Last week, the UC Berkeley Center for Law, Energy and the Environment released a report recommending increased regulation and further study of the impacts of hydraulic fracturing activities in California on public health and the environment.  The report focuses on the potential impacts to groundwater and surface water resources relating to the management of wastewater associated with fracking, but also touches on other environmental and public health issues, such as air emissions and increased demand for water in well completions.

The report identifies the major risk drivers as fracking wastewater storage and handling, wastewater disposal by injection, and potential groundwater contamination associated with failed well integrity.  While acknowledging the discussion draft rules issued by the Department of Conservation, Division of Oil, Gas, and Geothermal Resources (see December 19, 2013, post), the report concludes that further regulation is required to adequately address those risks.  In particular, the report recommends at least 30-day notice to regulators and the community before commencing fracking operations, while DOGGR’s discussion draft requires only 10-day notice.  The report also recommends requiring well operators to disclose to DOGGR all chemicals in fracking fluids, including those that would be subject to trade secret protection under DOGGR’s discussion draft.  Further, the report recommends more stringent well integrity testing prior to fracking activities and increased pressure monitoring during fracking operations.

Most of the recommendations in the report have already been addressed to some extent by one of the several bills before the California Legislature this session (AB 7, AB 288, AB 982, SB 4, SB 395); however, the report also introduces some new concepts relating to the disposal of fracking wastewater.  In particular, the report recommends requiring unique tracer chemicals in fracking wastewater to track direct impacts to groundwater and surface water resources.  The report also recommends requiring operators to maximize the recycling and reuse of flowback and produced water and prohibiting the discharge of any fracking wastewater to publicly owned treatment works.

In addition to more stringent reporting, monitoring and wastewater management requirements, the report recommends further study of the impacts of fracking, funded by an increase in DOGGR’s fees.  The study would include an examination of the potential seismic impacts, despite DOGGR’s position that induced seismicity is not associated with fracking operations.  The report also identifies other issues outside the scope of the report, such as an increased demand for water used in fracking, greenhouse gas and other air emissions, land use impacts and other potential public health impacts to workers and communities.

UC Berkeley’s report will likely be cited as support for one or more of the bills pending in the California Legislature that would require more stringent regulation of fracking operations than that proposed in the draft DOGGR regulations.  Also, DOGGR may incorporate some of the report’s recommendations when it issues a proposed rule and initiates the formal rulemaking process.  Even if the recommendations in the report do not make it into DOGGR’s proposed rule, the report will certainly be cited by commenters in support of more stringent regulation in the rulemaking process and could thus find their way into DOGGR’s final rule.  In any case, it is quite possible that at least some of the recommendations in the report will become legal mandates in the very near future.

Co-authored by Michael N. Mills and Robin B. Seifried.