HomeMy WebLinkAboutAGENDA REPORT 2013 0605 CCSA REG ITEM 09E ITEM 9.E.
Cily Council Meeting
MOORPARK CITY COUNC s
AGENDA REPORT ACTION: ,-
TO: Honorable City Councils-N
FROM: Jennifer Mellon, Administrative Services Manager
DATE: May 22, 2013 (CC Meeting of 6/5/13)
SUBJECT: Consider Taking a Position on SB 4: Oil and Gas: Hydraulic
Fracturing (Fracking)
BACKGROUND
Staff brought forth this item for consideration on May 15, 2013, and was requested to
continue the item in order to gather additional information regarding hydraulic fracturing
(fracking). Senator Fran Pavley (D) has introduced SB 4 - Oil and gas: hydraulic
fracturing and has requested support from cities. The bill in its entirety, Attachment 1, is
a regulatory bill requiring the fracking industry to adhere to specific guidelines as well as
other reporting, permitting, testing, and notification policy. Attachment 2 is Senator
Pavley's fact sheet regarding SB 4.
DISCUSSION
Staff has read the bill and while it is difficult to find a nexus to local government with SB
4 and the bill does not specifically fit into the City of Moorpark Legislative Program, staff
understands the concerns raised by SB 4 and regulation of fracking within California
and the potential impacts in Ventura County which is why staff is bringing the bill
forward for Council consideration.
The Ventura County Board of Supervisors (Board) met on December 11, 2012 to
discuss Hydraulic Fracturing and request a report back from the County Executive
Officer and County Council. In his letter, Board Member Bennett references concerns
with fracking of both new and old wells in California's Monterey Shale formation, which
is present in Ventura County as well as points out numerous environmental and health
concerns being raised regarding fracking. Board member Bennett's letter is Attachment
3.
The County of Ventura staff and Division of Oil, Gas, and Geothermal Resources
(DOGGR) made a subsequent presentation to the Board on April 9, 2013 regarding
Hydraulic Fracturing of Oil and Gas Wells in Ventura County. Eight questions were
posed to county staff and DOGGR by the Board and were addressed in the report,
Attachment 4. In brief summary, please refer to the attachment for complete
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information, the questions were answered as follows: 1) There is no regulatory
requirement that fracking locations and/or chemicals be disclosed in California;
however, there is a website www.frackfocus.org where information can be found that is
requested to be voluntarily provided by oil and gas companies who are fracking within
the state. 2) According to the voluntary information provided, 13 wells are being fracked
in Ventura County and the average amount of water reported used is less than 300,000
per well. In total, Ventura County Public Works has identified approximately 200 fracked
sites in Ventura County over the past decade. The City of Moorpark Community
Development Department states there are less than 10 wells within city limits all located
in the eastern Campus Park area; however, Occidental Petroleum has a Conditional
Use Permit that allows drilling in undeveloped areas from Broadway all the way through
the eastern city limit boundary. 3) The waste water produced by fracking is disposed of
in the same reservoir it came from upon being separated from the oil, cleaned and
filtered. 4) According to County Counsel, the County generally may regulate land uses
and waste water disposal within its jurisdiction; however, these powers have limits. The
County can regulate the surface components of these activities but the County does not
have the power to directly regulate subsurface aspects of fracking, waste water
disposal, or fracking of new wells. 5) The Monterey Shale Formation is located beneath
substantial portions of Ventura County. 6) It is anticipated that not more than 15 wells
will be fracked during 2013. 7) Current State regulatory efforts include nine bills before
the California State legislature that deal with fracking. 8) Research regarding a link
between fracking and earthquakes is in its infancy in large part due to the fact that there
have been no reports of induced seismic activity from fracking in California.
At the Board of Supervisors meeting of May 21, 2013, the issue of Hydraulic Fracturing
was again on the Agenda. The agenda item, Attachment 5, was titled,
"Recommendations of Supervisor Bennett and Supervisor Parks to direct the County
Executive Office and Resource Management Agency Director to revise the Conditional
Use Permit (CUP) application form/questionnaire to ask whether fracking will be
performed, what hazardous materials will be used in the drilling/post drilling operation,
where the water supply for drilling and post-drilling operation, including fracking will be
taken from, and where any liquid wastes will be disposed; direct the County Counsel to
provide the Board with a confidential legal analysis of options available to address
antiquated oilfield CUPs that do not require discretionary review for new drilling, and/or
do not incorporate current ordinance requirements, and/or do not provide time limits;
direct County Counsel to provide the Board with a confidential legal analysis of whether
the county may restrict the use of fresh water in oilfield operations or require the use of
non-fresh water when discretionary permits are issued for oil or gas well drilling or
operation; and direct County Counsel to provide the Board with a confidential legal
analysis of whether the county may require the use of non- or least-toxic fracking
chemicals." The Supervisors are proposing pre-emptive measures to make Ventura
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County regulations similar to Santa Barbara County by potential revisions of the CUP
requiring disclosure while the State continues to move forward with regulations. The
Supervisors recommendation was passed 4 — 1 and the item will be brought back.
County Staff was directed to produce a draft conditional use permit questionnaire
including language on fracking.
Senator Pavley's office has received numerous support and oppose letters regarding
SB 4 which are included as Attachment 5. Among the support letters received, those
from Ventura County include the Ventura County Board of Supervisors, Mayor Pro Tern
Carmen Ramirez of Oxnard, and City of Ventura Councilman Brian Brennan.
Reasons cited to support SB 4 include the need for regulations regarding fracking; full
disclosure of all chemicals used in fracking as well as the source, volume, composition,
and disposition of water used and recovered; a direct an independent scientific study be
conducted by January 1, 2015; that permitting be required for fracking; establishment
civil penalty provisions; expansion of public notification prior to fracking; and baseline
and follow-up testing of groundwater be conducted. Reasons cited to oppose SB 4
include that the legislation is not strong enough; the need to impose limits on water
usage should be included; the need to impose a moratorium immediately until studies
are complete; issues with trade secret privacy for the oil and gas industry; that
additional bureaucracy makes California unfriendly to business; that a moratorium in
2015 is unreasonable and will hurt California economy; and that the legislation is
premature and will circumvent the Governors effort for comprehensive fracking
regulations.
The League of California Cities currently has a watch position on SB 4 due to their
inability to link the legislation to impact on local government. Currently, as of May 23,
2013, SB 4 is in the in the Senate Appropriations Suspense File; the 1 st House Fiscal
Committee. Committee voting on SB 4 to date has been: Senate Nat. Resources &
Water 4/9/13 (Y:6, N:2, A:1); Senate Environmental Quality 5/1/13 (Y:6, N:2, A:1);
Senate Appropriations Committee Pass as Amended 5/20/13 (Y:6, N:O, A:1).
FISCAL IMPACT
There is no fiscal impact.
STAFF RECOMMENDATION
Direct staff as deemed appropriate.
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Attachment 1: SB 4 Senate Bill Amended in Senate May 7, 2013
Attachment 2: Fact Sheet: SB 4
Attachment 3: Ventura County Board of Supervisors Letter dated December 11, 2012
Attachment 4: Ventura County Staff Report dated April 9, 2013
Attachment 5: Ventura County Staff Report dated May 21, 2013
Attachment 6: Numerous Support and Oppose Letters regarding SB 4
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ATTACHMENT 1
LFGISLATIVE INFORMATION
S13-4 Oil and gas: hydraulic fracturing.(2013-2014
AMENDED IN SENATE MAY 07,2013
AMENDED IN SENATE APRIL 24,2013
AMENDED IN SENATE MARCH 11,2013
CALIFORNIA LEGISLATURE—2013-2014 REGULAR SESSION
SENATE BILL No. 4
Introduced by Senator Pavley
(Coauthor(s): Senator De Le6n, Leno, Monniing)
(Coauthor(s): Assembly Member Stone)
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December 03, 2012
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Sections 3213 3215 3236.5 and 3401 of and to add Article 3
An act to amend ,
(commencing with Section 3150) to Chapter 1 of Division 3 of, the Public Resources
Code, relating to oil and gas.
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LEGISLATIVE COUNSEL'S DIGEST
SB 4, as amended, Pavley. Oil and gas: hydraulic fracturing.
(1) Under existing law, the Division of Oil, Gas, and Geothermal Resources in the Department of Conservation,
or the division, regulates the drilling, operation, maintenance, and abandonment of oil and gas wells in the
state. The State Oil and Gas Supervisor, or supervisor, supervises the drilling, operation, maintenance, and
abandonment of wells and the operation, maintenance, and removal or abandonment of tanks and facilities
related to oil and gas production within an oil and gas field regarding safety and environmental damage.
Existing law requires an operator of a well, before commencing the work of drilling the well, to obtain approval
from the supervisor or district deputy. Existing law requires the operator of a well to keep, or cause to be kept,
a careful and accurate log, core record, and history of the drilling of the well. Within 60 days after the date of
cessation of drilling, rework, or abandonment operations, the owner or operator is required to file with the
district deputy certain information, including the history of work performed. Under existing law, a person who
violates any prohibition specific to the regulation of oil or gas operations is guilty of a misdemeanor.
This bill would define, among other things, the terms hydraulic fracturing and hydraulic fracturing fluid. The bill
would require the Secretary of the Natural Resources Agency, on or before January 1, 2015, to cause to be
conducted an independent scientific study on hydraulic fracturing treatments. The bill would require an operator
of a well to record and include all data on hydraulic fracturing treatments, as specified. The bill would require
the division, in consultation with the Department of Toxic Substances Control, the State Air Resources Board,
the State Water Resources Control Board, the Department of Resources Recycling and Recovery, and any local
air districts and regional water quality control boards in areas where hydraulic fracturing treatments may occur,
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on or before January 1, 2015, to adopt rules and regulations specific to hydraulic fracturing, including governing
the construction of wells and well casings and full disclosure of the composition and disposition of hydraulic
fracturing. The bill would require an operator to apply for a permit, as specified, with the supervisor or district
deputy, prior to performing a hydraulic fracturing treatment of a well and would prohibit the operator from
either conducting a new hydraulic fracturing treatment or repeating a hydraulic fracturing treatment without a
valid, approved permit. The bill would prohibit the approval of a permit that presents an unreasonable risk or is
incomplete. The bill would require the division, within 5 business days of issuing a permit to commence
hydraulic fracturing, to provide a copy to specific boards and entities and to post the permit on a publicly
accessible portion of its Internet Web site. The bill would require the hydraulic fracturing treatment to be
completed within one year from the date that a permit is issued. The bill would require the division to perform
random periodic spot check investigations during hydraulic fracturing treatments, as specified. The bill would
prohibit the supervisor or district deputy, as of January 1, 2015, from issuing a permit to commence a hydraulic
fracturing treatment, as specified, until the study is completed and peer reviewed by independent scientific
experts. The bill would require the operator to provide a copy of the approved hydraulic fracturing treatment
permit to specified property owners at least 30 days prior to commencing a hydraulic fracturing treatment. The
bill would require the operator to provide notice to the division at least 72 hours prior to the actual start of the
hydraulic fracturing treatment in order for the division to witness the hydraulic fracturing treatment. The bill
would require the supplier, as defined, of the hydraulic fracturing treatment to provide to the operator, within
30 days following the conclusion of the hydraulic fracturing, certain information regarding the hydraulic
fracturing fluid. The bill would require the operator, within 60 days of the cessation of hydraulic fracturing
treatment, to post or cause to have posted on an Internet Web site accessible to the public specified
information on the fracturing and fluid, as specified. The bill would provide that where the division shares
jurisdiction over a well with a federal entity, the division's rules and regulations govern the hydraulic fracturing
treatment of a well. The bill would require a supplier claiming trade secret protection for the chemical
composition of additives used in the hydraulic treatment to disclose the composition to the division, in
conjunction with a hydraulic fracturing treatment permit application, but would, except as specified, prohibit
those with access to the trade secret from disclosing it. Because a violation of this bill would create a new
crime, it would impose a state-mandated local program.
(2) Under existing law, a person who violates certain statutes or regulations relating to oil and gas well
operations is subject to a civil penalty not to exceed $25,000 for each violation.
This bill would make persons who violate specified provisions relating to hydraulic fracturing subject to a civil
penalty of not less than $10,000 and not to exceed $25,000 per day per violation.
(3) Existing law imposes an annual charge upon each person operating or owning an interest in an oil or gas
well in respect to the production of the well which charge is payable to the Treasurer for deposit into the Oil,
j Gas, and Geothermal Administrative Fund. Existing law further requires that specific moneys from charges
levied, assessed, and collected upon the properties of every person operating or owning an interest in the
production of a well to be used exclusively, upon appropriation, for the support and maintenance of the
department charged with the supervision of oil and gas operations.
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This bill would allow the moneys described above to be used for all costs associated with hydraulic fracturing
including scientific studies required to evaluate the treatment, inspections, and any air and water quality
sampling, monitoring, and testing performed by public entities.
This bill would require the supervisor, on or before January 1, 2016, and annually thereafter, to transmit to the
Legislature and make available publicly a comprehensive report on hydraulic fracturing in the exploration and
production of oil and gas resources in the state.
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 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) Hydraulic fracturing of oil and gas wells in combination with technological advances in oil and gas well
drilling are spurring oil and gas extraction and exploration in California.
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(b) Insufficient information is available to fully assess the science of the practice of hydraulic fracturing in
California including environmental, occupational, and public health hazards and risks.
(c) Providing transparency and accountability to the public regarding hydraulic fracturing, associated emissions
to the environment, and the handling, processing, and disposal of hydraulic fracturing and related wastes is of
paramount concern.
I SEC. 2.Article 3 (commencing with Section 3150) is added to Chapter 1 of Division 3 of the Public Resources
Code,to read:
Article 3.Hydraulic Fracturing
3150."Additive" means a substance or combination of substances added to a base fluid for purposes of
preparing a hydraulic fracturing fluid. An additive may, but is not required to, serve additional purposes beyond
the transmission of hydraulic pressure to the geologic formation. An additive may be of any phase and includes
proppants.
3151."Base fluid" means the continuous phase fluid used in the makeup of a hydraulic fracturing fluid. The
continuous phase fluid may include, but is not limited to, water, and may be a liquid or a hydrocarbon or
nonhydrocarbon gas. A hydraulic fracturing treatment may use more than one base fluid.
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3152."Hydraulic fracturing" means a well stimulation or well completion treatment that involves the pressurized
injection of hydraulic fracturing fluid and proppant into an underground geologic formation in order to fracture
the formation, thereby causing or enhancing, for the purposes of this division, the production of oil or gas from
a well
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3153."Hydraulic fracturing fluid" means a base fluid mixed with physical and chemical additives for the purpose
of hydraulic fracturing. A hydraulic fracturing treatment may include more than one hydraulic fracturing fluid.
3154."Proppants" means materials inserted or injected into the underground geologic formation that are
intended to prevent fractures from closing.
3155."Supplier" means an entity performing a hydraulic fracturing treatment or an entity supplying an additive
or proppant directly to the operator for use in a hydraulic fracturing treatment.
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3156."Surface property owner" means the owner of real property as shown on the latest equalized assessment
roll or, if more recent information than the information contained on the assessment roll is available, the owner
of record according to the county assessor or tax collector.
3160.(a) On or before January 1, 2015, the Secretary of the Natural Resources Agency shall cause to be
conducted an independent scientific study on hydraulic fracturing treatments. The scientific study shall evaluate
the hazards and risks and potential hazards and risks that hydraulic fracturing treatments pose to natural
resources and public, occupational, and environmental health and safety. The scientific study shall do all of the
following:
(1) Follow the well-established standard protocols of the scientific profession, including, but not limited to, the
use of recognized experts, peer review, and publication.
(2) Identify areas with existing and potential conventional and unconventional oil and gas reserves where
hydraulic fracturing treatments are likely to spur or enable oil and gas exploration and production.
(3) Evaluate all aspects of hydraulic fracturing, including, but not limited to, the hydraulic fracturing treatment,
additive and water transportation to and from the well site, mixing and handling of the hydraulic fracturing
fluids and additives on site, wastewater and waste hydraulic fracturing fluid handling, treatment, and disposal.
(4) Consider, at a minimum, atmospheric emissions, the potential degradation of air quality, potential water
and surface contamination, induced seismicity, and the ultimate disposition, transport, transformation, and
toxicology of hydraulic fracturing fluids, and waste hydraulic fracturing fluids in the environment.
(5) Include a hazard assessment and risk analysis addressing occupational and environmental exposures to
hydraulic fracturing treatments and hydraulic fracturing treatment-related processes and the corresponding
impacts on public health and safety with the participation of the Office of Environmental Health Hazard
Assessment.
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(6) Clearly identify where additional information is necessary to inform and improve the analyses.
(b) (1) On or before January 1, 2015, the division, in consultation with the Department of Toxic Substances
Control, the State Air Resources Board, the State Water Resources Control Board, the Department of Resources
i Recycling and Recovery, and any local air districts and regional water quality control boards in areas where
hydraulic fracturing treatments may occur, shall adopt rules and regulations specific to hydraulic fracturing. The
rules and regulations shall include, but are not limited to, revisions, as needed, to the rules and regulations
governing construction of wells and well casings to ensure integrity of wells, well casings, and the geologic and
hydrologic isolation of the oil and gas formation during and following hydraulic fracturing, and full disclosure of
the composition and disposition of hydraulic fracturing fluids and waste hydraulic fracturing fluids.
(2) Full disclosure of the composition and disposition of hydraulic fracturing fluids shall, at a minimum, include:
(A)The date of the hydraulic fracturing treatment.
(B) A complete list of the names, Chemical Abstract Service (CAS) numbers, and maximum concentration, in
percent by mass, of each and every chemical constituent of the hydraulic fracturing fluids used. If a CAS
number does not exist for a chemical constituent, the well owner or operator may provide another unique
identifier, if available. Chemical information claimed as a trade secret, pursuant to subdivision (j), shall be
identified as such and reported as described in subdivision (j).
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(C)The trade name, the supplier, and a brief description of the intended purpose of each additive contained in
the hydraulic fracturing fluid.
(D)The total volume of base fluid used during the hydraulic fracturing treatment, and the identification of
whether the base fluid is water suitable for irrigation or domestic purposes, water not suitable for irrigation or
domestic purposes, or a fluid other than water.
(E) The source, volume, and specific composition and disposition of all water, including, but not limited to, all
I water used as base fluid during the hydraulic fracturing treatment and recovered from the well following the
hydraulic fracturing treatment that is not otherwise reported as produced water pursuant to Section 3227.
(F)The specific composition and disposition of all hydraulic fracturing fluids, including waste fluids, other than
water.
(G) Any radiological components or tracers injected into the well as part of, or in order to evaluate, the
hydraulic fracturing treatment, a description of the recovery method, if any, for those components or tracers,
the recovery rate, and specific disposal information for recovered components or tracers.
(H)The radioactivity of the recovered hydraulic fracturing fluids.
(I)The location of the portion of the well subject to the hydraulic fracturing treatment and the extent of the
fracturing surrounding the well induced by the treatment.
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(3)The rules and regulations shall be revised to incorporate the results of the independent scientific study
conducted pursuant to subdivision (a).
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(c) (1)The rules and regulations adopted pursuant to paragraph (1) of subdivision (b) shall delineate the
existing statutory authority and regulatory responsibility relating to hydraulic fracturing of the Department of
Toxic Substances Control, the State Air Resources Board, any local air districts, the State Water Resources
Control Board, the Department of Resources Recycling and Recovery, any regional water quality control board,
and other public entities. The division shall additionally delineate how the respective authority, responsibility,
and notification and reporting requirements associated with hydraulic fracturing treatments and hydraulic
fracturing treatment-related activities is divided among each public entity.
(2) On or before January 1, 2015, the division shall enter into formal agreements with the Department of Toxic
Substances Control, the State Air Resources Board, any local air districts where hydraulic fracturing treatments
may occur, the State Water Resources Control Board, the Department of Resources Recycling and Recovery,
and any regional water quality control board where hydraulic fracturing treatments may occur, clearly
delineating respective authority, responsibility, and notification and reporting requirements associated with
hydraulic fracturing treatments and hydraulic fracturing treatment-related activities in order to promote
regulatory transparency and accountability.
(3)The agreements under paragraph (2) shall specify the appropriate public entity responsible for air and water
quality monitoring and the safe disposal of materials in landfills, include trade secret handling protocols, if
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necessary, and provide for ready public access to information related to hydraulic fracturing treatments and
related activities.
(4)Any party to an agreement under paragraph (2) shall revise its regulations, if necessary, to reflect the
agreement.
(d) (1) Notwithstanding any other law or regulation, prior to performing a hydraulic fracturing treatment on a
well, the operator shall apply for a permit to perform a hydraulic fracturing treatment with the supervisor or
district deputy. The permit application shall contain the pertinent data the supervisor requires on printed forms
supplied by the division or on other forms acceptable to the supervisor. The information provided in the permit
application shall include, but is not limited to, the following:
(A)The well identification number and location.
(B)The time period during which the hydraulic fracturing treatment is planned to occur.
(C)An estimate of the amount of water to be used in the treatment and its source.
(D) A complete list of the names, Chemical Abstract Service (CAS) numbers, and estimated concentrations, in
percent by mass, of each and every chemical constituent of the hydraulic fracturing fluids planned to be used in
the treatment. If a CAS number does not exist for a chemical constituent, the well owner or operator may
provide another unique identifier, if available. Chemical information claimed as a trade secret, pursuant to
subdivision (j), shall be identified as such and reported as described in subdivision (j).
(E)The planned location of the hydraulic fracturing treatment on the well bore and the estimated length,
height, and direction of the induced fractures.
(2) (A)The supervisor or district deputy shall review the hydraulic fracturing treatment permit application and
may approve the permit if the application is complete.
(B) A hydraulic fracturing treatment or repeat hydraulic fracturing treatment shall not be performed on any well
without a valid permit that the supervisor or district deputy has approved.
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(C) A permit describing a hydraulic fracturing treatment that presents unreasonable risk or is incomplete shall
not be approved.
(3)The hydraulic fracturing treatment shall be completed within one year of the issuance of the permit.
(4) Within five business days of issuing a permit to perform a hydraulic fracturing treatment, the division shall
provide a copy of the permit to the appropriate regional water quality control board or boards and to the local
planning entity where the well, including its subsurface portion, is located. The division shall post the permit on
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the publicly accessible portion of its Internet Web site.
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i (5)At least 30 calendar days prior to commencing a hydraulic fracturing treatment, the operator shall provide a
copy of the approved hydraulic fracturing treatment permit to every surface property owner or authorized agent
of that owner whose property line location is one of the following:
(A) Within a 1,500 foot radius of the wellhead.
(B)Within 500 feet from the horizontal projection of all subsurface portions of the designated well to the
surface.
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(6) (A) A property owner notified pursuant to paragraph (5) may request the regional water quality control
board to perform water quality sampling and testing on any water well suitable for drinking or irrigation
purposes and on any surface water suitable for drinking or irrigation purposes as follows:
(i) Baseline measurements prior to the commencement of the hydraulic fracturing treatment.
(ii) Followup measurements after the hydraulic fracturing treatment on the same schedule as the pressure
testing of the well casing of the hydraulically-fractured well.
(B)The regional water quality control board may contract with an independent third party that adheres to board
-specified standards and protocols to perform the water sampling and testing.
(7)The regional water quality control board shall retain and archive sufficient sample collected pursuant to
paragraph (6) to permit a reasonable number of additional analyses.
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(8)The operator shall provide the division with a list of the entities and property owners notified pursuant to
paragraphs (4) and (5).
(9)The operator shall provide notice to the division at least 72 hours prior to the actual start of the hydraulic
fracturing treatment in order for the division to witness the treatment.
(e) On and after January 1, 2015, the supervisor or district deputy shall not issue a hydraulic fracturing
treatment permit for any well until the independent scientific study in subdivision (a) is completed and peer
reviewed by independent scientific experts.
(f) If a hydraulic fracturing treatment is performed on a well, a supplier that performs any part of hydraulic
fracturing or provides additives directly to the operator for a hydraulic fracturing treatment shall furnish the
operator with information needed for the operator to comply with subdivision (g). If a supplier claims trade
secret protection pursuant to subdivision (j), the supplier shall notify the operator and provide to the operator
substitute information, as described in subdivision (j), suitable for public disclosure. This information shall be
provided as soon as possible but no later than 30 days following the conclusion of the hydraulic fracturing
treatment.
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(g) (1) Within 60 days following cessation of a hydraulic fracturing treatment on a well, the operator shall post
or cause to have posted to an Internet Web site designated or maintained by the division and accessible to the
public, all of the hydraulic fracturing fluid composition and disposition information required to be collected
pursuant to rules and regulations adopted under subdivision (b), including well identification number and
location.
(2)The division's Internet Web site shall be operational by January 1, 2016, and the division may direct
reporting to an alternative Internet Web site developed by the Ground Water Protection Council and the
Interstate Oil and Gas Compact Commission in the interim. The reported information shall be organized on the
division's Internet Web site in a format, such as a spreadsheet, that allows the public to easily search and
aggregate, to the extent practicable, each type of information required to be collected pursuant to subdivision
(b) using search functions on that Internet Web site.
(h)The operator is responsible for compliance with this section.
(i) (1) All geologic features within a distance reflecting an appropriate safety factor of the fracture zone and
having the potential to either limit or facilitate the migration of fluids outside of the fracture zone, shall be
jidentified and added to the well history. Geologic features include, but are not limited to, seismic faults.
(2) For the purposes of this section, the "fracture zone" is defined as the volume surrounding the well bore
where fractures were created or enhanced by the hydraulic fracturing treatment. The safety factor shall be at
least five and may vary depending upon geologic knowledge.
(j) (1)The supplier may claim trade secret protection for the chemical composition of additives pursuant to
Section 1060 of the Evidence Code, or the Uniform Trade Secrets Act (Title 5 (commencing with Section 3426)
of Part 1 of Division 4 of the Civil Code).
(2) If a supplier believes that information regarding a chemical constituent of a hydraulic fracturing fluid is a
trade secret, the supplier shall nevertheless disclose the information to the division in conjunction with a
hydraulic fracturing treatment permit application, if not previously disclosed, within 30 days following cessation
of hydraulic fracturing on a well, and shall notify the division in writing of that belief.
(3)The supplier is not required to disclose trade secret information to the operator.
(4)This subdivision does not permit a supplier to refuse to disclose the information required pursuant to this
section to the division.
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(5)To comply with the public disclosure requirements of this section, the supplier shall indicate where trade
secret information has been withheld and the specific name of a chemical constituent shall be replaced with the
chemical family name or similar descriptor associated with the trade secret chemical information.
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(6) Except as provided in subparagraph (B) of paragraph (8), the division shall protect from disclosure any
trade secret designated as such by the supplier, if that trade secret is not a public record.
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(7)The supplier shall notify the division in writing within 30 days of any changes to information provided to the
division to support a trade secret claim.
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(8) Upon receipt of a request for the release of information to the public, which includes information the
supplier has notified the division is a trade secret and is not a public record, the following procedure applies:
(A)The division shall notify the supplier of the request in writing by certified mail, return receipt requested.
(B)The division shall release the information to the public, but not earlier than 60 days after the date of mailing
the notice of the request for information, unless, prior to the expiration of the 60-day period, the supplier
obtains an action in an appropriate court for a declaratory judgment that the information is subject to
protection or for a preliminary injunction prohibiting disclosure of the information to the public and provides
notice to the division of that action.
(9) (A) Except as provided in subparagraph (B) of paragraph (8), trade secret information is not a public record
and shall not be disclosed to anyone except to an officer or employee of the division, the state, local air
districts, or the United States, in connection with the official duties of that officer or employee, to a health
professional, under any law for the protection of health, or to contractors with the division or the state and its
employees if, in the opinion of the division, disclosure is necessary and required for the satisfactory
j performance of a contract, for performance of work, or to protect health and safety.
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(B) A health professional may share trade secret information with other persons as may be professionally
necessary, including, but not limited to, the patient and other health professionals. Confidentiality of the trade
secret information shall be maintained. The holder of the trade secret may request a confidentiality agreement
consistent with the requirements of this subdivision to whom this information is disclosed as soon as
circumstances permit. If necessary, a procedure for timely disclosure by the division in the event of an
emergency shall be identified.
j
(k)This section does not apply to routine pressure tests to monitor the integrity of wells and well casings.
(1) A well granted confidential status pursuant to Section 3234 shall comply with this section, with the exception
of the disclosure of hydraulic fracturing fluids pursuant to subdivision (g) which shall not be required until the
confidential status of the well ceases.
(m) The division shall perform random periodic spot check investigations to ensure that the information
provided on hydraulic fracturing treatments is accurately reported, including that the estimates provided prior
to the commencement of the hydraulic fracturing treatment are reasonably consistent with the well history.
(n) Where the division shares jurisdiction over a well or the hydraulic fracturing treatment on a well with a
federal entity, the division's rules and regulations shall govern the hydraulic fracturing treatment of the well.
i
I
SEC. 3. Section 3213 of the Public Resources Code is amended to read:
3213.The history shall show the location and amount of sidetracked casings, tools, or other material, the depth
and quantity of cement in cement plugs, the shots of dynamite or other explosives, and the results of
production and other tests during drilling operations. All data on hydraulic fracturing treatments pursuant to
Section 3160 shall be recorded in the history.
it
SEC.4. Section 3215 of the Public Resources Code is amended to read:
3215. (a) Within 60 days after the date of cessation of drilling, rework, hydraulic fracturing treatment, or
abandonment operations, or the date of suspension of operations, the operator shall file with the district
deputy, in a form approved by the supervisor, true copies of the log, core record, and history of work
performed, and, if made, true and reproducible copies of all electrical, physical, or chemical logs, tests, or
surveys. Upon a showing of hardship, the supervisor may extend the time within which to comply with this
section for a period not to exceed 60 additional days.
(b)The supervisor shall include information provided pursuant to subdivision (g) of Section 3160 on existing
publicly accessible maps on the division's Internet Web site, and make the information available such that
hydraulic fracturing treatment and related information are associated with each specific well. If data is reported
on an Internet Web site not maintained by the division pursuant to paragraph (2) of subdivision (g) of Section
3160, the division shall provide electronic links to that Internet Web site. The public shall be able to search and
sort the hydraulic fracturing treatment and related information by at least the following criteria:
(1) Geographic area.
(2) Additive.
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Bill Text - SB-4 Oil and gas: hydraulic fracturing. Page 8 of 9
(3) Chemical constituent.
(4) Chemical Abstract Service number.
(5)Time period.
(6) Operator.
(c) Notwithstanding Section 10231.5 of the Government Code, on or before January 1, 2016, and annually
thereafter, the supervisor shall, in compliance with Section 9795 of the Government Code, prepare and transmit
to the Legislature a comprehensive report on hydraulic fracturing in the exploration and production of oil and
gas resources in California. The report shall include aggregated data of all of the information required to be
reported pursuant to Section 3160 reported by the district, county, and operator. The report also shall include
relevant additional information, as necessary, including, but not limited to, all the following:
(1) Aggregated data detailing the disposition of any produced water from wells that have undergone hydraulic
fracturing treatments.
(2) Aggregated data describing the formations where wells have received hydraulic fracturing treatments
including the range of safety factors used and fracture zone lengths.
i
(3)The number of emergency responses to a spill or release associated with a hydraulic fracturing treatment.
(4)Aggregated data detailing the number of times trade secret information was not provided to the public, by
county and by each company, in the preceding year.
(5) Data detailing the loss of well and well casing integrity in the preceding year for wells that have undergone
hydraulic fracturing treatment. For comparative purposes, data detailing the loss of well and well casing
integrity in the preceding year for all wells shall also be provided. The cause of each well and well casing failure,
if known, shall also be provided.
i
(6)The number of spot check inspections conducted pursuant to subdivision (m) of Section 3160, including the
number of inspections where the composition of hydraulic fracturing fluids were verified and the results of those
i inspections.
(7)The number of hydraulic fracturing treatments witnessed by the division.
(8)The number of enforcement actions associated with hydraulic fracturing treatments, including, but not
limited to, notices of deficiency, notices of violation, civil or criminal enforcement actions, and any penalties
assessed.
(d)The report shall be made publicly available and an electronic version shall be available on the division's
Internet Web site.
i
SEC.5. Section 3236.5 of the Public Resources Code is amended to read:
3236.5. (a)A person who violates this chapter or a regulation implementing this chapter is subject to a civil
penalty not to exceed twenty-five thousand dollars ($25,000) for each violation. A person who commits a
violation of Article 3 (commencing with Section 3150) is subject to a civil penalty of not less than ten thousand
dollars ($10,000) and not to exceed twenty-five thousand dollars ($25,000) per day per violation. An act of God
and an act of vandalism beyond the reasonable control of the operator shall not be considered a violation. The
civil penalty shall be imposed by an order of the supervisor pursuant to Section 3225 upon a determination that
a violation has been committed by the person charged. The imposition of a civil penalty under this section shall
be in addition to any other penalty provided by law for the violation. When establishing the amount of the civil
penalty pursuant to this section, the supervisor shall consider, in addition to other relevant circumstances, all of
the following:
(1)The extent of harm caused by the violation.
(2)The persistence of the violation.
I
i (3)The pervasiveness of the violation.
I
(4)The number of prior violations by the same violator.
i
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Bill Text - SB-4 Oil and gas: hydraulic fracturing. Page 9 of 9
(b) An order of the supervisor imposing a civil penalty shall be reviewable pursuant to Article 6 (commencing
with Section 3350). When the order of the supervisor has become final and the penalty has not been paid, the
supervisor may apply to the appropriate superior court for an order directing payment of the civil penalty. The
supervisor may also seek from the court an order directing that production from the well or use of the
production facility that is the subject of the civil penalty order be discontinued until the violation has been
remedied to the satisfaction of the supervisor and the civil penalty has been paid.
(c) Any amount collected under this section shall be deposited in the Oil, Gas, and Geothermal Administrative
Fund.
SEC.6. Section 3401 of the Public Resources Code is amended to read:
3401. (a) The proceeds of charges levied, assessed, and collected pursuant to this article upon the properties of
every person operating or owning an interest in the production of a well shall be used exclusively for the
support and maintenance of the department charged with the supervision of oil and gas operations.
(b) Notwithstanding subdivision (a), the proceeds of charges levied, assessed, and collected pursuant to this
article upon the properties of every person operating or owning an interest in the production of a well
undergoing a hydraulic fracturing treatment, may be used by public entities, subject to appropriation by the
Legislature, for all costs associated with hydraulic fracturing treatments including scientific studies required to
evaluate the treatment, inspections, and any air and water quality sampling, monitoring, and testing performed
by public entities.
SEC. 7. No reimbursement is required by this act pursuant to Section 6 of Article XIIIB 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
j crime within the meaning of Section 6 of Article XIIIB of the California Constitution.
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httn://leainfo.legislature.ca.l?ov/faces/billNavClient.xhtml
ATTACHMENT 2
FACT SHEET v
x
AUTHOR: SENATOR FRAN PAVLEY � 3
(C0-AUTHORS: SENATORS DE LEON,LENO AND MONNING chi
f a - ASSEMBLYMEMBER STONE)
RIVE REGULATION OF FRACKING
CO > A�v M�,Y�, oi3
THE PROBLEM regulations. In December 2012,DOGGR released a
"discussion draft" of proposed fracking regulations,
Hydraulic fracturing or "fracking" of and is again holding public workshops to receive
underground oil- and gas-bearing formations is public input.
a well stimulation treatment to create or
enhance cracks in the formation in order to While the"discussion draft" contains some positive
improve oil and gas production. Recent elements(e.g. advance public notification,
advances in the practice of fracking have made enhanced well and well-casing integrity testing
the development of previously-uneconomic oil before and after fracking,among others),overall the
and gas reservoirs financially feasible and have proposal is inadequate and fails to address the
contributed to drilling and production booms in public's concern about transparency or provide for
many areas. The extensive use of fracking is of regulatory accountability. In February 2013,
increasing public concern due to the potential Senator Pavley co-chaired a legislative
informational hearing on fracking which revealed
risks to human and environmental health, poor coordination between regulators,significant
public safety, water supply and quality, and gaps in regulation,and a complete lack of available
other factors. The development of California's data related to fracking,including waste disposal.
hydrocarbon reserves may depend upon
fracking, yet it is largely outside the current Studies and reports from other states and by the
regulatory framework. federal government indicate there are numerous
instances where fracking and fracking-related
BACKGROUND activities pose or have the potential to pose hazards
In California,the Department of Conservation's to public,occupational and environmental health
Division of Oil, Gas and Geothermal Resources and safety. New York is maintaining its fracking
(DOGGR)is the oil and gas industry regulator. moratorium until a public health study is completed
Fracking of some form has apparently been in wide- and academic efforts are underway to address
spread use in California for decades—primarily to public health impacts related to fracking in eastern
stimulate oil production. DOGGR has repeatedly states. Oil and gas wells cost millions of dollars to
stated that it has little-to-no information available drill,and can produce millions of dollars of oil and
on the practice,despite its extensive use here. gas. According to estimates by the federal
DOGGR has also acknowledged that its existing government,the regulatory compliance costs for
authority is sufficient to regulate fracking. It has fracking are comparatively nominal,particularly in
not done so to-date,despite three years of comparison to groundwater clean-up costs.
legislative approval of budgets that included
additional funding and personnel available for work THE SOLUTION
on fracking. Finally,in response to legislative SB 4 (Pavley)provides a comprehensive
pressure,in March 2012 DOGGR asked for statutory framework for fracking regulation in
voluntary disclosure of fracking operations in California. SB 4 has been endorsed by the San
California and began a series of public workshops Jose Mercury News and the Bakersfield
across the state to gather input on fracking
Californian. The San Francisco Chronicle, the
Senator Fran Pavley Fact Sheet Page 1
Contact: Katharine Moore at(916)651-4116 or katharine.moore @sen.ca.gov
152
Ventura County Star, and the San Gabriel specifically notify DOGGR 72 hours ahead
Valley Tribune have also editorialized of the scheduled job in order for DOGGR
positively about the issues addressed in the bill. to witness the procedure, if needed. (PRC
SB 4 also incorporates the majority of the §3160d)
recommendations for effective regulation of • Allow the neighbors to have baseline and
fracking in California in a recent UC Berkeley follow-up water quality testing on water
Law study. wells and surface water by the regional
water board. (PRC§3160d)
In its current form, the bill would: Require that no fracking permits will be
issued after January 1, 2015 until the
• Require an independent scientific study on independent scientific study is completed.
fracking addressing occupational, public (PRC§3160e)
and environmental health and safety be Require that DOGGR develop and maintain
conducted by January 1, 2015. The study its own web-site for fracking information
will address induced seismicity associated by January 1, 2016, although Fracfocus.org
with fracking. (Public Resources Code(PRC) could be used in the interim. (PRC§31608)
§3160x) Provide a procedure for trade secret
• Require DOGGR to adopt fracking protections to be challenged and for health
regulations by January 1, 2015 that include professionals and other regulators to obtain
full disclosure of the composition and trade secret information, if needed. (PRC
disposition of hydraulic fracturing fluids §31606,j)
with trade secret protection for chemical Keep intact existing exploratory well
formulas extended to industry. (PRC§3160b) confidentiality protections. (PRC§31601)
• The name and quantity of each chemical • Require DOGGR to perform spot checks to
species will be publicly-available. For ensure fracking data provided are accurate.
valid trade secret claims, the chemical (PRC§3160m)
family name will be substituted for the • Require DOGGR to annually report to the
specific name. (PRC§3160j) Legislature on fracking. Specific data
reporting requirements will facilitate public
• Require that DOGGR enter into formal dissemination and ease public concerns.
agreements with specified regulators to (PRC§3215)
ensure regulatory accountability and public • Increase the civil fine provision to at least
transparency for fracking operations $10,000 and up to$25,000 per day per
including disposal by January 1, 2015. (PRC violation. (PRC§3236.5)
§3160c) 0 Amend the existing oil and gas production
• Integrate public reporting and disclosure of fee that supports DOGGR to specifically
fracking into existing regulatory processes.
(PRC§3160c,§32/3,§3215) include fracking-related activities. (PRC
§3401)
• Require that well operators obtain a permit • Incorporate additional clarifying and
for fracking. The permit application would technical provisions to promote regulatory
include estimates of the amount of water accountability and public transparency.
and the composition of the fracking fluids
planned to be used. (PRC§31604)
LEGISLATIVE HISTORY
• Require the well operator to provide at least
30 days advance notice to the public, • Passed Senate Natural Resources and Water
DOGGR and the regional water quality Committee (6—2)
control board of the intent to frack a well. • Passed Senate Environmental Quality
The well owner would also have to Committee (6—2)
Senator Fran Pavley Fact Sheet Page 2
Contact: Katharine Moore at(916)651-4116 or katharine.moore @ sen.ca.gov
153
SUPPORT
California Coastal Protection Network
Councilmember Brian Brennan, City of
Ventura
Councilmember Carmen Ramirez, City of
Oxnard
Environmental Working Group
Natural Resources Defense Council
Environmental Defense Center
Mayor Lou LaMonte, City of Malibu
Ventura County Board of Supervisors
Santa Cruz County Board of Supervisors
San Fernando Valley Young Democrats
The League of Women Voters
Los Angeles County Board of Supervisors
Los Angeles Community College District
California Association of Professional
Scientists
Paw PAC
South Coast Air Quality Management District
(w/amendments)
Sierra Club California (if amended)
Clean Water Action(if amended)
Earthworks (if amended)
OPPOSITION
California Chamber of Commerce
California Independent Petroleum Association
American Chemistry Council
California Manufacturers and Technology
Association
California Business Properties Association
Citizens Coalition for a Safe Community
Western States Petroleum Association
Physicians for Social Responsibility—Los
Angeles (unless amended)
Senator Fran Pavley Fact Sheet Page 3
Contact: Katharine Moore at(916)651-4116 or katharine.moore @sen.ca.gov
154
MEMBERS OF THE BOARD
JOHN C.ZARAGOZA, Chair
.� ATTACHMENT 3 STEVEBENNET PARKS
KATHY I. LONG
PETER C. FOY
STEVE SENNETT
q� f SUPERVISOR, FIRST DISTRICT
(805)654-2703
f FAX: (805)654-2226
BOARD OF SUPERVISORS E-mail:steve.bennett @ventura.org
COUNTY OF VENTURA
GOVERNMENT CENTER,HALL OF ADMINISTRATION
800 SOUTH VICTORIA AVENUE,VENTURA,CALIFORNIA 93009
December 11, 2012
Board of Supervisors
800 S. Victoria Avenue
Ventura, CA 93009
SUBJECT: Hydraulic Fracturing of Oil and Gas Wells - Request for Report Back from
CEO and County Counsel and Letter from Chair to State Legislative Delegation.
RECOMMENDATION:
1) Direct the CEO and County Counsel to report back by March 13, 2013 regarding
hydraulic fracturing of oil and gas wells, as further described herein.
2) Support sending the attached letter to our state legislative delegation requesting urgent
legislation regarding hydraulic fracturing.
DISCUSSION:
One of Ventura County's most precious resources is our supply of fresh water in our local
aquifers.
Recent media and industry reports have identified the potential for a substantial increase in the
oil and gas industry's use of hydraulic fracturing, or"fracking" of both new and old wells,
particularly in California's huge Monterey Shale formation. This formation is present in Ventura
County, as are other petroleum deposits that may be subject to fracking. The industry website
"frackfoucus.org" identifies several wells in Ventura County that have recently been fracked.
However, no public agency knows the extent of fracking in Ventura County.
Nationwide, numerous environmental and health concerns have been raised regarding
fracking. These include:
1. Lack of disclosure of fracking locations, fracking chemicals, potable water usage, and
wastewater disposal methods.
2. Possible consumption of large amounts of potable water. A recent Wall Street Journal
article states that fracking uses between two and four million gallons of water per well, with
up to 25% of that amount leaving the well as wastewater.
3. Potential generation of large volumes of contaminated waste water, and the possibility that
disposal of this waste water could pollute land and water supplies, or induce earthquakes
155
Board of Supervisors
December 11, 2012
Page 2
(in response to a USGS report linking fracking wastewater injection wells and earthquakes,
the State of Ohio enacted regulations of this practice).
4. Possible risks to drinking water and agricultural aquifers from fracking operations and the
chemicals used in fracking.
5. An increase in well drilling that may not be adequately regulated to protect public health and
safety or nearby residents or agriculture.
In a public workshop held in our Board room earlier this by the State Division of Oil, Gas, and
Geothermal Resources (DOGGR), DOGGR staff said that the state has no regulations
specific to fracking, and that DOGGR intends to promulgate fracking regulations to address
concerns that DOGGR has identified. To date, DOGGR has not released any proposed
regulations, but has encouraged voluntary reporting of fracking operations. Several fracking-
related bills were introduced in the State legislature in 2012, but none were enacted.
Ventura County is highly dependent on local groundwater for potable and agricultural uses. In
some areas, petroleum deposits underlie or adjoin aquifers, aquifer recharge areas, and
surface waters. Additionally, water is a precious commodity that is generally oversubscribed in
most areas of the county.
Protection of Ventura County's water resources is a very high priority for County government
and local water agencies. As both the water supply for homes and businesses and the
necessary ingredient for our $1-billion+ agriculture industry, groundwater resources must be
stringently protected. Once an aquifer is contaminated, it may not always be feasible to
remove the contamination. Use of scarce local water is a concern, and overdraft of aquifers
also poses the problems of land subsidence, seawater intrusion, and degradation of water
quality.
At present, we simply do not know enough about fracking to tell our constituents whether there
is a significant risk from this process or not. We do not know where fracking is occurring,
where the fresh water comes from, or where the toxic wastewater goes.
Historically, environmental protection measures are put into place after the harm is discovered.
With our drinking and agricultural water supplies potential exposed to risk, we cannot afford to
wait until damage to these critical resources is detected. Accordingly, we request that the CEO
report back to the Board on the fracking issue, to include among other issues:
• Available information on the amount and source of fresh water used or expected to be used
in local fracking operations
• Available information on the method and location of disposal of local fracking waste water
• The extent of the County's authority over fracking and waste water disposal, and the ability to
regulate new wells
• The areas of the county where know petroleum deposits lie under usable aquifers
• The areas of the county with Monterey Shale formations
• The status of state regulations
• Means of obtaining disclosure of fracking locations and fracking chemicals
• The prospects for additional fracking in Ventura County
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Board of Supervisors
December 11, 2012
Page 3
In conclusion, Ventura County's great reliance on local water supplies makes it imperative that
we stay abreast of any potential risks to those supplies. Ventura County has historically
balanced oil and gas production and the jobs it brings with the protection of our natural and
agricultural resources. It is important that this balancing continue to occur, and to do so, we
must have adequate information on which we and the public can make decisions. The
recommended report back will enable us to be properly informed about fracking in Ventura
County and any risks it may pose.
The attached letter that is recommended for transmittal to our State legislative delegation
encourages the adoption of urgency legislation to require the disclosure of fracking locations
and chemicals, identification of the source of and amount of fresh water used, and the adoption
of regulations to assure protection of water supplies, people, and resources from fracking
operations and wastewater disposal.
Cordially,
441e -
Steve Bennett hn C. Z oza
Supervisor, First District Supervisor, Fifth District
Attachment
157
MEMBERS OF THE BOARD
JOHN C.ZARAGOZA,Chair
STEVE BENNETT
LINDA PARKS
KATHY I. LONG
PETER C. FOY
December 11, 2012
DRAFT
(individually addressed to State legislators)
RE: Request for Urgency Legislation Regarding Hydraulic Fracturing of Oil & Gas Wells
Honorable :
Ventura County is highly dependent on local groundwater resources for potable water, and
groundwater is the lifeblood of our $1-billion-plus agricultural industry. Protection of local
groundwater aquifers is essential for continuation of economic activity and domestic water supply in
this county. Ventura County is a statewide leader in managing and protecting groundwater through
groundwater management agencies and the active efforts of multiple water districts and city and
county agencies. Many millions of dollars have been invested in this collective effort.
Ventura County cannot afford to take chances with risks to our groundwater supplies. We are
therefore concerned that the practice of hydraulic fracturing, or "fracking," of oil and gas wells is
currently unregulated, and possibly undisclosed. Additionally, large amounts of potable water are
potentially consumed, and the potential generation of large volumes of toxic wastewater raises
questions about disposal methods and impacts.
We encourage the enactment of urgency legislation to require the advance public disclosure of
fracking locations and fracking chemicals, the adoption of State regulations to assure the protection of
groundwater when fracking occurs, require reporting of the source and amount of water used, and
requirements to assure that wastewater disposal does not pose a significant risk to water supplies,
people, or natural resources.
Cordially,
John C. Zaragoza
Chair, Board of Supervisors
158
ATTACHMENT 4
of ventura COUNTY EXECUTIVE OFFICE
county MICHAEL POWERS
County Executive Officer
J.Matthew Carroll
Assistant County Executive Officer
Paul Derse
Assistant County Executive Officer/
Chief Financial Officer
Catherine Rodriguez
April 9, 2013 Assistant County Executive Officer/
Labor Relations&strategic Development
Kelly Shirk
Director Human Resources
Board of Supervisors
County of Ventura
800 South Victoria Avenue
Ventura, CA 93009
SUBJECT: Receive and File a Presentation by County Staff and the Division of
Oil, Gas, and Geothermal Resources Regarding Hydraulic
Fracturing of Oil and Gas Wells in Ventura County; and Direct CEO
Staff to Monitor Both the Legislative and Regulatory Process as it
Relates to Hydraulic Fracturing
RECOMMENDATIONS:
1. Receive and file a presentation by County staff and the State Division of Oil, Gas, and
Geothermal Resources regarding hydraulic fracturing of oil and gas wells in Ventura
County.
2. Direct CEO staff to monitor both the legislative and regulatory process as it relates to
hydraulic fracturing.
FISCAL/MANDATES IMPACT:
Mandatory: No
Source of Funding: N/A
Funding Match: None
Impact on other Departments: None
DISCUSSION:
At the December 11, 2012 meeting, your Board directed the County Executive Officer and
County Counsel to report back regarding the hydraulic fracturing of oil and gas wells. Your
Board identified a number of environmental and public health concerns related to hydraulic
Hall of Administration L#1940
800 South Victoria Avenue,Ventura,CA 93009•(805)654-2681 •FAX(805)658-4500
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Board of Supervisors
April 9, 2013
Page 2 of 5
fracturing and directed that they be addressed in this report. The issues were primarily of a
technical and a legal nature. County staff contacted the State Division of Oil, Gas, and
Geothermal Resources (DOGGR) regarding the technical issues, and we were very fortunate
to have them agree to participate in this presentation. Mr. Tim Kustic, State Oil & Gas
Supervisor for DOGGR, will be making a formal presentation to your Board and be available
to answer questions. In addition to DOGGR, County staff will be available to address
technical issues as well as provide a legislative update. County Counsel will be available to
address legal issues such as preemption.
While the presentation will offer more detailed information in response to the Board's
December 11, 2012 direction, the following provides a summary of the issues raised by your
Board:
1. What means are available to obtain disclosure of hydraulic fracturing locations and
chemicals?
Currently, within California there is no regulatory requirement that hydraulic fracturing
locations and/or chemicals be disclosed. However, there is a website in place,
FracFocus (fracfocus.org), where such information can be found. FracFocus is a
national hydraulic fracturing chemical registry managed by the Groundwater Protection
Council and the Interstate Oil and Gas Compact Association. Oil and gas companies
in California are encouraged to voluntarily post information related to their operations
on the website. In California, oil and gas companies with 80 percent of the wells in the
state are participating and registering their hydraulic fracturing activities; 811 wells
have been identified in California, while approximately 41,000 have been reported
throughout the U.S. In Ventura County, the website contains information related to the
location and chemicals used at 13 oil wells where a total of 16 hydraulic fracturing
operations have taken place. Exhibit 1 is a map showing the location of those wells.
Exhibit 2 provides a sample of the information provided for each of the 15 hydraulic
fracturing operations registered in Ventura County.
There are several bills pending before the California legislature (discussed in Exhibit 5
attached), some of which contain proposals for disclosure of hydraulic fracturing
locations and chemicals.
2. What amount of water is currently used or expected to be used in local hydraulic
fracturing operations, and what is its source?
According to the information provided through FracFocus for the 13 wells in Ventura
County where hydraulic fracturing is taking place, the average amount of water used in
the hydraulic fracturing process is less than 300,000 gallons per well. While this is a
measurable and significant amount of water, it is well below the approximately 5.5
million gallon estimate reported for hydraulic fracturing used in wells in Pennsylvania
and other eastern and mid-western states.
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Board of Supervisors
April 9, 2013
Page 3 of 5
According to the information provided by Western States Petroleum Association
(WSPA) and reviewed by DOGGR, historically, the water used in Ventura County
oilfield operations with hydraulic fracturing has come from the following sources: 1)
water produced in the oil field; 2) brackish non-potable water from a source well in the
oil field; 3) water sourced from freshwater wells controlled by the production field; 4) if
technically feasible, reuse of produced water from hydraulic fracturing fluids and/or; 5)
water purchased from the local water district.
3. How and where is local hydraulic fracturing waste water disposed of?
According to the information provided by WSPA and reviewed by DOGGR, in the
Ventura county oilfield operations, the produced water (including any fracturing fluids)
is separated from the oil, cleaned and filtered, and is re-injected into the same
reservoir it came from as part of the enhanced oil recovery process. In other cases,
waste water is injected into water disposal wells or waterilood injection wells permitted
by the California Department of Conservation, DOGGR.
4. To what extent does the County have authority over hydraulic fracturing, the disposal
of waste water, and the use of the practice on new wells?
According to County Counsel, under its police power and related zoning power, the
County generally may regulate land uses and waste water disposal within its
jurisdiction. The police power is derived from Article XI, Section 7, of the California
Constitution, which provides:
"A county or city may make and enforce within its limits all local police, sanitary,
and other ordinances not in conflict with general law."
The County's power to control its land use and zoning decisions comes from this
inherent police power, and the State zoning laws provide only a minimum of limitations
in order that Counties may exercise the maximum degree of control over zoning
matters (Government Code Section 65800).
However, these powers do have limits. The limitations include territorial limits, Federal
and State preemption, and other Federal and State constitutional principles, and the
California Coastal Act in the Coastal Zone. One area of significant State law
preemption is the regulation of the subsurface/downhole component of all phases of oil
and gas production including the subsurface aspects of waste water disposal, which is
regulated by DOGGR and other State agencies, leaving the County to regulate only
the surface components of these activities. Thus, due to Federal and State
preemption, the County does not have the power to directly regulate subsurface
aspects of hydraulic fracturing, waste water disposal, and the fracturing of new wells.
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April 9, 2013
Page 4 of 5
5. Where is the Monterey Shale formation located in Ventura County, and is it located
under usable aquifers?
The Monterey Shale Formation is located beneath substantial portions of Ventura
County; Exhibit 3 illustrates the locations of the Monterey Formation outcrops (where
the formation is at the surface) in Ventura County. There are a number of drinking
water aquifers located within the county, and as shown in Exhibit 3, the Monterey
Shale Formation outcrops are above them in some small areas. Most of the Monterey
Formation within the county is not expressed in outcroppings but rather is deeply
underground, much of it as deep as 20,000 feet below the surface; these areas are not
mapped or shown in Exhibit 3.
6. What are the prospects for additional hydraulic fracturing in Ventura County?
According to the information provided by WSPA and reviewed by DOGGR, operators
have been using hydraulic fracturing on a limited basis in Ventura County oilfield
operations over the past several years. Also per WSPA and reviewed by DOGGR, it is
anticipated that not more than 15 wells will be hydraulically fractured during 2013.
7. What is the status of current State regulatory efforts?
Per the DOGGR website:
"The Department of Conservation/Division of Oil, Gas, and Geothermal
Resources on December 18, 2012 released a 'discussion draft' of regulations
for the oil and natural gas production technique known as hydraulic fracturing.
Discussion draft means that this version does not kick off the formal rulemaking
process. Instead, it is a starting point for discussion by key stakeholders —
industry, the environmental community, and other regulators, as well as
interested members of the public — in preparation for the more formal process.
These 'discussion draft' regulations include provisions for pre-fracturing well
testing; advance notification; monitoring during and after fracturing operations;
disclosure of materials used in fracturing fluid; trade secrets; and storage and
handling of hydraulic fracturing fluids."
The "Discussion Draft" is attached as Exhibit 4.
Currently, there are nine bills before the California State legislature that deal with
hydraulic fracturing. Please see Exhibit 5 for a complete list, a brief summary, and the
status of each bill.
Both the regulatory and legislative process will be monitored by the CEO's office.
8. What information is available regarding the link between hydraulic fracturing and
seismic activity/earthquakes?
162
Board of Supervisors
April 9, 2013
Page 5 of 5
The research into this question is in its infancy in large part due to the fact that there
have been no reports of induced seismicity from hydraulic fracturing in California.
Nonetheless, the Induced Seismicity Consortium at the University of Southern
California has and continues to research the matter. The Consortium has preliminarily
concluded: 1) the energy level released from a drilling event is large enough to be
recorded but is too low to directly create a major seismic event; and 2) that the
migration distance of the fluid in the hydraulic fracturing process is too small to
generate a large damaging seismic event.
As noted above, the presentation by DOGGR staff will provide a detailed description of the
hydraulic fracturing process and further address many of the issues described above.
It is recommended that your Board receive and file the presentation by County staff and the
State Division of Oil, Gas, and Geothermal Resources regarding hydraulic fracturing of oil
and gas wells in Ventura County and direct CEO staff to monitor both the legislative and
regulatory process as it relates to hydraulic fracturing.
This item has been reviewed by the County Executive Office, County Counsel, Resource
Management Agency, and Air Pollution Control District. Should you have any questions
regarding this item, please contact Sue Hughes, CEO Deputy Executive Officer, at (805) 654-
3836.
Sue Hughes
Deputy Executive Offic
Michael Powers
County Executive Officer
Attachments:
Exhibit 1: Map showing locations of known hydraulically fractured wells in Ventura County
Exhibit 2: Sample information from FracFocus website
Exhibit 3: Map showing Monterey Shale Formation and Aquifers within Ventura County
Exhibit 4: Pre-Rulemaking Discussion Draft
Exhibit 5: Summary of State legislation regarding hydraulic fracturing
163
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Exhibit 4
PRE-RULEMAKING DISCUSSION DRAFT
CHAPTER 4. DEVELOPMENT, REGULATION, AND CONSERVATION
OF OIL AND GAS RESOURCES
Subchapter 2. Environmental Protection
THE FOLLOWING ARTICLE IS ADDED:
Article 4. Hydraulic Fracturing
1780. Definitions.
The following definition shall govern this article:
(a) "Chemical Disclosure Registry" means the chemical registry Internet Web site
known as fracfocus.org developed by the Ground Water Protection Council and the
Interstate Oil and Gas Compact Commission. If that Internet Web site becomes
permanently inoperable, then "Chemical Disclosure Registry" shall mean another
publicly accessible information Internet Web site that is designated by the Division.
(b) "Health professional" means a physician, physician assistant, nurse practitioner,
registered nurse, or emergency medical technician licensed by the State of California.
(c) "Hydraulic fracture" means a technique used in stimulating a formation or zone
that involves the pressurized injection of hydraulic fracturing fluid and proppant into an
underground geologic formation in order to fracture the formation, thereby causing or
enhancing, for the purposes of this division, the production of oil or gas from a well.
(d) "Protected water" means water that either:
(1) Contains no more than 3,000 mg/I total dissolved solids; or
(2) Contains no more than 10,000 mg/I total dissolved solids and is suitable for
irrigation or domestic purpose.
NOTE: Authority cited: Section 3013, Public Resources Code. Reference: Section
3106, Public Resources Code.
1781. Well stimulation not an injection project.
Well stimulation operations, including hydraulic fracturing, are not underground
injection or disposal projects and are not subject to Sections 1724.6 through 1724.10.
NOTE: Authority cited: Section 3013, Public Resources Code. Reference: Section
3106, Public Resources Code.
1782. General Hydraulic Fracturing Requirements.
(a)When hydraulic fracturing operations are conducted the operator shall ensure that
all of the following occurs:
(1) Casing be sufficiently cemented or otherwise anchored in the hole in order to
effectively control the well at all times;
(2)All protected water zones be isolated and sealed off to effectively prevent
contamination or harm to any water therein;
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PRE-RULEMAKING DISCUSSION DRAFT
(3) All potentially productive zones, zones capable of over-pressurizing the surface
casing annulus, or corrosive zones be isolated and sealed off to the extent that such
isolation is necessary to prevent vertical migration of fluids or gases behind the casing;
(4) All hydraulic fracturing fluids are directed into the zone(s) of interest;
(5) The wellbore's mechanical integrity be tested and maintained;
(6) The hydraulic fracturing fluids and proppants used are of known quantity and
description for reporting and disclosure as required pursuant to this Article;
(b) In addition to specific methods set forth in these regulations, to achieve the
objectives of this section, the operator shall follow the intent of all applicable well
construction requirements, use good engineering practices, and employ best industry
standards.
NOTE: Authority cited: Section 3013, Public Resources Code. Reference: Section
3106, Public Resources Code.
1783. Required Data Prior to Hydraulic Fracturing.
(a) The following data shall be submitted to the Division, and the appropriate regional
water quality control board or boards with jurisdiction over the location of the well on a
Form DOGGR HF1 at least 10 days prior to commencing hydraulic fracturing
operations:
(1) Operator's name;
(2) Name of person filing the form;
(3)Telephone number of person filing notice;
(4) Name of person to contact with technical questions regarding operations;
(5) Telephone number and email address of person to contact with technical
questions regarding operations;
(6) Name of the well;
(7) API number assigned to the well by the Division;
(8) Name of the oil field;
(9) County the well is located in;
(10) For directionally drilled wells, the proposed coordinates (from surface location)
and the true vertical depth at total depth;
(11) Estimated true vertical depth;
(12) The name of the productive horizon to be hydraulically fractured;
(13) Anticipated volume and pressures of fluid to be injected;
(14) Anticipated distance of the fracture;
(15) The cement evaluation required under Section 1784(a)(3);
(16)The fracture radius analysis required under Section 1784(a)(4); and
(17) The hydraulic fracture treatment design required under Section 1784(a)(5).
(b)When hydraulic fracturing operations are performed in conjunction with the drilling,
deepening, or redrilling of a well, the completed Form DOGGR HF1 shall be submitted
together with the notice of intent to commence drilling.
(c) The operator shall notify the Division at least 24 hours prior to commencing
hydraulic fracturing operations. In no event shall hydraulic fracturing operations
commence prior to the expiration of the 10 day period specified in subdivision (a) of this
regulation.
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172
PRE-RULEMAKING DISCUSSION DRAFT
(d)Within 7 days of receipt of a Form DOGGR HF1, the Division will post on its public
website information about the well subject to hydraulic fracturing operations.
(e) Records submitted to the Division pursuant to this section will be presumed to be
public records for the purposes of the California Public Records Act (Chapter 3.5
(commencing with Section 6250) of Division 7 of Title 1 of the Government Code),
unless the Public Resources Code section 3234 is applicable.
NOTE: Authority cited: Section 3013, Public Resources Code. Reference: Section
3106, Public Resources Code.
1784. Evaluation Prior to Hydraulic Fracture.
(a) The operator shall do all of the following prior to commencing hydraulic fracturing
operations:
(1) All cemented casing strings and all tubing strings to be utilized in the hydraulic
fracturing operations shall be pressure tested for at least 30 minutes at a pressure not
less than 500 psi greater than the maximum surface pressure anticipated during the
hydraulic fracture operations. If during testing there is a pressure drop of 10% or more
from the original test pressure, then the tested casing or tubing shall not be used until
the cause of the pressure drop is identified and corrected. No casing or tubing shall be
used unless it has been successfully tested pursuant to this section.
(2) All surface equipment to be utilized by operator for hydraulic fracturing treatment
shall be rigged up as designed. The pump, and all equipment downstream from the
pump, shall be pressure tested to at least 110% of the maximum allowable surface
treating pressure.
(3)Allowing at least 48 hours to elapse after cement placement, the operator shall
run a radial cement evaluation log or other cement evaluation method that is approved
by the Divisio n and capable of demonstrating adequate cementing. If the quality of the
cement outside of the production casing is not sufficient to isolate strata containing
protected water, then the operator must develop a remediation plan and obtain
approval from the Division for the remediation plan prior to proceeding. The operator is
only required to evaluate the cement that is required to be in place under Section
1722.4.
(4)The operator shall conduct a fracture radius analysis to verify that no fracturing
fluids or hydrocarbons will migrate into a strata or zone that contains protected water.
(i)The operator shall utilize modelling approved by the Division that will effectively
simulate the projected fracture height growth within the design limits of the projected
hydraulic fracturing operations.
(ii) The fracture radius analysis shall include a review of all wells and faults (active
or inactive)within a radius of twice the anticipated fracture length from each point of
fracture to verify that no wells or faults will permit the migration of the fracturing fluids or
hydrocarbons into a strata that contains protected water.
(iii) If a radius of twice the anticipated fracture length from a point of fracture extends
beyond the productive horizon being evaluated for possible hydraulic fracture, then the
fracture radius analysis shall include a review of the geological formations between the
productive horizon and the base of the deepest stratum or zone that contains protected
water. The operator shall assess the mechanical rock properties, including
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PRE-RULEMAKING DISCUSSION DRAFT
permeability, relative hardness (using Young's Modulus), relative elasticity (using
Poisson's Ratio), and other relevant characteristics of the geological formations to
determine whether the geological formations will ensure proper containment of the
hydraulically induced fracture and act as an effective barrier to the vertical migration of
fluids into one or more strata or zones that contain protected water.
(5) Utilizing the fracture radius analysis conducted pursuant to subsection (a)(4), the
operator shall design the hydraulic fracturing treatment so as to ensure that the
fracturing fluids or hydrocarbons do not migrate and come in contact with a strata or
zone that contains protected water.
NOTE: Authority cited: Section 3013, Public Resources Code. Reference: Section
3106, Public Resources Code.
1785. Monitoring During Hydraulic Fracturing Operations.
(a) The operator shall continuously monitor all of the following parameters during
hydraulic fracturing operations:
(1) Surface injection pressure;
(2) Slurry rate;
(3) Proppant concentration;
(4) Fluid rate; and
(5) All annuli pressures.
(b)The operator shall terminate hydraulic fracturing operations and immediately report
it to the Division if any of the following occur:
(1) A production-surface casing annulus pressure change of 20% or greater than the
calculated pressure increase due to pressure and/or temperature expansion;
(2) Pressure exceeding 80% of the API rated minimum internal yield on any casing
string in communication with the hydraulic fracturing treatment;
(3) A post hydraulic fracturing fluid volume returns to surface that is in excess of a
volume that could reasonably be expected due to pressure or temperature expansion;
(4)The operator has reason to suspect any potential breach in the production
casing, production casing cement, or isolation of any sources of protected water.
(c) If any of the events listed in subdivision (b) occur, then the operator shall perform
diagnostic testing on the well to determine whether a breach has occurred. Such
testing shall be done as soon as is reasonably practical. If the testing reveals that a
breach has occurred then the operator shall immediately shut-in the well, isolate the
perforated interval, and notify the Division.
(d) If the surface casing annulus is not open to atmospheric pressure, then the surface
casing pressures shall be monitored with a gauge and pressure relief device. The
maximum set pressure on the relief device shall be the lowest of the following and
hydraulic fracturing operations shall be terminated if pressures in excess of the
maximum set pressure are observed in the surface casing annulus:
(1) A pressure equal to: 0.70 times 0.433 times the true vertical depth of the surface
casing shoe (expressed in feet);
(2) 70% of the API rated minimum internal yield for the surface casing; or
(3) A pressure change that is 20% or greater than the calculated pressure increase
due to pressure and/or temperature expansion.
Page 4 of 9
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PRE-RULEMAKING DISCUSSION DRAFT
NOTE: Authority cited: Section 3013, Public Resources Code. Reference: Section
3106, Public Resources Code.
1786. Storage and Handling of Hydraulic Fracturing Fluids.
(a) Operators shall adhere to the following requirements for the storage and handling
of fluids associated with hydraulic fracturing being stored at the wellsite, including
hydraulic fracturing chemicals in concentrated and mixed form and hydraulic fracture
fluid flowback, but not including freshwater:
(1) Non-freshwater fluids associated with hydraulic fracturing operations shall be
stored in compliance with the secondary containment requirements of Section 1773.1.
(2) Operators shall be in compliance with all applicable testing, inspection, and
maintenance requirements for production facilities containing hydraulic fracturing fluids.
(3) Non-freshwater fluids associated with hydraulic fracturing operations shall be
accounted for in the operator's Spill Contingency Plan;
(4) Non-freshwater fluids associated with hydraulic fracturing operations shall not be
stored in unlined sumps or pits;
(5) In the event of an unauthorized release, the operator shall perform clean up and
remediation of the area in compliance will all applicable federal, state, and local laws
and regulations.
(6)Within 5 days of the occurrence of an unauthorized release, the operator shall
provide the Division a written report that includes:
(A) A description of the activities leading up to the release;
(B) The type and volumes of fluid released;
(C) The cause(s) of release;
(D) Action taken to stop, control, and respond to the release; and
(E) Steps taken by the operator to prevent future releases.
NOTE: Authority cited: Section 3013, Public Resources Code. Reference: Section
3106, Public Resources Code.
1787. Well Monitoring After Hydraulic Fracturing.
(a) Operators shall monitor each producing well that has had hydraulic fracturing
operations to identify any potential problems with a well that could endanger any
underground source of protected water. If there is any indication of a well failure, the
operator shall immediately notify the Division and perform diagnostic testing on the well
to determine whether a well failure has actually occurred. If the testing indicates that a
well failure has occurred, then the operator shall immediately take all appropriate
measures to prevent contamination of all underground sources of protected water and
all surface waters in the area of the well.
(b) Operators shall adhere to the following requirements for a well that has had
hydraulic fracturing operations:
(1) The well shall be monitored on a daily basis for the first thirty days after hydraulic
fracturing operations and on monthly basis thereafter for the following:
(A) The amount of gas, oil and water produced, including readily identifiable
hydraulic fracture fluid flowback volume;
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PRE-RULEMAKING DISCUSSION DRAFT
(B) The annular pressure of the well;
(C) The tubing pressure of the well; and
(D)The casing pressure of the well.
(2) Monitoring data shall be maintained for a period of at least 5 years after hydraulic
fracturing operation and shall be made available to the Division upon request.
(3) The annular pressures of the well shall be reported to the Division annually. It
shall be immediately reported to the Division if annular pressure exceeds 70 per cent of
the API rated minimum internal yield or collapse strength of casing, or if surface casing
pressures exceed a pressure equal to: 0.70 times 0.433 times the true vertical depth of
the surface casing shoe (expressed in feet).
(4)The annular valve shall be kept accessible from the surface or left open and
plumbed to the surface with working pressure gauge.
(5) A properly functioning pressure relief device shall be installed on the annulus
between the surface casing and the production casing, or, if intermediate casing is set,
on the annuli between the surface casing and the intermediate casing and the
production casing. This requirement may be waived by the Division, if the operator
demonstrates to the Division's satisfaction that the installation of a pressure relief device
is unnecessary based on technical analysis and/or operating experience in the area.
(6) If a pressure relief device is installed, then all pressure releases from the device
shall be reported to the Division within 24 hours of detection. The maximum set
pressure of a surface casing pressure relief device shall be the lowest of the following:
(A) A pressure equal to: 0.70 times 0.433 times the true vertical depth of the surface
casing shoe (expressed in feet);
(B) 70% of the API rated minimum internal yield for the surface casing; or
(C) A pressure change that is 20% or greater than the calculated pressure increase
due to pressure and/or temperature expansion
NOTE: Authority cited: Section 3013, Public Resources Code. Reference: Section
3106, Public Resources Code.
1788. Required Public Disclosures.
(a) Except as provided in subdivision (c), within 60 days after the cessation of hydraulic
fracturing operations, the operator shall post to the Chemical Disclosure Registry all the
following information that is not claimed as a trade secret pursuant to Section 1788.1:
(1) The well operator's name.
(2) The hydraulic fracturing date.
(3) The county in which the well is located.
(4)The well API number.
(5)The well name and number.
(6) The location of the well, submitted as a non-projected, Latitude Longitude, in
the General Coordinate System (GCS) NAD83.
(7)The true vertical depth of the well.
(8)The name of the productive horizon to be hydraulically fractured;
(9) A complete list of the names, CAS numbers, and maximum concentration, in
percent by mass, of each chemical added to the hydraulic fracturing fluid. Where the
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176
PRE-RULEMAKING DISCUSSION DRAFT
CAS number does not exist for a chemical, the operator may provide another unique
identifier where available.
(10) The trade name, supplier, and a brief description of the intended purpose of
each additive contained in the hydraulic fracturing fluid.
(11) The total volume of carrier fluid used during hydraulic fracturing.
(12) The disposition of the carrier fluid used to conduct hydraulic fracturing.
(13) Any radiological components or tracers injected into the well as part of the
hydraulic fracturing process, a description of the recovery method, if any, for those
components or tracers, the recovery rate and the disposal method for recovered
components or tracers.
(14) The estimated volume of hydraulic fracture fluid flowback that has been
recovered.
(b) If the Chemical Disclosure Registry is unable to accept and make publicly available
any of the information specified in this section, then the operator shall submit the
information to the Division.
(c) Operators are not required to post information to the Chemical Disclosure Registry
if the information is found in a well record that the Division has determined is not public
record, pursuant to Public Resources Code section 3234. If information listed in
subsection (a) is not posted to the Chemical Disclosure Registry on this basis, then the
operator shall inform the Division in writing, specifying the information that is not being
publically disclosed. It is the operator's responsibility to post the information to the
Chemical Disclosure Registry once the information becomes public record under Public
Resources Code section 3234.
NOTE: Authority cited: Section 3013, Public Resources Code. Reference: Sections
3106, and 3234, Public Resources Code.
1788.1. Claims of Trade Secret Protection.
(a) Operators are not required to post trade secrets to the Chemical Disclosure
Registry. An operator who, on the basis of a claim of trade secret protection, withholds
information that is otherwise required to be posted to the Chemical Disclosure Registry
shall submit the following to the Division within 60 days after the cessation of hydraulic
fracturing operations:
(1) Identification of the information withheld as protected trade secret in a manner
that does not itself disclose information subject to a claim of trade secret protection. If
the withheld information includes the identity of a chemical, the identification shall
include the chemical family or similar descriptor for the chemical.
(2)The name, mailing address, phone number of the contact person for the person or
entity who holds the withheld information and is asserting the claim of trade secret
protection.
(3)A declaration under penalty of perjury by the holder of the withheld information
that affirms or otherwise addresses, and provides specific information regarding, the
following:
(A) The information identified in paragraph (1) was withheld as protected trade
secret information, as defined in Civil Code section 3426.1, subdivision (d), or Penal
Code section 499c;
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PRE-RULEMAKING DISCUSSION DRAFT
(B) The holder of the withheld information has not disclosed it to another person,
other than a member of a local emergency planning committee, an officer or employee
of the United States or a state or local government, an employee of those entities, or a
person who is bound by a confidentiality agreement, and that person has taken
reasonable measures to protect the confidentiality of the information and intends to
continue to take measures, or disclosure has otherwise been limited so that the
information is not readily available to competitors;
(C)The information is not required to be disclosed, or otherwise made available, to
the public under any other federal or state law;
(D) Disclosure of the information would harm the competitive position of the
disclosing person or entity; and
(E) The information is not readily discoverable through reverse engineering.
(b) The holder of the withheld information shall ensure that the Division is informed of
any changes to the information required in subsection (a)(2).
(c) Information withheld on the basis of a claim of trade secret protection shall be
replaced by posting text to the Chemical Disclosure Registry indicating information has
been withheld as trade secret information and, if the withheld information includes the
identity of a chemical, providing the chemical family or similar descriptor associated with
the trade secret constituent.
NOTE: Authority cited: Section 3013, Public Resources Code. Reference: Section
3106, Public Resources Code; Section 1060, Evidence Code; Section 3426.1, Civil
Code; Section 499c, Penal Code.
1788.2. Use of Trade Secret Information.
(a) The holder of information withheld as trade secret pursuant to Section 1788.1 shall
immediately provide the information to the Division, or to a public agency with lawful
jurisdiction for either enforcement action or emergency response, upon receipt of written
communication from the Division or other public agency stating that the information is
necessary to investigate or respond to evidence of a spill or release of hydraulic
fracturing fluid or material or evidence that hydraulic fracturing fluid or material has
escaped the intended zone or zones of the hydraulic fracturing operations. The holder
of information withheld as trade secret may request, and the Division or other public
agency shall, as soon as circumstances permit, provide an agreement by the Division or
other public agency to prevent the disclosure of trade secret information received
pursuant to this section, to maintain the confidentiality of trade secret information, and to
destroy all copies of the trade secret information received once the need for the
information has ended.
(b) The holder of information withheld as trade secret pursuant to Section 1788.1 shall
identify the specific identity and amount of any chemicals claimed to be a trade secret to
any health professional who, in the scope of his or her professional duties, requests the
information in writing, if the health professional executes a confidentiality agreement
and provides a written statement of need for the information indicating all of the
following:
(1) The information is needed for the purpose of diagnosis or treatment of an
individual;
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178
PRE-RULEMAKING DISCUSSION DRAFT
(2) The individual being diagnosed or treated may have been exposed to a
hazardous chemical; and
(3) Knowledge of the information will assist in the diagnosis or treatment of the
individual.
(c) If a health professional determines that a medical emergency exists and the
specific identity and amount of any chemicals claimed to be a trade secret pursuant to
Section 1788.1 is necessary for emergency treatment, then the holder of information
withheld as trade secret shall immediately disclose the information to the health
professional upon a verbal acknowledgment by the health professional that the
information may not be used for purposes other than the health needs asserted and that
the health professional shall maintain the information as confidential. The holder of
information withheld as trade secret may request, and the health professional shall
provide upon request, a written statement of need and a confidentiality agreement from
the health professional as soon as circumstances permit.
NOTE: Authority cited: Section 3013, Public Resources Code. Reference: Section
3106, Public Resources Code; Section 1060, Evidence Code; Section 3426.1, Civil
Code; Section 499c, Penal Code.
Page 9 of 9
179
Exhibit 5
Bills Summary Status
B 7 AB 7 would define, among other things, hydraulic fracturing and ASSEMBLY NAT. RES.
(Wieckowski hydraulic fracturing fluid.
D) No Hearing Date Set
Oil and gas: • The bill would require an operator of a well to record and
hydraulic include all data on hydraulic fracturing treatment, including
fracturing. the risk posed by potential seismicity, as a part of the history
of the drilling of the well.
• The bill would require DOGGR, in consultation with the
Department of Toxic Substances Control, the State Air
Resources Board, and the State Water Resources Control
Board, on or before January 1, 2014, to adopt rules and
regulations specific to hydraulic fracturing, including
governing the construction of wells and well casings and full
disclosure of the composition and disposition of hydraulic
fracturing.
• The bill would require an operator to file at least 30 days
prior to the commencement of a hydraulic fracturing
treatment, a notice of intention to commence hydraulic
fracturing treatment containing specified information.
• The bill would require the hydraulic fracturing to be
completed within one year of the filing of the notice of
intention.
• The bill would require DOGGR, within 10 days of the receipt
of the notice of intention, to make the notice publicly
available, to post it on the division's Internet Web site, and
to notify the appropriate regional water quality control
board.
• The bill would require the supplier, as defined, of the
hydraulic fracturing treatment to provide to the operator,
within 30 days following the conclusion of the hydraulic
fracturing, certain information regarding the hydraulic
fracturing fluid.
• The bill would require the operator, within 60 days of the
cessation of hydraulic fracturing treatment,to post or cause
to have posted on an Internet Web site accessible to the
public specified information on the fracturing and fluid, as
1
180
Exhibit 5
specified.
• The bill would require a supplier claiming trade secret
protection for the chemical composition of additives used in
the hydraulic treatment to disclose the composition to
DOGGR, but would, except as specified, prohibit those with
access to the trade secret to disclose it.
• This bill would require on or before January 1, 2016, and
annually thereafter, to transmit to the Legislature and make
available publicly a comprehensive report on hydraulic
fracturing.
B 288 AB 288 would define "hydraulic fracturing" and require the ASSEMBLY NAT. RES.
(Levine D) operator of a well, at least 30 days prior to any hydraulic fracturing
Oil and gas: operations, to file with the State Oil and Gas Supervisor or the No Hearing Date Set
hydraulic district deputy a written notice of intention to commence hydraulic
fracturing. fracturing.
• The bill would prohibit any hydraulic fracturing operations
until written approval is given by the supervisor or district
deputy and would require the supervisor or district deputy
to notify the operator of the approval or denial of the notice
within 10 working days after the notice is submitted.
• This bill specifies that if hydraulic fracturing has not
commenced within one year of receipt of the approval
notice then the approval is deemed to be cancelled
• The bill would require immediate notification of the
appropriate regional water quality control board of any
approval for hydraulic fracturing.
• The bill authorizes DOGGR to establish regulations imposing
a fee to cover the costs of these requirements.
B 649 AB 649 was gutted and amended on March 19 to define "hydraulic ASSEMBLY NAT. RES.
(Nazarian D) fracturing" in oil and gas operations.
Oil and gas: No Hearing Date Set
hydraulic • The bill would prohibit hydraulic fracturing, as well as the
fracturing. use of clean freshwater for purposes of hydraulic fracturing,
on any oil or gas well, if the well is located within an as yet
to be specified distance of an aquifer, until the completion
2
181
Exhibit 5
of a report, as specified, and a determination is made that
hydraulic fracturing can be conducted without a risk to the
public health, welfare, environment, or the economy of the
state.
• The bill requires the Secretary of the Natural Resources
Agency and the Secretary for Environmental Protection to
convene an advisory committee by July 1, 2014, to develop a
report on hydraulic fracturing. The committee must include
representation from state public health, environmental
justice, agriculture, academic, water agencies, and oil
industry. The report shall be completed by January 1, 2018,
and the Secretaries for Natural Resources and
Environmental Protection shall make a determination by
January 1, 2019 about the conditions under which hydraulic
fracturing is permitted in California
i
B 982 AB 982 requires companies fracking for oil and gas to submit a plan ASSEMBLY NAT. RES.
j (Williams D) for approval to the appropriate Regional Water Quality Control
Oil and gas: Board. No Hearing Date Set
hydraulic
fracturing. • The plan must include baseline water quality data, a plan to
obtain water quality data near their operations, the
proposed sites for monitoring and a plan for emergency
monitoring in case of well failure.
• This bill also requires groundwater monitoring after fracking
operations and public disclosure of all groundwater
monitoring data.
• The bill additionally requires public disclosure of the
quantity of water an oil company plans to use, the source of
that water and a plan for disposing of waste water.
B 1301 AB 1301 was gutted and amended on March 21 to define "hydraulic ASSEMBLY NAT. RES.
(Bloom D) fracturing" and impose a moratorium on hydraulic fracturing.
Oil and gas: No Hearing Date Set
hydraulic The bill would prohibit hydraulic fracturing in oil and gas operations
fracturing. until the Legislature enacts subsequent legislation that determines
whether and under what conditions hydraulic fracturing may be
conducted while protecting the public health and safety and the
natural resources of the state.
3
182
Exhibit S
B 1323 AB 1323 was gutted and amended on March 21 to mirror the ASSEMBLY NAT. RES.
(Mitchell D) content of AB 649 (Nazarian).
Oil and gas: No Hearing Date Set
hydraulic • The bill would define "hydraulic fracturing" in oil and gas
fracturing. operations and would prohibit hydraulic fracturing until the
completion of a report, as specified, and a determination is
made that hydraulic fracturing can be conducted without a
risk to the public health and welfare, environment, or the
economy of the state.
• The bill requires the Secretary of the Natural Resources
Agency and the Secretary for Environmental Protection to
convene an advisory committee by July 1, 2014, to develop a
report on hydraulic fracturing. The committee must include
representation from state public health, environmental
justice, agriculture, academic, water agencies, and oil
industry. The report shall be completed by January 1, 2018,
and the Secretaries for Natural Resources and
Environmental Protection shall make a determination by
January 1, 2019 about the conditions under which hydraulic
fracturing is permitted in California
SB 4 SB 4 (Pavley) would define "hydraulic fracturing" and provide a SENATE N.R. &W.
(Pavley D) comprehensive statutory framework for fracking regulations in
Oil and gas: California. Hearing Date Set
hydraulic April 9, 2013
fracturing. • The bill would require the Secretary of the Natural
Resources Agency, on or before January 1, 2015, to cause to
be conducted an independent scientific study on hydraulic
fracturing treatments.
• The bill would require the Division of Oil, Gas, and
Geothermal Resources,on or before January 1, 2015, to
adopt rules and regulations specific to hydraulic fracturing,
including governing the construction of wells and well
casings and full disclosure of the composition and
disposition of hydraulic fracturing.
• Require that well operators obtain a permit for fracking.
The permit application would include estimates of the
amount of water and the composition of the fracking fluids
planned to be used.
4
183
Exhibit 5
• Require at least 30 days advance notice to the public,
DOGGR and the regional water quality control board of the
intent to frack a well. The well owner would also have to
specifically notify DOGGR 72 hours ahead of the scheduled
job in order for DOGGR to witness the procedure, if needed.
• Allow the neighbors to have baseline and follow-up water
quality testing on water wells and surface water by the
regional water board.
• Require that no fracking permits will be issued after January
1, 2015 until the independent scientific study is completed.
(PRC§3160e)
• Require that DOGGR develop and maintain its own web-site
for fracking information by January 1, 2016, although
Fracfocus.org could be used in the interim.
• The bill would require the division to perform random
periodic spot check investigations during hydraulic
fracturing treatments, as specified.
• Require DOGGR to annually report to the Legislature on
fracking. Specific data reporting requirements will facilitate
public dissemination and ease public concerns
• Increase the civil fine provision to at least$10,000 and up to
$25,000 per day per violation.
• Amend the existing oil and gas production fee that supports
DOGGR to specifically include fracking-related activities.
SB 395 SB 395 would enact a definition of"produced water' extracted SENATE E.Q.
(Jackson D) from hydrocarbon bearing formations during oil, gas, and hydraulic
Hazardous fracturing operations. The bill would specify that produced waters Hearing Date Set:
substances: shall be deemed to be a hazardous waste. April 3, 2013
produced
water.
SB 802 SB 802 would specify that that the duties of the Division of Oil, Gas, SENATE N.R. &W.
Evans D Geothermal Resources (DOGGR) shall be administered in
Oil and Gas conformance with the Uniform Trade Secrets Act. This Act specifies Hearing was set for
Trade Secrets the rights and remedies for the misappropriation of a trade secret. April 9, 2013, but it
as canceled at the
5
184
Exhibit 5
request of the
author.
new hearing date
has not been set.
6
185
ATTACHMENT 5
MEMBERS OF THE BOARD
PETER C. FOY, Chair
STEVE BENNETT
Asa', LINDA PARKS
KATHY L LONG
JOHN C.ZARAGOZA
BOARD OF SUPERVISORS
COUNTY OF VENTURA
GOVERNMENT CENTER,HALL OF ADMINISTRATION
800 SOUTH VICTORIA AVENUE,VENTURA,CALIFORNIA 93009
May 21, 2013
Board of Supervisors
800 S. Victoria Avenue
Ventura, CA 93009
SUBJECT: Direction to CEO and Resource Management Agency Director and Request
for Legal Analysis from County Counsel Regarding Hydraulic Fracturing and Old
Oilfield Conditional Use Permits
RECOMMENDATIONS:
1. Direct the CEO and RMA to revise the Conditional Use Permit (CUP) application
form/questionnaire to ask whether hydraulic fracturing (fracking) will be performed,
what hazardous materials will be used in the drilling/post drilling operation, where the
water supply for drilling and post-drilling operations including fracking will be taken
from, and where any liquid wastes will be disposed.
2. Direct the County Counsel to provide the Board with a confidential legal analysis of
options available to address antiquated oilfield CUPS that do not require discretionary
review for new drilling, and/or do not incorporate current ordinance requirements,
and/or do not provide time limits.
3. Direct the County Counsel to provide the Board with a confidential legal analysis of
whether the County may restrict the use of fresh water in oilfield operations or require
the use of non-fresh water when discretionary permits are issued for oil or gas well
drilling or operation. Direct County Counsel to provide the Board with a confidential
legal analysis of whether the County may require the use of non- or least-toxic fracking
chemicals.
DISCUSSION:
At our Board's April 9t" hearing, we received a report from the CEO, RMA Director, and
County Counsel regarding fracking. From that report and discussions with County Counsel at
the meeting, it was made clear that the County has the authority to ask for a full and complete
description of activities that would be authorized under any Conditional Use Permit for oil or
gas well drilling and operation. Currently, the County has not routinely inquired as to whether
fracking will be performed, what water source will be used for drilling and operations, what
hazardous materials will be used in operations, and where waste fluids will be disposed.
® Rec ycled Paper 186
Board of Supervisors
May 21St, 2013
Page 2
To obtain accurate information, to properly inform neighbors, the public, and emergency
responders, and to assure that water source and waste disposal sites are identified, the
County should revise our permit application to ask the relevant questions on these topics. As
County Counsel noted at the April 9th meeting, significant environmental impacts associated
with these issues could then be addressed as part of the CEQA review for the drilling permit.
Obtaining this information, and associated assessment of any environmental impacts, will do
much to respond to the public's demand for information and environmental analysis of
fracking in Ventura County. County Counsel notes that obtaining this information in the
permit application will enable Ventura County to achieve similar results to Santa Barbara
County's fracking-related ordinance.
The second recommended action addresses the fact that the County issued oilfield permits in
the 1950's and 1960's that give carte blanche to any and all drilling and operations without
any further County review, sometimes for eternity. In the twenty-first century, it is
unacceptable to be saddled with antiquated and inadequate disclosure and regulatory
oversight of new oil well drilling and construction, much less allow this situation to persist for
eternity.
The third recommendation is to seek a legal analysis from County Counsel as to whether the
County can require that non-fresh water be used in drilling, fracking, or other oilfield
operations. Many local oil companies have made great strides in reducing or eliminating the
use of potable water in oil field operations. It would be appropriate to ascertain whether
these best operating practices can be made more widespread in our County. Ventura
County's limited water supplies are essential for our residents, businesses, and agriculture,
and if alternative sources can be used and fresh water supplies conserved, all will benefit.
While the first recommended action will obtain information on water source, we should
appropriately explore whether use of alternatives to fresh water can be made mandatory.
Lastly, there have been news reports that the major fracking operators, Halliburton and
Schlumberger, have developed non-toxic or low-toxicity fracking chemicals. We seek a
confidential County Counsel opinion on whether the County may require the use of these less
toxic products.
Approval of the recommended actions will give the public, County staff, and our Board
additional information on which to base decisions regarding fracking and oil production in
Ventura County.
Cordially,
Steve Bennett, Linda Parks
Supervisor, First District Supervisor, Second District
187
X CNN
~ ATTACHMENT 6
e11e/,f llFA/e®//Nlj'iYrif1►0/SIp/el
DIRECTORS 43885 SOUTH GRIMMER BOULEVARD o P.O.BOX 5110,FREMONT,CALIFORNIA 94537-5110 MANAGEMENT
(510)668-4200 - FAX(510)770-1793 www.acwd.org
JAMES G.GUNTHER WALTER L.WADLOW
President General Manager
PAULSETHY ROBERT SHAVER
Vice President Assistant General Manager-Engineering
JUDY C.HUANG SHELLEY BURGETT
MARTIN L.KOLLER Manager of Finance
STEVE PETERSON
IOHN H:WEED Manager of Operations and Maintenance
May 7, 2013 ALTARINE C.VERNON
y Manager of Administrative Services
Honorable Fran Pavley
Member of the Senate
State Capitol, Room 4162
Sacramento, CA 95814
Dear Senator Pavley:
Subject: Senate Bill 4-SUPPORT
On behalf of the Board of Directors of the Alameda County Water District (ACWD), I am
pleased to infonn you of our support for your SB 4 relating to Oil and gas production: hydraulic
fracturing.
This bill would define, among other things, the terms hydraulic fracturing and hydraulic
fracturing fluid. The bill would require the Secretary of the Natural .Resources Agency, on or
before January 1, 2015, to cause to be conducted an independent scientific study on hydraulic
fracturing treatments. The bill would require an operator to apply for a permit, as specified,with the
supervisor or-a district deputy prior to performing a hydraulic fracturing treatment of a well and
would prohibit the operator from either conducting a new hydraulic fracturing treatment or
repeating a hydraulic fracturing treatment without a valid,approved permit. The bill would prohibit
the approval of a permit that presents an unreasonable risk or is incomplete. The bill would prohibit
the supervisor or district deputy, as of January 1, 2015, from issuing a permit to commence a
hydraulic fracturing treatment, as specified, until the study is completed and peer reviewed by
independent. scientific experts. The bill would require the operator to provide a copy of the
approved hydraulic fracturing treatment permit to specified property owners at least 30 days prior
to commencing a hydraulic fracturing treatment.
The bill would require a supplier claiming trade secret protection for the chemical composition of
additives used in the hydraulic treatment to disclose the composition to the division, in conjunction
with a hydraulic fracturing treatment permit application, but would, except as specified, prohibit
those with access to the trade secret from disclosing it. Because a violation of this bill would
create a new crime, it would impose a state-mandated local program.
x`188
Honorable Fran Pavley
Page 2
May 7, 2013
The Alameda County Water District provides water service to Fremont, Newark, and Union
City. As steward of the Niles Cone Groundwater Basin, ACWD is also responsible for
protecting the quality of this important source of water for the community. SB 4 will provide
valuable information to ACWD and, indeed, all water providers. If hydraulic fracturing were
ever proposed in our area, detailed information on'the chemicals to be used in the process would
be critical for ACWD to adequately respond to any such proposals and to attempt to protect the
public health of customers who depend on the basin for their drinking water.
For these reasons ACWD supports SB 4. If we can be of any assistance in the passage of SB 4,
please feel free to contact me or ACWD's Legislative Representative Ron Davis at (916) 492-
6082.
Sincerely,
Walter L. Wadlow
General Manager
189
03/01/2013 11:18 FAX 0 1j001i0Q1
Aaron Read LEGISLATIVE AND
Associates, �� GOVERNMENTAL REPRESENTATION
February 28,2013
The Honarabile Fran Pavley
California Stote Senate
State Capital;Room 4035
Sacramento,CA 55814
RE, SB4—SUPPORT
Dear Senator Pavley:
On behalf of our client,the California Association of Professional Scientists (CAPS),I am writing to inform
you of their support for SB 4 requiring,among other things,scientist at DTSC,the State Water Resources
Control Boa4d and the Air Resources Hoard to review the currently unknown chemicals being used in the
fracking process. The Monterey Shale formation,the largest of its kind by far in the country,may lead to
Increased hydraulic fracturing activity in California. Fracking is a potentially major environmental-and
public health concern, and this is the time for policymakers and regulators to get out ahead of this
emerging shkale oil"play"and establish sensible regulations for-the industry.
We know there are many issues to be dealt with surrounding fracking. The current version of the bill
seems to allow far disclosure of the chemicals used during the fracking process 30-days following the
conclusion of the hydraulic fracturing. If this is the case, we are concerned that it will be nearly
Impossible to protect drilling workers, regulators and the public from exposure to these chemicals 30-
days after they have been exposed. We would suggest thatthe chemicals that will be used,be disclosed
90-days prior to the start of the hydraulic fracturing.
Thank you for Introducing this important piece of legislation and we look forward to working with you
on its successful passage. If you have any questions regarding our position,please feel free to call me at
(916)448-3444,
Sincerely,
PATRICK MO RAN
Legislative Advocate
PM AA
soza.1s
1415 L STREET,SUITE 1100,SACRAMENTO, CALIFORNIA 95814
TEL:916/448-3444 FAX:9161448-0430
190
tALNORNU
Co"TAL
?4=W M
OALIFORNIA COASTAL PROTKOTION NIC'tWD RK
2nO V"b"Wye.8enlA Ssftf4 CA 93105 • 808837 MV
W WW.COAGTALADVOCATES.COM
April 2nd,2013
The Honorable Fran Pavley, Chair and Members
Senate Natural Resources and Water Committee
State Capitol,Room 4035
Sacramento,CA 95814
RE: SB 4*(Pavley)—SUPPORT
Dear Chair Pavley and Members of the Committee,
The California Coastal Protection Network,a 501 C3 non-profit whose mission it is to
monitor and enhance coastal protection in California,would like to express its support for
SB 4(Pavley). SB 4 seeks to implement comprehensive regulation over hydraulic
fracturing or`fracking' in California.
In the last year and a half,it has become painfully apparent that California's existing
regulatory authority over the widespread and growing practice of`fracking'has been
woefully inadequate. After much prodding, California's Department of Conservation's
Division of Oil,Gas,and Geothermal Resources(DOGGR)initiated a series of public
workshops and then released a `discussion draft' of proposed fracking regulations.
Unfortunately,that draft is widely viewed as inadequate to address the most pressing
concerns about transparency or regulatory accountability.
While there are a number of different viewpoints within the environmental community on
how California should deal with the current situation ranging from calling for an
immediate ban on all fracking operations or instituting a moratorium on fracking until
more comprehensive regulations are in place, it is unclear if either of these two options
will be instituted this legislative session. In the absence of any assurance that fracking
will be halted permanently or even temporarily in California, it is of the utmost
importance that regulatory oversight over the fracking that is happening in real time be
strengthened and implemented as soon as possible.
SB 4 takes the first step toward implementing a comprehensive regulatory framework to
govern fracking operations in California. While some elements of the bill raise concerns,
particularly the language addressing trade secret protection for fracking fluid, CCPN
nonetheless believes that the essential structure of the bill is sound and hopes that the
section dealing with trade secrets is improved as SB 4 makes its way through the policy
committee review process.
191
CCPN urges an AYE vote on SB 4(Pavley) and thanks the author for her leadership on
this issue.
Sincerely,
Susan Jordan,Director
192
WORM r
s
california league of conservation voters
April 24, 2013
Senator Jerry Hill
Chair,Senate Committee on Environmental Quality
State Capitol
Sacramento,CA 95814
Re:SB 4(Pavley)Hydraulic Fracturing—SUPPORT
Dear Senator Hill,
On behalf of the California League of Conservation Voters, I am writing in support of Senate Bill 4
addresses the environmental issues inherent in the practice of hydraulic fracturing or"fracking." SB 4
would provide a comprehensive framework for fracking regulation in California,which is Iong overdue.
California currently has no regulations specific to fracking.The state's oil and gas regulatory agency,the
Division of Oil,Gas and Geothermal Resources(DO6GR), does not know where fracking takes place, how
much water is used by each frack job,what chemicals are in the fracking fluid and in what
concentrations,or what environmental, health,and seismic impacts are resulting from fracking
operations within the state. This troubling situation is exacerbated by the oil industry's likely
exploitation over the next few years of a massive geologic formation in central California known as the
Monterey Shale,which reportedly contains up to 15 billion barrels of potentially recoverable oil.
Industry will likely need to employ fracking and other advanced recovery techniques to extract that oil.
SB 4 will require,among other things,an independent scientific study on fracking,the adoption of
comprehensive fracking regulations by DOGGR, and formal agreements between DOGGR and other
agencies to ensure regulatory accountability.Moreover,SB 4 will require well operators for the first
time to obtain a permit from DOGGR specifically for fracking,and will prevent DOGGR from issuing any
fracking permits after a certain date until the fracking study is complete.These provisions and others in
the bill will go a long way toward filling the many regulatory gaps that presently exist regarding fracking
activities in California.
For the reasons stated above,we urge your support of Senate Bill 4.
Thank you,
Jena Price
California League of Conservation Voters
California League of Conservation Voters I ecovote.org
6310 San Vicente Blvd.,Suite 425 Los Angeles,CA 90048 phone:323-939-6790 fax:323-939-6791
350 Frank H.Ogawa Plaza,Suite 1100 Oakland,CA 94612 phone:510-271-0900 fax:510-271-0901
- 193
SENATE
CALIFORNIA LEGISLATURE
SR
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A l,IV
GILBERT A. CEDILLO
SENATOR, TWENTY SECOND DISTRICT(retired)
May 16, 2013
To Members of the Appropriation Committee:
It is my understanding that SB 4 is scheduled for a vote in your Committee. I write to
express my strong support for SB 4.
Despite its wide spread use and recent success in California, the impact of fracking on
environmental health and public safety still leave many questions unanswered. After
extensive research from other states as well as the feds, Senator Pavley co-chaired a
legislative informational hearing last March with the sole intention of crafting
comprehensive, yet reasonable set of rules that would regulate the practice of fracking.
True to form, SB 4 provides a comprehensive statutory framework for fracking regulation.
It also addresses the very issue that all legislators once in offices are sworn to protect:
public safety. It is for this reason that I support SB 4 and I strongly urge my former
colleagues to do the same.
Sincerely,
Gilbert A. Cedillo
State Senator (retired)
194
City of Malibu
1 Lou La Monte, Mayor
23825 Stuart Ranch Road • Malibu,California - 90265-4861
Phone(310)456-2489 - Fax(310)456-3356 - www.malibuci .org
n i �»kI0.
April 3, 2013 Sent via email to Kara.Seward@sen.ca,zov
The Honorable Fran Pavley
California State Senate District 23
State Capitol,Room 4035
Sacramento, CA 95814
RE: SB 4—Fracking Regulatory Framework—SUPPORT
Dear Senator Pavley:
I write to you today, not as the Mayor of Malibu, but as a concerned citizen and resident of the great
State of California. There are well-documented hazards and risks to public, occupational and
environmental .health and safety associated with the practice of hydraulic fracturing (or "tracking") of
wells both across the country and throughout the world. These include air and water contamination
associated with poor handling practices, spills and well and well-casing failures, as well as induced
seismicity associated with disposal of waste fluids in injection wells, illegal dumping of the fluid
wastes and accelerated roadway deterioration, among others. The fracking of oil and gas wells is
essentially an industrial project — including heavy equipment,, chemicals and significant amounts of
noise and dust—and it makes no sense that the neighbors of the wells are not provided advance notice
of and protection from these activities, as they are in other states. Here in California, existing and
planned state regulation is completely inadequate. To this day — despite years of public outcry --- no
state regulator can provide accurate and comprehensive information about the extent of fracking or an
assessment of its risks. This lack of progress, despite existing authority, is inexcusable.
The legislation you have proposed, SB 4, is a straightforward and common sense bill that seeks to
provide explicit direction on fracking to state-level regulators in order to provide public transparency
and regulatory accountability. It requires that an independent, peer-reviewed scientific study that
includes public health be conducted and institutes a fracking permitting system with pre- and post-
fracking disclosure— including chemical information— necessary to assess the frack job. Importantly,
no permits can be issued until the study is completed and the health and safety of Californians and their
environment is protected. 1 am especially pleased that.SB 4 also includes advance public and neighbor
notice of fracking, baseline and follow-up ground-and surface water testing and other provisions.
As a resident of California, I am proud to lend you my support for the passage of SB 4, so that
California will no longer lag the many states that already have similar laws and regulations in place.
Sincerely,
ou La onte
Mayor
cc: Honorable Members of the Malibu City Council
htTity CuunuiNMayor Chron Filosk2Ol3\SB-4_FrackinrSuppon_I30403_Li.M.docx RetycleJ Papur
195
CARMEN RAMIREZ
Council member
City Council Office
-ray 300 West Third Street •Cunard,CA 93030 • Cell:(805)890-7088
City Tel:(805)385-7430• City Fax:(805)385-7595
e-mail;Carmen4oxnard@gmaii.com
April 5,2013
Senator Fran Pavley
California Senate,District 27
State Capitol Room 4035
Sacramento,CA 95814
Re: Senate Bill 4
Dear Senator Pavley,
I am pleased to support Senate Bill 4,which you have introduced to finally provide a
framework,which will ultimately protect California's precious water supply from
any harm done by"frackine'technology.
As you know here in Oxnard,we are very aware of how precious,limited and costly
our water supply is. Without clean water to drink and for agriculture and industry,
we will not have either a healthy economy or people.
Thank you for introducing your common sense measures which will provide
information and protection-for California consumers and businesses.
I will encourage my colleagues in the City of Oxnard and in the County of Ventura to
lend their support your Senate Bill 4 as well.
Si cerely, f
Carmen Ramirez
Mayor Pro Tem
196
a
CITY OF
W. NTURA
%NW
City Council
March 29'r', 2013
Mike Tracy Mayor
Cheryl I leitrnann,Deputy Mayor
Neal Andrews,COUncilmEmbt:r
Brian Brennan,Cmincilmembe.r
Senator Fran Pavley lames L.Monahan,Councilmernber•
Carl E.Morehouse.Councilrneryber
State Capital, 800111 4035 Gvisty Wm,CouncrlmembEr
Sacramento, Ca. 95814.
Dear Senator Pavley,
I'm writing this letter in support of your bill SB 4.which provides a comprehensive statutory
framework for fraeking regulation in California, In my role both as a locally elected Ventura City
Councilman and as a member of the California Coastal Commission, I am acutely aware of the
controversial issues surrounding frocking.
Some of the reasons I'm supporting this legislation is that it require an independent scientific study
on fraeking addressing occupational,public and.environmental health and safety along with
addressing induced seismicity associated with (racking,'I`hose provisions along-with requiring
DOGGR to adopt fraeking regulations that include full disclosure of the composition and disposition
of hydraulic fracturing fluids with trade secret.protection go a long way in addressing the majority of
the concerns that my constituents have shared with me.
I realize this is an extremely emotional issue-acerbated by the public health concerns and
environmental degradation that has occurred on the East Coast. I firmly believe that with passage of
SB 4 much of the needed safeguards will be put in place that will allow California to pursue energy
independence in a safe and practical manor.
All the Best,
Brian.Brennan
Ventura City Council .
S.0( Pali Street. • f'O. Box 99 Ventura, California 93002-0099 • 805,654,7827 • dtyofventilra.nct
197
CLEAN WATER ACTION
CALIFORNIA
April 2,2013
Clean Water Action
Senator Fran Pavley Oakland office
State Capitol,Room 4035
350 Frank Ogawa Plaza#200
Sacramento,CA 95814
Oakland,CA 94612
Fax: 916-324-4823
P:415-369-9160
F:415-369-9180
Re:Support if Ameneded SB 4 (Pavley)
Dear Senator Pavley:
On behalf of Clean Water Action and our 60,000 California members,I am writing to thank you for
introducing SB 4 and to state our position of support if amended.Clean Water Action thanks you for
your leadership on this important issue and hopes to support your efforts to compel greater
accountability,transparency and safety for fracking.
The State's current lack of regulatory framework and the shortcomings of the Division of Oil Gas and
Geothermal Resources(DOGGR) discussion draft regulations on hydraulic fracturing,indicate a clear
need for legislative efforts to protect our state.
SB 4 provides many requirements that are necessary to protect California from fracking including:
• An independent scientific study to evaluate the hazards and risks of fracking;
• A moratorium on the practice if the study is not completed in a timely manner;
• A permitting process for hydrualic fracturing; _
• Advance notice to neighboring property owners;
• Reporting and disclosure of key information,such as chemical use,wastewater disposition,
water quantity and source;
• The opportunity for monitoring groundwater for neighboring water users;and
• Coordination between state agencies for more effective regulations on fracking.
However,Clean Water Action recommends the following amendments in order to improve health
and safety protections and transparency:
Definition of hydraulic fracturing:
Since not all hydraulic fracturing operations utilize proppants and hydraulic fracturing fluid,a more
inclusive definition is necessary to effecttively cover all operations that may be considered hydraulic
fracturing.We recommend amending section 3152 to read:
1010 Vermont Avenue NW,Suite 1100,Washington,DC 20005-4918
oti--- ',n-)aa,c nn-,n I C,.. ')n-)Qc3r nA 7p 1
198
"Hydraulic fracturing"means the injection of fluids or gases into an underground geologic
formation with the intention to cause or enhance fractures in the underground geologic
formation,in order to cause or enhance the production of oil or gas from a well.Alternate terms
include,but are not limited to,"fracking,""hydrofracking,"and"hydrofracturing."
Trade Secrets:
We have several problems with the trade secret provisions in the bill. First and foremost,the denial
of the public's right to know what chemicals or substances are being used at sites that threaten air
and water quality as well as public health is a denial of an essential and fundamental right.There
should be some balance between the protection of the corporate financial interest in maintaining a
competitive marketplace advantage and the right of the public to protect itself and be assured that it
is safe from harm. However,the right to claim a trade secret,as outlined in the current draft is
unfettered.There is no opportunity place where the public interest in having the information may
outweigh the corporate financial interest.This is wrong.We propose that the Division have the
discretion to deny a trade secret claim based on a finding that there is an overriding public interest in
having access to the information.
Furthermore,DOGGR and well operators should have some responsibility for ensuring that additives
used by the supplier are both safe and legal. In order to ensure that the chemicals proposed for use
on site are safe and legal,trade secrets claims must be must occur with the permit application.The
Division should consider the validity of the trade secret claim along with the rest of application.
DOGGR should be responsible for determining that the trade secret claim is valid before approving a
permit.In addition,the well operator should bear some responsibility for determining that the
additives used in its facility are both safe and legal.The well operator can still be required to
maintain the confidentiality of the information by being required to sign non-disclosure agreements,
which are used all the time by companies in protection of their trade secrets or confidential business
information.
There are very specific legal criteria for what constitutes a valid trade secret.Typically,for a trade
secret claim to be valid,the claimant must have made a substantial investment in keeping the
information secret,the information must not be publicly available or easily discoverable by its
competitors (including through reverse engineering),and public disclosure of the information must
compromise a company's competitive marketplace advantage and threaten substantial financial
loss. As drafted,SB 4 does not require those who claim information as trade secret to demonstrate
that any of these criteria for trade secret validity are met.Suppliers must be required to substantiate
trade secret claims and demonstrate that they are justified and DOGGR must be required to review
the claims to ensure that they are adequately justified.An unsubstantiated trade secret claim should
not suffice for denying something as Important as the public's right to know about pollutants that
may threaten their health and the environment.
In addition,trade secrets do not last indefinitely.They are based on the idea that information is
confidential and remains confidential.In the real world,oil and gas extraction processes are common
199
knowledge in the industry.Most of the industry already knows what additives are typically used
under certain conditions.If a company develops a new process or mixture of additives,it's likely that
such mixtures will be discovered by other companies and won't remain unique to one supplier.
Therefore,trade secret claims should not last indefinitely.We propose that trade secret claims must
be re-asserted at least every five years,and that each time the claimant must demonstrate that the
information is indeed confidential and that its public disclosure will cause financial loss to the
company.
Thank you very much for considering these amendments.We look forward to continuing to work
with you and the committee on SB 4.We thank you for your leadership on hydraulic fracturing and
look forward to supporting your efforts to protect California from this dangerous practice.
Sincerely,
Andrew G-rinberg
Oil and Gas Program Coordinator
415-369-9172
agrinberg @cleanwater.org
200
COUNTY OF LOS ANGELES
Sacramento Legislative Office Board of Supervisors
} + GLORIA MOLINA
} f 1100 K Street,Suite 400,Sacramento,California 95814 First District
k — (916)441-7888•Fax(916)445-1424
http:ticeo.lar-ounty.gov MARK RIDLEY-THOMAS
�4LIFO R1��A Second District
ZEV YAROSLAVSKY
WILLIAM T FLIJIOKA Third District
Chief Executive Officer DON KNABE
April 4, 2013 Fourth District
ALAN FERNANDES MICHAEL D.ANTONOVICH
Chief Legislative Representative Fifth District
ROZ 8 - 8dV
The Honorable Fran Pavley, Chair
Senate Natural Resources and Water Committee
State Capitol, Room 4035
Sacramento, CA 95814
RE: SB 4(PAVLEY), As amended March 11, 2013—SUPPORT
Relating to Oil and gas: hydraulic fracturing
Set in Senate Natural Resources and Water Committee on April 9, 2013
Dear Senator Pavley:
The Los Angeles County Board of Supervisors supports SB 4, which would provide an
enhanced statutory framework for oil and gas hydraulic fracturing (fracking) regulation in
California.
Specifically, SB 4 would, among other things, [1] require the California Division of Oil, Gas, and
Geothermal Resources (DOGGR) to adopt fracking regulations by January 15, 2015, that
include full disclosure of the composition and disposition of hydraulic fracking fluids and provide
trade secret protection for chemical formulas; [2] mandate that well operators obtain fracking
permits and provide at least 30 days advance notice to DOGGR, the public, and the Regional
Quality Control Board of intent to frack a well; [3] direct that an independent scientific study on
fracking be conducted by January 1, 2015; and [4] allow for baseline and follow-up water quality
testing on water wells and surface water by the regional water board.
SB 4 would fill today's fracking regulatory gap and ensure that such activity will be done in a
manner that protects the public's health and safety.
Sincerely,
19_� 4 &u
ALAN N. FERNANDES ED BERENDS
Lo_,�
Chief Legislative Representative Legislative Representative
c: Each Member and consultant,
Senate Natural Resources and Water Committee
"To Enrich Lives Through Effective And Caring Service"
Please Conserve Paper—Copies of this Document are Two-Sided
201
AGN. NO.
MOTION BY SUPERVISOR ZEV YAROSLAVSKY April 2, 2013
In 2005, Congress passed, and President George W. Bush signed, legislation
that prohibited the United States Environmental Protection Agency ("EPA")from
regulating hydraulic fracturing ("fracking") under the Safe Drinking Water Act. Among
the theories put forward as to why this legislation was sound public policy was the
notion that the States could and would regulate fracking without the federal
government's involvement. However, more than seven years later, and despite the fact
that the EPA is taking a second look at whether fracking should be subjected to national
oversight, the State of California has not yet filled this regulatory gap. Fortunately, the
State legislature and Governor Brown now have the opportunity to appropriately
regulate fracking and protect public health and safety. The Board of Supervisors should
support their efforts to do so.
As background, the oil and gas industry has increasingly used fracking to
extract oil and natural gas in the Los Angeles region. Fracking pumps chemicals, gels,
foams, fluids, or compressed gases into the earth in order to crack open underground
rock formations and release underlying oil and natural gas. The practice has become
MOTION
�d 11 1 MOLINA
5�y I c X( YAROSLAVSKY
� �.. ' !vtl KNABE
ANTONOVICH
RIDLEY-THOMAS
202
increasingly widespread and is raising concerns about environmental impacts,
particularly with regard to potential groundwater contamination and the possibility that
fracking can induce seismic activity.
Despite Congress' apparent assumption that the States would act to protect
public health and safety, the State of California does not currently require oil companies
to disclose the location of wells in which fracking is used, or what chemicals are used in
the fracking process.
The State has released draft fracking regulations through the California Division
of Oil, Gas, and Geothermal-Resources ("DOGGR"); however these fail to address the
public's concern about potential health, environmental, and water supply contamination
issues. Furthermore, legislative informational hearings held in February 2013 revealed
poor coordination between regulators, significant gaps in regulation, and a lack of
available data related to disposal of water used in the fracking process.
Senate Bill 4 by Senator Fran Pavley addresses those issues by providing a
comprehensive statutory framework for fracking regulation in California. Specifically,
the bill would, among other things: 1) require that DOGGR adopt fracking regulations by
January 1, 2015 that include full disclosure of the composition and disposition of
hydraulic fracking fluids and provide trade secret protection for chemical formulas; 2)
mandate that well operators obtain a permit for fracking and provide at least 30 days
advanced notice to DOGGR, the public, and the Regional Water Quality Control Board
of intent to frack a well; 3) direct that an independent scientific study on fracking
addressing occupational, public, and environmental health and safety issues, including
induced seismicity, be conducted by January 1, 2015; and 4) allow for baseline and
z
203
follow-up water quality testing on water wells and surface water by the regional water
board. The provisions of SB 4 will ensure transparency and accountability needed to
protect the State's air quality, environment, and water supply_
This bill and other legislative efforts that would fill the regulatory gap and ensure
that any fracking that occurs in California would be done in a manner that protects
public health and safety deserve the Board's support.
1, THEREFORE, MOVE that the Board of Supervisors:
1) Support Senate Bill 4 (Pavley) and other fracking-related legislation that would
provide at least SB 4's level of protection for public health and safety;
2) Instruct the County's legislative advocates in Sacramento to take appropriate actions
to ensure passage of this legislation; and,
3) Notify the Board of Supervisors of any substantive revisions that modify the intent of
SB 4.
ABK SAFracking
3
204
BEFORE THE BOARD OF SUPERVISORS
OF THE COUNTY OF SANTA CRUZ, STATE OF CALIFORNIA
RESOLUTION NO. 65--2013
On the motion of Supervisor Leopold
duly seconded by Supervisor McPherson
the following resolution is adopted
RESOLUTION SUPPORTING THE PASSAGE OF SENATE BILL 4
WHEREAS, on February 12, 2013, the Board of Supervisors unanimously
passed a resolution expressing concems about the proposed regulations for hydraulic
fracturing(fracking) in California; and
WHEREAS, among other things, the Board called for full disclosure of all
chemicals used in hydraulic fracturing,expanding public notification prior to fracking,
and baseline and follow-up testing of the groundwater, and
WHEREAS, Senator Fran Pavley's comprehensive fracking bill, Senate Bill 4,
has the over-arching,goals of promoting public transparency and regulatory
accountability while providing a common sense statutory framework to address the risks
and potential risks to public and environmental health and safety associated with
fracking; and
WHEREAS, the data that would be collected through the provisions of this bill
would allow informed decision-making about fracking, particularly with respect to air and
water quality.and water supply; and
WHEREAS, the revised advance notice requirements would facilitate local efforts
related to fracking;; and
WHEREAS, this bill is needed because studies and reports from other states and
by the federal government indicate there are numerous instances where fracking and
fracking-related activities pose or have the potential to pose hazards to public,
j occupational and environmental health and safety; and
WHEREAS, Senate Bill 4 is supported by the California Association of
!, Professional Scientists and is co-authored by Senator Bill Monning.
NOW, THEREFORE, BE IT RESOLVED,that the Santa Cruz County Board of
Supervisors hereby supports the passage of Senate Bill 4.
205
RESOLUTION SUPPORTING THE PASSAGE OF SENATE BILL
Page 2
PASSED AND ADOPTED by the Board of Supervisors of the County of Santa
Cruz, State of California, this 19th day of March ,2013, by the following vote:
AYES: SUPERVISORS Leopold, Friend, Caput, McPherson and Coonerty
NOES: SUPERVISORS None
ABSENT: SUPERVISORS None
NEAL COONERTY.
NEAL COONERTY, Chairperson .
r Board of Supervisors
ATTEST:
Clerk of said Board
Approved as to form:
o '
oun Couns
DISTRIBUTION: Senator Fran Pavley
Senator Bill Monning
Assemblymember Mark Stone
Assemblymember Luis Alejo
Governor Jerry Brown
Santa Cruz Sierra Club
County Counsel
1502H3
STATE OF CALIFORNIA )
COUNTY OF SANTA Cr7UZ )
I, SUSAN A.MAURIELLO, County Administrative
Officer and ex-offigio Clerk of the Board of Super.
visors of the County of Santa CruZ, State of
California do hereby certify that the foregoing is
a true and correct copy of the resolution passed
and adopted by and entered in the minutes of the
said Wit n* �f,l have hereunto
set my ff, _ e seal said
Board ?a
S AN t{t1Rlt t.t G. ounty
�Bl:tliy
206
county oft ventura
SACRAMENTO LEGISLATIVE OFFICE
March 28, 2013
Senator Fran Pavley, Chair
Senate Committee on Natural Resources &Water
State Capitol, Room 4035
Sacramento, CA 95814
RE: SB 4(Pavley): Oil &Gas: Hydraulic Fracturing—SUPPORT
Senate Committee on Natural Resources&Water—April 9,2013
Dear Senator Pavley:
On behalf of the Ventura County Board of Supervisors, I extend the County's support for your bill, SB 4, which
provides a comprehensive framework for the regulation of hydraulic fracturing in California.
Ventura County is highly dependent on local groundwater resources for potable water, and groundwater is the
lifeblood of the County's$1 billion-plus agricultural industry. Protection of local groundwater aquifers is
essential for continuation of economic activity and domestic water supply. The County is concerned that the
practice of hydraulic fracturing of oil and gas wells is currently unregulated and possibly undisclosed.
Ventura County supports the protections in SB 4, Ventura County encourages the adoption of legislation that
requires public disclosure, assures protection of groundwater, requires the reporting of the source and
amount of water used, and assures that wastewater disposal does not pose a significant risk to water supplies,
people, or the natural environment.
Ventura County has historically balanced oil and gas production and the jobs it brings with the protection of
our natural and agricultural resources. It is important that this balancing continue to occur. Therefore, on
behalf of the Ventura County Board of Supervisors,thank for introducing SB 4.
Sinc rel
t e T. Ila
Legislative Advocat
Cc: Members and Consultant to the Senate Committee on Natural Resources&Water
Ventura County Board of Supervisors
PLATINUM ADVISORS,1215 KSTREET,SUITE 1150,SACRAMENTO,CA 95814
916-443.8891•FAX(916)443-8913
207
EARTUVATORKS
April 19,2013
Senator Jerry Hill, Chair
Senate Environmental Quality Committee
State Capitol,Room 2205
Sacramento, CA 95814
Fax: (916)322-3519
Delivered via fax mail
Re: Senate Bill 4(Pavley)—Support if Amended
Dear Chairman Hill:
On behalf of Earthworks and its California members, I am writing to assert Earthworks'
support if amended position for Senate Bill 4(SB 4). Earthworks, a national 501(c)(3)nonprofit
organization, is dedicated to protecting communities and the environment from irresponsible
energy and mineral development while securing sustainable energy solutions.
SB 4 would implement an essential regulatory system for hydraulic fracturing operations
in the State of California that would improve the transparency, safety, and oversight of this
potentially dangerous practice. Since fracking is not currently regulated by California or federal
law,there is a clear need for prompt legislative action to close this massive regulatory gap.
Earthworks supports many aspects of SB 4, including the provisions that require the following:
• An independent scientific study to evaluate the risks of(racking;
• Rules and regulations for fracking operations,including a mandatory update to
incorporate the results of the independent study;
• Critical reporting and disclosure requirements for the main aspects of fracking operations,
including chemical use,wastewater disposition,water quantity, water source,and unique
geologic features in the vicinity of wells that could limit or facilitate the migration of
fluids outside of the fracked zone;
• Formal agreements between state agencies that clearly identify their respective
authorities, including plans for air and water quality monitoring;
• A permitting process for fracking operations, including requirements for public disclose
of permits once they are obtained;
• A moratorium on issuing permits prior to completion of the independent scientific study;
• Advanced notice of fracking operations to neighboring property owners;
• Operation of an informative website where the public can access data on California
fracking operations; and
• A civil penalty for violating the new requirements.
1612 K ST.N.W./SUITE 808/WASHINGTON,DC 20006/P 202 8871872 F 202 887 1875/WWW.EARTHWORKSACTION.ORG
208
However,the language of SB 4 can and should be strengthened. Earthworks requests that
the Environmental Quality Committee consider the following amendments, along with any other
amendments that would improve the protective nature of SB 4's proposed regulatory system:
1. Remove all provisions that provide disclosure exemptions for alleged trade secrets.
Earthworks believes that the protections for trade secrets in SB 4 are unnecessary and too
expansive. Trade secret claims are already regulated by a comprehensive process outlined in the
California Public Records Act, and should not be regulated by an additional system that only
applies to one type of permit. In addition,the process for claiming trade secrets in SB 4 would
allow companies to avoid disclosing their fracking fluid chemicals until 30 days after a well has
already been fracked. This delayed disclosure would greatly threaten public health—both the
public and the government agencies that are responsible for protecting California's citizens and
environment need to know which chemicals are being used before Lacking occurs. Therefore,
Public Resources Code § 31600),and all other language that references trade secret claims,
should be removed from SB 4.
2. Revise the definition of"hydraulic fracturing" to be more inclusive.
Since it is not clear that all hydraulic fracturing operations use proppants and hydraulic
fracturing fluid, SB 4 should have a broader definition of hydraulic fracturing to ensure that all
fracking operations are regulated. Earthworks proposes the following revision to Public
Resources Code § 3153:
"Hydraulic fracturing"means the injection of fluids or gases into an underground
geologic formation with the intention to cause or enhance fractures in the underground
geologic formation, in order to cause or enhance the production of oil or gas from a well.
Alternate terms include,but are not limited to, "fracking,""hydrofracking,"'and
"hydrofracturing."
This revision would also make SB 4's definition of hydraulic fracturing consistent with other
bills that are being considered by the state legislature, including Assembly Bill 982(Williams).
3. Add mandatory requirements for water quality monitoring
SB 4 calls for water quality monitoring only if a surface property owner requests it for
drinking water or agricultural purposes. Public Resources Code § 3160(d)(6). This limited
trigger for monitoring should be revised to mandate water quality monitoring before and after
fracking occurs. A comprehensive monitoring scheme for groundwater and surface water is
essential to ensuring the safety of fracking operations.
4. Reggire fracking permit applications to include information on the operator's plans for
wastewater disposition.
The permitting system proposed in Public Resources Code § 3160(d) requires permit
applicants to include crucial information about their fracking operations, but omits any
2
209
requirements for wastewater. Instead,Public Resources Code§ 3160(d)(1) should be revised to
include an additional provision that requires permit applicants to disclose where they intend to
store,transport,or dispose of wastewater from fracking operations.
Thank you for considering these amendments and for your leadership on this important
matter. Earthworks welcomes the opportunity to work with you and your staff to amend the
language of SB 4 to ensure that it imposes a comprehensive and effective regulatory system for
hydraulic fracturing.
Sincerely,
Jennifer Krill
Executive Director
Earthworks
2150 Allston Way, Suite 460
Berkeley,CA 94704
Phone: (202) 877— 1872, Ext. 103
Email:jkrill @earthworksaction.org
3
210
enwronmenW
DEFENSE CENTER
April 2,2013
Senate Committee on Natural Resources and Water
Senator Fran Pavley,Chair
State Capitol, Room 4035
Sacramento, CA 95814
Via email to katharine.moorenasen.ca.zov
Senate Committee on Natural Resources and Water
Senator Bill Monning
State Capitol, Room 4035
Sacramento,CA 95814
Via email to bethany.westfa11Ca)sen.ca.zov
SB 4 (Pavley): SUPPORT
Dear Chair Pavley and Senator Monning:
On behalf of Environmental Defense Center(EDC), I am writing to express my
organization's support for committee approval of your bill, SB 4,which would provide
an urgently-needed comprehensive framework for the regulation of hydraulic fracturing,
or `fracking', in the state of California.
EDC is a nonprofit public interest environmental law firm serving San Luis
Obispo,Santa Barbara,and Ventura Counties. EDC was formed in response to the 1969
Santa Barbara oil spill,and has represented local organizations in their efforts to prevent
environmental damage from offshore and onshore oil production for more than 25 years.
A large part of EDC's service area is underlain by the Monterey Shale formation, the
epicenter of a potential new California oil rush driven by fracking and other enhanced oil
recovery techniques.
While the state of California is widely regarded as the nation's leader on
environmental issues,our state lags far behind other major oil and gas producing states in
the development of a legal and regulatory framework to address fracking and the
significant risks it poses to the public health,safety,and the natural environment. Indeed,
the state's primary oil regulator—the Division of Oil, Gas& Geothermal Resources
(DOGGR}--has failed to develop any specific rules to track or manage the practice of
fracking,despite existing statutory authority. Consequently, no one but the oil industry
906 Garden Street Santa Barbara,CA 93101 Phone(805)963-1622 FAX(805)962-3152
www.edcnet.org -
211
Chair Fran Pav ley and Senator Monning
April 2,2013
Page 2
truly knows the location,extent, or frequency of fracking,the source and volume of water
used,or what chemicals are being utilized in fracking fluid in the state of California.
SB 4 would help remedy this unacceptable status quo by, among other things,
requiring oil companies to apply for a permit prior to fracking;prohibiting approval of a
permit that presents an unreasonable risk or is incomplete; requiring prior notice of
fracking to surface property owners and neighbors; providing property owners with the
right to request water quality sampling and testing prior to fracking; establishing civil
penalty provisions;and requiring post-fracking disclosure of fracking chemicals,as well
as the source, volume, composition, and disposition of water used and recovered.
In addition, SB 4 would help safeguard principles of scientific integrity and
accountability in relation to the current DOGGR rulemaking process, by requiring the
Secretary of Natural Resources to conduct an independent scientific study addressing all
aspects of hydraulic fracturing by January 1,2015,and requiring that DOGGR's fracking
regulations(if final before that date) be revised to incorporate the results of that
scientific study.
We look forward to working with you and the Committee to craft and enact a
final bill that will mandate transparency,accountability,and robust protection of the
environment and public health in relation to hydraulic fracturing conducted within
California. We thank you for your consideration of our views,and for your continuing
leadership in protecting California's environment.
Sincerely,
Brian Segee
Staff Attorney
cc Senator Anthony Cannella(Vice Chair)(via email to sharon.gonsalves@sen.ca. ov)
Senator Noreen Evans(via email to tom.roth@sen.ca.gov)
Senator Jean Faller(via email to todd.mofkit@sen.cgZ2Y)
Senator Hannah Beth-Jackson (via email to kk.holland@sen.ea.gov)
Senator Ricardo Lara(via email to catalina.haves-bautista@sen.ca.gov)
Senator Lois Wolk(via email to iim.metropulos@sen.ca.aov?
212
WORKING
Sacramento Office
1109 9", Strut,
9.9814
April 23, 2013 916-333-0566
Fax 916--4423610
Senator Jerry Hill, Chair
Senate Environmental Quality Committee
State Capitol,Room 2205
Sacramento, CA 95814
Re: SB 4 (Pavley): Support
Dear Senator Hill:
The Environmental Working Group supports Senator Pavley's SB 4,which will require the disclosure
of important information when a well is fracked in California. Even though fracking has occurred in
California for over 50 years, California has no regulations specific to fracking. The state's oil and
gas regulatory agency, the Division of Oil, Gas and Geothermal Resources(DOGGR), can not tell us
where fracking has taken place, how much water was used by each frack job, what chemicals were
injected into the earth and at what concentrations,or what environmental,health, and seismic impacts
have resulted or could result from fracking.
Today, DOGGR is finally going about preparing regulations for fracking but using the evidence of
their first set of draft regulations,EWG feels that it is critical that the Legislature weigh in at this time.
SB 4 is a comprehensive bill that gives guidance to DOGGR as to what would constitute a more
thorough approach to regulating this aspect of the oil and gas industry. SB 4 will require,among other
things,public notice to surrounding property owners in advance of drilling,and formal agreements
between DOGGR and other agencies to ensure regulatory accountability,will require well operators
for the first time to obtain a permit from DOGGR specifically for fracking, and will prevent DOGGR
from issuing any fracking permits after a certain date until a study on the impacts of fracking is
complete.
These provisions and others in the bill will go a long way toward filling the many regulatory gaps that
presently exist regarding fracking activities in California. EWG is concerned about how trade secrets
are handled in the bill and would like to stay engaged with Senator Pavley and the policy committees
to resolved this issue in a manner that will be protective of the public's right to know when cancer-
causing or poisonous chemicals are being injected through or near their property.
SB 4 is a critical piece of legislation to help ensure that DOGGR produced regulations that will be
comprehensive and we urge its passage.
Sincerely,
Bill Allayaud
CA Director of Governmental Affairs
HEADQUARTERS 1436 U St. NW, Suite 100 Washington,DC 20009 1 P: 202.667.6982 F: 202.232.2592
CALIFORNIA OFFICE 2201 Broadway, Suite 308 Oakland,CA 94612 1 P: 510.444.0973 F:510.444.0982
MIDWEST OFFICE 103 E. 6th Street, Suite 201 Ames, IA 500101 P: 515.598.2221
213
11 16:33:04 04-05-2013 111
9 rr r
LEAGUE OF WOMEN VOTERS® OF CALIFORNIA
April 5,2013
The Honorable Fran Pavley,Chair
Committee on Natural Resources and Water
California State Senate
P.O.Box 942848
Sacramento,CA 94248-0001
Rs:SB 4---SUPPORT
Dear Senator Pavley:
The League of Women Voters of California supports Sly 4,your comprehensive bill on
hydraulic fracturing(fracking).
SB 4 will establish the legislative guidance that is needed for the ongoing regulatory
process,in which the LWVC has been participating,It provides for a scientific study of
occupational and public health and safety,as well as environmental effects;such a study
is sorely needed.And it provides for disclosure of community right-to-know information
to the public,including advance notice,which we strongly support.
The bill goes a long way to address the issue of how to disclose trade secret information
in cases of emergency or health needs,including easing of the"gag rule"on physicians.
We would encourage amendments to this bill to further strengthen these disclosure
provisions.For instance,local emergency response agencies inay need instant access to
this information,particularly for hazardous materials including toxic chemicals.In
addition, confidential status of wells should not interfere with disclosure needed for
;protection of public health and safety and the environment.
Sincerely,
Lk
Q4
Jennifer A.Waggoner
President
1107 9a'Street oc:Members,Committee on Natural Resources and Water
Suite 3W
Sacm mento,CA
95 81 4-9 6118
916 442.7215
888 870.8683
916 442.7362 fax
1wvcQ1Wwe,0rg
wtvw.lwvc.nrg
www,smartvuter.org
www.easyntecorg
214
A Catalyst,for Change
April 3, 2013
The Honorable Fran PavIey,Chair
Senate Natural Resources and Water Committee
State Capitol,Room 4035
Sacramento, CA 95814
Re: SB 4(Pavley) Oil and gas:hydraulic fracturing
Position: Support
Scheduled for hearing:April 9,2013
Dear Senator Pavley:
On behalf of the Los Angeles Community College District, I am writing in support of your SB
4. The bill would require the Secretary of the Natural Resources Agency to cause to be
conducted an independent scientific study on hydraulic fracturing treatments. The bill would also
require the Division of Oils, Gas,and Geothermal Resources in the Department of Conservation
to adopt rules and regulations specific to hydraulic fracturing, The bill would also institute a
racking permitting system with pre-and post-fracking disclosure necessary to assess the frack
job.. The bill also specifies that no permits can be issued until the study is completed.The bill
also requires advanced public notice to specified property owners at least 30 days prior to
commencing a hydraulic fracturing treatment.
Currently and over the next several years,it is projected that hundreds of new oils wells will be
drilled in the Inglewood Oil Field located in a heavily populated urban area immediately adjacent
to West Los Angeles College. There is not available data on-how much of the oil drilling
involves fracking and the district is concerned about the impact that fracking might have on the
campus community.There are well-documented hazards and risks to public,occupational and
environmental health and safety associated with the practice of(racking.These include air and
water contamination associated with poor handling practices,spills and wee-casing failures. The
fraddug of oil and gas is an industrial project that includes heavy equipment, chemicals and
significant amounts of noise and dust. Neighbors of wells and potential wells ought to be
provided advanced notice of and protection from these activities, In California there is little
information about fracking and no state regulator can provide accurate and comprehensive
information about the extent of fracking or an assessment of its risks. LACCD believes that SB 4
is a positive step in ensuring that communities are aware and protected from any potential risks
associated with fracking.Thank you for introducing this important piece of legislation.
Sincerely, /—A
Mark MacDonald
Cc: Members, Senate Natural Resources and Water Committee
2415 L Street.Suite',*20,Sacramento,CA {)5,81.1 • Tel.0161 446-5058 . Fax(916)446-4542 % sysc.mcca0uml;roupinc.com
215
NRDCNATURAL RESOURCES DEFENSE COUNCIL
Tot Emknt Bev QEsime
April 2,2013
Senator Fran Pavley
Chair, Senate Committee on Natural Resources and Water
State Capitol, Room 4035
Sacramento, CA 95814
Re: SB 4(Pavley) Hydraulic Fracturing—SUPPORT
Dear Senator Pavley:
On behalf of NRDC (Natural Resources Defense Council),which has more than
1.3 million members and activists,250,000 of whom are Californians,we write to
support committee approval of your bill, SB 4.This important bill addresses the
environmental issues inherent in the practice of hydraulic fracturing or"fracking." SB 4
would provide a comprehensive framework for fracking regulation in California, which is
long overdue.
NRDC is working in California and other parts of the country to prevent
environmental damage from hydraulic fracturing, a well stimulation technique in which
water, often sand,and a mix of chemicals are injected into a well at high pressure to
fracture the underground formation and force oil and gas to the surface. Fracking uses
immense quantities of water and has been linked to groundwater and air pollution,as we]I
as earthquakes.
At present,California has no regulations specific to fracking. The state's oil and
gas regulatory agency,the Division of Oil,Gas and Geothermal Resources(DOGGR),
does not know where fracking takes place, how much water is used by each frack job,
what chemicals are in the fracking fluid and in what concentrations,or what
environmental, health, and seismic impacts are resulting from fracking operations within
the state. This troubling situation is exacerbated by:the oil industry's likely exploitation
over the next few years of a massive geologic formation in central California known as
the Monterey Shale,which reportedly contains up to 15 billion barrels of potentially
recoverable oil. Industry will likely need to employ fracking and other advanced recovery
techniques to extract that oil.
SB 4 will require, among other things, an independent scientific study on fracking,
the adoption of comprehensive fracking regulations by DOGGR, and formal agreements
www.nrdc.org 7314 Second Street NEW YORK - WASHINGTON,DC • SAN FRANCISCO • BEIJING ° CHICAGO
Santa Monica,CA go.4o-1
Ta,310 434-2300
FAX 190 434-2399
7XJ1 Pbumnwmar lAccyc:rtO P�cr a .�T
216
Senator Fran Pavley
April 2,2013
Page 2 of 2
between DOGGR and other agencies to ensure regulatory accountability. Moreover, SB 4
will require well operators for the first time to obtain a permit from DOGGR specifically
for fracking,and will prevent DOGGR from issuing any fracking permits after a certain
date until the fracking study is complete.These provisions and others in the bill will go a
long way toward filling the many regulatory gaps that presently exist regarding fracking
activities in California.
We would like to continue working with you to improve the bill by ensuring that
no permits for fracking are issued until the independent study is complete and adequate
safeguards are in place to protect public health and natural resources.The bill should also
require full disclosure of the chemicals used in fracking to ensure that Californians are
protected from any adverse impacts.
We look forward to collaborating with you and this Committee to craft a final bill
that will ensure a fully effective system of safeguards for hydraulic fracturing in
California. Thank you for your continued leadership on this important issue.
Very truly yours,
V
Damon Nagami Victoria Rome
Senior Attorney California Legislative Director
217
Pawi; PA
California's Political Action Committee for Animals
PO Box 20425, El Sobrante, CA 94820. 510/222-2236
L U 01 wwww.pawpac.org info @pawpac.org
Al- 13
woL
working for animals and their environment through politics since 1980
Pmv PAC,identification No.802046,is not affiliated with any other organization.
218
100)ky DO
"14 FE"AN DO VALLEY
YOUNG D€MOGRATS
k
April 18,2013
The Honorable Jerry Hill
Chair,Senate Environmental Quality Committee
State Capitol,Room 2205
Sacramento,CA 95814
RE:Support for SB 4(Pavley)—fracking regulatory framework
Dear Chairman Hill,
There are well-documented hazards and risks to public,occupational and environmental health and
safety associated with the practice of hydraulic fracturing(or"fracking")of wells both across the country
and throughout the world. These include air and water contamination associated with poor handling
practices,spills and well and well-casing failures, as well as induced seismicity associated with disposal
of waste fluids in injection wells,illegal dumping of the fluid wastes and accelerated roadway
deterioration,among others. The fracking of oil and gas wells is essentially an industrial project—
including heavy equipment,chemicals and significant amounts of noise and dust--and it makes no
sense that the neighbors of the wells are not provided advance notice of and protection from these
activities —as they are In other states. Here in California,existing and planned state regulation is
completely inadequate. To this day—despite years of public outcry—no state regulator can provide
accurate and comprehensive information about the extent of fracking or an assessment of its risks. This
lack of progress,despite existing authority, is inexcusable.
One of San Fernando Valley Young Democrats'goals as an organization is to increase the efficiency of
our government. We are supporting SB 4 because it gives the state tools necessary to provide a
transparent process for conducting fracking,thereby ensuring that the health and safety of the public,
and the environment is not jeopardized.
Senator Pavley's SB 4 is a straight-forward and common sense bill that seeks to provide explicit direction
to state-level regulators on fracking in order to provide public transparency and regulatory
accountability. It requires that an independent, peer-reviewed scientific study that Includes public
health be conducted and institutes a fracking permitting system with pre-and post-fracking disclosure—
including chemical information—necessary to assess the frack job. Importantly,no permits can be
issued until the study is completed and the health and safety of Californians and their environment is
protected.The bill also includes advance public and neighbor notice of fracking,baseline and follow-up
ground-and surface water testing and other provisions.
California lags the many states that already have similar law and regulations in place. I urge you to join
us in supporting 56 4.
Sincerely,
Dina Cervantes
President,San Fernando Valley Young Democrats
219
Jennifer Mellon
From: Moore, Katharine <Katharine.Moore @sen.ca.gov>
Sent: Wednesday, May 22, 2013 3:03 PM
To: Jennifer Mellon
Cc: Lakin, Marie
Subject: RE: SB 4
SCAQMD letter update—SCAQMD has moved to an unqualified support position on SB 4.
From: Jennifer Mellon [mailto:jmellon(a)ci.moorpark.ca.us]
Sent: Tuesday, May 21, 2013 9:17 AM
To: Lakin, Marie; Moore, Katharine
Subject: SB 4
Hi Marie and Katharine,
I left you a voicemail but figured I would follow up with an email as well. I am working on an agenda report regarding
support for SB 4. One of our Council Members wished to review the Support and Opposition documents that are
referenced on your fact sheet. Is there a way you can provide me with copies of the letters you have received?
Thank you very much,
Jennifer
,les uu�'r mellory
Administrative Services Manager
Communications,Information Systems,Public Information,Intergovernmental Relations,Legislation
City of Moorpark 1 799 Moorpark Avenue I Moorpark,CA 93021
805.517.6247 1 fax:805.532.2520 1 jmellon @ci.moorpark.ca.us
Save Paper.Please Think Before You Print!
1
220
South coast
Air Quality Management District
21865 Copley Drive, Dlamond Bar, CA 91765-4178
(909) 396-2000 • www.agmd.gov
4ffrce of'tlze Executive Officer
Barry R. Wallerstein, D.Env,
909.396 2100,fas 909.396.3340
January 18, 2013
The Honorable Frail Pavley
Senator, California State Senate
State Capitol,Roon14035
Sacramento, California. 95814
Re: SB 4 —SUPPORT WITH AMENDMENTS
Dear Senator Pavtey:
The South Coast Air Quality Management District's (SCAQMD) Legislative
Committee is pleased to offer an interim position of SUPPORT WITH
AMENDMENTS for SB 4 Oil and gas: hydraulic fracturing, as introduced on
December 3, 2012. 11is position is considered interim until the SCAQMD Governing
Board finalizes the position on this bill at its February meeting.
SB 4 is a comprehensive hydraulic fracturing(tracking) bill directing the Division of
Oil, Gas, and Geothermal Resources (DOGGIZ) to promulgate regulations in
consultation with other regulatoiy regencies that may have.jurisdiction over different
parts of the(racking process, It provides a statutory framework for how fi•acking—
including the disclosure of fraCking fluid composition— should become part of the
existing well history and requires advanced notice to the public and specified
agencies.
The U.S. EPA reports air quality impacts in areas with active natural gas development
have increased emissions of volatile organic compounds (VOCs), hazardous air
pollutants, and methmie, the main component of natural gas and a potent contributor
to climate change_ Similarly, a recent study by the Colorado School of Public health
indicated that air pollution May contribute to "acute and chronic health problems for
those living near natural gas drilling sites."
This bill's requirements to make the information regarding hydraulic fracturing in the
exploration and production of oil and gas resources is California, and the specific
chemicals used in the process, accessible to the public would be consistent with the
goals and priorities of SCA.QMD. 'I7his would allow the public and the SCAQMD to
221
The Honorable Fran Pavley 2 January 19, 2013
be better equipped to combat the emissions that these wells produce within the South
Cmast region.
Consistent with the intent of the bill and local air district responsibilities. SCAQMD
recommends that the bill be amended to:
1. Require consultation with the local air districts during the rulemaking process.
2. Allow DOGGR.to release trade secret information to air district:employees in`
connection With their duties.
3. Require disclosure of fractUring fluid composition (inClUding trade secrets)
frain out-Of=state suppliers and in-state suppliers who are outside of our
Jurisdiction.
IC YOU have any questions or would like to discuss the bill further, please call me at
(909) 396-2100, or Lisha Smith, Deputy Executive Officer for Legisiative &Public
Affairs at (909) 396-3242.
.sincerely,
Barry R. Warn, D.Env.
Executive Officer
BRWT)JA:GI;A
222
CaKhamber., uumn*" -
Council
O R H
�� MANUFACTURERS California
ss
&TERHNOlO OY I;IIStO0J5
properflex
Assviation
Western States Pelroleum Association
April 2, 2013
The Honorable Fran Pavley
California State Senate
State Capitol, Room 4035
Sacramento,CA 95814
SUBJECT: SB 4(PAVLEY)OIL AND GAS: HYDRAULIC FRACTURING
AS AMENDED—MARCH 11, 2013
OPPOSE
Dear Senator Pavley:
The California Chamber of Commerce(Cal Chamber)and the undersigned organizations
respectfully OPPOSE your SB 4(Pavley),which mandates the state's Natural Resources Agency
to conduct a study of hydraulic fracturing,and then mandates regulation of that practice,
inappropriately presuming the outcome of that study before it has even been conducted.
Further,SB 4 imposes a moratorium on the use of hydraulic fracturing in oil and gas production
starting on January 1, 2015, until those regulations are complete. This would unnecessarily and
substantially threaten our supplies of oil and natural gas,raising business costs and harming
California's economy.
The provisions in SB 4 are premature and would circumvent the Governor's regulatory efforts
on hydraulic fracturing. We believe the Governor is committed to creating a regulatory
structure that is based on science,technology, and data and through this process,where all
stakeholders will have a strong voice,will be a comprehensive regulatory structure that will
provide strong health and safety and environmental protections.
Economic recovery and growth require adequate supplies of reliable, affordable energy. By
obstructing an important means of growing our in-state production capability, SB 4 will
necessitate increased oil imports,raising the cost not only of fuel,but of manufacturing,
agricultural operations, public transportation and all goods and services which are energy-
dependent.This will in turn place our businesses at a competitive disadvantage,impede job
growth and suppress property, income and excise tax revenues.
This significant, untimely burden on California's businesses and economy is unnecessary. Oil
and gas production as a whole is heavily regulated and monitored, and hydraulic fracturing has
223
been used here for decades with no reported incidents of harm to the environment or public
health. SB 4 will not provide added public health or environmental protections, but it will
increase business costs, hamper California's economic recovery and deprive our state of much-
needed fuel,jobs and tax revenues indefinitely.
For these reasons we OPPOSE your SB 4(Pavley).
Sincerely,
American Chemistry Council
California Chamber of Commerce
California Manufacturers and Technology Association
California Business Properties Association
Western States Petroleum Association
224
California Independent Petroleum Association
Blair Knox,Director of PublicAfairs
1001 K Street, Sixth Floor
Sacramento, CA 95814
Phone:(916)447-1177
CIPA Fax.•(916)447-1144
E-Mail.,blairna cipa.ore
April 1,2013
The Honorable Fran Pavley
State Capitol,Room 4035
Sacramento, CA 95814
RE:SB 4--Oppose
Dear Senator Pavley:
On behalf of the California Independent Petroleum Association(CIPA), I am writing to inform you
of our opposition to SB 4,relative to the development of an independent, scientific hydraulic
fracturing study and disclosure of specific information.
Hydraulic fracturing is a well understood completion technique that has been used successfully in
California for over half a century.
The California Division of Oil,Gas and Geothermal Resources(DOGGR)has regulated wells that
are hydraulically fractured through well integrity regulations that protect freshwater sources with
multiple layers of pipe and cement so there is no contamination of underground aquifers. This has
worked well and there has been no instance of hydraulic fracturing contaminating aquifers from
poor well construction in California.
The bill calls for a moratorium on hydraulic fracturing if a study is not complete by January 1,
2015. If not complete,then no new permits will be issued for hydraulic fracturing. Hydraulic
fracturing is already one of the most studied commercial practices in the world. Dozens and dozens
of studies have already been completed and peer reviewed including a 250 page study of hydraulic
fracturing in the Baldwin Hills oil field in Los Angeles. The study was completed as part of a legal
settlement between the field operator,City of Culver City,NRDC, Mark Salkin,Concerned Citizens
for South Central Los Angeles,Community Health Councils and Citizens Coalition for a Safe
Community.The study was completed by an independent firm with specific criteria and peer
reviewed. Fourteen distinct environmental.issues were studied.No significant impacts were found
to groundwater,well integrity., methane emissions, seismic activity, subsidence, noise,vibrations,
criteria pollutants and community health risks.The inadequacy of this or the other numerous studies
which found the practice safe has never been presented.
Over 90%of hydraulic fracturing happens within Kern County, 80%within the Belridge oil field
alone. Located on the west side of Kern County these fields have no potable water, no surrounding
population and no other significant business interests. Even the unfounded risks claimed by
opponents of the practice do not exist in over 80%of hydraulic fracturing operations.
CIPA supports the Governor's call for additional regulations developed specifically for hydraulic
fracturing by the Department of Conservation and Division of Oil, Gas and Geothermal Resources.
225
These rules include the development of additional notification and well testing to insure the safety
of this well-known well completion practice. CIPA supports the disclosure of chemicals used to the
appropriate health and safety regulatory agencies while protecting proprietary information under the
Uniform Trade Secret Act.
The call for a study is a strategy that we have seen used in other parts of the country to delay and
even prohibit drilling operations.New York has been working on the same study for over four years
with no end in sight.Tlie strategy of death by bureaucracy is one of the reasons California is seen as
unfriendly to business and is bad public policy.
Thank you for your consideration and the opportunity to comment on this important matter. Please
feel free to contact me if you have any questions.
Sincerely,
Blair Knox
Director of Public Affairs
226
f
1
April 27, 2013
Senator.Terry Hill
Chair
ATTORNEY AT T LAW
AODa Y.CARDIFF. Esq. Senate Committee for Environmental Quality
LAW
1901 FfLsT AvENUE Address: State Capitol, Room 2205
surrE 219 Sacramento,CA 95814
SAN DIEGO CA Fax: (916)322-3519
92101
T st9 546 5123 RE: Opposition to Senate Bill 4
F 619 546 5133
todd0tcardifflaw.com near Senate Committee for Environmental Quality
My office represent.Citizens Coalition for a Safe Community(CCSC).a
501(c)(3) non-profit organization originally formed to inform and protect the
communities of Los Angeles County,concerned now about the impacts of oil
field operations throughout California. It is with great disappointment that we
must oppose SB4(Pavley). We have great respect for Senator Pavley,
Unfortunately, SB4 has many of the same problems and inadequate protections
as the draft regulations from DOGGR and will continue the lack of transparency
and oversight that has plagued oil field:operations in the past.
Our largest concern is that the Legislature appears to be working in a
vacuum of information and scientific study. While SB4 requires a study to be
prepared in short order. SB4 also permits franking to continue in the mean time.
Even more concerning is that actual policy is being solidified in SB4 prior to
considering the study. CCSC strongly supports a moratorium until a full study is
prepared. Once a full study is prepared and all the policy issues have been
resolved,then SB4 can be properly considered.
A. Fracki.ng and Oil Development Has Proven Unsafe to
Heath and the Environment.
Fraeking, acidization(acid franking)and other `well stimulation"and
"injection operations have already been proven to cause substantial problems
outside of California. For example,the Pennsylvania Department of
Environmental Protection cited Calvet Oil and Gas for contaminating water
resources in Dimock,Pennsylvania.` In Pavillion,Wyoming,a chemical known
as 2-BE was discovered in water wells near franking operations,a chemical
commonly used in franking mixtures." Texas regulators have found high levels
of benzene in the air near franked wells in the Barnett Shale wells."' In Ohio,
regulators acting on information from a whistle blower, found a franking
operator disposing of frank water into a storm drain that lead directly to a
227
Senate Committee on Environmental Quality
RE: Opposition to SB4
April 27,2013
Page 3 of 8
claims of the operational safety should be viewed with a healthy level of
skepticism, and a high level of disclosure and verification.
B. Limits on Water Usage Should Be Imposed on Fracking
Operations
We caution legislators about the snake oil sold by'iWSPA and other
industry lobbyists about the difference between fracking in California and
fracking outside of California. Faacking is fracking is fracking, And fracking is
forever. While we agree that techrticlues vary from oil field to oil field and often
within an oil field,the same environmental challenges occur regardless of
location.
One of the main myths about California fracking perpetrated by oil
industry lobbyists is that fracking in California uses significantly less water than
operations in other states. Logically.such a claim,does not hold water(pun
intended}. Water usage in fracking operations is generally a component of the
length of well bore. The deeper the well,the longer the well bore and multiple
stages,the more water required. With directional(horizontal.)drilling,the
length of the well bare may be considerable.'x
More importantly, the low water usage claim is presented to avoid a very
important policy issue for California--should farmers and residents of
California.pay significantly higher water prices for the benefit of oil
development? if there are no prohibitions in the legislation on the amount of
water that may be used in fracking,then fracking may use an unlimited
amount of water in the near future!
Already there are stories about farriers who cannot purchase water
because oil companies are outbidding them for water resources.' Allowing the
use of freshwater for fracking purposes to remain unregulated has the very real
possibility of driving up already high water prices. Thus,while oil operators
generate-bllions in profits from increased oil and gas extraction, Californians are
burdened with higher water prices and food prices. Thus fracking essentially
transfers wealth from water ratepayers to oil companies. There is no mechanism
to compensate for the higher water prices that 37 million people in California
,Rill suffer due to increased competition for scarce water resources.
228
Senate Committee on Environmental Quality
RE: Opposition to SB4
April 27,20L3
Page 4 of 8
There are two main ways to address such issue. First, is to set some kind
of limit on the amount of fresh water that may be used in fracking operations.
Setting a reasonable limit per well or a state-wide limit on the use of water will
ensure that water is available for higher priority uses.sucli as agricultural and
residential customers.
Another way to address the issue is to simply mandate the use of recycled or
brackish water. Recently,a bill was introduced in the Texas legislature to
address this issue. (Texas 1`1132992) It states:
Natural Resources Code. Sec.A91.1017.SOURCES OF WATER USED
TO PERFORM HYDRAULIC FRACTURING TREATMENTS,
(a)At least 50 percent of the total volume of water used to perform
a hydraulic fracturing treatment on an oil or gas well must consist
of.
(])brackish water:
(2)recycled hydraulic.fracturing wastewater; r
(3)itidustrial wastewater; or
(4)a combinationn of the sources of water described by
Subdivisions(1), (2),and (3).
(b)An operator shall report to the commission with regard.
to each oil or gas well operated by the operator on which a
hydraulic fracturing treatment is performed:
(])the sources of water used to perform the
treatment: and
(2)the amount of water from each source used to
perform the treatment.
(e)The commission may adopt rules to implement this
section. Rules adopted tinder this section may provide exemptions
from the requirements of this section in cases in which compliance
with those requirements is impractical.
If Texas is concerned about water resources to such an extent that it would
consider mandatory use of recycled water in fracking operations, then Calfornia
should follow suit. Don't avoid the issue just because WSPA claims that
fracking is different in California. Ensure that our precious water supplies are
protected.
229
Senate Committee on Environmental Quality
RE: Opposition to SB4
April 27,2013
Page 5 of 8
C. Numerous Changes are Needed to S114 to Ensure Public
Participation and Safety in Fracking Operations.
CCSC believes that SB 4 contains many of the same infirmities as the
draft DOGGR.regulations,which we consider extremely weak and inadequate.
SB4 suffers from the following problems:
1. Removes fracking from the Underground injection Control Program by
defining fi-acking as well stimulation instead of underground injection. (PRC
3152.) Unless fracking with diesel fuels is prohibited or covered under a
separate regulatory scheme,the legislation will result in the inability of
California to maintain its certification of the UIC progi•arn under the Safe
Drinking Water Act and EPA regulations. (See L.E.A.F. v. EPA (1997) 118
F.3d 1467(Leaf i); L.F_,.A.F. v. EPA(2001)276 F.3d 1253 (Leaf 11).) There is
nothing that prevents California from regulating fracking,under the UIC
program.
2. The defutition of Hydraulic Fracturing is so narrowly focused that it
leaves out fracking techniques that do not use proppants. such as acid fracturing,
that can be equally harmful. (PRC 3152) We suggest removing the term
"proppant" from the definition.
3. No public notice procedure or public participation prior to the issuance
of the pert-nit, (PRC 3160(d)(2)(A.)
4. Only after the fact notification of the approval of a permit to other
agencies and the public. (PRC 3160(d)(4).)
5. Weak and unenforceable standard for approval of pen-nit, Fracking
shall be approved unless the operation"presents an unreasonable risk." (PRC
3160(d)(2)(C).) Such.standard requires approval as long as the Supervisor
considers the risk to public health"reasonable".
6. No opportunity for adjacent landowner to challenge or object to the
permit prior to issuance. Only after-the-fact notification. (PRC 3160(d)(5),}
7. Trade secret protection would make it difficult to conduct water testing,
establish undeniable links between fracking and health issues,conduct
epidemiological studies,and may prevent wildlife resource managers from
determining the source of environmental damage. (PRC 3160Cj)et, seq.)
230
Senate Committee on Environmental Quality
RE. Opposition to S134
April 27,2013
Page 6 of 8
8. Actual gag order on physicians. (PRC 31600)(9)(B).)
9. Confidential well protections that can potentially keep secret the.fact
that fracturing is even occurring. (PRC 3160(I).)
1.0. Only provides 3 day notice to the DOGGR prior to actual
commencement of fracking operations, making direct supervision of the
fracturing operations by regulators unlikely. (PRC 3160(d)(9).) No notification
to adjacent landowners.
11. Includes sections that are of ambiguous and of unknown legal affect.
For example, states that the"operator is responsible for compliance with this
section". 'It is unclear whether the term"section"applies to all of PRC 3160 or
something else. It could be interpreted as providing a safe harbor provision to
the suppliers or even DOGGR itself for failing to comply with duties enumerated
under PRC 3160.
D. SB4 Includes Some Very Important Public Protections that
Should be Included in All Regulations of lFracking..
Despite the numerous problems with S114 that prevent CCSC`s support for
the bill,there are some positive components of the bill that we believe should be
included in any future legislation. These include the following:
1. Requires the disclosure of the source of the water, which may
be important to establish a need for further legislation. (See Section B, above.)
2. Disclosure of the disposal of water.
3. May permit a surface owner to demand pre-fracking water
testing.
4. Provides discretion to the Supervisor to reject a permit if the
requested fracking operation is in a location that is in an unsafe location 0c. near
urban centers,earthquake faults,water bodies,or sensitive habitat.)
5. Requires the supplier to provide the actual chemical
constituents in fracturing fluid to DOGGR,so that if"LOVE CANAL- starts
231
\ Senate Committee on Environmental Quality
RE: Opposition to SB4
April 27,2013
Page 7 of 3
occurring, injured parties can at least blame the regulators for not protecting
public health..
6: Shifts the burden to the supplier to protect its trade secrets in
response to a public records act request.
7. The regulation could easily cover other types of well
stimulation if the term"and proppan.t" is removed from definition or changed to
"andlor proppant"was:inserted into section 3152.
8. Institutes a moratorium if regulations are not implemented by
January 1.2015,
I,. CONCLUSION—8114 Needs Substantivally More Work.
Unfortunately, txcause of the numerous problems with SB4, CCSC feels
compelled to oppose such bill.Not only is fracking a huge potential threat to the
environment, it has substantial policy implications with regarding to water use
and climate change. Fracking needs thorough study prior to the setting up of any
type of regulatory scheme. Creating policy without the science support is
foolhardy at best. Science must drive lx)licy considerations.
Finally,CCSC is absolutely offended by the trade secret protection and
gag order on physicians. Such gag order can chill scientific research,prevent
identification of disease or illness clusters that indicate water or air
contaminat7ion and may result in the avoidance of.liability by negligent and
reckless oil operators. California needs a regulatory system for fracking that
includes public participation and oversight.
Sincerely,
i
Todd T. Cardiff
Attorney for
Citizens Coalition for a Safe Community
232
"INN Senate Committee on Environmental Quality
RE: Opposition to SB4
April 27,2013
Page 8 of 8
'House Committee on Energy and Commerce,Minority Staff Report,"Chemicals Used in
Hydraulic Fracturing"(April 2011)at p.3,tn.4(citing"Officials in Three States Pin Water Woes
on Gas Drilling"I'roPublica(Apr.2009)www.propublica,argrarticle%ol icials-in-three-states-pin-
1;ater-woes-on-gas-drilling426)
" Chemicals Used in Hydraulic Fracturhng',supra.at p. 7.
"House Committee on Energy and Commerce,"Memorandum re: Examining the Potential
Impact of Hydraulic Fracturing-(Feb, 18.2010)at p.6.
USA v.Ben Lupo,Case No.4:14 M 6006(U.S.Dist.Ct.Northern Ohio).
`See,Watson TL,Bachu S. Evaluation of the Potential for Gas and CO2 Leakage Along
Wellbores.SPE. 106817 12009): Biufatto C.Cochran J.Power LCD.El-Zeghaty SZAA, fraboulet
8,Griffin T,Munk S,Justus F,Levine J,Montgomen•C.Murphy t), Pfeiffer J,Pornp-och T.
Rishmani L.From Mud to Cement-Building Gas Wells,.Schlurfthrrger OdField Review.(Autu.mn..
2003).
"NOAA,Office of Response and Restoration,Final Report(Sep 2004), Incident News:
http:/iwww.incidentnews.gov!entr)t/508292.
"'California Planning and Development Report,"Unocal Reaches Deal on Avila Beach"
http:hwww.cp-dr.cominodeil312(last accessed 11161'2013);LA Times,"Avila Beach Prepares for
Oil Cleanup'(Nov.2, 1998), (last
accessed 1/1612013.)
"'Bakersfielcinow.com,";✓tore problems in oil field where worker died in sinkhole"(August 21.
2011),let tp:%lwww.bakersfetdnow.comrnews/locaLi127C^4563.htm1(list accessed 1/16;'2013.)
"Western Organization of Resources Councils."Gone for Ciood:Fracking and Water Loss in the
West"(2013),available at www.worc.org
Bntee Finely,"Fracking Bidders Top Farmers at Water Auclion", Denverpost,com(April 2.
2012)available at http://www.denverpost.comlenteminmentc()Iumnists!ei_20;106480.'&acking-
bidders-top-farmers-at-water-auction.
233
y
The physician and health advocate voice for a world free from nuclear threats t:
and a safe, healthy environment for all communities, :.::;
April 3, 2013
Senator Fran Pavley Physicians for Social Responsibility
State Capitol,Room 4035 Los Angeles
Sacramento,CA 95814
Re: SB 4- Oppose unless amended
Dear Senator Pavley:
With the deepest respect for you and your leadership on critically important issues facing
California,we write to oppose Senate Bill 4 unless amended.
We do not take this position lightly and without great internal reflection on the gravity of our
decision given that there is much that is praiseworthy in the bill. We determined,however,that
we cannot and will not support a legislative effort that extends trade secret protection to the oil
and gas industry for the chemical additives used in hydraulic fracturing in California. There is
simply too much at stake.
Before we detail our opposition to the trade secrets language included in this bill,we first wish
to commend your overall effort to clarify many of the conditions under which hydraulic
fracturing may occur in California.We believe strongly,however,that the People of California
have not yet been asked—nor have we answered—the threshold question: should oil and gas
be extracted from California's shale using a range of unconventional methods,including
hydraulic fracturing? It is clear based upon the experiences from other states that have
answered this question for themselves in the affirmative,that such extraction can and does
cause significant health and environmental harm. Indeed,it is because of these experiences that
you—a long-time environmental leader—have authored this important bill. We believe that the
experiences to date,and the data that have been collected thus far, clearly establish the need for
California to engage in more thoughtful consideration of the threshold question of whether to
extract oil and gas from shale before answering the question of how to extract oil and gas from
shale. Until both those questions are answered,a moratorium is the most appropriate course of
action.
As you are well aware,there are three other bills that take up the issue of a moratorium,so we
focus here on the language included in—instead of that excluded from—SB 4. In particular,the
bill states on page 12 at lines 31-35:
0)(1) The supplier may claim trade secret protection for the chemical composition of
additives pursuant to Section 1060 of the Evidence Code, or the Uniform Trade Secrets
Act(Title S (commencing with Section 3426) of Part 1 of Division 4 of the Civil Code).
PSR-LA 617 S.Olive St,Ste.200,Los Angeles,CA 90014 1 phone 213-689-9170 1 fax 213-689-9199 1 email infofpsr-la.org j www.psr-la.org
234
Senator Pavely 2
RE:SB 4—Oppose unless amended April 3,2013
With this language,this bill makes it the policy of the State of California to elevate the financial
gain of select oil and gas industry players over the health and environment of the people of
California. In particular,we are compelled to point out that it is well known that Halliburton
pioneered the development of the fracking and is one of the leading fracking contractors in the
world. (See Halliburton's website at
http://www,halliburton.com/public/projects/pubsdata/hydraulic_fracturing/fracturing_101.ht
MI)
Physicians for Social Responsibility-Los Angeles has a long and proud history of opposing
industry efforts to expose the public to harmful chemicals and their efforts to limit public
disclosure of harmful chemicals unleashed upon the public. For example,we are actively
seeking to end the use of toxic flame retardants in furniture and worked hard to remove BPA
and phthalates from children's products.We fought to remove.toxic pesticides from schools and
supported buffer zones for pesticide use in California agricultural communities. In addition,we
have spoken out against the cumbersome impacts on health professionals treating pesticide
related illnesses in clinical settings of trade secrets protections granted to pesticides. This is
simply a continuation of that work.
Further,we note that the approach in this bill stands in stark contrast to that taken in Alaska
where the Alaska Oil&Gas Conservation Commission (AOGCC)has proposed a fracking
regulation that requires disclosure of"the amount and types(s) of material pumped during each
treatment stage and the total amount and types of material pumped..."to the Commission,but
does not grant trade secret protection to the oil and gas industry. (See
http://doa.alaska.gov/ogc/) The oft repeated chant of oil and gas industry lobbyist to the
contrary,the grant of trade secret protection for this clearly hazardous mix of chemicals is an
imprudent and unnecessary step in the wrong direction that is not dictated by the existing body
of trade secret law. Rather,this grant of trade secret protection should be seen as a policy
decision based upon balancing the financial goals of the oil and gas industry with the public
health and environmental goals of the people of California. We urge you to strike that balance in
favor of the people and environment of California.
We urge you to consider carefully the attached letter from ten law professors with expertise in
intellectual property and trade secrecy that makes several very clear and compelling points
about trade secrets law. Indeed,as the law professors point out:
The fact that a firm's competitors might be interested in information does not insulate a
firm from the implications of the activity that the information describes.Trade secret law
does not and should not exempt a firm from participation in the larger legal system,
including warning and harm prevention.
Finally,we completely reject idea that it is proper for the State of California to force doctors,
nurses,first responders,and other health professionals to enter into a contract with oil and gas
companies--or a multi-national corporation like Halliburton--in order to access information
necessary to provide competent medical treatment to their patients as set out in the language
on page 14 at lines 22-26:
PSR-LA 1 617 S.Olive St,Ste,200,Los Angeles,CA 90014 1 phone 213-689-9170 1 fax 213-689-9199 1 email info@psr-la,org I www.psr-la.org
235
Senator Pavely 3
RE: SB 4—Oppose unless amended April 3,2013
Confidentiality of the trade secret information shall be maintained. The holder of the
trade secret may request a confidentiality agreement consistent with the requirements
of this subdivision to whom this information is disclosed as soon as circumstances
permit.
Everyone agrees that scientific information has a,central place in the conversation about
unconventional oil and gas extraction. In establishing practically insurmountable hurdles to
collecting data about the chemical mixtures being used in hydraulic fracturing—the very
foundation of scientific research and understanding about its impacts—California would be
making a truly tragic decision that can only result in harm to the people of California.
Senator Pavley,we have long respected you and your work on behalf of the people of California.
We look forward to working with you on the issues we discuss above so that we can proudly
support your effort to develop comprehensive legislation on hydraulic fracturing.
Sincerely,
} 1
l
Martha Dina Arguello _ Prtlga rbhn5on Me<szaros
Executive Director GenbTAf Counsel
PSR-LA 1 617 S.alive S4 Ste.200,Los Angeles,CA 90014 1 phone 213-6Q9-9172 fax 213-6139-91991 email info @psr-la.org www.psr-la.org
236
April 1,2013
VIA EMAIL AND FACSIMILE
Commissioner Cathy P. Foerster
Alaska Oil&Gas Conservation Commission
333 West 7th Avenue
Anchorage, Alaska 99501
Re: Second Revised Notice of Proposed Changes in the
Regulations of the Alaska Oil and Gas Conservation
Commission dated January 17, 2013, specifically 20 AAC
25.283,Hydraulic Fracturing
Dear Commissioner Foerster:
We, the undersigned law professors who teach and write about
intellectual property and trade secrets, write in support of the Alaska Oil and
Gas Conservation Commission (AOGCC) proposed hydraulic fracturing
regulations that would provide for the disclosure of information that might in
other contexts be deemed trade secrets that cannot be disclosed to the public,
under proposed regulation 20 ACC 25.283(h)..
While businesses engaged in hydraulic fracturing may have legitimate
trade secrets, the public's interest in assuring that hydraulic fracturing is
managed in a manner that addresses all significant risks may legitimately
outweigh commercial concerns. To impede debate and discussion of the use of
public natural resources in the name of commercial secrecy is to put commercial
interests above the prior and more general interest in careful stewardship of the
environment. Put simply, some trade secrets must give way when broader
public interests are at issue.
By writing in support of these regulations, the undersigned take no
position on whether hydraulic fracturing should be conducted in the State of
Law Professors'AOGCC Trade Secrets Letter Page 1
237
Alaska or whether such activities Actually pose any environmental, public health
or safety risks. Rather, we write to note that trade secrecy claims should not
impede consideration of important public concerns.'
We make three arguments in support of these regulations:
First, it is a basic principle in a democracy that the public shall conduct
informed debate and discussion of public matters. To do this, there must be
broad access to data about potential environmental, health and safety (EHS)
' David S. Levine, Secrecy. and Accountability: Trade Secrets in Our Public
Infrastructure, 59 FL. L.REV. 135, 162 (2007) (conflict between the values of trade
secrecy and accountability and transparency are traditionally present in public
infrastructure development; "once there is a deviation from purely commercial
concerns towards other goals for which trade secrecy was not designed, like the
quasi-governmental activity of providing public infrastructure, the disconnect
becomes severe;') see also David S. Levine, The People's Trade Secrets?, 18 MICH.
TELECOMM.AND TECH.L.REV. 61, 84 (2012) (discussing government-created trade
secrets, and noting that "[rlegardless of the theoretical rationale, the concept of a
'government trade secret' is an anomaly because its existence is not an incentive
to encourage innovation (under the utilitarian theory) and has not been used as a
weapon to prevent illegal misappropriation (as in a tort-based theory of trade
secrecy). Instead, the government trade secret has a developing track record as a
last-ditch basis to deny disclosure of information to the public. No proffered
theory of trade secrecy, and especially no utilitarian construct, can justify or even
explain such an application.") For discussion of trade secrecy in the context of
environmental management and further references, see Mary L. Lyndon, Trade
Secrets and Information Access in Environmental Law, in THE LAW AND THEORY OF
TRADE SECRECY,: A HANDBOOK OF CONTEMPORARY RESEARCH, Ed. Rochelle C.
Dreyfuss and Katherine J. Strandburg (2011), available at
http;//papers.ssm.com/sol3/papers.cfm?abstract_id=1947514; Secrecy and Access in
an Innovation Intensive Economy: Reordering Information Privileges in Environmental,
Health and Safety Law, 78 UNIVERSITY OF COLORADO LAW REVIEW 465 (2007);
Secrecy and Innovation in Tort Law and Regulation, 23 N.M. L. Rev. 1 (1993);
Information Economics and Chemical Toxicity: Designing Laws to Produce and Use
Data, 87 Mich. L. Rev. 1795 (1989). On the importance of public participation in
environmental management see Mary Lyndon, The Environment on the Internet:
The Case of the BP Oil Spill, 3 ELON L. REv. 211 (2012), available at
http://Papers.ssm.com/sol3/papers.cffn?abstract—id=2188605.
Law Professors'AOGCC Trade Secrets Letter Page 2
238
hazards, even when the disclosure of such information might pose some
pecuniary risk to the firms that are introducing the possibility of EHS risks.
Economic risks are inherent in market activity, but these cannot be reduced by
increasing EHS risks to the public and the environment. Instead, environmental
law mandates public engagement with regulation and participation in the
management of environmental resources? Moreover, the price of serving the
public may be that some information that would otherwise be kept private must
be made available because of the nature of the commercial activity.
Second,effective environmental management requires broad disclosure
of specific data that describes any discharges into the environment —
including chemical identity,volume and locations of each chemical discharged
— and data on health and ecological effects. For example, although pollution
may be abandoned by its commercial source, often the impact does not
disappear. It may persist and be active; repeated releases of pollutants will
generate wider distribution and more complex interactions.' Thus, the social
costs of the original secret become greater with the passage of time, as the effect
becomes more costly to identify and remedy." Like pollution effects, scientific
2 Lyndon, supra note 1, Secrecy and Access in an Innovation Intensive Economy and
The Environment on the Internet.
3 See John S. Applegate, The Temporal Dimension of Land Pollution:Another
Perspective on Applying the Breaking the Logjam Principles to Waste Management, 17
N.Y.U. ENVTL. L.J. 757(2008); Daniel A. 'Farber, Probabilities Behaving Badly:
Complexity Theory and Environmental Uncertainty, 37 U.C. DAvis L. REv. 145 (2003)
(explaining that complex systems require careful monitoring and repeated
interventions as they evolve).
4 Scientific understanding of the health and environmental costs of pollutants
may develop over.decades. See Carl F. Cranor, LEGALLY POISONED: How THE
LAW PUTS Us AT Risx FRoM ToxIcANTS (Harvard University Press 2011); for a
review of this book, see The Toxicity of Low-Dose Chemical Exposures: A Status
Report and a Proposal, Reviewing Carl Cranor, Legally Poisoned: How the Law Puts US
Law Professors'AOGCC Trade Secrets Letter Page 3
239
knowledge also evolves over time. Thus, risk management is an iterative process
and access to the entire stream of pollution information,not a peek or a snapshot,
is needed. Trade secrecy would restrict full understanding of pollution events
and their impacts.
Effective environmental management should strive for efficiency, but
secrecy produces misallocations. Instead of allowing for full study of pollution's
costs by all interested parties at the beginning of a project and of monitoring its
costs over time,.secrecy shifts costs to the public and to the future. Rather than
fully valuing present resources, secrecy enables appropriation of environmental
at Risk from Toxicants, 52 fumm i6 457 (2012), available at
http://papers.ssm.com/sol3/papers.cfm?abstract_id=2226672. Secrecy makes
scientific research more difficult and more costly. See, e.g., Andrew Vickers,
Cancer Data? Sorry, Can't Have It, N.Y. TIMES, Jan. 22, 2008, at F8; Barry Meier,
Contracts Keep Drug Research Out of Reach, N.Y..TwES, Nov. 29, 2004 (describing
effects on data availability of contracts between drug companies and academic
researchers); Sheila Jasanoff, Transparency in Public Science: Purposes, Reasons,
Limits, 69 LAW &. CONnMP. PROBS. 21 (2006). Some key tools, such as mass
balance accounting, have been blocked. Resistance to reporting the amounts of
chemicals firms discharge has hindered assessment of environmental loading
and ecosystem effects. Robert K. Klee, Enabling Environmental Sustainability in the
United States: The Case for a Comprehensive Material Flow Inventory, 23 STAN, ENVTL.
L.J. 131, 156 (2004) (arguing that material flow/mass balance information would
enable transition to more efficient system).
Secrecy also can impose costs on individuals and put their health at risk. For
instance, in 2009, Cathy Behr, a nurse in Colorado, fell seriously ill after treating
a worker who had been injured in a chemical spill. Her doctors diagnosed
chemical poisoning, but the manufacturer of the product she was exposed to
would not disclose its full ingredients, because it considered them proprietary.
Ms. Behr has partially recovered,but she continues to have respiratory problems.
She has been left with uncertainty about her future health and an awareness of
the limitations on her political options. "I'd really like to know what went
wrong", Mr. Behr has said. "As citizens in a democracy, we ought to know
what's happening around us." Lyndsey Layton, Use of Potentially Harmful
Chemicals Kept Secret Under Law, WASH.PosT,Jan.4,2010, at Al.
Law Professors'AOGCC Trade Secrets Letter Page 4
240
resources with limited accountability. To the extent that this distortion may be
present in the relation of hydraulic fracturing to the water and wildlife resources
it affects, the public should be allowed to fully assess its impact, if any.5
This is not an exceptional situation; indeed, communication obligations
are pervasive in the common taw and environmental statutes have built upon
this foundation.6 Both the common law and regulation affirm the importance of
access to information about risks. For example, environmental impacts can
follow predictably from a firm's decision to distribute pollution or product
ingredients in circumstances that will lead to exposure. Exposure is expected,
not a surprise. The choice to release pollutants triggers familiar obligations to
communicate, even where there may be a commercial impact on the entity
disclosing such information.
5 Water is valuable and not truly renewable or even substitutable in many
ecosystems. Water use and supply are. increasingly discussed in terms of
shortages and many believe that globally and in particular regions, we are
reaching "peak water." See Peter H. Gleick & Meena Palaniappan, Peak Water
Limits to Freshwater Withdrawal and Use, 107 PROC, NAT'L ACAD. SCI. 11155 (June
22,2010), available at http://www.pnas.org/content/107/25/11155.fuU.pdf.
6 Risk •communication is a strong requirement in tort law. For example,
negligence law imposes a duty to act with reasonable care with respect to third
parties. See RESTATEMENT (THIRD) OF TORTS: LIAB. PHYSICAL HARM § 7 (2005) (an
actor ordinarily has a duty to exercise reasonable care when the actor's conduct
creates a risk of physical harm).' There is a duty to warn those who may be
affected by one's actions. Id, §18. Even if adequate warning is given, the
defendant can fail to exercise reasonable care by failing to adopt further
precautions to protect against the risk if it is foreseeable that despite the warning
some risk of harm remains. Id. Warning obligations have been strengthened by
case law and also retained as a strong requirement in the RESTATEMENT (THIRD)
OF TORTS: PRODS. LIAR. §§ 2(c), 10, 13, & 18 (1998). For discussion of the role of
public and local participation in environmental regulation, see Lyndon, supra,
note 1, Secrecy and Access in an Innovation Intensive Economy, at 509-515 and-The
Environment on the Internet, at 224-244.
Law Professors'AOGCC Trade Secrets Letter Page 5
241
Third,trade secrecy law should not be used as a means to impede public
access to EHS information. Trade secrecy's essential functions are established;
it serves the dual purposes of incentivizing creation of information by allowing
commercial secrecy to be protected, and maintaining fair competition through
punishment of misappropriation of information.' Thus, it supports incentives to
innovate by facilitating data sharing in business relationships and providing
control over secret, commercially-valuable information. These functions are not
directly served by preventing the disclosure of EHS information necessary for
informed debate of fundamental public concerns.
Indeed, trade secret law has little to say about matters outside of its own
boundaries.' It was not designed to address questions about access to
information for reasons other than commercial competition.9 It says nothing
about whether the public might have a general interest in information at all,
much less for reasons of environmental, health or safety. Thus, the AOGCC's
7 Supra note 1; see also Sharon Sandeen & Elizabeth A. Rowe, CASES AND
MATERIALS ON TRADE SECRET LAw 13-15 (West 2012).
8 It is not clear that EHS data can be legitimately claimed as trade secret
information. See Lyndon, Trade Secrets and Information Access in Environmental
Law,supra note 1, discussing perverse effects of allowing trade secrecy to operate
within EHS law. For instance, trade secret law is concerned with commercial
relationships, not harm to individuals or to public resources; it would seem that
discharge of pollutants abandons any secrecy claim that might otherwise attach.
Where high-tech reverse engineering is available, "secret" data is more available
to commercial rivals than to exposure victims. See Lyndon, Secrecy and
Innovation,supra note 1 at 6-10.
9 Id; see also Levine, Secrecy and Unaccountability, supra note 1, at 150 ("courts,
commentators, and authors of model codes and restatements have developed
trade secrecy's parameters by conceptualizing the commercial actor in the
business world competing with his rivals for commercially valuable
information.")
Law Professors'AOGCC Trade Secrets Letter Page 6
242
proposed disclosure regulation, 20 AAC §25.283(h), adopts the correct stance:
trade secrecy should not impede disclosure of.information when the information
describes public risks that the trade secret claimant is itself creating.10
Indeed, when trade secret interests conflict with other values,
confidentiality interests have been compromised or overridden." Here, a similar
result should occur: the fact that a firm's competitors might be interested in
information does not insulate a firm from the implications of the activity that the
information describes. Trade secret law does not and should not exempt a firm
from participation in the larger legal system, including warning and harm
prevention.12
11 Trade secret proponents may claim that they are being deprived of"property,"
but even full-blown property rights do not legitimate harming third parties or
avoiding duties. The literature on the "tragedy of the commons," the
fundamental parable of environmental law, laments the barriers to collective
action to manage common resources, but secrecy exacerbates this problem by
blocking efficient or sustainable allocation of resources. It is, in effect, a claim to
unregulated access to resources.
11 For instance, trade secret law balances the rights of employers to control the
use of information and employees' right to work and use their skills and
knowledge. Steven Wilf, Trade Secrets, Property, and Social Relations, 34 CONN. L.
REV. 787 (2002). Administrative agencies are poorly positioned to evaluate and
monitor trade secrecy claims and this function is resource intensive. See Lyndon,
supra note 1, Secrecy and Access in an Innovation Intensive Economy, at 502-503, 516-
518,and Secrecy and Innovation in Tort Law and Regulation at 33-40.
12 The Third Restatement of Unfair Competition states: "The disclosure of
another's trade secret for purposes other than commercial exploitation may
implicate the interest in freedom of expression or advance another significant
public interest. ...[A] privilege is likely to be recognized ... in connection with
the disclosure that is relevant to public health or safety, or to the commission of a
crime or tort, or to other matters of substantial public concern." RESTATEMENT
(THIRD) OF UNFAIR COMPETITION § 40 cmt. c (1995) (discussing improper use of
disclosure).
Law Professors'AOGCC Trade Secrets Letter Page 7
243
However, a trade secret exemption for EHS information would achieve
that very outcome: it would shield the holders of this information from informed
public scrutiny and examination. Instead of cooperating in the broader system
that works to preserve scarce common resources, trade secrecy claimants like
those engaging in hydraulic fracturing assert an entitlement to use of natural
resources without accountability, perhaps to waste. The key word, however, is
perhaps, because absent information, the AOGCC and public simply won't
know,13
Thus, access to EHS information creates enormous public benefits while
secrecy impedes efficiency by delaying accountability and response and
obscuring risks that become more costly with time. These distortions are
particularly significant in environmental risk management, where latent
externalities are endemic.14 Trade secrets must be made available to the AOGCC
and the public so that these issues can be addressed.
Conclusion
The AOGCC proposes a regulation that serves the broader public interest
in informed decision-making. Trade secrecy should have a limited role in this
realm. Instead, the AOGCC's access and disclosure rules should conform to
principles of risk communication. Disclosure aligns social needs with market
and innovation imperatives and facilitates public best practices in environmental
13 Indeed, this raises a point often ignored:by disclosing alleged trade secrets, the
hydraulic fracturing industry may be able to assure the public that its activities
pose no EHS risks. Absent such information, guesswork replaces actual
informed decision-making, which serves no one's interests.
14 While there could be some pecuniary harm to trade secret holders if such
secrets were made public through a public records request, the gains associated
with public disclosure of this information outweigh those potential losses.
Moreover,patents can also serve as an imperfect but valuable substitute in many
cases for trade secrecy protection.
Law Professors'AOGCC Trade Secrets Letter Page 8
244
risk management. Such should be the state of economic affairs and information
flows in an enlightened, modem, technologically-advanced democracy.
For further information, questions or correspondence, please contact
David S. Levine at dlevine3 @elon.edu or Mary Lyndon at lyndonm@st ohns.edu.
Respectfully submitted,15
Thomas Field,University of New Hampshire School of Law
Eric Fink, Elon University School of Law
Shubha Ghosh, University of Wisconsin School of Law
Lawrence Lessig,Harvard Law School
David S. Levine, Elon University School of Law
Lydia Pallas Loren, Lewis&Clark Law School
Mary L. Lyndon, St.John's University School of Law
Frank Pasquale,Seton Hall Law School
Michael L. Rustad,Suffolk University Law School
Ted Sichelman, University of San Diego School of Law
15 Affiliations are listed for identification purposes only.
Law Professors'AQGCC Trade Secrets Letter Page 9
245
"SIER1tA
CLUB:
CALiFORNLA
May 19,2013
The Honorable Fran Pavley
California Senate
State Capitol
Sacramento, CA 95814
RE: SB 4(Pavley) F racking—O p pose
Dear Senator Pavley:
As noted in our April letter, Sierra Club California shares your interest in ensuring that the state's
environment and public health are protected from the effects of fracking. Our organization also
shares your interests in full and comprehensive disclosure of fracking activities. We thank you
for initiating leadership on the fracking issue with Senate Bill 4.
However,we continue to believe that two key elements in SB 4 require amending. We have
discussed this with your staff at length and understand that you do not intend to amend at the
moment the language concerning trade secrets in away that would allow us to support the bill.
Therefore, we are changing our position from one of support if amended to one of oppose.
Again,as we noted in our earlier letter, as the bill states in Section 1,there is too little known
about the impacts of fracking on environmental,natural resources,occupational and public
health. We agree that a thorough study, as described in the bill, is warranted. However,we do not
believe that any fracking should proceed before that study is completed and a firm foundation
and certainty that fracking will not create harm is established and can be effectively monitored.
Therefore,we the bill should include a moratorium on new fracking until that study and certainty
are established.
Also, we believe that the chemicals used in fracking should be disclosed and available to the
public. We appreciate the sections of the bill that assure disclosure. However,the elements of the
bill that allow suppliers of fracking fluid to make a trade secreVconfidentiality claim can be used
to undermine the disclosure protections.Therefore, we must oppose AB 4.
Sincerely,
Kathryn Phillips
Director
909 12"'Street, Suite 202,Sacramento,CA 95814
(916)557-1100 • Fax(916)557-9669•www.sierraclubcalifornia.org
246
0,5/20/2013 10: 27 From : SB 4 Paule Daniel Brincat Page: 1/2
Zia-1F
SWCEC
Saurhwest California
Legislative Council
26790 Ynez Court I Temecula,CA 92591 (866)676-5090
_ w_v w 5-Du CA N7
May 20,2013
.J'
The Honorable Fran Pavley
s California State Senate
' State Capitol,Room 4035
Sacramento,CA 95814
RE: SB 4(PAVLEY)OIL AND GAS:HYDRAULIC FRACTURING
Position:OPPOSE
The,Soul swest California Legislative Council,a coalition of the Temecula Valley,Murrieta,Wildomar and Lake Elsinore
'�.;W Valley Chambers of Commerce and the more then 2,500 businesses represent, respectfully OPPOSE SB 4 (Pavley) As
amended, SB 4 mandates the state's Natural Resources Agency conduct a study of hydraulic fracturing, and then mandates
regulation of that practice, inappropriately presuming the outcome of that study before it has even been conducted.Further,
SB 4 imposes a moratorium on the use of hydraulic fracturing in oil and gas production starting on January 1, 2015,until
those regulations are complete. This would unnecessarily and substantially threaten our supplies of oil and natural gas,
raising usiness costs and harming California's economy.
:rya � g Y•
The provisions in SB 4 are premature and would circumvent the Governor's regulatory efforts on hydraulic fracturing. We
believe the Governor is committed to creating a regulatory structure that is based on science, technology, and data and
through this process,where all stakeholders will have a strong voice,will be a comprehensive regulatory structure that will
provide strong health and safety and environmental protections.
Economic recovery and growth require adequate supplies of reliable, affordable energy.By obstructing an important means
<; of growing our in-state production capability,SB 4 will necessitate increased ail imports,raising the cost not only of fuel,but
of manufacturing, agricultural operations,public transportation and all goods and services which are energy-dependent.This
will in turn place our businesses at a competitive disadvantage,impede job growth and suppress property,income and excise
t tax revenues.
This significant,untimely burden on California's businesses and economy is unnecessary.Oil and gas production as a whole
is heavily regulated and monitored,and hydraulic fracturing has been used here for decades with no reported incidents of
harm to the eindronment or public health. SB 4 will not provide added public health or environmental protections,but it
will increase business costs,hamper California's economic recovery and deprive our state of much-needed fiiel,jobs and tax
revenues indefinitely.
=e=erg For these and other reasons,The Southwest California Legislative Council OPPOSES SB 4(Pavley),and ask that you vote
"NO"when it comes before you for consideration.
Respectfully,
Dennis Frank,Chair Gene Wunderlielt,Legislative Liaison
_:I, drfranku_ 9C er r ll-dink.net g,4d awcaladvocac v com
Cc:
R:T ar Senator Pram PaAey 916.324.4823
Serrate Committee on Environmental Quality 916.322.3519
W: '' Senator Jerry Hill,Chair 916.324.0283
Senator Ted Gaines 916.324.2680
MAY-20-2013 10:28RM From: 951894257E ID:SO4ATOR PRVLEY Pa9e:001 R=95% 247
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MY-20-2013 10:29AM From: 9518942572 ID:S N T R P VLE Pas:0 2 R=95% 248