On March 16, 2021, the Supreme Court of Ohio expanded upon its prior decision in Blackstone v. Moore, 2018-Ohio-4959, holding that a reference in a deed that described a previously severed mineral interest, but without identifying the name of the interest owner, was specific under R.C. 5301.49(A), and thus prevented the extinguishment of the interest under the Marketable Title Act. See Erickson v. Morrison, Slip Opinion No. 2021-Ohio-746. Read more about that decision in our Client Alert.
On January 20, 2021, the Ohio EPA’s Division of Air Pollution Control (DAPC) hosted a “Program Advisory Group” (PAG) meeting via Microsoft Teams to inform interested stakeholders of recent and upcoming DAPC activities. The topics discussed during the PAG meeting included: anticipated regulatory changes to address non-attainment of the 2015 Ozone National Ambient Air Quality Standard (NAAQS); a report on improvements in air permitting efficiency, and current air permit projects including new exemptions and permits-by-rule for certain sources; amendments to the nuisance and malfunction rules under OAC 3745-15; updates to the eBusiness Center online portal; and DAPC staffing and budget changes.
This post focuses on Ohio EPA’s anticipated regulatory changes to address non-attainment of the 2015 Ozone NAAQS. Notably, Ohio EPA reported that the current 3-year monitoring data shows Cleveland and Cincinnati, which are designated as marginal non-attainment areas, will not meet the 70 ppb Ozone standard by the prescribed attainment date (August 3, 2021). As a result, the Cleveland and Cincinnati non-attainment areas will be “bumped-up” from marginal to moderate non-attainment, triggering additional requirements to reduce NOx and VOC emissions. Anticipated regulatory changes include:
• Reassessing the NOx Reasonably Available Control Technology (RACT) that is currently in place in the Cleveland non-attainment area to ensure the established RACT is still appropriate;
• Implementing the NOx RACT in the Cincinnati non-attainment area;
• Adopting oil and gas Control Technique Guidelines (CTGs) to reduce VOC emissions in Cleveland, and several other CTGs in Cincinnati;
• Reassessing the non-CTG VOC RACT already in place for certain sources, and add other sources not already covered; and
• Expanding the emissions inspection and maintenance program (i.e. E-check) that is in place in Cleveland to the Cincinnati area.
The non-attainment requirements present significant challenges for new and modified “major sources” in the non-attainment areas, including a New Source Review emissions offset ratio of 1.15:1. During the PAG meeting, Ohio EPA noted that, in the past, the agency has primarily relied on the minimum control measures required under the federal Clean Air Act to meet the NAAQS. However, in order to meet the Ozone NAAQS by the next attainment date (August 3, 2024) and avoid another bump-up to serious non-attainment, Ohio EPA will be evaluating additional emissions reductions beyond what is federally mandated, including making RACT rules applicable in counties outside the non-attainment areas or even statewide. Ohio EPA also plans to evaluate control measures for non-road emissions sources (e.g. railroad, marine off-road, and compressor engines).
We will continue to monitor these issues and provide updates on any new developments.
On January 19, 2021, the United States Court of Appeals for the D. C. Circuit issued an Order vacating U.S. EPA’s 2019 Affordable Clean Energy Rule (ACE Rule). The 2019 ACE Rule replaced the 2015 Clean Power Plan as a means of regulating greenhouse gas (GHG) emissions from power plants. The Court held that, while U.S. EPA has the authority to regulate GHG emissions, “the central operative terms of the ACE Rule . . . hinged on a fundamental misconstruction of Section 7411(d) of the Clean Air Act.” The Court also held that the extended compliance schedules for reducing GHG emissions under the ACE Rule are arbitrary and capricious.
Per the Court’s Order, the ball is back in U.S. EPA’s court to develop and implement a new regulatory framework for GHG emissions from power plants. We will continue to monitor this issue and will report on any new developments.
On December 17, 2020, the Supreme Court of Ohio addressed the surface owner’s due diligence obligations under the 2006 version of the Ohio Dormant Mineral Act. See Gerrity v. Chervenak, Slip Opinion No. 2020-Ohio-6705. Read more about that decision in our Client Alert.
On December 2, 2020, the Supreme Court of Ohio held that the Ohio Marketable Title Act applies to severed mineral interests despite the enactment of the Ohio Dormant Mineral Act. See West v. Bode, 2020-Ohio-5473. Read more about that decision in our Client Alert.
In a recent mandamus action, the Supreme Court of Ohio had the opportunity to construe Ohio’s saltwater injection well permitting scheme. See State ex rel. Omni Energy Group, L.L.C. v. Ohio Dept. of Natural Resources, Div. of Oil & Gas Resources Mgt., Slip Opinion No. 2020-Ohio-5581. In Omni, the Court discussed whether (1) the Division of Oil & Gas Resources Management had the right to call a public meeting concerning Omni’s permit application, (2) Omni had a right to compel the Division to rule on the validity of objections received to its permit application, and (3) the Division could schedule a hearing on those objections after a certain statutory deadline expired. You can read the Court’s decision here.
The Ohio Department of Commerce, Division of Real Estate & Professional Licensing (the “Division”), recently informed Ohio’s “land professionals” (i.e., oil and gas landmen registered with the Division) that their current registrations remain valid until July 1, 2021 pursuant to House Bill 404. In order to maintain their registrations, land professionals must renew them no later than July 1, 2021.
However, the Division warned land professionals that H.B. 404 does not include an extension for renewals due after April 1, 2021. Thus, land professionals annual 2021 renewal is due no later than April 30, 2021.
This post is an update to our October 2, 2020 blog post regarding U.S EPA’s final rule overturning U.S. EPA’s ‘Once In, Always In’ policy for major sources of hazardous air pollutants. Notably, the final rule was published in the November 19, 2020 Federal Register and, thus, the rule becomes effective on January 19, 2021.
Please contact us with any questions or for assistance regarding your facility’s permitting and emission requirements in light of U.S. EPA’s new rule.
The Ohio Department of Commerce, Division of Real Estate & Professional Licensing, recently reached out to Ohio’s “land professionals” (i.e., oil and gas landmen registered with the Division) concerning the renewal of their registrations. Pursuant to House Bill 197, land professionals must file their renewal paperwork with the Division on or before December 1, 2020. Failure to file by December 1, 2020 will result in the expiration of the land professional’s registration. Those land professionals who have not yet filed their renewal paperwork can expect a reminder letter from the Division around the end of October, 2020.
On September 29, 2020, the Supreme Court of Ohio accepted appeals from the Fifth District Court of Appeals’ decisions in Peppertree Farms, L.L.C. v. Thonen, Case No. 2020-Ohio-3042, and Peppertree Farms, L.L.C. v. Thonen, Case No. 2020-Ohio-3043, as well as the Seventh District Court of Appeals’ decision in Fonzi v. Miller, Case No. 2020-Ohio-3739. In the Thonen cases, the Court will address whether the Ohio Dormant Mineral Act (R.C. 5301.56) supersedes and controls over the Ohio Marketable Title Act (R.C. 5301.47, et seq.) as to the termination of severed oil and gas interests. In Miller, the Court will address several issues related to the application of the Ohio Dormant Mineral Act (R.C. 5301.56), including the level of due diligence required before serving a notice of abandonment by publication. Both cases are on pause for now: The Court held the Thonen cases until it decides West v. Bode, Case No. 2019-1494, and Miller until it decides Gerrity v. Chervenak, Case No. 2019-1123.