Last week, the Kasich administration quietly introduced a five-fold tax increase on the disposal of chemical-laced fracking wastewater from other states. Disposal of Ohio brine will cost ten times less. Such a move clearly violates the US Constitution’s restrictions on Interstate commerce, something Kasich has in the past acknowledged.

Let’s recap: ODNR recently confirmed that injection of chemical-laced wastewater from hydraulic fracturing (“fracking”) was responsible for a series of earthquakes near Youngstown:

“a number of coincidental circumstances appear to make a compelling argument for the recent Youngstown-area seismic events to have been induced.” – Ohio Department of Natural Resources, March 9, 2012

Nearly 93 percent of drilling waste injected into Youngstown well was from out of state. Because of its abundant sandstone, Ohio boasts 176 fluid injection wells and counting; 29 permits were issued in 2011 alone. Neighboring Pennsylvania, home to considerably more drilling than Ohio, has just seven. As a result, Pennsylvania drillers send 98 percent of their fracking waste to Ohio. If New York ends its moratorium on shale drilling, their waste,too, would likely head to Ohio.

In total, 511 million gallons of chemical-laden waste was disposed in 2011 by injection in Ohio—nearly half it from out of state.

Since 2010, the state charges a disposal a fee of five cents per barrel on Ohio brine, and twenty cents for waste originating out of state. Last month, when asked how Ohio would avoid becoming a dumping ground for out of state waste, Governor Kasich told Bloomberg that the U.S. Constitution prohibits interference with interstate shipments.

He seems to have changed his tune.

Last week, the Governor’s energy policy legislation, Senate Bill 315, was introduced by sponsor Shannon Jones. The bill raises brine disposal fees from five to ten cents on in-state waste, and from twenty cents to $1 on out of state waste.

A five-fold increase in the fees might put a small dent in the wallets of deep-pocketed drillers, but could dramtically increase revenue for the state, which collected $1.45 million in 2011. Part of the revenue will pay for seismic monitoring, not funded in the current state budget.

The problem is, this proposal is clearly unconstitutional. The Commerce Clause prohibits states from placing a burden on interstate commerce (some examples). While there has existed a fee differential since 2010, the costs were relatively low. With this move, waste haulers may resort to lawsuits to fight the discriminatory burden placed on them by the new dollar-a-barrel fee. It also hits border county well operators hard, the Vindicator’s reporting finds.

Instead of violating the US Constitution, if Kasich really wants to prevent Ohio from becoming a waste dumping ground, there’s an easy solution. Shut down the injection wells.

If toxic wastewater is of great enough concern that we need to raise fees five-fold to discourage it, perhaps we should reconsider whether we want to allow it in the first place. But, assuming that Ohio intends to stay in the waste disposal business, better regulatory oversight is essential. The Kasich proposals include better seismic monitoring and restrictions on the depth and pressure of injection wells. But it falls far short.

Representative Jay Goyal (D-Mansfield) recently introduced legislation that would, in addition to increasing protections by requiring water testing and community approval before an injection well is approved, reduce the demand for disposal wells by requiring recycling of fracking wastewater. The Ohio Environmental Council applauded the move.

Passing unconstitutional legislation is par for the course for the Ohio legislature, so we hardly expect this revelation will prevent them from passing Kasich’s proposal. The courts will likely decide its ultimate fate. But, in the meantime, lawmakers should the need for disposal by injection by imposing a recycling mandate.

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