Global Traditional Energy Resources
Overview
The Utica shale play covers central, northeastern, and eastern Ohio, including the cities of Columbus and Cleveland; the Marcellus shale play covers Ohio’s eastern border and extends into West Virginia, Pennsylvania, and New York.[1] The U.S. Geological Survey has estimated that the Utica shale contains 117 trillion cubic feet of recoverable natural gas, while the Marcellus shale may contain 97 trillion cubic feet.[2] The Ohio Oil and Gas Association estimated that horizontal wells in the state produced 24.9 million barrels of oil and 2,882 bcf of gas in 2019.[3] In 2018, horizontal wells in Ohio produced 19.8 million barrels of oil and 2,355 bcf of gas.[4]
Statutory and Regulatory Framework
The primary regulatory authority over oil and gas development in Ohio is the Ohio Department of Natural Resources (ODNR), Division of Oil and Gas Resources Management (DOGRM),[5] which issues rules for well siting, design, construction, and operation.[6] In 2012, the Ohio legislature passed S.B. 315, which modified Ohio’s regulatory structure applicable to oil and gas operations to better address fracking operations.[7]
The law requires well operators to disclose to FracFocus.org the trade name, supplier, and total amount of each product, fluid, substance, or additive used to facilitate well drilling, and a brief description of its purpose.[8] Well operators must also include a list of all chemicals added to those products, fluids, substances, and additives, including their Chemical Abstracts Service numbers and maximum concentrations.[9] If an operator designates a product, fluid, or substance as a trade secret, the operator may withhold from disclosure its identity, amount, concentration, and purpose.[10] These trade secret protections do not apply where a medical professional needs the information in order to assist the diagnosis or treatment of an individual who was affected by an incident associated with a well’s production operations.[11]
S.B. 315 also increases liability insurance requirements for well operators[12] and requires well operators to conduct pre-drill baseline water quality sampling of all water wells within 1,500 feet of a proposed horizontal well in accordance with DOGRM’s “Best Management Practices For Pre-Drilling Water Sampling,” disclosing the results (or proof of denial of access to wells) in permit applications.[13]
In April 2014, the Ohio EPA’s Division of Air Pollution Control (DAPC) issued revised Model General Permits for oil and gas well sites.[14] Under the revisions, DAPC offers two kinds of General Permits (GPs) for oil and gas well-site production operations, GP 12.1 and GP 12.2.[15] The GPs address, among other things, the size of a site’s flare and the total horsepower of its natural gas engines.[16] GP 12.1 limits a site’s flare to 10 mmBtu/hr and its natural gas engines to 1,800 total horsepower.[17] GP 12.2, which the April 2014 revisions created, limits a site’s flare to 32 mmBtu/hr and its natural gas engines to 1,000 total horsepower.[18]
When DAPC revised the GPs, it also changed its leak detection and control program. First, well operators must check for leaks quarterly, rather than annually.[19] If very few leaks are found, the DAPC may allow operators to check for leaks semi-annually or annually.[20] Second, the revised GPs allow operators to use infrared cameras or portable sampling instruments to detect leaks.[21] Third, the GPs require operators to first attempt to repair detected leaks within five days of detection and to complete repairing the equipment within 30 days.[22] Fourth, the GPs integrate portions of U.S. EPA’s New Source Performance Standards for Crude Oil and Natural Gas Production, Transmission, and Distribution, which EPA amended in September 2013 (40 C.F.R. Part 60, Subpart OOOO).[23]
In July 2015, DOGRM implemented rules regarding the construction of horizontal well pad sites.[24] The regulations require operators to submit detailed horizontal well pad site plans to DOGRM for its review prior to well pad construction.[25] Those plans must include a geotechnical report, sediment and erosion control plan, emergency release conveyance map, and detailed drawings of well pad features.[26] Operators may not begin construction of a well site without a permit, may not materially modify an application without submitting a modification summary form to DOGRM, and may not materially modify a well site without DOGRM’s prior approval.[27]
In January 2017, Governor Kasich signed into law H.B. 463, which required a board of elections or the Secretary of State to invalidate a local initiative petition if the board or Secretary determines that the petition or any portion of it does not fall within the scope of the local government’s constitutional authority to enact ordinances or does not satisfy the statutory prerequisites to place the issue on the ballot.[28] The practical effect of H.B. 463 is that it provides a basis upon which county Boards of Elections and the Ohio Secretary of State may keep certain local initiative petitions, such as those aimed at restricting hydraulic fracturing activity, off the ballot; indeed, a sponsor of the bill indicated it was intended to address local anti-fracking petitions.[29]
Recent News and Developments
Local Bans
Some Ohio cities and counties have prohibited or attempted to prohibit fracking. Youngstown, for example, has rejected fracking bans seven times, most recently in May 2018, when the Franklin County Board of Elections rejected a ballot initiative which would have been the third attempt to ban fracking in Franklin County.[30] In April 2018, the Ohio Supreme Court allowed the Youngstown charter amendment to proceed to the ballot after the County Board of Elections voted to exclude the amendment from the May ballot.[31]
Gates Mills and Kent, two other northeastern Ohio towns, voted down similar ballot issues in November 2014.[32] Bowling Green rejected a similar measure in November 2013.[33] The cities of Oberlin, Mansfield, Athens, and Yellow Springs, on the other hand, voted to prohibit any type of oil and gas development, including fracking.[34]
In February 2015, the Supreme Court of Ohio ruled that the city of Munroe Falls lacked the power to enforce a municipal permitting scheme, which would have restricted oil and gas operations, atop the state system.[35] A concurring opinion in that decision emphasized that the holding was limited to the particular municipal ordinances at issue.[36]
In March 2015, Cuyahoga County courts overturned the Akron suburb of Broadview Heights’ fracking ban, ruling that state law pre-empted it.[37] Cuyahoga County courts also dismissed a related private suit in July 2015.[38] Those decisions relied in part on the Ohio Supreme Court’s February 2015 decision regarding Munroe Falls.[39]
In the fall of 2015 residents of Athens, Medina, and Fulton counties proposed amendments to the counties’ charters that would have prohibited oil and gas or pipeline development.[40] In September 2015, the Supreme Court of Ohio declined to allow county residents to vote on the proposed amendments because, according to the court, they did not seek a bona fide change in county government.[41] The decision upheld an order Secretary of State Jon Husted issued in August 2015, which asserted that local governments in Ohio cannot control energy development and, as a result, the proposed amendments were invalid.[42]
In 2016, a Pennsylvania-based public interest group again advanced new charter amendments in three Ohio counties that, if approved, would have prohibited various aspects of oil and gas development.[43] In August 2016, Secretary Husted again rejected efforts to have these measures appear on ballots in November, reasoning that, despite having gathered the requisite signatures, the proposals were invalid because they “fail[ed] to provide for the performance of all duties imposed upon county officers by general law as the Ohio Constitution requires.”[44] The Ohio Supreme Court issued an opinion in September 2016 agreeing with Secretary Husted’s reasoning, and declining to require him to place the charter amendments on the ballot.[45]
In September 2017, for the third year in a row, the Ohio Supreme Court rejected a proposed anti-fracking Athens County charter on the grounds that it did not meet the legal requirements for a county charter.[46]
Ohio Oil and Gas Leasing Commission
Relatedly, Ohio’s 2017 budget included an amendment that allowed state lawmakers to control appointments to the Ohio Oil and Gas Leasing Commission, which approves horizontal drilling and hydraulic fracturing on public lands.[47] Before the budget amendment, Governor Kasich had not named any members to the four-member commission since signing the bill that created it in 2011,[48] effectively halting hydraulic fracturing activity on such lands. The Ohio Oil and Gas Leasing Commission held its first meeting in March 2018.[49] In November 2019, the Commission recommended changes to state law governing fracking on public land, as well as the size and operations of the Commission, including adding clarifying language to allow state agencies to make lease stipulations, add Commission members to represent other stakeholders like universities and recreational interests, and ensure that Commission members do not have conflicts of interest.[50]
Last updated October 2020.
Links & Downloads
[1] See Geography: Maps: Oil and Gas Related Exploration, Resources, and Production: Shale Gas and Oil Play, Lower 48 States, U.S. Energy Info. Admin. [“USEIA”] (June 30, 2016), https://www.eia.gov/maps/images/shale_gas_lower48.pdf.
[2] USGS Estimates 214 trillion Cubic Feet of Natural Gas in Appalachian Basin Formations, U.S. Geological Survey (Oct. 3, 2019), https://www.usgs.gov/news/usgs-estimates-214-trillion-cubic-feet-natural-gas-appalachian-basin-formations.
[3] Marty Shumway, The Debrosse Memorial Report: 2019 Oil and Gas Activity in Ohio, Presentation at 73rd Annual Winter Meeting of the Ohio Oil and Gas Association (2019), https://cdn.ymaws.com/www.ooga.org/resource/resmgr/files/debrosse_report/01_gs1-1_shumway_the_debross.pdf.
[4] Id.
[5] See ODNR Division of Oil & Gas Resources website, http://oilandgas.ohiodnr.gov/.
[6] See generally ODNR Division of Oil & Gas Resources: Laws and Regulations: Oil & Gas Law Summary http://oilandgas.ohiodnr.gov/laws-regulations/oil-gas-law-summary (last visited Oct. 9, 2020).
[7] Ohio Rev. Code §§ 1509 et seq.
[8] Id. § 1509.10; ODNR Division of Oil & Gas Resources: Laws & Regulations: Senate Bill 315, http://oilandgas.ohiodnr.gov/laws-regulations/senate-bill-315#CHEM.
[9] Id. § 1509.10.
[10] Id.
[11] Id.
[12] Id. § 1509.07.
[13] Id. § 1509.06(A)(8)(c); Ohio Admin. Code § 1501:9-2.
[14] Ohio Environmental Protection Agency: Division of Air Pollution Control: Shale Oil and Gas General Permits: Available Permits: Oil and Gas Well-site Production Operations, http://epa.ohio.gov/dapc/genpermit/oilandgaswellsiteproduction.aspx (last visited Oct. 9, 2020).
[15] Id.
[16] Id.
[17] Ohio Environmental Protection Agency: Division of Air Pollution Control: Shale Oil and Gas General Permits: Available Permits: Oil and Gas Well-site Production Operations: Oil and Gas Well-site Production Operations with a Small Flare (GP 12.1), http://epa.ohio.gov/dapc/genpermit/Oil_Gas_GP121.aspx (last visited Oct. 9, 2020).
[18] Ohio Environmental Protection Agency: Division of Air Pollution Control: Shale Oil and Gas General Permits: Available Permits: Oil and Gas Well-site Production Operations: Oil and Gas Well-site Production Operations with a Large Flare (GP 12.2), http://epa.ohio.gov/dapc/genpermit/Oil_Gas_GP122.aspx (last visited Sept. 23, 2016).
[19] Ohio Envtl. Prot. Agency, Model General Permit (GP12.1) (effective Apr. 4, 2014), http://epa.ohio.gov/dapc/genpermit/Oil_Gas_GP121.aspx; Model General Permit (GP12.1) (effective Apr. 4, 2014), http://epa.ohio.gov/dapc/genpermit/Oil_Gas_GP122.aspx.
[20] Id.
[21] Id.
[22] Id.
[23] See General Permits, supra notes 17, 18.
[24] Ohio EPA, Proposed Amendments to Ohio Administrative Code Ch. 1501, July 6, 2015
[25] Ohio Admin. Code § 1501:9-2-02.
[26] Id.
[27] Id.
[28] Terry Smith, State Law Adds Another Obstacle to Local Charter Efforts, The Athens News (Jan. 8, 2017), https://www.athensnews.com/news/local/state-law-adds-another-obstacle-to-local-charter-efforts/article_156bb4ca-d5c9-11e6-8a9b-4f7a9bc31b08.html.
[29] Id.
[30] David Skolnick, Youngstown Voters again Reject Anti-Fracking Charter Amendment, Vindy.com (May 9, 2018), http://www.vindy.com/news/2018/may/09/youngstown-anti-fracking-initiative-fail/; Nick Evans, Franklin County Board Of Elections Rejects Fracking Ban Proposal, WOSU (Aug. 24, 2018), https://radio.wosu.org/post/franklin-county-board-elections-rejects-fracking-ban-proposal.
[31] David Skolnick, Youngstown Voters again Reject Anti-Fracking Charter Amendment, Vindy.com (May 9, 2018), http://www.vindy.com/news/2018/may/09/youngstown-anti-fracking-initiative-fail/.
[32] Laura Arenschield, Fracking Industry Suing Over Drilling Bans, Columbus Dispatch (Nov. 21, 2014), http://www.dispatch.com/content/stories/local/2014/11/21/industry-suing-over-drilling-bans.html.
[33] Joe Eaton, Results Mixed on Colorado and Ohio Fracking Ban Initiatives, Nat’l Geographic (Nov. 7, 2013), http://news.nationalgeographic.com/news/energy/2013/11/131105-colorado-ohio-fracking-ban-election-results/.
[34] Laura Arenschield, supra note 32.
[35] Robert Higgs, Ohio Supreme Court Rules Munroe Falls Regulations on Oil and Gas Drilling Are Improper, Cleveland.com (Feb. 17, 2015)
[36] Ohio ex rel. Morrison v. Beck Energy Corp., 143 Ohio St. 3d 271 (Ohio 2015) (O’Donnell, J., concurring)
[37] Bob Sandrick, Judge Shoots Down Broadview Heights Ban on Future Oil and Gas Wells, Cleveland.com (Mar. 16, 2015), http://www.cleveland.com/broadview-heights/index.ssf/2015/03/judge_shoots_down_broadview_he.html.
[38] Judge Tosses Drilling Suit, Moms Say ‘Not Giving Up,’ Columbus Dispatch (July 5, 2015), http://www.dispatch.com/content/stories/local/2015/07/05/judge-tosses-drilling-suit-moms-say-not-giving-up.html.
[39] Morrison, 143 Ohio St. 3d 271.
[40] Mike Lee, Ohio Supreme Court Blocks Anti-Fracking Ballot Initiatives, E&E News (Sept. 16, 2015), http://www.eenews.net/eenewspm/2015/09/16/stories/1060024810.
[41] Id.
[42] Ohio ex rel. Walker v. Husted, Slip Opinion No. 2015-Ohio-3749 (Ohio 2015)
[43] Terry Smith, Supreme Court Flushes County Charters Yet Again, The Athens News (Sept. 14, 2016), http://www.athensnews.com/news/local/supreme-court-flushes-county-charters-yet-again/article_cdf6fa7a-7a95-11e6-bc8d-dfa973b981b2.html.
[44] David DeWitt, Husted Nixes Anti-fracking Charter; Group Will Appeal, The Athens News (Aug. 17, 2016), http://www.athensnews.com/news/local/husted-nixes-anti-fracking-charter-group-will-appeal/article_88798c24-6483-11e6-93d5-a7400e55b36c.html (emphasis in original).
[45] Michael Johnson, Supreme Court Nixes Meigs 2016 Charter Proposal, The Daily Sentinel (Sept. 13, 2016), http://mydailysentinel.com/news/8578/supreme-court-nixes-meigs-2016-charter-propsal; Ohio ex rel. Coover v. Husted, Slip Opinion No. 2016-Ohio-5794 (Ohio 2016), http://www.eenews.net/assets/2016/09/14/document_ew_02.pdf.
[46] David DeWitt, Ohio Court Shoots Down Third Local Anti-Fracking Charter, The Athens News (Sept. 24, 2017), https://www.athensnews.com/news/local/high-court-shoots-down-third-local-anti-fracking-charter/article_bc43bd6a-a14d-11e7-9e7f-3f26d6f21b48.html
[47] Andy Chow, Democratic Lawmaker Proposes Fracking Ban for Public Parks, WOSU (March 20, 2018), http://radio.wosu.org/post/democratic-lawmaker-proposes-fracking-ban-public-parks#stream/0
[48] Kim Palmer, Ohio Lawmakers Add Budget Provision that Could Open State Parks to Fracking, Reuters (May 2, 2017), https://www.reuters.com/article/us-ohio-fracking-idUSKBN17Z2IV
[49] Ohio Township Association, Statehouse Update (March 16, 2018), http://www.ohiotownships.org/system/files/031618.pdf.
[50] Beth Burger, Ohio Oil and Gas Leasing Commission to recommend changes to law covering fracking on public land, Columbus Dispatch (Nov. 6, 2019), https://www.dispatch.com/news/20191106/ohio-oil-and-gas-leasing-commission-to-recommend-changes-to-law-covering-fracking-on-public-land.