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Wednesday, May 9,2012

City Council acts to ban ‘fracking’ in water supply area

Despite ‘ban,’ state says it reserves regulatory power

By David DeWitt
Photo Credits: Kyle Schultz

Athens City Council made several moves on Monday to further expressing its opposition to oil and gas drilling in sensitive areas, specifically the city's wellhead protection zone and the Wayne National Forest.

In a unanimous vote, City Council passed a resolution making certain amendments to the city's wellhead protection plan, including provisions banning the controversial horizontal hydraulic fracturing drilling technique in that area.

The likelihood of any company starting a "fracking" operation in the city are relatively small, but City Council members decided to include to take a stand anyway.

In any event, Ohio Revised Code relegates all oil and gas drilling and wastewater disposal regulatory authority to the Ohio Department of Natural Resources' Division of Mineral Resources Management.

The ODNR has said that it does not take municipal law into consideration when deciding whether to grant drilling permits, though it can exercise stricter regulations to protect water and other resources in urban areas.

In council's revisions, the first provision bans "drilling, mining, exploration and extraction operations, including but not limited to, petroleum gas and minerals," while the second bans "the storage and/or disposal of wastewater and other byproducts associated with drilling, mining, exploration and extraction operations."

Athens Law Director Pat Lang has said that as an adviser to the body, he has let members know that the language has the potential to be problematic.

Meanwhile, the body also moved forward with a resolution requesting Wayne National Forest to conduct an environmental impact statement prior to the release of any forest lands to the Bureau of Land Management for oil and gas leasing.

City Council stated that an environmental impact study is the only way that the city's water, air and economy can be assured of protection from potential harmful effects stemming from damage to Wayne lands as a result of drilling.

"The city of Athens calls upon the Wayne National Forest to complete an environmental impact statement process prior to the release of any surface or subsurface rights for oil and gas leasing under its jurisdiction," the resolution states. "The city recognizes that Wayne National Forest is legally obligated under the National Environmental Policy Act to consider regional impacts of significant activities on any and all Wayne National Forrest lands. Furthermore, Wayne National Forest is under legal obligation to consider how leases on its land add cumulatively to total impacts that will be experienced in our region."


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A couple of weeks ago, I talked to Mike McCormac, chief of the OU DNR's permit office, and also to a representative of Mike DeWine, the OU Attorney General, about the Athens City Council's pending ordinance. Both of them told me that this aspect of the ordinance would have zero legal force and would essentially be ignored both by drillers and the State of Ohio. DeWine's representative said that a non-binding resolution would have been more appropriate, and is more common to handle such issues.

This ordinance amounts to constructing a false confidence, substituting cardboard window dressing in place of the concrete work of coordinating with Ohio DNR and Ohio EPA, which apparently is too hard for the members of the City Council to bother with. Neither one of the state officials I talked to had heard anything from Athens or its City Council.

This must also be a violation of the City Council members' oath of office, which likely includes a promise to uphold the laws of the State of Ohio. In any case, it won't take Athenians long to figure out that if the Athens City Council can ignore laws it doesn't like, then Athens citizens can ignore city laws they don't like. This is a wretched example of using the end, however worthy, to justify the use of illegal means.

The City Council is pursing a foolish and empty policy in place of carrying out its real duties in a legal and effective way.


If anyone has violated their oath of office, Mr. Bruckner, it's our Governor, his Official Destroyers of Natural Resources, and his Environmental Pretenders Agency. Legally binding or not, this is how communities begin to wrest back local control from the State. Don't be a name-dropping do-nothing. Get on board with your city council and help!



Commendations to the elected officials and citizens that are taking a proactive stance in Athens. This is exactly what needs to be done to stand up to the unholy alliance between corrupt state/federal agencies and greedy corporations. The issue is about local control and under Ohio Constitution it guarantees us the right to: fresh water, fresh air, peaceful living and a sustainable energy future. Hydraulic fracturing is a devasting practice and Ohioans are standing up for what is rightfully ours. There are dozens of Ohio communities passing these types of bans/ordinances and there is a growing consortium of communities that will stand together in court. Mansfield Ohio has written a Bill of Rights which will be on the November ballot and the city government is prepared to fight ODNR and the O & G industry all the way to the supreme court for the residents' basic rights. Expecting state and federal government to protect us is no longer an option as the Oil & Gas lobbyists have bought their own politicians and laws, setting us up for the 'inevetable clause'...don't believe it. Laws can only be upheld as long as they don't violate state or federal constitution and the way ODNR is playing into the Oil & Gas industries hands is definitely unconstitutional.


What about corrupt state & federal legislatures and agencies and administrations and their unholy alliances with labor unions?



Your comments read like talking points from I'm guessing that is what they are, after reading their supporters list.

The environmental movement lurches from supporting one world-destroying crisis to the next, all the while taking shortcuts by falsifying data and corrupting the scientific process (Phil Jones, Michael Mann, James Hansen), terrorism (ELF), and now pick and choose defiance of laws (Athens City Council).

Either we're under the rule of law, or we aren't. If we're not, then might makes right, and we all lose.

Tell me, what are you going to do if the Right follows suit and declares abortion--all forms of it-- illegal in various cities, counties and states regardless of what the federal government says? Pro-lifers make a more persuasive case than you do that abortion's toxic moral plume is ruining our country more than fracking ever could. My guess is that you'll be singing a different tune if that ever happened.

So Bill, what part of the state or federal constitution is ODNR violating?

In the meantime, it appears that Athens is following the currently fashionable trend laid out by lobbying groups like stopfrackingnow.


Mr Bruckner, you are wrong. I've never heard of My comments are my own experience and come from my heart and commen sense. You appear to be a typical argumentative troll, citing every controversial aspect in todays world. I'm not a labor union member and have no opinion on labor unions. I don't have an opinion on abortion, it's a women's decision, I'm male. I do believe that fracking is not regulated for people's protection and legislation has been enacted (such as the state law removing local control in 2004 and the federal Halliburton Loophole in 2005) that gives a few unscrupulous people total control over our lives. If the Oil & Gas industry wanted to build a wsatewater injection well in your back yard, ODNR would issue them a permit and you could do nothing to stop them. That is not democracy and it certainly is in violation of our constitution. Here are a couple Ohio sections:

1.01 Inalienable Rights (1851)

All men are, by nature, free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and seeking and obtaining happiness and safety.

1.16 Redress in courts (1851, amended 1912)

All courts shall be open, and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law, and shall have justice administered without denial or delay.

[Suits against the state.] Suits may be brought against the state, in such courts and in such manner, as may be provided by law.

(As amended September 3, 1912.)

1.02 Right to alter, reform, or abolish government, and repeal special privileges (1851)

All political power is inherent in the people. Government is instituted for their equal protection and benefit, and they have the right to alter, reform, or abolish the same, whenever they may deem it necessary; and no special privileges or immunities shall ever be granted, that may not be altered, revoked, or repealed by the general assembly.



I wonder if Pat Lang would say it would be problematic if Athens city water ended up containing flammable gas or cancer causing substances? Would he consider it problematic if Athenian's property value diminished (along with the tax revenue) and more middle class people decided to leave for a less industrial part of the country where gas drilling pads are not next to municipal water wells and recreational ball fields? My guess is the University might find it problematic if enrollment were to decline but could just blame that on the performance of sports teams. If you have enough money to pay politicians to pass laws exempting industry from pollution regulation then it's all legal no matter what local communities think - unless of course they can afford their own politicians and teams of attorneys. Democracy fail - Capitalist win!


Sure, corporations can do evil. But government too can do evil, and does, all the while thinking they are doing good. It starts by cutting corners of the law, just like this. I'd appreciate a little balance in your assessment of risk.


Dean, I'm struggling to parse your response regarding balance in assessing risk in Athens, particularly with our aquifer.

Are you suggesting the landowners, (including a bank in Logan who owns the in the well-head protection zone) - a minority when you include Ohio University in the Athens population - would have evil done to them by local politicians if denied their economic opportunities currently lawfully approved by government/industry regulators?

It would seem a great many our town's population will be asked to take on risks with the environment that we exist in and will pass on to others which could be permanently damaged or degraded without local benefit - beyond landowners, lawyers, and a few entrepreneurs of man-camp hotels, strip clubs, and fast food chain franchise owners.

Why is it wrong for local citizens and their representatives to stand against corporations and state government in the face a potential outcome that could affect generations for the immediate benefit of a few? Where is the balance in ignoring residents who don't own lucrative mineral rights and desire to live in our community without the potential for pollution of our environment?



30,Thanks for your reply. Please don't construe my reply too narrowly. Here's what I mean.

Last year, led by Elahu Gosney, the City Council cut a number of procedural corners trying to spend a million or two of taxpayer money by purchasing land for the wellhead protection zone without public notice or review. Now, again led by Elahu Gosney, they are defying state law and creating legal and fiscal risk for the city taxpayers against the advice of their own law director. They are becoming a law unto themselves, using the end to justify the means. What will they do next when Elahu Gosney moves on from expensive but environmentally expensive sensitive fire trucks and wellhead protection zones to the next fashionable thing? Can you not recognize the risk from a City Council that knows no limits but its own sense of doing "good" and is informed only by left-wing environmental lobby groups?

Mike McCormac, head of the ODNR permitting office, described to me in brief the process for approving a permit near a city water supply. If memory serves, he told me that they examine the geophysical characteristics of the land and determine, scientifically, how rapidly any spill would spread. Those areas that would allow contamination to spread within 1 or 5 years are ruled out. He commented to me that he thought that almost the entire wellhead protection area was characterized by one of these (again, this is from my memory, which may be faulty, so don't put too much weight on this detail).

My point is that the Progressives on the City Council (which is all of them--another risk) who talk science this and science that about all manner of disputes in our national life, have never addressed or come to grips with the scientific process by which ODNR and OEPA use to adjudicate wellhead safety. I doubt they know it even exists. It could be that 99% of our wellhead protection area is already outside the drillable land. We don't know, because they don't know, and they don't know because they haven't done their homework. That is a risk, governing by emotion.

Elahu Gosney replied to my email of concern by saying that this ordinance doesn't obligate one dollar to be spent of Athens city funds, and doesn't require a day of the city law director's time in court. My question to him was this: does he think he can bluff his way through potential legal challenges? Passing a law that you're not committed to defending is unprofessional and shows lack of foresight. It shows dedication to a cause, not rational governance. It causes people inside and outside Athens not to take the city government seriously.

And this is not even the beginning. Look at how all the potential competitors to Bill Bias's planned assisted living facility, when he was head of the City Council, were regulated, legislated and/or maneuvered out of existence. He sure does own a nice facility now out there on Columbus Road. What public purpose did all of that serve? Sounds more like the tactics of a greedy corporation to me.

That's the kind of risk I'm talking about.