Ohio polluter gets four days in jail and $70,000 fine

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GreenGavelBy Eric Freedman

A federal judge in Ohio has sentenced an oil company owner to four days in jail, a $70,000 fine and two years of probation for illegally dumping oily brine water from drilling operations into a roadside ditch near Rias Run, a tributary of the Little Muskingum River that flows into the Ohio River.

“The biological diversity of the Little Muskingum River is in the 90th percentile of Ohio rivers,” according to a court document.

Donald Hercher’s, sentence included a $5,000 “community service payment” to the National Fish and Wildlife Foundation and 104 hours of community service.

The former Bethel Township trustee pleaded guilty to violating the Clean Water Act by discharging oily brine without a permit. The indictment followed a joint federal-state investigation by the U.S. Environmental Protection Agency and Ohio Environmental Protection Agency.

His family-owned business, Hercher Oil Co. in Monroe County, operates about 30 gas and oil wells, according to a statement from the U.S. Attorney’s office. The illegal discharges came from two of those wells in April 2011, the indictment said.

His lawyers didn’t respond to requests for comment but argued in court papers, “There is no question that Don has jeopardized everything that he has achieved in his life to date. He has no one to blame for this but himself. Still he has taken every step that he could to rectify the errors and demonstrate to this court that he is worthy of a second chance.”

As part of the sentence, the prosecution said, Hercher must submit a statement to the Southeast Ohio Oil and Gas Producers and Ohio Oil and Gas Association, “cautioning others in the oil and gas industry to avoid taking similar actions,”

Hercher had unsuccessfully argued that a provision in Ohio law called the “Exempt Mississippi Wells” clause exempted him from legal liability but the prosecution countered that nothing in the provision lets any oil and gas developer circumvent the Clear Waters Act.

As a result, the plea agreement requires him to prepare an article for at least three trade journals “in which he educates the readers on the ‘Mississippian Exemption’ and how it has no application to the waterways of the United States.”

The statement to the industry association and his article must express “regret and remorse for his knowing commission of the offense,” according to a court filing.

In a court filing, prosecutors said, “Hercher has been very cooperative throughout this investigation.”

His presentencing memorandum said, “The conduct in this case, while serious, did not involve any verifiable problems. No wildlife was harmed as a result of these discharges,” However, the prosecution said he told investigators “that he observed vegetation die after it was exposed to the water discharged by the wells.”

The sentence by U.S. District Judge Michael Watson also requires Hercher to register all his wells and ensure they comply with state laws within 90 days.

The crime carries a potential maximum penalty of three years in prison and a $250,000 fine.

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