earthjustice attorney, James Yskamp.
When ODNR attempts to issue penalties, it seeks them through the Attorney General’s office, “a cumbersome process that cannot timely address most violations at Class II wells,” according to the petition, and one that “ODNR has used to address problems at Class II disposal wells fewer than six times in the program’s 39‐year history.”
Environmental justice issues
The petition also takes issue with the lack of public involvement in siting Class II wells.
“ODNR fails to implement any environmental justice review in its permitting and other major Class II program decisions,” Yskamp said. “This resulted in the siting of wells primarily in low-income Appalachian communities, without any meaningful involvement of those communities or any effort to address impacts to these communities.”
ODNR holds public hearings and opportunities for public comment when permitting injection wells.
“The problem with the [public] hearing is that even though the public provides input on safety issues and concerns with injection wells, the ODNR director has no discretion. As long as the permit is correctly filled out, their permit gets granted,” said Lenny Eliason, Athens County Commissioner. “So why have a public hearing? Why involve the public in a sham process when you’re not going to do anything about acting on the information that’s provided during that public hearing?”
ODNR Responds
In an email, the agency defended its Class II program, noting that U.S. EPA has “consistently reaffirmed that Ohio operates an effective regulatory program that meets federal standards and protects public health, safety, and the environment,” according to ODNR spokesperson Stephanie O’Grady. “The Division takes our responsibility to protect Ohio’s groundwater, surface water, and environment seriously, as demonstrated by our rigorous permitting process, regular inspections, and enforcement.”
Responses from Industry and independent expert
“This petition is an ill-advised and unfounded attempt to give greater authority to a distant federal bureaucracy, rather than leave it in the hands of regulators who best understand our state,” said Ohio Oil & Gas Association president Rob Brundrett in a statement.
The program has been “safe and effective,” according to Brundrett. He quotes a 2015 EPA audit of the program that found, ‘Ohio runs a good quality program for Class II wells.’ Brundrett adds, “…the program has only gotten stronger and is more stringent than current federal requirements.”
But injection of wastewater has led to earthquakes and water pollution, according to University of Cincinnati researcher Amy Townsend-Small, who is a professor of Environmental Science. “The demand for injection wells has been so great that, at times, brine haulers have been observed dumping this waste in surface waterways,” she said.
“This is clearly an unsustainable system, and the human and environmental health of eastern Ohio should be prioritized higher than oil and gas industry profits.”
