Last month, California legislators introduced three bills that relate to hydraulic fracturing. On February 20, 2013, Senator Hannah-Beth Jackson introduced SB 395 to regulate water produced during fracking operations. The bill would require the regulation of “produced water,” defined to expressly include water produced by fracking, as a hazardous waste by the Department of Toxic Substances Control (DTSC). This would give DTSC authority to regulate the management of fracking wastewater, including the requirement for hazardous waste manifests to transport these fluids, and add another administrative layer to the regulation of fracking operations in addition to the rules that have already been proposed by the Department of Conservation’s Division of Oil, Gas, and Geothermal Resources (DOGGR). For more details on DOGGR’s discussion draft regulations, see the December 19, 2012, post. SB 395 faces a difficult road to becoming law, however, as the scope of the definition of “produced water” (any water brought up from the hydrocarbon bearing formation strata during the extraction of oil and gas) goes well beyond fracking and conceivably could end up regulating “produced water” that is nothing more than pumped natural groundwater brought up during the oil and gas production process.
The other two bills were introduced in the Assembly and relate to DOGGR’s approval of well drilling activities. On February 11, 2013, Assembly Member Marc Levine introduced AB 288 to require fracking-specific approval. Under the current law, DOGGR grants general approval to drill an oil and gas well, but specific, additional approval is not required for fracking activities. The bill would prohibit fracking without such approval and eliminate the automatic “10-day deemed approved” permitting scheme under current law that operates if DOGGR does not respond to a permit application during an initial 10-day period after a permit application is submitted. The bill would also authorize DOGGR to establish a fee for the costs of regulating fracking. This contrasts with DOGGR’s current discussion draft rule, which would not require specific approval for fracking.
On February 22, 2013, Assembly Member Das Williams introduced AB 982 to require an agency-approved groundwater monitoring plan for fracking operations. The bill would require an operator to submit such a plan to DOGGR, as well as the Regional Water Quality Control Board, for review and approval together with any notice of intent to drill, rework or deepen a well that also included fracking activity. The plan would include a characterization of groundwater quality in the zone of influence of the well, information relating to constituents in the fracking fluid, a plan for monitoring to detect contamination during and after the fracking activities, and an emergency monitoring plan in the event of a well casing failure or other similar event. These monitoring requirements are similar to those imposed under DOGGR’s current discussion draft rule; however, DOGGR’s rule requires monitoring of the integrity of the well while AB 982 focuses more on measuring direct impacts to the groundwater aquifer. Also, like the bill introduced in the Senate, this bill would directly involve yet another agency, the Regional Water Quality Control Board, in fracking activities.