On February 15, 2018, the Supreme Court of Ohio denied an appeal of a mandamus action seeking to force ODNR to rescind temporary orders that ODNR had issued to a number of facilities across the state for the storage, recycling, treatment, processing, or disposal of brine and other oilfield waste. R.C. 1509.22(B)(2)(a) requires that “on and after January 1, 2014, no person shall store, recycle, treat, process, or dispose of in this state brine or other waste substances associated with the exploration, development, well stimulation, production operations, or plugging of oil and gas resources without an order or a permit….” R.C. 1509.22(C) requires that “[ODNR] shall adopt rules regarding storage, recycling, treatment, processing, and disposal of brine and other waste substances.”
As a temporary measure before developing rules and a formal permitting program, ODNR had allowed facilities to process oilfield waste via temporary Chief’s Orders. An environmental citizens’ group, FreshWater Accountability Project (“FWAP”), brought a mandamus action in the Tenth District Court of Appeals, arguing that the temporary orders issued by ODNR were unlawful by virtue of ODNR’s failure to adopt rules and a permitting program. The Tenth District dismissed the mandamus action, but did not reach the merits of FWAP’s claims, instead holding that FWAP lacked standing to bring the lawsuit. A divided Supreme Court affirmed the Tenth District’s decision. Thus, the temporary orders issued by ODNR remain in effect.
That said, ODNR is actively working to develop rules under R.C. 1509.22, and has produced a Statement of Intent discussing what the general contours of the new rules will be. Once final rules are promulgated those facilities holding temporary orders (as well as any new facilities brought into operation after promulgation of the final rules) will be required to obtain a permit from ODNR, per ODNR’s guidelines for the issuance of the temporary orders. Interested parties should monitor the continuing development of these rules with ODNR. The rulemaking process may be tracked on ODNR’s website.