California Issues Early Draft of Fracking Regulations

The California Division of Oil, Gas and Geothermal Resources has released a preliminary draft of regulations that for the first time would require oil and gas drilling companies in the state to report where they are using hydraulic fracturing technology and disclose what chemicals they are using.

Currently state officials and the public have no way of knowing when or where energy companies are using "fracking," a widespread and potentially risky drilling technology that involves injecting huge volumes of chemical-laced water into the ground under intense pressure to break up rock formations and release trapped oil and/or gas.

A 2011 investigation by Environmental Working Group revealed that fracking has been widely used in California for decades, contrary to assurances by officials that its use was uncommon in the state - even though they had never attempted to track the use of the controversial extraction method.

The agency termed its proposal to begin regulatory oversight of fracking a "discussion" draft. It said it welcomes public comment as it continues work on formal draft regulations expected to be released early in 2013.

Bill Allayaud, Director of Government Affairs for EWG's California office, said, "EWG is pleased that the Division held public meetings this year and has proceeded quickly to produce regulations. This release is an important milestone on the road to having fracking regulations for the first time in California. EWG welcomes the agency's continued effort to keep the public involved as it develops its regulations."

Allayaud added that EWG has not had time to thoroughly review the draft document, but a quick review reveals many positive features as well as potentially serious negatives in the path the agency is taking.

"We laud the provisions that require drillers to assess the local area around proposed fracking operations to ensure that existing oil or gas wells, geologic formations or groundwater will not be adversely affected," Allayaud said. "Requiring drillers to reveal where they are fracking and to report the chemicals they use are basic necessities to assure that it will no longer be a secretive process."

However, he said that EWG has some serious concerns about the preliminary draft:

1. The proposed regulations allow drilling companies to claim that the identity of some chemicals in their mix of injected fluids are trade secrets that should not be disclosed to the public. Experience in other states has shown that such trade secret exemptions are being widely used and likely abused. The public is potentially placed at risk by allowing a cloak of secrecy around the use of toxic and persistent chemicals.

2. Under the draft proposal, drilling companies can frack a well without prior notification to surrounding property owners or the general public. The reporting requirements do not apply in advance and no permit is required. The public might not find out that fracking has taken place for up to four years after the fact, since existing, unchanged rules allow granting "confidential well" status for 2-to-4 years.

3. There appears to be no provision for monitoring groundwater that could be affected by fracking. EWG believes that assessing baseline water quality conditions in the surrounding area before a well is fracked is essential when working with toxic chemicals that can be harmful in even minute quantities.

4. There is no provision for alerting the public, regional water boards, or water purveyors when a well casing has failed and could therefore threaten to pollute groundwater.

5. The proposal to use the industry website FracFocus.org to disclose fracking locations and chemical usage is inadequate. EWG understands that the Division of Oil, Gas and Geothermal Resources is behind in modernizing its databases and website, but in its present form FracFocus.org is not acceptable as the sole repository for this data. Information and data disclosed under state regulation must be treated as a public record. Currently, FracFocus.org does not release original data sets to the public, nor can the online data be sorted and aggregated into a database that allows for robust cross-sectional analysis.

"EWG welcomes this discussion draft as an important first step," Allayaud said, "but it will need considerable improvement to be sufficiently protective of public health and the environment. EWG is committed to working with the Division of Oil, Gas and Geothermal Resources to improve these deficiencies and to helpCalifornia adopt fracking regulations in 2013."