WEATHERSFIELD — More than two years after the Howland injection well company AWMS Water Solutions filed an appeal in Franklin County Common Pleas Court, challenging a decision by the Ohio Oil and Gas Commission, a judge dismissed the appeal, saying she did not have jurisdiction.

AWMS’ appeal challenged the conditions set by the Ohio Department of Natural Resources for how the AWMS injection well on state Route 169 in Weathersfield, just north of Niles, would have to operate if and when it reopens.

The injection well has been closed since 2014 after small earthquakes were recorded at the site.

The ODNR says the AWMS injection well caused multiple earthquakes in 2014, including a magnitude 1.7 earthquake July 28, 2014, about two months after the well started operation; and a magnitude 2.1 quake Aug. 31, 2014. Injection wells force wastewater from the oil and gas industry deep underground as a means of disposal.

AWMS, a subsidiary of Avalon Holdings Corp. of Howland, argued in a November 2022 filing that the June 2022 ODNR rules were unfair and unscientific. The ODNR said the injection well could resume injection operations, but it would have to close again if an earthquake of magnitude 2.1 or larger occurred at the site, which AWMS found to be too restrictive.

AWMS instead proposed a “traffic light system” that would activate yellow should a 2.35-magnitude earthquake take place and a red light at 3.0 magnitude. The yellow light would indicate that the injection well would need to reduce its injection capacity by 10 percent and reduce its maximum weekly pressure to 1,350 pounds per square inch.

If an earthquake of 3.0 occurred, AWMS would “cease injection” for 20 days, after which it could resume injections but only at a capacity that is 20 percent below average and at a maximum pressure of 1,350 pounds per square inch, AWMS proposed.

The Ohio Oil and Gas Commission ruled in favor of the ODNR rules in its decision, but AWMS appealed that to Franklin County Common Pleas Court. One of its judges, Kimberly Cocroft, handled the matter but ruled she could not issue a ruling because she did not have jurisdiction.

She ruled Oct. 31 that she did not have jurisdiction to hear the matter because AWMS’ lawyer failed to file the appeal with Franklin County Common Pleas by the deadline under Ohio law, saying it is “well established that failure to perfect an appeal in accordance with the proscribed statutory requirements is fatal to a court’s acquisition of jurisdiction over that appeal.”

AWMS already appealed Judge Cocroft’s Oct. 31 ruling to the 10th District Court of Appeals, also in Franklin County. It is one of two types of litigation pending over the AWMS injection well.

SECOND TYPE OF LITIGATION

AWMS filed the other type of litigation — called a mandamus action — in the 11th District Court of Appeals Aug. 26, 2016, alleging that the ODNR closing of the injection well in 2014 “substantially interfered with (AWMS’) property rights by depriving them of all or at least partial economically viable use of the property.”

The matter has gone back and forth between the 11th District Court of Appeals and the Ohio Supreme Court multiple times since 2016 and is back with the Ohio Supreme Court.

When Weathersfield Township trustees were asked last week about the dizzying amount of litigation involving the closed injection well, David Rouan, township administrator, said the township and its trustees are “actively engaged in the longstanding legal proceedings” involving the injection well.

“There are multiple cases, which have now spanned nearly 10 years and multiple appeals as the matter works its way through the legal process. The injection well continues to be a matter of great importance to the township and its residents,” Rouan’s statement reads.

Regarding the litigation involving the Ohio Supreme Court, Rouan stated that the Ohio Supreme Court “has ordered the case to mediation.” Rouan noted that the township plans to again file a brief in that matter “consistent with its prior filings, to emphasize the significant local impacts of the injection well.

“Township officials remain deeply concerned about the safety of residents given the prior history of seismic activity linked to the injection well, the potential for future seismic events, and the possibility of a large-scale safety services response in the event of a catastrophic incident,” Rouan said.

FRANKLIN COUNTY CASE

As for the case handled by Cocroft, Rouan stated the township trustees feel that the “chief of the Division of Oil and Gas acted properly in authorizing AWMS to resume injection operations only if there was continuous seismic monitoring and suspension of injection operations if an M2.1 seismic event occurred within three miles of the facility.”

Because of the Oct. 31 ruling by Judge Cocroft, “the decision of the Oil and Gas Commission remains in effect,” Rouan stated.

“The township is respectful of the legal process and appreciates the amount of time the courts, including the Ohio Supreme Court, have dedicated to addressing these complex and significant issues,” Rouan’s statement continues.

“The safety of our residents is our top priority, and we remain committed to advocating for their interests in this matter. The AWMS cases highlight the intersection of regulatory oversight, private enterprise, and community safety.”

He concluded, “The township will continue to work with legal counsel and other stakeholders to ensure that its concerns are addressed, and that safety remains paramount.”

NEW ODNR RULES

The newspaper contacted the Ohio Department of Natural Resources to ask whether ODNR injection well rule changes implemented in 2022 would change the rules AWMS would operate under in Weathersfield if and when that injection well reopened.

Karina Cheung, ODNR spokesperson, responded that “The Ohio Department of Natural Resources cannot comment on pending litigation,” but stated that “The new operational rules apply to all class ll injection wells in Ohio. The order issued to AWMS to resume operations has provisions in it that are specific to the AWMS injection well. AWMS has not operated since 2014 despite the order allowing them to operate again.”

According to the ODNR website, new chapters of the Ohio Administrative Code governing injection wells such as the AWMS operation took effect Jan. 13, 2022. They are “a complete rewrite of current rules,” the document states. “While the majority of changes impact the siting, permitting and construction of new Class II Disposal Wells, many changes will impact current operators,” the document states.

One of the changes listed is “enhanced standards, requirements and Division enforcement authority regarding seismic events near Class II Disposal Wells.” The AWMS injection well in Weathersfield blamed for the small earthquakes is a Class II disposal well.

A letter the organization Earthjustice wrote to Michael Regan, U.S. EPA administrator, dated Oct. 11, 2022, said this about Ohio’s 2022 changes to its injection well regulations:

“In January of 2022, in response to the increased size and volume of Class II disposal well facilities in the (Ohio) and changing industry practices, ODNR formally adopted new rules for its Class II injection program.”

The letter stated that the 2022 rules expanded setback requirements and the radius area of review. But the rules failed to address what the organization called a “lack of enforcement mechanisms and the failure of agency enforcement in practice.” The rules also failed to address “over-pressurization of injection formations and out-of-zone migration of waste.”

An attempt to contact AWMS for comment on the ongoing litigation was not successful.