Greens Say Calif. Lets Water Be Damned

OAKLAND, Calif. (CN) - Despite historic drought, California for years has allowed the oil industry to inject its wastewater through thousands of wells into drinking water aquifers, environmentalists claim in court.

The Center for Biological Diversity and the Sierra Club sued the California Division of Oil, Gas and Geothermal Resources in Alameda County Court on May 7, claiming that after shirking its duty for years, the agency has promulgated a new set of "emergency rules" that will continue to allow the illegal injections until 2017.

"These rules turn the definition and purpose of a public emergency upside down by employing regulatory emergency powers to allow admittedly illegal injection into underground sources of drinking water to continue for two more years," the nonprofit groups claim in Alameda County Court.

The "true emergency," they say, is the continuing contamination of California's groundwater.

At issue are Class II underground injection wells, which dispose wastewater "both from conventional oil and gas production and from so-called enhanced oil recovery well operations."

The contaminants the wells release include benzene, a known carcinogen, and heavy metals such as arsenic, the groups say.

"Wastewater can also contain flowback fluid that returns to the surface after a well is stimulated using fracking and acidizing," which processes involve "dozens" of dangerous chemicals, the complaint states.

Since at least 2011, the groups claim, the Division has been aware of "serious and systematic problems" with its underground injection control program.

It was not until three years after the Division became aware of the deficiencies that it "finally exercised its lawful authority and nondiscretionary duty to order cessation of unlawful Class II operations, albeit only in very limited circumstances," they say.

The Division has shut down 23 of the illegal wells, according to the complaint, but 2,500 remain active.

Instead of ordering the wells shut, the groups say, the Division proposed an "Aquifer Exemption Compliance Schedule Regulations" to allow the injections to continue.

And it did this without addressing public welfare, health or safety, as required by law, the groups say.

Plaintiffs' attorney William Rostov said in an interview that the Division is "essentially saying that the emergency is that we need the lawbreaking to continue."

"They're blaming their own regulatory failures," he said. "The Division has a history of not doing a good job on protecting the groundwater from underground injection. Now they're saying that since they've done that, they need to allow the injection to keep going because they think that's their best solution. But they have the authority, when there's lawbreaking, to stop it."

Rostov also said that the Division based its emergency rules on a wrongheaded, purported concern for smaller private oil providers.

"For a public agency to declare emergency, it has to be about the public good," he said.

Steven Bohlen, the state's oil and gas supervisor, said in a statement that the protection of California's groundwater resources is "paramount, particularly in this time of extreme drought."

"The state and the U.S. Environmental Protection Agency are moving aggressively and quickly to test all wells that risk harming sources of water for drinking and agriculture," he said. "We have shut down 23 wells and will continue to do so immediately when there is a risk.

"Thus far, testing of water supply wells by the state Water Board has revealed no contamination of water used for drinking or agricultural purposes related to underground injection by the oil and gas industry. We intend to keep it that way."

The environmental groups seek an order declaring the emergency regulations void, and writ of mandate declaring that the Division abused its discretion by allowing injections into protected aquifers.

Rostov is with Earthjustice in San Francisco.

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