BILL ANALYSIS Ó
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator Wieckowski, Chair
2015 - 2016 Regular
Bill No: SB 454
-----------------------------------------------------------------
|Author: |Allen |
-----------------------------------------------------------------
|-----------+-----------------------+-------------+----------------|
|Version: |4/21/2015 |Hearing | 4/29/15 |
| | |Date: | |
|-----------+-----------------------+-------------+----------------|
|Urgency: |No |Fiscal: |Yes |
------------------------------------------------------------------
-----------------------------------------------------------------
|Consultant:|Rachel Machi Wagoner |
| | |
-----------------------------------------------------------------
SUBJECT: Water quality: oil and gas: exempt aquifer
ANALYSIS:
Existing law:
1. Under the federal Safe Drinking Water Act (SDWA):
A. Authorizes and requires the United States Environmental
Protection Agency (US EPA) to regulate underground
injection in order to protect underground drinking water
sources.
B. Prohibits certain oil and gas well activities that
affect underground sources of drinking water unless those
sources are located in an exempt aquifer.
C. Authorizes US EPA to delegate primacy to states to
regulate and enforce as long as the state's regulation and
enforcement is as stringent as federal law. In California
the Division of Oil, Gas, and Geothermal Resources (DOGGR)
in the Department of Conservation has been granted primacy
by US EPA.
D. Authorizes primacy agencies to apply to US EPA to
propose that an aquifer or a portion of an aquifer be an
exempt aquifer.
E. Authorizes the US EPA to approve the proposal if the
aquifer or a portion of the aquifer meets certain
SB 454 (Allen) Page 2
of ?
criteria.
2. Under the Porter-Cologne Water Quality Control Act
(Porter-Cologne) the State Water Resources Control Board
(SWRCB) and the regional water quality control boards have
regulatory authority to protect, preserve and enhance the
quality of the waters of the state.
This bill: prohibits DOGGR from submitting a proposal for an
aquifer exemption to US EPA unless DOGGR and SWRCB concur in
writing that the aquifer meets specified conditions.
Background
Underground Injection Wells.
There are approximately 50,000 underground injection wells in
California. The majority of which are used for Enhanced Oil
Recovery (EOR) operations to spur oil and gas production.
Approximately 75% of California's oil and gas production is
attributable to the use of EOR. The wastewaters produced by
oil and gas extraction are disposed of in approximately 1,500
injection waste disposal wells.
Since June 2014, when a set of oil and gas waste disposal wells
were ordered "shut in" by DOGGR, there have been a series of
news stories released, as well as acknowledgements made by
DOGGR, that numerous oil and gas related injected wells are
improperly sited and present a risk of contamination to good
quality ground water used for drinking water and agricultural
irrigation purposes.
Why Does US EPA Regulate Injection Wells?
In 1974, Congress passed the Safe Drinking Water Act (SDWA).
SB 454 (Allen) Page 3
of ?
The SDWA required US EPA to report back to Congress on
underground waste disposal practices, and develop minimum
federal requirements for injection practices that protect
public health by preventing injection wells from contaminating
USDWs.
What is a USDW?
An underground source of drinking water (USDW) is an aquifer or
a part of an aquifer that is currently used as a drinking water
source or may be needed as a drinking water source in the
future. Specifically, a USDW:
Supplies any public water system, or
Contains a sufficient quantity of ground water to supply
a public water system, and
currently supplies drinking water for human consumption,
or contains fewer than 10,000 mg/l total dissolved solids
(TDS), and
Is not an exempted aquifer.
The UIC program implements this protective mandate through the
UIC regulations.
How do the UIC Regulations Protect Groundwater?
The UIC program protects USDWs from endangerment by setting
minimum requirements for injection wells. All injection must be
authorized under either general rules or specific permits.
Injection well owners and operators may not site, construct,
operate, maintain, convert, plug, abandon, or conduct any other
injection activity that endangers USDWs.
SB 454 (Allen) Page 4
of ?
The purpose of the UIC requirements is to:
Ensure that injected fluids stay within the well and
the intended injection zone, or
Mandate that fluids that are directly or indirectly
injected into a USDW do not cause a public water system to
violate drinking water standards or otherwise adversely
affect public health.
Who Regulates Injection Wells?
Injection wells are overseen by either a state or Tribal Agency
or one of US EPA's regional offices. States and tribes may
apply for primary enforcement responsibility, or primacy, to
implement the UIC program within their borders. In general,
state and tribal programs must meet minimum federal UIC
requirements to gain primacy. If a state or tribe does not
obtain primacy, US EPA implements the program directly through
one of its regional offices.
US EPA has delegated primacy for all well classes to 33 states
and 3 territories; it shares responsibility in 7 states, and
implements a program for all well classes in 10 states, 2
territories, the District of Columbia, and most Tribes.
California has primacy for the UIC program for Class II wells.
DOGGR implements this program.
DOGGR has implemented the UIC program, specific to Class
II wells, for California pursuant to a primacy agreement
with US EPA reached in 1982 and incorporated into federal
regulations in 1983.
In California SWRCB has statutory authority and responsibility
to protect ground water under both the federal Clean Water Act
and Porter-Cologne. SWRCB Resolution 88-63 recognizes and
SB 454 (Allen) Page 5
of ?
incorporates aquifer exemptions with specific reference to the
SDWA.
In 1988, DOGGR and SWRCB signed an MOA governing oil and gas
related discharges. SWRCB retains authority over water quality
independent of the MOA. The MOA lacks clarity, however,
according to SWRCB emails. The terms of the MOA, as well as
state statute, give DOGGR lead responsibility over Class II
wells.
What is an Aquifer Exemption?
An aquifer exemption is an action by US EPA to remove an aquifer
or a portion of an aquifer from protection as an underground
source of drinking water under the SDWA.
What Criteria Does US EPA Use to Evaluate Aquifer Exemptions?
US EPA is responsible for the final review and approval of all
aquifer exemption requests. UIC permit applicants that seek an
aquifer exemption in order to conduct injection activities
typically delineate the proposed exempted area and submit a
package, including supporting data, to the primacy agency.
States with primacy, like California, review the application
and, if the information submitted supports a determination that
an aquifer exemption is warranted, propose to exempt the
aquifer, provide for public participation, and submit a request
for approval of the exemption to US EPA.
US EPA must follow the regulatory criteria set forth in 40 CFR
146.4 in making aquifer exemption determinations. For US EPA to
approve an aquifer exemption, US EPA must:
A. Find that the state, or where US EPA directly
implements the UIC program, the applicant, has
demonstrated that the aquifer or the portion of an
aquifer sought for exemption does not currently serve
as a source of drinking water.
B. Determine either that the aquifer cannot now,
or will not in the future, serve as a source of
SB 454 (Allen) Page 6
of ?
drinking water, or that the total dissolved solids
content of the ground water is more than 3,000 and
less than 10,000 mg/l and is not reasonably expected
to supply a public water system.
The regulations describe four potential reasons for making the
determination that the aquifer cannot now and will not in the
future serve as a source of drinking water.
The aquifer is mineral, hydrocarbon, or
geothermal energy producing, or
Can be demonstrated as part of a permit
application to contain minerals or hydrocarbons that
are expected to be commercially producible.
The other reasons relate to the practicality
and cost of accessing and treating the water for human
consumption.
What is the Importance of TDS Levels in Water?
Salinity is a measure of the amount of dissolved particles and
ions in water. A common measure of salinity is the level of
total dissolved solids (TDS). TDS is generally expressed in
units of mg/l (milligrams per liter) or ppm (parts per million).
In expressions of TDS levels, milligrams per liter (mg/l) and
parts per million (ppm) are equivalent units.
Salinity levels can result from hundreds of different ions, but
a few make up most of the dissolved material in water: chloride
and sodium, followed by calcium, nitrate, magnesium, bicarbonate
and sulfate.
The higher the salinity level of water, the less likely it is to
be used for purposes such as drinking and other beneficial uses.
As a general rule, aquifer TDS levels increase with depth.
SB 454 (Allen) Page 7
of ?
Below is some information about water with different TDS levels:
Precipitation: 10 ppm
Freshwater lake: 10-200 ppm
Agricultural impact to sensitive crops: 500 ppm
California drinking water limit - secondary max
contaminant level (taste/odor): 1,000 ppm (max)
US EPA's regulatory definition of a USDW: 10,000 ppm
Brackish: 23,000 ppm
Seawater: 35,000 ppm
What is the Risk to Ground water Associated with Class II Wells?
As noted above, the UIC program is a part of the federal SDWA
and is in place to ensure that injection wells are not located
near ground water aquifers that may currently be used as or have
the potential to be used in the future for drinking water.
Additionally, if a well is drilled near a USDW the following
pathways of contamination put the USDW at risk:
lack of well casing integrity.
faulty cementing of the well allowing fluid movement up
the annulus.
Movement from the formation itself into the confining
formation (the cap, meant to separate it geologically from
a USDW).
Abandoned or poorly plugged wells acting as a conduit.
Movement from one part of a formation to another (by
changing the hydraulic gradient).
SB 454 (Allen) Page 8
of ?
Injection directly into a USDW. (NOTE: this is the
current problem in which California is concerned).
California is becoming ever more reliant on ground water as a
source of drinking water as well as other beneficial uses, such
as agriculture.
When wastewater and other fluids associated with the extraction
of oil or natural gas are injected into an aquifer they can
change the chemistry of and contaminate that aquifer. For this
reason the SDWA criteria for injection specify that these wells
cannot be drilled into aquifers where the water quality is
currently or may be considered in the future high enough to use
as a source of drinking water. Class II wells should only be
located in areas where there is not any potential use of the
aquifer as a USDW.
Injection into Non-Exempt Aquifers in California.
In 2014, SWRCB began to conduct its review as to whether or not
ground water monitoring would be required around wells with well
stimulation treatments, (pursuant to the requirements of SB 4
(Pavley), Chapter 313, Statutes of 2013. As SWRCB conducted
its review, staff questioned the apparent exemption of numerous
aquifers. In communications between SWRCB and DOGGR, it was
discovered that DOGGR is approving injection wells in numerous
locations where there are not exempt aquifers. SWRCB started to
order ground water quality data for injection wells injecting in
the wrong place.
From July 2 - September 26, 2014, DOGGR ordered a net 11 wells
to be shut-in as these wells were injecting into non-exempt
aquifers.
On July 17, 2014, US EPA sent a letter to DOGGR inquiring into
these wells and the UIC program. The letter stated that in 2012
US EPA started a review of aquifer status and it was provided to
DOGGR. This letter demanded specified information be provided
from DOGGR at 30, 60 and 90 days. By 30 days, US EPA needed a
status report or action plan on all Class II wells injecting
into non-hydrocarbon bearing aquifers where the TDS is less than
10,000 ppm. By 60 days, US EPA required a timeline. By 90 days
US EPA wanted a status report or action plan on all Class II
wells injecting in to hydrocarbon-bearing aquifers that have a
SB 454 (Allen) Page 9
of ?
TDS less than 10,000 ppm.
On July 18, 2014, DOGGR issued a press release stating that
DOGGR is working on complying with the letter.
On July 21, 2014, US EPA released an "enhanced coordination and
communication" memo to the states on aquifer exemption requests.
On August 18, 2014, DOGGR responded to US EPA via email with
draft work plan (work plan which is very similar to DOGGR's 2012
"Road Map").
On September 15, 2014, SWRCB sent a letter to US EPA,
accompanying DOGGR's emailed transmission. The focus of the
SWRCB's investigation outlined in the letter is where waste
disposal wells are injecting into aquifers which have <3,000 ppm
TDS and there is a risk to public health. SWRCB specifies a
tiered priority investigation of the injection wells in
question, as requested by US EPA.
SWRCB identified their first priority for investigation as those
waste disposal well injection zones within 500 foot vertically
of the bottom of a water well within a radius of 1 mile of the
injection well. (NOTE: SWRCB is not just looking into the
waste disposal wells. This applies to all the other Class II
injection wells too).
o Category 1a wells are 11 waste disposal wells
with 108 water wells in the vicinity. To date,
thallium, arsenic and nitrate levels have been found
at a level greater than the MCL in 4 samples and the
TDS is higher than the secondary MCL in 3 samples.
o Category 1b wells are waste disposal wells
injecting into aquifers of "uncertain" exemption
(these are the 11 aquifers of disputed exemption).
There are 19 waste disposal wells and 37 water wells
(no contamination was found at the time of the
letter). Please note that the water wells are not
necessarily in the place that a monitoring well would
be.
o Category 2, are 125 waste disposal wells
SB 454 (Allen) Page 10
of ?
injecting into aquifers that either have a TDS less
than 3000 ppm or the TDS is not known.
On December 22, 2014 - Because DOGGR did not meet the 90-day
deadline prescribed in US EPA's July 17, 2014 letter and only
partially met the other information requests, US EPA sent a
follow up letter to DOGGR and SWRCB giving them a firm deadline
of February 6, 2015 to show how California will get the State's
UIC program into compliance with federal law by February, 2017.
On February 6, 2015, DOGGR sent a letter to US EPA providing a
detailed plan. In the letter, DOGGR does not unequivocally
advocate for shutting down all wells injecting into high water
quality aquifers but commits to reviewing all of them by the
deadline of February, 2017. (NOTE: SDWA provides for a review
process for aquifer exemptions).
As of this letter, approximately 500 waste disposal wells and
2000 EOR wells were identified to be reviewed. The well list
which was provided in September, 2014 was revised to indicate
that approximately 140 waste disposal wells were identified as
the highest priority for review. Many of the highest priority
wells are located in the disputed 11 aquifers. Ultimately,
approximately 30,000 injection wells have been identified for
review.
On March 3, 2015, The California Environmental Protection Agency
(CalEPA) released a report, requested by Governor Brown, asking
CalEPA to conduct an independent review of the state's
Underground Injection Control program. The report:
1. Outlines the discrepancies in understanding about the
exemption of the 11 aquifers.
2. States that DOGGR notified US EPA regarding the
discrepancies three years ago (NOTE: As discussed above,
the first primacy agreement WITHOUT the exemption was
publicly stated as the governing document on DOGGR's
website until recently it was represented to legislative
staff that those aquifers were not exempt in discussions
regarding SB 4 in 2013.)
3. Asserts that both DOGGR and US EPA agreed to exempt the
11 aquifers, but may not have followed regulatory
SB 454 (Allen) Page 11
of ?
procedures.
4. Specifies that about a half of the active wastewater
disposal wells injecting in <3,000 ppm TDS aquifers are
injecting into the 11 aquifers where the exemption is in
question as part of the original primacy agreement with US
EPA. The remaining half is the result of permitting
errors.
On March 3, 2015, in conjunction with the above-referenced
report, DOGGR announced that an additional 12 injection wells
were ordered to be shut in, which brings the total to 23 wells.
SWRCB announced that it has issued 40 additional requests for
water quality data from injection well operators.
Comments
Purpose of Bill.
According to the author, "SB 454 establishes criteria to protect
California's precious ground water aquifers from the waste
pollution resulting from oil and gas extraction operations.
Under the Safe Drinking Water Act, before DOGGR can permit an
oil company to drill a wastewater disposal or chemical injection
well into an aquifer, California must obtain an exemption from
the Act for that aquifer from the United States Environmental
Protection Agency (USEPA)."
The author asserts, however, that "DOGGR has allowed more than
2,500 wastewater disposal and chemical injection wells to be
drilled into aquifers that have not been exempted from the Safe
Drinking Act and therefore should have been protected. The
fluids being injected into these aquifers contain a toxic
cocktail of chemicals, including benzene, arsenic and
radioactive material. Many of these chemicals are known to
cause cancer and other human health problems."
The author states that "DOGGR has proposed a plan and process to
examine these aquifers and seek exemptions from the Safe
Drinking Water Act for those aquifers the agencies believes
qualify for an exemption. According to this proposed plan,
DOGGR will request exemptions for aquifers that cannot
'reasonably be expected to be used for beneficial uses.'
However, the criteria DOGGR is using to make this determination
SB 454 (Allen) Page 12
of ?
does not consider California's current severe drought or the
reality of future water shortages."
The author asserts that "it is clear that going forward, given
California's long-term water challenges, the state will need to
access deeper aquifers and adopt technology necessary to clean
aquifers currently considered polluted. Given the current water
crisis, it is irresponsible and shortsighted to not protect
these aquifers."
Oversight Hearing on UIC.
On March 10, 2015, the Senate Natural Resources & Water and
Environmental Quality Committees' Oversight Hearing on UIC.
During this hearing members heard testimony from both DOGGR and
SWRCB. It was clearly stated that DOGGR did not adequately
conduct appropriate oversight and enforcement activities to
ensure that ground water aquifers were protected from
contamination pursuant to the MOA between DOGGR and SWRCB. It
was clear that it was only because of SWRCB activities pursuant
to SB 4 that the state became aware of the illegal injection
activities in violation of SDWA.
SOURCE: Author
SUPPORT:
Ballona Network
California League of Conservation Voters
Center for Environmental Health
Clean Water Action
Environmental Working Group
Lost Padres Forest Watch
SanDiego350
OPPOSITION: None on file
ARGUMENTS IN
SUPPORT:
The support argues that "Ground water resources play a vital
role in maintaining
California's economic and environmental sustainability.
California's 515 alluvial ground water basins and sub-basins
SB 454 (Allen) Page 13
of ?
provide close to 40% of the state's water supply in an average
year. And in dry or drought year, ground water accounts for as
much as 60% of the state's water supply. Many disadvantaged
communities rely on ground water for 100% of their water
supply."
According to the support, "the recent revelation that over 2,500
oil and gas wells were permitted by DOGGR to inject wastewater
and other fluids into federally protected aquifers shows that
action must be taken to protect California's ground water.
These injections violate the federal Safe Drinking Water Act and
fail to protect ground water that potentially could be used for
drinking water, irrigation or other beneficial uses.
Considering we are currently in our fourth year of extreme
drought, the time to act is now."
Supporters believe "SB 454 enhances oversight and accountability
in order to ensure that only aquifers that cannot and will not
have beneficial uses be used for oil and gas wastewater disposal
or take on fluids for enhanced oil recovery."
-- END --