Victory for ODNR, Environmentalists in Local Injection Well Case

TORCH, Ohio – The Ohio Oil and Gas Commission maintained the suspension of three fracking waste injection wells in eastern Athens County, agreeing with the Ohio Department of Natural Resources that the wells pose a threat to health, safety and environment.

The committee’s decision means that the well owner, K&H Partners, had to immediately cease operating its wells. The wells are injected with a toxic byproduct of fracking known as brine; ODNR determined that the wells were leaking and the fluid migrated underground, permanently destroying Athens County’s drinking water sources.

Related reading from the Athens County Independent:

Activists have warned for years that the wells posed a danger to local people and the environment, and have vigorously fought against the K&H wells since the initial permitting process.

“We never backed down, we never stopped paying attention – and I’m sure that has something to do with it: popular pressure,” said Roxanne Groff, an environmental activist and former Athens district commissioner.

The committee heard K&H’s case at a hearing in December, following the company’s appeal of a June 2023 suspension order by the head of the ODNR’s Oil and Gas Resources Management Division.

Related reading from the Athens County Independent:

“The Division of Oil and Gas Resources Management is pleased with the decision affirming the Chief’s suspension order,” ODNR spokesman Andy Chow said in an email.

How the decision affects threats to the water

In its decision, the commission concluded that the K&H wells “are causing or are likely to cause contamination of land, surface waters or subsurface waters,” that the operation of the wells is “likely to endanger public health or safety,” and that the company injected fracking waste outside the permitted injection zone.

ODNR’s Division of Oil and Gas Resources Management came to the same conclusions nearly a year ago: The K&H wells were first suspended in early June 2023, warning that the wells posed an “imminent hazard” to drinking water. However, in October, a commission decision allowed the wells to continue operating during K&H’s appeal of the suspension, despite the division’s warning of “potential for disasters in Athens County.”

The division will test whether drinking water from about 33 wells in the area has been contaminated by the K&H wells or another nearby injection well, operated by Reliable Enterprises and also suspended in mid-2023.

Related reading from the Athens County Independent:

Chow said the division is finalizing the contract with a consultant to conduct the study.

“We have no reason to believe that there has been any impact on underground drinking water sources,” Chow said, adding that the division is conducting its groundwater investigation “out of an abundance of caution” and “to confirm that understanding.”

“Having the data and understanding what’s happening in the drinking water is a very important next step,” said Natalie Kruse Daniels, an Ohio University professor and groundwater expert who testified before ODNR at the K&H hearing in December.

Kruse Daniels said the commission’s decision in K&H’s appeal goes some way to addressing her concerns about the threat to drinking water from the K&H wells.

“Stopping the injection slows the movement of the fluid,” she said. “It doesn’t stop the movement of fluid – there will still be fluid flowing into the subsurface. But the pace slows down; it reduces speed.”

Kruse Daniels emphasized that any testing conducted by ODNR will only be a snapshot, and said it will be necessary to continue monitoring well water in the area. She also called on the ODNR to provide community members with a clear way to communicate concerns about their water.

The committee weighs the merits

In its decision, the committee cited reports from 2014 that it said should have alerted K&H to the possibility that it had injected brine outside the permitted zone. Although K&H had had these reports for nearly a decade, it did not submit the information to ODNR until it appealed the suspension order, according to ODNR’s letter after the hearing.

The committee also cited pressure measurements taken by the Division of Oil and Gas Management at oil and gas production wells that were apparently affected by brine migration from the K&H injection wells.

These measurements showed that pressure increases and decreases correlated with the times K&H started and stopped injecting brine into its wells. This suggests that brine from the K&H wells traveled underground to reach the production wells.

In its post-hearing letter, K&H argued that the evidence the division presented in support of the suspension order was “incomplete and inconclusive,” and that the suspension order was “simply inexplicable and draconian.”

The company suggested the division was prompted by a petition from multiple environmental and civil rights organizations to the U.S. Environmental Protection Agency. The petition seeks to strip Ohio of regulatory authority over Class II injection wells, the kind operated by K&H.

The committee was apparently not convinced. (The body typically consists of five members appointed by Ohio’s governor, at least two of whom must represent the industry, although only three members have heard K&H’s case.)

What is the future for K&H?

K&H now has two options: it can appeal the case to the Franklin County Court of Common Pleas, or it can work with the ODNR to resolve the problems with its wells.

“The division stands ready to defend the Chief’s orders and to appeal if an appeal is filed,” Chow said.

K&H representatives did not directly respond to questions about the company’s plans.

“K&H adheres to the ODNR ruling,” said Bernice Pavlicek, corporate communications officer for Tallgrass Energy, K&H’s parent company.

Pavlicek’s statement could simply mean that K&H has stopped injecting for the time being. She did not respond in time to the Independent’s request for clarity.

Mike Stahl, director of water operations at Tallgrass Energy, said at the company’s hearing in December that meeting the division’s standards would require the company to drill significantly deeper injection wells. He estimated this would cost the company $4 million, which he said was not economically feasible.

In court documents, the company valued its Torch operations at $43 million. Tallgrass Energy is owned by the multibillion-dollar hedge fund Blackstone, Inc., which claims to be the “world’s largest alternative asset manager.”

Groff said K&H’s partnership with ODNR to correct its wells is “not at all sufficient” in terms of impact on the company.

Similarly, Kruse Daniels said she “would have concerns” about K&H operating again “given their past performance.”

“They knew for a long time that they were injecting outside their authorized area, and they vehemently denied it,” Kruse Daniels said.

The company continues to deny that it injected outside the permitted zone, despite the committee’s conclusion that K&H knew or should have known since 2014 that it may have done this.

K&H “maintains the position that the brine is within the permitted zone” and “is not capable of affecting drinking water,” Pavlicek said.

Kruse Daniels said that if K&H operates again in some form, “There is a strong responsibility on (the ODNR) in terms of oversight. And so, I think that begs the question: Is (the ODNR) willing to provide that level of oversight? And I don’t have the answer.”

Groff, a signatory of the petition to revoke Ohio’s regulatory authority for Class II wells, says the answer is no.

“ODNR does minimal oversight and enforcement work at best,” Groff said.

Chow said, “The division is confident in the strength of Ohio’s regulatory framework and its ability to protect public health and safety and the environment – ​​including the protection of underground drinking water sources.”

Chow added that the petition to revoke Ohio’s regulatory primacy over Class II injection wells is not justified.

Groff, meanwhile, argued that ODNR does not have enough staff and cannot mete out adequate consequences to bad actors — issues she said stem from state law and should be handled by the Legislature.