Amended in Senate May 28, 2013

Amended in Senate May 7, 2013

Amended in Senate April 4, 2013

Senate Bill No. 395

Introduced by Senator Jackson

February 20, 2013

An act to amend Section 25159.12 of the Health and Safety Code, and to amend Section 3205.2 of, and to add Section 3205.3 to, the Public Resources Code, relating to hazardous waste.

LEGISLATIVE COUNSEL’S DIGEST

SB 395, as amended, Jackson. Hazardous waste: wells.

(1) Existing law, part of the hazardous waste control law, prohibits a person from discharging hazardous waste into an injection well unless certain conditions are met with regard to the location of the well and obtaining a hazardous waste facilities permit. Existing law also imposes other requirements upon the operator of an injection well and defines the term “injection well” for these purposes as excluding wells regulated by the Division of Oil and Gas, pursuant to specified federal regulations. A violation of the hazardous waste control law is a crime.

This bill would delete that exclusion of those regulated wells from the definition of “injection well,” thereby subjecting those wells to the requirements imposed upon injection wells. The bill would also require a generator of begin delete oil and gas exploration and production waste end delete begin insert produced water end insert to test the begin delete waste end delete begin insert produced water end insert in order to determine whether begin delete the waste end delete begin insert it end insert is hazardous waste within the meaning of specified provisions.

Since a violation of these requirements would be a crime, the bill would impose a state-mandated local program.

(2) Existing law requires an operator of a class II commercial wastewater disposal well who engages in the drilling, redrilling, or deepening of, or any operation altering the casing of, the well, or in maintaining or abandoning the well or attendant facilities, to file with the State Oil and Gas Supervisor an indemnity bond in a specified amount. Existing law defines the term class II commercial wastewater disposal well for this purpose as a well that, among other things, is used to dispose of oilfield wastewater.

This bill would specify that, for this purpose, oilfield wastewater does not include hazardous waste.

(3) The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

SECTION 1.  

The Legislature finds and declares all of the
following:

(a) Produced water is any fluid that is emitted from an oil or
gas production well. begin insert Produced water meets the definition of a
waste, pursuant to Section 25124 of the Health and Safety Code,
and under Chapter 6.5 end insert begin insert (commencing with Section 25100) of the
Health and Safety Code, a waste that meets the criteria and
guidelines adopted by the Department of Toxic Substances Control
pursuant to Chapter 6.5 (commencing with Section 25100) of
Division 20 of Division 20 of the Health and Safety Code, would
be a hazardous waste. end insert Produced water historically has been exempt
from California hazardous waste management laws when disposed
of in class II commercial wastewater disposal wells and therefore
has been disposed of in these wells without prior testing for
hazardous content. As a result, no public agency has monitored or
collected comprehensive data on the volume or toxicity of
hazardous materials injected into class II commercial wastewater
disposal wells in California.

(b) Produced water from oil and gas wells may contain a variety
of chemicals that are hazardous. Well stimulation techniques often
inject hazardous chemicals into wells that return to the surface as
produced water. In addition, fluids emitted from wells may carry
dissolved hazardous elements from the underground rock
formation.

(c) A common form of well stimulation is hydraulic fracturing,
by which tens of thousands to millions of gallons of fluid are
injected into a well under pressure. Hydraulic fracturing uses a
variety of hazardous chemicals. A 2011 survey by the United States
House of Representatives Committee on Energy and Commerce
minority staff found 29 chemicals used in hydraulic fracturing are
(1) known or possible human carcinogens, (2) regulated under the
federal Safe Drinking Water Act for their risks to human health,
or (3) listed as hazardous air pollutants under the federal Clean
Air Act. These chemicals contaminate produced water and are
eventually disposed of, usually into a class II commercial
wastewater disposal well. Without proper handling and monitoring
of hazardous wastes from this process, the state does not have any
way to know of, or prevent, any contamination in case of a well
failure.

(d) Class II commercial wastewater disposal wells may pierce
aquifers suitable for domestic or agricultural use. If the well casing
fails, materials may potentially leak into surrounding groundwater.
Once an aquifer is contaminated, it is virtually impossible to clean
it. Groundwater is a vital resource for human health, environmental
well-being, and economic productivity. Groundwater should be
protected for beneficial uses, including human consumption,
agriculture, surface water supply, and recreation.

(e) Therefore, it is intent of the Legislature to ensure that oilfield
waste be regulated in the same manner as other forms of waste by
removing the exemption for produced water in the Health and
Safety Code. If the produced wastewater is hazardous, then well
operators should handle it in the same manner as other forms of
hazardous waste.

SEC. 2.  

Section 25159.12 of the Health and Safety Code is
amended to read:

25159.12.  

For purposes of this article, the following definitions
apply:

(a) “Annulus” means the space between the outside edge of the
injection tube and the well casing.

(b) “State board” means the State Water Resources Control
Board.

(c) “Compatibility” means that waste constituents do not react
with each other, with the materials constituting the injection well,
or with fluids or solid geologic media in the injection zone or
confining zone in a manner as to cause leaching, precipitation of
solids, gas or pressure buildup, dissolution, or any other effect that
will impair the effectiveness of the confining zone or the safe
operation of the injection well.

(d) “Confining zone” means the geological formation, or part
of a formation, that is intended to be a barrier to prevent the
migration of waste constituents from the injection zone.

(e) “Constituent” means an element, chemical, compound, or
mixture of compounds that is a component of a hazardous waste
or leachate and that has the physical or chemical properties that
cause the waste to be identified as hazardous waste by the
department pursuant to this chapter.

(f) “Discharge” means to place, inject, dispose of, or store
hazardous wastes into, or in, an injection well owned or operated
by the person who is conducting the placing, disposal, or storage.

(g) “Drinking water” has the same meaning as “potential source
of drinking water,” as defined in subdivision (t) of Section 25208.2.

(h) “Facility” means the structures, appurtenances, and
improvements on the land, and all contiguous land, that are
associated with an injection well and are used for treating, storing,
or disposing of hazardous waste. A facility may consist of several
waste management units, including, but not limited to, surface
impoundments, landfills, underground or aboveground tanks,
sumps, pits, ponds, and lagoons that are associated with an injection
well.

(i) “Groundwater” means water, including, but not limited to,
drinking water, below the land surface in a zone of saturation.

(j) “Hazardous waste” means hazardous waste or extremely
hazardous waste, as defined in this chapter. A waste mixture
formed by mixing a waste or substance with a hazardous waste
shall be considered hazardous waste for the purposes of this article.

(k) “Hazardous waste facilities permit” means a permit issued
for an injection well pursuant to Sections 25200 and 25200.6.

(l) “Injection well” or “well” means any bored, drilled, or driven
shaft, dug pit, or hole in the ground the depth of which is greater
than the circumference of the bored hole and any associated
subsurface appurtenances, including, but not limited to, the casing.
For the purposes of this article, injection well does not include a
well exempted pursuant to Section 25159.24.

(m) “Injection zone” means that portion of the receiving
formation that has received, is receiving, or is expected to receive,
over the lifetime of the well, waste fluid from the injection well.
“Injection zone” does not include that portion of the receiving
formation that exceeds the horizontal and vertical extent specified
pursuant to Section 25159.20.

(n) “Owner” means a person who owns a facility or part of a
facility.

(o) “Perched water” means a localized body of groundwater
that overlies, and is hydraulically separated from, an underlying
body of groundwater.

(p) “pH” means a measure of a sample’s acidity expressed as a
negative logarithm of the hydrogen ion concentration.

(q) “Qualified person” means a person who has at least five
years of full-time experience in hydrogeology and who is a
professional geologist registered pursuant to Section 7850 of the
Business and Professions Code, or a registered petroleum engineer
registered pursuant to Section 6762 of the Business and Professions
Code. “Full-time experience” in hydrogeology may include a
combination of postgraduate studies in hydrogeology and work
experience, with each year of postgraduate work counted as one
year of full-time work experience, except that not more than three
years of postgraduate studies may be counted as full-time
experience.

(r) “Receiving formation” means the geologic strata that are
hydraulically connected to the injection well.

(s) “Regional board” means the California regional water quality
control board for the region in which the injection well is located.

(t) “Report” means the hydrogeological assessment report
specified in Section 25159.18.

(u) “Safe Drinking Water Act” means Subchapter XII
(commencing with Section 300f) of Chapter 6A of Title 42 of the
United States Code.

(v) “Strata” means a distinctive layer or series of layers of earth
materials.

(w) “Waste management unit” means that portion of a facility
used for the discharge of hazardous waste into or onto land,
including all containment and monitoring equipment associated
with that portion of the facility.

SEC. 3.  

Section 3205.2 of the Public Resources Code is
amended to read:

3205.2.  

(a) Notwithstanding Section 3204, a person who
engages in the operation of a class II commercial wastewater
disposal well, as defined in subdivision (d), shall file an indemnity
bond with the supervisor for fifty thousand dollars ($50,000) for
each well so used. The bond shall cover all operations of drilling,
redrilling, deepening, altering casing, maintaining, or abandoning
the well and attendant facilities. The bond shall be executed by
the person as the principal, and by an authorized surety company
as the surety, and, except for differences in the amount, shall be
in substantially the same language and upon the same conditions
as provided in Section 3204.

(b) A blanket bond submitted under subdivision (a) or (c) of
Section 3205 may be used in lieu of the bond required in
subdivision (a), except that the termination and cancellation shall
be in accordance with subdivision (c) of this section.

(c) Notwithstanding Section 3207, a bond issued in compliance
with this section may be terminated and canceled and the surety
relieved of all obligations under the bond when the well is properly
abandoned or another valid bond has been substituted for the bond.

(d) (1) A class II commercial wastewater disposal well is a well
that is used to dispose of oilfield wastewater, as specified in
paragraph (2), for a fee and that is regulated by the division
pursuant to this chapter and Subpart F (commencing with Section
147.250) of Part 147 of Title 40 of the Code of Federal Regulations.

(2) For purposes of paragraph (1), oilfield wastewater does not
include hazardous waste, as defined in Chapter 6.5 (commencing
with Section 25100) of Division 20 of the Health and Safety Code.

SEC. 4.  

Section 3205.3 is added to the Public Resources Code,
to read:

3205.3.  

begin insert (a) end insert begin insert   end insert Notwithstanding paragraph (2) of subdivision (b)
of Section 66262.11 of Title 22 of the California Code of
Regulations, begin insert and except as provided in subdivision (b) end insert begin insert , end insert a generator
of begin delete oil and gas exploration and production waste end delete begin insert produced water end insert
is responsible for testing begin delete the waste end delete as described in paragraph (1)
of subdivision (b) of Section 66262.11 of Title 22 of the California
Code of Regulations, for determining whether the begin delete waste end delete begin insert produced
water end insert is hazardous waste within the meaning of Chapter 6.5
(commencing with Section 25100) of Division 20 of the Health
and Safety Code.

begin insert

(b) For systems that meet the following requirements, the
generator of the produced water may apply knowledge pursuant
to paragraph (2) of subdivision (b) of Section 66262.11 of Title
22 of the California Code of Regulations in testing to determine
whether produced water is hazardous waste if there has been
sufficient prior testing pursuant to paragraph (1) of subdivision
(b) of Section 66262.11 of Title 22 of the California Code of
Regulations that illustrates that the produced water is not
hazardous and there is a reasonable expectation that the produced
water will continue to have the same characteristics it had at the
time of that prior testing.

end insert begin insert

(1) The produced water is produced by a system in which no
materials are added before being disposed or reused.

end insert begin insert

(2) The produced water is immediately reinjected back into a
well after oil and gas is removed.

end insert

SEC. 5.  

 No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of
the Government Code, or changes the definition of a crime within
the meaning of Section 6 of Article XIII B of the California
Constitution.