A host of environmental groups touted a letter from the U.S. Environmental Protection Agency Wednesday that indicates Ohio's oil and gas laws may conflict with federal statutes designed to give first responders ready access to chemical information during industrial emergencies. Environmentalists said the letter was proof that Ohio lawmakers allowed the oil and gas industry to dodge chemical disclosure requirements of the federal Emergency Planning and Community Right-to-Know Act and urged the General Assembly to enact legislation to bring Ohio into compliance. "The Ohio legislature can do the right thing and voluntarily amend the laws to comply with EPCRA or we can file suit" and force the state to comply, said Teresa Mills, of the Center for Health, Environment and Justice, who petitioned the U.S. EPA to investigate the issue earlier this spring. The oil and gas industry insists that operators do comply with federal chemical reporting requirements, where they apply, and says Ohio's system is more user-friendly for emergency responders.
The U.S. EPA letter to Ms. Mills says Ohio law allows oil and gas facilities to comply with EPCRA by filing log and production statements rather than a chemical inventory form. "While this alternate compliance method appears to be considered compliance with ORC Chapter 3750, the Ohio law does not designate (or attempt to designate) alternate compliance methods for the federal EPCRA law. Simply stated, the ORC Chapter 3750 does not supersede EPCRA," wrote U.S. EPA Superfund Division Director Richard Karl. EPCRA requires facilities that have hazardous chemicals present in amounts larger than the minimum threshold level to submit chemical inventory forms to the State Emergency Response Commission, the local emergency planning committee, and the local fire department every year, he said. Similarly, Ohio law outlining procedures for protecting oil and gas producers' chemical information as trade secrets do not supersede EPCRA, Mr. Karl said. U.S. EPA opened an investigation into a leak at an oil and gas facility in St. Marys as a result of Ms. Mills' inquiry, he said in the letter.
U.S. EPA spokesman Josh Singer said in an email that the letter does not state that the Ohio law was out of compliance with EPCRA, but simply clarifies that the federal law still applies.
Ms. Mills said a local news report on the leaking well at St. Marys shows that first responders don't have the information they need to adequately respond to potential emergencies. A little-noticed 2001 budget amendment essentially exempted the oil and gas industry from EPCRA reporting requirements by allowing operators' standard annual filing with the Department of Natural Resources to satisfy the mandate, she said during a news conference. However, the production report contains no information about the toxic chemicals that emergency agencies might actually face on site, she added. Furthermore, legislation enacted last session (SB315, 129th General Assembly) put "undue burden" on physicians seeking information about fracking chemicals that might be affecting a patient, she said. That law effectively allows oil companies to determine which chemicals are protected trade secrets, rather than the U.S. EPA director, as required by EPCRA.
ODNR and the Ohio Environmental Protection Agency issued a joint statement saying the agencies are currently looking into the issue. "U.S. EPA has determined state law does not supersede federal reporting requirements under EPCRA. The state is reviewing U.S. EPA's determination and we will soon be discussing this with the companies affected to ensure they are in compliance with their reporting obligations under state and federal law."
Ohio Oil and Gas Association Executive Vice President Tom Stewart said no one in the industry disagrees that federal law supersedes state statutes. However, EPCRA applies to major industrial operations and most oil and gas producers in Ohio don't meet the threshold that requires compliance with its reporting procedures, he said. "EPCRA wasn't designed for some oil and gas well out there in the countryside." High-volume horizontal hydraulic fracturing operations that are tapping into Ohio's deep shale formations are likely complying if they exceed the threshold, he added.
Mr. Stewart said the oil and gas industry worked with OEPA and ODNR years ago to devise a more transparent and effective emergency response system based on the reports that drillers already had to submit to the state. The measure was designed to respond to concerns from local responders who previously had to store boxes of documents, he said. The agencies didn't have the time to sort through the information when called on to respond to an emergency situation at an oil and gas well. "Instead of putting pieces of paper in boxes in the basement of some fire department, we worked with ODNR to provide more immediate, complete access for emergency responders," he said. Now the information is posted on the state's website, which allows local authorities to quickly access specific information about what chemicals are present at the site, Mr. Stewart said. "They like that stuff, instead of having this fire hazard in their own basement."
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