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Donald C. Oldaker (State Bar Number 166230)
CLIFFORD & BROWN
A Professional Corporation
Attorneys at Law
1430 Truxtun Avenue, Suite 900
Bakersfield, CA 93301
(661) 322-6023
Attorneys for Plaintiff and Petitioner, Griffin Resources, LLC
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF KERN — METRO JUSTICE BUILDING
10
1 GRIFFIN RESOURCES, LLC, a California Case No. BCV-23-100920-BCB
Limited Liability Company,
12 DECLARATION OF DONALD C.
Plaintiff and Petitioner, OLDAKER IN SUPPORT OF
13
vs.
OPPOSITION TO EX PARTE
14 APPLICATION TO LIFT STAY
CALIFORNIA DEPARTMENT OF
15 January 29, 2024
CONSERVATION, etc., at al., Date:
16 Time: 8:30 a.m.
Defendants and Respondents. Dept.: H
17 Judge: Hon. Bernard C. Barmann, Jr.
Filed: March 23, 2023
18 Trial date: Not set
19
20 I, Donald C. Oldaker, declare as follows:
21 1 I am an attorney at law licensed to practice before all courts of the State of California
22 and I am the attorney for Griffin Resources, LLC, (“Griffin”) the plaintiff in the above-entitled
23 action.
24 2 I am personally familiar with all the papers and pleadings in this matter and with all
25 the facts related to this matter. If called as a witness I could and would competently testify thereto.
26 3 I was retained on or about May 23, 2022 to advise and represent Griffin in connection
27 with its appeal from Emergency Order to Perform Remedial Work, Plug and Abandon Wells and
28 Decommission Facilities No 1267 issued May 16, 2022, (referred to herein as “Order 1267,”) a true
CLIFFORD & BROWN
‘A Professional Corporation
1430 Truxtun Ave, Ste. 900
Bakersfield, CA 93301 1
(661) 322-6023,
DECLARATION OF DONALD C, OLDAKER IN SUPPORT OF OPPOSITION TO EX PARTE APPLICATION TO LIFT STAY
and correct copy of which is attached hereto as Exhibit “2” to my April 19, 2023 Declaration and
incorporated herein by reference, which had been issued by the California Geologic Energy
Management Division (“CalGEM”) on May 16, 2022, and I have been continuously involved since
that date.
4 At the commencement of my representation of Griffin in this matter I was provided
with Order 1267. I carefully reviewed Order 1267, researched the applicable law and on May 28,
2022, served and filed an extensive Notice of Appeal from Order 1267 requesting a hearing under
Public Resources Code section 3351, subd. (a) and Government Code section 11500, ef seq., a true
and correct copy which is attached as Exhibit “3” to my Declaration filed in this matter on April 19,
10 2023 and incorporated herein by reference.
11 5 Notwithstanding my request, on June 1, 2022 I received an Acknowledgement of
12 Appeal from the Department of Conservation stating that the appeal would be set for two hearings,
13 the first of which would be a “limited scope hearing to consider the reasonableness of the
14 Supervisor’s determination that an emergency exists” and that “[o]nce_a decision [had] beer
15 issued in the first hearing, the Supervisor’s legal representatives [would] set a hearing with the
16 Office of Administrative Hearings to address all remaining matters in the order.” A true and
17 correct copy of the June 1, 2022 Acknowledgement of Appeal is attached as Exhibit “4” to my
18 Declaration filed in this matter on April 19, 2023 and incorporated herein by reference.
19 6 On or about June 7, 2022, I received a Notice of Hearing from the Department of
20 Conservation (“DOC”) Director’s Office of Appeals which stated that it was setting the limited
21 scope hearing on Order 1267 on July 14, 2022. On page 2 of the June 7, 2022 Notice of Hearing the
22 DOC stated that “[t]hke hearing in this matter will be conducted as an informal hearing, for the
23 limited purpose of considering the reasonableness of the supervisor’s determination that an
24 emergency exists” and that “[a] hearing on all other charges and allegations contained in
25 Emergency Order 1267 will be scheduled pursuant to Public Resources Code section 3351(a) and
26 Government Code, Title 2, Division 3, Part 1, Chapter 5, commencing with section 11500.” A true
27 and correct copy of the Notice of Hearing is as Exhibit “5” to my Declaration filed in this matter on
28 April 19, 2023 and incorporated herein by reference.
CLIFFORD & BROWN
‘A Professional Corporation
1430 Truxtun Ave, Ste, 90
Bakersfield, CA 93301 2
(661) 322-6023
DECLARATION OF DONALD C, OLDAKER IN SUPPORT OF OPPOSITION TO EX PARTE APPLICATION TO LIFT STAY
7 On or about June 23, 2022, I received a Pre-Hearing Order from the DOC, which
affirmed on page 2 that “[t]ke hearing is limited to the issue of whether the Supervisor’s
determination that there is an emergency is reasonable (Pub. Resources Code § 3351, subd. (d)).”
A true and correct copy of the Pre-Hearing Order is attached as Exhibit “6” to my Declaration filed
in this matter on April 19, 2023 and incorporated herein by reference.
8 On or about July 1, 2022, I received First Amended Emergency Order to Perform
Remedial Work, Plug and Abandon Wells and Decommission Facilities and Non-Emergency Order
to Plug and Abandon Wells and Decommission Facilities No 1267A issued May 16, 2022, (referred
to herein as “Order 1267A”). A true and correct copy of Order 1267A is attached hereto as Exhibit
10 “7” to my Declaration filed in this matter on April 19, 2023 and incorporated herein by reference.
11 9 On or about July 11, 2022 I received an Amended Notice of Hearing regarding Order
12 1267A On page 2 of the July 11, 2022 Amended Notice of Hearing the DOC stated that “[t]he
13 hearing in this matter will be conducted as an informal hearing, for the limited purpose of
14 considering the reasonableness of the supervisor’s determination that an emergency exists” and
1S that “[a] hearing on all other charges and allegations contained in Emergency Order 1267 will be
16 scheduled pursuant to Public Resources Code section 3351(a) and Government Code, Title 2,
17 Division 3, Part 1, Chapter 5, commencing with section 11500.” A true and correct copy of the
18 Notice of Hearing is attached as Exhibit “8” to my Declaration filed in this matter on April 19, 2023
19 and incorporated herein by reference.
20 10. On or about July 11, 2022, I received a First Amended Pre-Hearing Order from the
21 DOC, which affirmed on page 2 that “[t]he hearing is limited to the issue of whether the
22 Supervisor’s determination that there is an emergency is reasonable (Pub. Resources Code §
23 3351, subd. (d)).” A true and correct copy of the Amended Pre-Hearing Order is attached as Exhibit
24 “9” to my April 19, 2023 Declaration in this matter and incorporated herein by reference.
25 11. Although Order 1267A did not provide notice that Griffin was required to file a
26 Notice of Appeal from Order 1267A, or any deadline to do so, because of the additional claims
27 asserted, on or about July 18, 2022, my office served an Amended Notice of Appeal Re: CalGEM
28 First Amended Emergency and Non-Emergency Order No. 1267A, a true and correct copy of which
CLIFFORD & BROWN
‘A Professional Corporation
1430 Truxtun Ave, Ste, 900
Bakersfield, CA 93301 3
(61) 322-6023
DECLARATION OF DONALD C. OLDAKER IN SUPPORT OF OPPOSITION TO EX PARTE APPLICATION TO LIFT STAY
is attached hereto as Exhibit “10” to my Declaration filed in this matter on April 19, 2023 and
incorporated herein by reference.
12. The first day of the limited scope hearing was held on August 19, 2022. A true and
correct copy of portions of the transcript from the first day of hearing on August 19, 2022 is attached
hereto as Exhibit “11” to my Declaration filed in this matter on April 19, 2023 and incorporated
herein by reference.
13. At the commencement of the hearing the DOC hearing officer reaffirmed the limited
nature of the issue being addressed, stating “This is a limited scope hearing where the Office of
Appeals will consider the reasonableness of the supervisor’s determination that an emergency
10 exists or that an emergency existed at the time the order was issued. Only evidence related to the
11 existence of an emergency will be considered. In this case the supervisor carries the burden of
12 proof.” (See Exhibit 11 to my Declaration filed in this matter on April 19, 2023 at p. 7, line 20 -p. 8,
13 line 1.)
14 14. On August 19, 2022, CalGEM’s witness, senior oil and gas engineer Jeff Kimber
15 testified as follows:
16 ... So that was the action that was taken — was bleed down the pressure. We
17 vented — we flared the gas. And then yes, tighten the casing flange. That did
18 take place.
19 Q. Okay. And if that had addressed the leak concern, that would have
20 addressed the emergency, wouldn’t it?
21 A, So there was — we mitigated the emergency, but there was still concern
22 of the gas pressure returning. Just because he had put heavy mud down a well
23 doesn’t mean it’ll — it’ll subdue the pressure for some time.
24 And the pressure started rising slowly. Not very quickly, but we monitored the
25 pressure for a time thereafter. And so there was always a question of the
26 pressure returning and the leaks returning.” (Exhibit 11 at p. 87, lines 2-16.)
27 15. Griffin was precluded from presenting evidence concerning the actual existence of
28 any emergency throughout the hearing, and CalGEM’s witnesses offered no such evidence.
CLIFFORD & BROWN
‘A Professional Corporation
1430 Truxtun Ave, Ste. 900
Bakersfield, CA 93301
(661) 322-6023
4
DECLARATION OF DONALD C. OLDAKER IN SUPPORT OF OPPOSITION TO EX PARTE APPLICATION TO LIFT STAY
16. When I attempted to ask Mr. Kimber whether anyone communicated with the well’s
owner, however, CalGEM’s attorney objected that “This is outside the scope of this hearing, which
is limited cause, which is just to determine whether an emergency exists.” (Exhibit 11 to my
Declaration filed in this matter on April 19, 2023 at p. 87, line 28 — p. 88, line 2.) The DOC Hearing
Officer sustained the objections stating “J agree. We need to focus on the emergency related
issues. So I’m going to sustain the objection.
And we can move on.”
17. During the course of the August 19, 2022 limited scope hearing on the emergency
portion of Order 1267A addressing the issue whether the State Oil and Gas Supervisor’s
10 determination that an emergency existed, CalGEM engineer Jeff Kimber testified as follows:
11 Q Okay. Is there anything in the wells' behavior, after the work that Griffin did on
12 the wells recently, that gives -- that causes you to have concern that the pressure is
13 going to be increased?
14 A So the pressures have remained low since Griffin's work at D87 and A84, quite
15 low, which causes us to believe that something else -- they did something else to the
16 wells that we're not aware of. So we do have questions on why the pressure is low.
17
Q If they stay at that level, are your concerns alleviated?
18
A Only if Griffin, you know, if Griffin commits to observing those pressures
19
regularly. Someone has to be checking on those pressures continuously.
20
21 As we experienced before with, you know, when I found D87 at 1,260 PSI, it appeared
22 that Griffin was not checking up on the well -- that it was just, you know -- it was - it
had gone uninspected for who knows how long.
23
24 So if someone continuously monitors those pressures and we can be sure of that, then
25 that would be -- my concerns would be alleviated. But if we're going to walk away
26 from these wells and not monitor them, then, you know, who's to say what's going to
27 happen in the future?
28
CLIFFORD & BROWN
‘A Professional Corporation
1430 Truxtun Ave,, Ste. 900
Bakersfield, CA 93301 5
(661) 322-6023
DECLARATION OF DONALD C. OLDAKER IN SUPPORT OF OPPOSITION TO EX PARTE APPLICATION TO LIFT STAY
So my concern still exists. (See Exhibit 4 to Declaration of Donald C. Oldaker filed
January 25, 2024 at pages 360-361 [transcript pages 111-112])
18. At the conclusion of the first hearing day, after three of CalGEM’s witnesses had
testified and before Griffin had been afforded any opportunity to present its own case, the DOC
Hearing Officer imposed a time limit of 45 minutes per witness stating that he did not believe more
was “necessary given the very limited scope of this hearing,” (Exhibit 11 at p. 314, lines 1-16.)
19. On September 9, 2022 the DOC issued an Order Granting Continuance and Limiting
Witness Examinations continuing the remainder of the limited scope hearing to September 29 and
30, 2022 and imposing the 45 minute per witness time limitation. A true and correct of the Order
10
Granting Continuance and Limiting Witness Examinations is attached hereto as Exhibit “12” to my
11
Declaration filed in this matter on April 19, 2023 and incorporated herein by reference.
12 the “limited scope” hearing had resumed and long
20. On September 22, 2022, before
13
before any decision thereon had been issued, the Office of Administrative Hearing served a Notice
14 and Mandatory Settlement
of Telephone/Videoconference Dates and of Prehearing Conference
15
Conference Date and Time (the “OAH Hearing Notice”) which set the second hearing on Griffin’s
16
appeal (i.e., the hearing on all other charges and allegations contained in Emergency Order 1267.
17
.. pursuant to Public Resources Code section 3351(a) and Government Code, Title 2, Division 3,
18
Part 1, Chapter 5, commencing with section 11500.” to take place on February 13, 2023 — February
19
17, 2023. A true and correct copy of the OAH Hearing Notice is attached hereto as Exhibit “13” to
20
my Declaration filed in this matter on April 19, 2023 and incorporated herein by reference.
21
21. The limited scope hearing resumed a week later on September 29, 2022, and during
22
the September 29, 2022, hearing date I attempted to ask CalGEM witness Emanuel Otaru whether he
23 was a reasonable response to experiencing a flange leak,
believed plugging and abandonment
24
however CalGEM’s attorney objected “This is outside the scope of the emergency determination”
25 (Exhibit 14 to my Declaration filed in this matter
which was sustained by the DOC Hearing Officer.
26 See also Exhibit 13 at
on April 19, 2023 and incorporated herein by reference at p. 60, lines 11-21.
27
p. 63, lines 7-14.)
28 Mr. Otaru subsequently testified as follows:
22.
CLIFFORD & BROWN
‘A Professional Corporation
1430 Truxtun Ave, Ste, 900
Bakersfield, CA 93301 6
(661) 322-6023
DECLARATION OF DONALD C, OLDAKER IN SUPPORT OF OPPOSITION TO EX PARTE APPLICATION TO LIFT STAY
2. If, as of July 1, 2022, the well was exhibiting little to no pressure and
was not leaking, you would not consider that to be an emergency, would you?
A No, if there’s no leak and there’s no pressure then there’s no
emergency. (Exhibit 14 to Declaration filed April 19, 2023 at p. 64, lines 2-6.)
23. On September 30, 2022, I asked Griffin’s expert, Wayman Gore whether the fact
Griffin was placing the Subject wells back on production constituted an emergency and was
admonished by the DOC Hearing Officer that “this hearing is a limited scope hearing on the
reasonableness of the Supervisor’s determination that there is an emergency. And I want to make
sure that we are very focused on that and that we are not going into the weeds on geology and
10 formations and things of that nature. Water injections and things of that nature are not within
11 the scope of this hearing.” (Exhibit 15 to my Declaration filed in this matter on April 19, 2023 and
12 incorporated herein by reference at p. 30, lines 6 — 15.)
13 24. On October 31, 2022, the DOC issued its Decision Determining Emergency with
14 respect to the limited scope first hearing on Griffin’s appeal of Order 1267A. (The “DOC
15 Decision.”) A true and correct copy of the DOC Decision is attached hereto as Exhibit 16 and to my
16 Declaration filed in this matter on April 19, 2023 and incorporated herein by reference.
17 25. In relevant part the DOC Decision affirmed that the hearing had been “solely to
18 consider the reasonableness of the Supervisor’s determination that an emergency exists, or existed
19 at the time he issued the order.” (Exhibit 16 to my Declaration filed in this matter on April 19,
20 2023 and incorporated herein by reference at p. 1, lines 17 — 19.)
21 26. True to that restriction the DOC Decision did not address, made no findings
22 concerning, and did not decide issues concerning the actual existence of any emergency, or whether
23 requirements imposed by Order 1267A were necessary to address any emergency.
24 27. The DOC Decision found only, and only on very limited grounds, that the
25 Supervisor’s determination that an emergency existed was reasonable and that at the time of the
26 decision there was a risk to public health, property and the environment. (Exhibit 16 at p. 22, lines 4
27 — 10.) The DOC did not find that an emergency exists, and the DOC’s findings concluded that there
28
CLIFFORD & BROWN
'A Professional Corporation
1430 Truxtun Ave, Ste. 900
Bakersfield, CA 93301 7
(661) 322-6023
DECLARATION OF DONALD C. OLDAKER IN SUPPORT OF OPPOSITION TO EX PARTE APPLICATION TO LIFT STAY
were no leaks as of July 1, 2022, and that tubing and casing pressures for wells A84 and D87 were
zero as of September 30, 2022 (i.e., the last day of the hearing. (Exhibit 16 at p. 5, lines 6-19.)
28. Further, the DOC Decision concluded that CalGEM had proven only three of the 6
bases relied on by CalGEM for its determination of the existence of an emergency, and that the other
the bases were not reasonable. The three bases on with the DOC concluded that the Supervisor’s
determination that an emergency existed on July 1, 2022 were:
A A belief based on documented instances of rebounding or rising pressures that
the well pressures of wells A84 and D87 “could continue to rise again after being
bled down.” (Exhibit 16 at p. 11, lines 11-16.) (Underlining added.)
B The fact that wells A84, B52, and D87 were “close to areas where people
10 live, work, play and commute. (Exhibit 16 at p. 14, lines 18 — 22), however regarding
that issue the DOC also expressly “emphasize[d] that none of these well — A84, B52,
11 or D87 — have ever exploded, caught fire or failed . . in such a way to cause the
hypothetical damage described above. . .[and that] the OA does not suggest or
12
speculate that a fire or explosion will occur, merely that if such an event should
13 occur, proximity to people would be something the Supervisor could and should
consider.” (Exhibit 16 at p. 14, lines 13 — 17,) (underlining added.) and
14
Cc A conclusion that with respect to well D87, which CalGEM had ordered
15
Driltek to depressurize on Memorial Day weekend (May 29 - 30, 2022), Griffin had
16 not acted with sufficient urgency after learning of the elevate pressure and fluid in the
cellar. In that regard the DOC concluded that “the operator’s failure to respond
17 quickly to an emergency is a reasonable factor to consider when weighing an
emergency since a failure to timely act could exacerbate an already dangerous
18
situation. Although Griffin has shown some cooperation, the Supervisor has
19 proven that Griffin failed to act with urgency.” (Exhibit 16 at p. 21, lines 15 — 18.)
(Underlining added)
20
21 29. The DOC Decision concluded, however that CalGEM had not proven that the
22 following was a reasonable basis for concluding that an emergency existed:
23 A Methane Leaks In that regard the DOC concluded that while “[a]methane
leak, or methane leaks could potentially cause harm to public health and the
24 environment, and leaks would certainly support a violation of CalGEM statutes . . .
25 based on the testimony of the witnesses and particularly the BFD, the methane
leaks do not provide a reasonable basis for an emergency based on risks to health.”
26 (Exhibit 16 at p. 13, lines 11-14.) (Underlining added.)
27 B Well Condition The DOC concluded that while “[t]he condition of Griffin’s
28 wells is an appropriate factor to consider in determining whether there is an
emergency [because] poor well equipment may not be able to handle extremely high
CLIFFO! & BROWN
A Frofe ie ‘Corporation
1430 Troxt ¢, 900
Bakersfield, CA 93301 8
(661) 322-6023,
DECLARATION OF DONALD C. OLDAKER IN SUPPORT OF OPPOSITION TO EX PARTE APPLICATION TO LIFT STAY
pressures [i]n this case the Supervisor has proven that there are concerns with the
well equipment, but he has not proven that the wells are in such grave condition
that an_ emergency is warranted.” (Exhibit 16 at p. 15, line 25 — p. 16, line 3.)
(Underlining added.)
Cc History of non-compliance The DOC concluded that although “[a] history of
non-compliance was a reasonable criterion for the Supervisor to consider . . in
this case he has not proven that Griffin has a history of violation(s) beyond what is
contained in Order No 1267 or 1267A. Therefore Griffin’s alleged history of non-
compliance was not a reasonable basis to declare an emergency.” (Exhibit 16 at p.
19, lines 13-16.) (Underlining added.)
30. In concluding that “noncompliance” was not a reasonable basis to declare an
emergency, the DOC found that “the evidence shows that Griffin has acted to comply with some of
10
the emergency actions, even if they have not been entirely successful. For example Griffin bled
11
down their wells as required and installed functioning pressure gauges on 23 of its 25 wells after
12
being served with Order No. 1267 and 1267A ... In addition, Griffin hired Montrose to come to
13
its facilities in the Fruitvale Field, perform inspections over 2 days, at which time Montrose
14
repaired 25 leaks, and even if the leaks were not entirely repaired, the methane emissions were
15
reduced [and] lastly SOGE Kimber testified there were no high-pressure situations or concerns
16
with wells A84 or D87 on either July 1, 2022 or August 19, 2022... Although CalGEM can take
17
responsibility for the reduced pressure on July 1, Griffin has maintained the pressure at a lower
18
level even after cleaning the mud out of the wells and restoring A84 back to production in late
19
July.” (Exhibit 16 to my Declaration filed in this matter on April 19, 2023 at p. 19, lines 1-16.)
20
31. On or about January 24, 2023, as the parties prepared for the second hearing, i.e., the
21
formal OAH hearing, i.e., the hearing on all other charges and allegations contained in Emergency
22
Order 1267... pursuant to Public Resources Code section 3351(a) and Government Code, Title
23
2, Division 3, Part 1, Chapter 5, commencing with section 11500 described in the
24
Acknowledgement of Appeal (Exhibit “3”) the Notice of Hearing (Exhibit 4) and the Amended
25
Notice of Hearing (Exhibit 7), CalGEM served a Motion in Limine to Preclude Respondent
26
Contesting Supervisor’s Emergency Determination and to Exclude Evidence to That Effect. (The
27
28
CLIFFORD & BROWN
‘A Professional Corporation
1430 Truxtun Ave, Ste. 900
Bakersfield, CA 93301 9
(661) 322-6023,
DECLARATION OF DONALD C. OLDAKER IN SUPPORT OF OPPOSITION TO EX PARTE APPLICATION TO LIFT STAY
“Motion in Limine.”) A true and correct copy of the Motion in Limine is attached hereto as Exhibit
17 to my Declaration filed in this matter on April 19, 2023 and incorporated herein by reference.
32. Despite its title, and although CalGEM characterized its Motion in Limine as
precluding the relitigation of the determinations made in the DOC Decision following the limited
scope hearing, the Motion in Limine actually sought to prevent Griffin from presenting any evidence
concerning the requirements contained in Order 1267A, including the requirement to plug and
abandon wells A84, B52 and D87, arguing that the first “limited scope” hearing during which
Griffin had been precluded from presenting evidence related to anything other than the subjective
reasonableness of the Supervisor’s determination that an emergency existed was, in fact, a separate
10 proceeding that resulted in a “Final Appealable Decision” and that because Griffin had not
11 separately appealed the DOC decision, Res Judicata applied to preclude Griffin from offering
12 evidence relevant to the requirements imposed under Order 1267A with respect to wells A84, B52
13 and D87. (See Exhibit 17 to my Declaration filed in this matter on April 19, 2023 at p. 2 lines 1-21.)
14 33. Although CalGEM acknowledged that the OAH had jurisdiction over Griffin’s appeal
15 of the non-emergency portion of Order 1267A and the remedial actions listed in the emergency
16 portion of Order 1267A, it asserted that the determination of the limited scope issue decided in the
17 first hearing ordered under Public Resources Code section 3351, subd. (d) acted as a bar to litigating
18 the remaining issues before the OAH, and which were not decided in the limited scope hearing.
19 (Exhibit 17 to my Declaration filed in this matter on April 19, 2023 at p. 2, lines 22-28.)
20 34, On page 5 of its Motion in Limine CalGEM argued that through wording inserted on
21 pages 12 and 13 of Order 1267A, CalGEM had restricted the scope of Griffin’s appeal by stating that
22 the second hearing would be consider only the finding that Griffin’s wells were deserted under
23 Public Resources Code section 3237 and should be plugged and abandoned. (Exhibit 17 to my
24 Declaration filed in this matter on April 19, 2023 and incorporated herein by reference, p. 5, lines
25 10-16.) CalGEM did not mention or rely on any other section, including Public Resources Code
26 section 3236 as the basis for the order to plug and abandon nor did CalGEM claim that is was
27 proceeding under the portion of Public Resources Code section 3236 that states “if the Supervisor
28
CLIFFORD & BROWN
‘A Professional Corporation
1430 Truxtun Ave, Ste, 900
Bakersfield, CA 93301 10
(661) 322-6023
DECLARATION OF DONALD C. OLDAKER IN SUPPORT OF OPPOSITION TO EX PARTE APPLICATION TO LIFT STAY
determines that and emergency exists, the Supervisor may order or undertake the actions the
Supervisor deems necessary to protect life, health, property or natural resources.”.
35. On or about February 8, 2023, Griffin filed its written opposition to the Motion in
Limine. (The “Opposition”) A true and correct copy of the Opposition is attached hereto as Exhibit
“18” to my Declaration filed in this matter on April 19, 2023 and incorporated herein by reference.
36. In the Opposition Griffin explained that much of the evidence presented on the
limited issue of the reasonableness of the supervisor’s determination that an emergency existed was
also relevant to whether the requirements imposed by Order 1267A were reasonable and necessary
to address the emergency (Exhibit 18 at pp. 7-10,) and that the principles of res judicata and
10 collateral estoppel could not apply because the “limited scope” hearing was not a separate
11 proceeding, it was the first of two proceedings in a single appeal, and that no final decision on Order
12 1267A had been issued. (Exhibit 18 to my Declaration filed in this matter on April 19, 2023 at pp.
13 11-13.)
14 37. Over Griffin’s Opposition, the OAH granted CalGEM’s Motion in Limine and
15 precluded Griffin from offering significant amounts of evidence, including the testimony of several
16 key witnesses concerning the appropriate response to the conditions existing at Griffin’s wells A84,
17 B52 and D87.
18 38. CalGEM presented no evidence regarding the existence of any actual emergency,
19 and no evidence of what actions were “necessary to protect life, health, property or natural
20 resources” under Public Resources Code section 3236 on any of the 6 days during which the second
21 phase hearing occurred. CalGEM called a total of three witnesses — James Donnelly who testified
22 regarding idle well compliance, Jeff Kimber who testified regarding several Notices of Violation
23 served on Griffin concerning numerous wells and leases other than the K.C.L. Lease, as well as
24 orders directed at the K.C.L. Lease over several years, and Rohit Sharma who testified briefly
25 concerning the number of pressure reports he had received from Griffin after Jun 2022.
26 39. In March 2023 Griffin received information that CalGEM intended to plug and
27 abandon wells A84, D87 and B52 prior to issuance of the Decision by the Office of Administrative
28 Hearings.
CLIFFORD & BROWN
‘A Professional Corporation
1430 Truxtun Ave, Ste, 900
Bakersfield, CA 93301 11
(661) 322-6023
DECLARATION OF DONALD C, OLDAKER IN SUPPORT OF OPPOSITION TO EX PARTE APPLICATION TO LIFT STAY
40. Accordingly, Griffin applied for an obtained a restraining order under Public
2 Resources Code section granting GRIFFIN’s request for a Restraining Order subject to the certain
3 conditions. (DCO Dee. at 40, and Exhibit 19, to my Declaration filed in this matter on April 19,
4 2023 and incorporated herein by reference.).
5 The conditions imposed by the Court were:
1 Monitor pressure levels at the subject wells a minimum of three times per
week
Bleed down pressure levels at the subject wells as necessary to maintain
safe levels.
Report excessive pressure level readings within 24 hours of obtaining a
10 reading of excessive pressure at any of the Subject Wells.!
11 Secure the well enclosures at the Subject Wells with combination locks
and provide the combinations to CalGEM;
12
File weekly inspection reports with CalGEM regardless of the pressure
13 readings.
14 Comply with all laws related to the operation of the Subject Wells,
including submission, and filing monthly production reports.
15
Install and/or maintain adequate pressure control equipment at the Subject
16 Wells.
17 Post a surety bond in the amount of $150,000 and take any other
18 reasonable actions it deems appropriate to ensure the safety of the public.
19 41. In addition, the Order stated that CalGEM may apply to the Court for ex-parte relief
20 from the stay if strict compliance with these conditions is not maintained and that the stay would
21 terminate once the administrative appeal had concluded.
22 42. The May 16, 2023 was later clarified and modified on June 30, 2023 to provide that
23 Griffin was permitted to continue production of the Subject Wells pending the outcome of the
24 appeal.
25
26
27
1 For purposes of the Order excessive pressure level readings are deemed to be 400 PSI or higher for wells
281] A84 and B52 and 100 PSI or higher casing pressure or the tubing pressure of 200 PSI or higher at D87.
CLIFFORD & BROWN
‘A Professional Corporation
1430 Truxtun Ave., Ste, 900
Bakersfield, CA 93301 12
(661) 322-6023,
DECLARATION OF DONALD C. OLDAKER IN SUPPORT OF OPPOSITION TO EX PARTE APPLICATION TO LIFT STAY
43. On or about May 31, 2023 the Office of Administrative Hearings issued its Proposed
Decision which concluded that wells A84, D87 and B43 were deserted, but the remaining 22 wells,
including Well B52 were not.
44, On September 8, 2023, the Director served a Notice of Rejection of the
Administrative Law Judge’s decision and elected to issue its own decision pursuant to Government
Code section 11517, subd. (C)(2)(E).
45. After requesting and receiving additional briefing on October 19, 2023, on December
7, 2023, the Director issued the Final Decision concluding in effect, that based on an alleged poor
history of compliance, poor physical maintenance, untimely fee payment and delayed or missing
10 documentation at any of the wells GRIFFIN owned and operated, and without connecting any
11 specific conditions or violations to a particular well, that all 25 of Griffin’s KCL wells were
12 “deserted,” and could order any or all of the operator’s wells to be plugged and abandoned as a
13 result.
14 46. CalGEM immediately sought an Order terminating the May 16, 2023, Restraining
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Donald C. Oldaker (State Bar Number 166230) CLIFFORD & BROWN A Professional Corporation Attorneys at Law 1430 Truxtun Avenue, Suite 900 Bakersfield, CA 93301 (661) 322-6023 Attorneys for Plaintiff and Petitioner, Griffin Resources, LLC SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF KERN — METRO JUSTICE BUILDING 10 1 GRIFFIN RESOURCES, LLC, a California Case No. BCV-23-100920-BCB Limited Liability Company, 12 DECLARATION OF DONALD C. Plaintiff and Petitioner, OLDAKER IN SUPPORT OF 13 vs. OPPOSITION TO EX PARTE 14 APPLICATION TO LIFT STAY CALIFORNIA DEPARTMENT OF 15 January 29, 2024 CONSERVATION, etc., at al., Date: 16 Time: 8:30 a.m. Defendants and Respondents. Dept.: H 17 Judge: Hon. Bernard C. Barmann, Jr. Filed: March 23, 2023 18 Trial date: Not set 19 20 I, Donald C. Oldaker, declare as follows: 21 1 I am an attorney at law licensed to practice before all courts of the State of California 22 and I am the attorney for Griffin Resources, LLC, (“Griffin”) the plaintiff in the above-entitled 23 action. 24 2 I am personally familiar with all the papers and pleadings in this matter and with all 25 the facts related to this matter. If called as a witness I could and would competently testify thereto. 26 3 I was retained on or about May 23, 2022 to advise and represent Griffin in connection 27 with its appeal from Emergency Order to Perform Remedial Work, Plug and Abandon Wells and 28 Decommission Facilities No 1267 issued May 16, 2022, (referred to herein as “Order 1267,”) a true CLIFFORD & BROWN ‘A Professional Corporation 1430 Truxtun Ave, Ste. 900 Bakersfield, CA 93301 1 (661) 322-6023, DECLARATION OF DONALD C, OLDAKER IN SUPPORT OF OPPOSITION TO EX PARTE APPLICATION TO LIFT STAY and correct copy of which is attached hereto as Exhibit “2” to my April 19, 2023 Declaration and incorporated herein by reference, which had been issued by the California Geologic Energy Management Division (“CalGEM”) on May 16, 2022, and I have been continuously involved since that date. 4 At the commencement of my representation of Griffin in this matter I was provided with Order 1267. I carefully reviewed Order 1267, researched the applicable law and on May 28, 2022, served and filed an extensive Notice of Appeal from Order 1267 requesting a hearing under Public Resources Code section 3351, subd. (a) and Government Code section 11500, ef seq., a true and correct copy which is attached as Exhibit “3” to my Declaration filed in this matter on April 19, 10 2023 and incorporated herein by reference. 11 5 Notwithstanding my request, on June 1, 2022 I received an Acknowledgement of 12 Appeal from the Department of Conservation stating that the appeal would be set for two hearings, 13 the first of which would be a “limited scope hearing to consider the reasonableness of the 14 Supervisor’s determination that an emergency exists” and that “[o]nce_a decision [had] beer 15 issued in the first hearing, the Supervisor’s legal representatives [would] set a hearing with the 16 Office of Administrative Hearings to address all remaining matters in the order.” A true and 17 correct copy of the June 1, 2022 Acknowledgement of Appeal is attached as Exhibit “4” to my 18 Declaration filed in this matter on April 19, 2023 and incorporated herein by reference. 19 6 On or about June 7, 2022, I received a Notice of Hearing from the Department of 20 Conservation (“DOC”) Director’s Office of Appeals which stated that it was setting the limited 21 scope hearing on Order 1267 on July 14, 2022. On page 2 of the June 7, 2022 Notice of Hearing the 22 DOC stated that “[t]hke hearing in this matter will be conducted as an informal hearing, for the 23 limited purpose of considering the reasonableness of the supervisor’s determination that an 24 emergency exists” and that “[a] hearing on all other charges and allegations contained in 25 Emergency Order 1267 will be scheduled pursuant to Public Resources Code section 3351(a) and 26 Government Code, Title 2, Division 3, Part 1, Chapter 5, commencing with section 11500.” A true 27 and correct copy of the Notice of Hearing is as Exhibit “5” to my Declaration filed in this matter on 28 April 19, 2023 and incorporated herein by reference. CLIFFORD & BROWN ‘A Professional Corporation 1430 Truxtun Ave, Ste, 90 Bakersfield, CA 93301 2 (661) 322-6023 DECLARATION OF DONALD C, OLDAKER IN SUPPORT OF OPPOSITION TO EX PARTE APPLICATION TO LIFT STAY 7 On or about June 23, 2022, I received a Pre-Hearing Order from the DOC, which affirmed on page 2 that “[t]ke hearing is limited to the issue of whether the Supervisor’s determination that there is an emergency is reasonable (Pub. Resources Code § 3351, subd. (d)).” A true and correct copy of the Pre-Hearing Order is attached as Exhibit “6” to my Declaration filed in this matter on April 19, 2023 and incorporated herein by reference. 8 On or about July 1, 2022, I received First Amended Emergency Order to Perform Remedial Work, Plug and Abandon Wells and Decommission Facilities and Non-Emergency Order to Plug and Abandon Wells and Decommission Facilities No 1267A issued May 16, 2022, (referred to herein as “Order 1267A”). A true and correct copy of Order 1267A is attached hereto as Exhibit 10 “7” to my Declaration filed in this matter on April 19, 2023 and incorporated herein by reference. 11 9 On or about July 11, 2022 I received an Amended Notice of Hearing regarding Order 12 1267A On page 2 of the July 11, 2022 Amended Notice of Hearing the DOC stated that “[t]he 13 hearing in this matter will be conducted as an informal hearing, for the limited purpose of 14 considering the reasonableness of the supervisor’s determination that an emergency exists” and 1S that “[a] hearing on all other charges and allegations contained in Emergency Order 1267 will be 16 scheduled pursuant to Public Resources Code section 3351(a) and Government Code, Title 2, 17 Division 3, Part 1, Chapter 5, commencing with section 11500.” A true and correct copy of the 18 Notice of Hearing is attached as Exhibit “8” to my Declaration filed in this matter on April 19, 2023 19 and incorporated herein by reference. 20 10. On or about July 11, 2022, I received a First Amended Pre-Hearing Order from the 21 DOC, which affirmed on page 2 that “[t]he hearing is limited to the issue of whether the 22 Supervisor’s determination that there is an emergency is reasonable (Pub. Resources Code § 23 3351, subd. (d)).” A true and correct copy of the Amended Pre-Hearing Order is attached as Exhibit 24 “9” to my April 19, 2023 Declaration in this matter and incorporated herein by reference. 25 11. Although Order 1267A did not provide notice that Griffin was required to file a 26 Notice of Appeal from Order 1267A, or any deadline to do so, because of the additional claims 27 asserted, on or about July 18, 2022, my office served an Amended Notice of Appeal Re: CalGEM 28 First Amended Emergency and Non-Emergency Order No. 1267A, a true and correct copy of which CLIFFORD & BROWN ‘A Professional Corporation 1430 Truxtun Ave, Ste, 900 Bakersfield, CA 93301 3 (61) 322-6023 DECLARATION OF DONALD C. OLDAKER IN SUPPORT OF OPPOSITION TO EX PARTE APPLICATION TO LIFT STAY is attached hereto as Exhibit “10” to my Declaration filed in this matter on April 19, 2023 and incorporated herein by reference. 12. The first day of the limited scope hearing was held on August 19, 2022. A true and correct copy of portions of the transcript from the first day of hearing on August 19, 2022 is attached hereto as Exhibit “11” to my Declaration filed in this matter on April 19, 2023 and incorporated herein by reference. 13. At the commencement of the hearing the DOC hearing officer reaffirmed the limited nature of the issue being addressed, stating “This is a limited scope hearing where the Office of Appeals will consider the reasonableness of the supervisor’s determination that an emergency 10 exists or that an emergency existed at the time the order was issued. Only evidence related to the 11 existence of an emergency will be considered. In this case the supervisor carries the burden of 12 proof.” (See Exhibit 11 to my Declaration filed in this matter on April 19, 2023 at p. 7, line 20 -p. 8, 13 line 1.) 14 14. On August 19, 2022, CalGEM’s witness, senior oil and gas engineer Jeff Kimber 15 testified as follows: 16 ... So that was the action that was taken — was bleed down the pressure. We 17 vented — we flared the gas. And then yes, tighten the casing flange. That did 18 take place. 19 Q. Okay. And if that had addressed the leak concern, that would have 20 addressed the emergency, wouldn’t it? 21 A, So there was — we mitigated the emergency, but there was still concern 22 of the gas pressure returning. Just because he had put heavy mud down a well 23 doesn’t mean it’ll — it’ll subdue the pressure for some time. 24 And the pressure started rising slowly. Not very quickly, but we monitored the 25 pressure for a time thereafter. And so there was always a question of the 26 pressure returning and the leaks returning.” (Exhibit 11 at p. 87, lines 2-16.) 27 15. Griffin was precluded from presenting evidence concerning the actual existence of 28 any emergency throughout the hearing, and CalGEM’s witnesses offered no such evidence. CLIFFORD & BROWN ‘A Professional Corporation 1430 Truxtun Ave, Ste. 900 Bakersfield, CA 93301 (661) 322-6023 4 DECLARATION OF DONALD C. OLDAKER IN SUPPORT OF OPPOSITION TO EX PARTE APPLICATION TO LIFT STAY 16. When I attempted to ask Mr. Kimber whether anyone communicated with the well’s owner, however, CalGEM’s attorney objected that “This is outside the scope of this hearing, which is limited cause, which is just to determine whether an emergency exists.” (Exhibit 11 to my Declaration filed in this matter on April 19, 2023 at p. 87, line 28 — p. 88, line 2.) The DOC Hearing Officer sustained the objections stating “J agree. We need to focus on the emergency related issues. So I’m going to sustain the objection. And we can move on.” 17. During the course of the August 19, 2022 limited scope hearing on the emergency portion of Order 1267A addressing the issue whether the State Oil and Gas Supervisor’s 10 determination that an emergency existed, CalGEM engineer Jeff Kimber testified as follows: 11 Q Okay. Is there anything in the wells' behavior, after the work that Griffin did on 12 the wells recently, that gives -- that causes you to have concern that the pressure is 13 going to be increased? 14 A So the pressures have remained low since Griffin's work at D87 and A84, quite 15 low, which causes us to believe that something else -- they did something else to the 16 wells that we're not aware of. So we do have questions on why the pressure is low. 17 Q If they stay at that level, are your concerns alleviated? 18 A Only if Griffin, you know, if Griffin commits to observing those pressures 19 regularly. Someone has to be checking on those pressures continuously. 20 21 As we experienced before with, you know, when I found D87 at 1,260 PSI, it appeared 22 that Griffin was not checking up on the well -- that it was just, you know -- it was - it had gone uninspected for who knows how long. 23 24 So if someone continuously monitors those pressures and we can be sure of that, then 25 that would be -- my concerns would be alleviated. But if we're going to walk away 26 from these wells and not monitor them, then, you know, who's to say what's going to 27 happen in the future? 28 CLIFFORD & BROWN ‘A Professional Corporation 1430 Truxtun Ave,, Ste. 900 Bakersfield, CA 93301 5 (661) 322-6023 DECLARATION OF DONALD C. OLDAKER IN SUPPORT OF OPPOSITION TO EX PARTE APPLICATION TO LIFT STAY So my concern still exists. (See Exhibit 4 to Declaration of Donald C. Oldaker filed January 25, 2024 at pages 360-361 [transcript pages 111-112]) 18. At the conclusion of the first hearing day, after three of CalGEM’s witnesses had testified and before Griffin had been afforded any opportunity to present its own case, the DOC Hearing Officer imposed a time limit of 45 minutes per witness stating that he did not believe more was “necessary given the very limited scope of this hearing,” (Exhibit 11 at p. 314, lines 1-16.) 19. On September 9, 2022 the DOC issued an Order Granting Continuance and Limiting Witness Examinations continuing the remainder of the limited scope hearing to September 29 and 30, 2022 and imposing the 45 minute per witness time limitation. A true and correct of the Order 10 Granting Continuance and Limiting Witness Examinations is attached hereto as Exhibit “12” to my 11 Declaration filed in this matter on April 19, 2023 and incorporated herein by reference. 12 the “limited scope” hearing had resumed and long 20. On September 22, 2022, before 13 before any decision thereon had been issued, the Office of Administrative Hearing served a Notice 14 and Mandatory Settlement of Telephone/Videoconference Dates and of Prehearing Conference 15 Conference Date and Time (the “OAH Hearing Notice”) which set the second hearing on Griffin’s 16 appeal (i.e., the hearing on all other charges and allegations contained in Emergency Order 1267. 17 .. pursuant to Public Resources Code section 3351(a) and Government Code, Title 2, Division 3, 18 Part 1, Chapter 5, commencing with section 11500.” to take place on February 13, 2023 — February 19 17, 2023. A true and correct copy of the OAH Hearing Notice is attached hereto as Exhibit “13” to 20 my Declaration filed in this matter on April 19, 2023 and incorporated herein by reference. 21 21. The limited scope hearing resumed a week later on September 29, 2022, and during 22 the September 29, 2022, hearing date I attempted to ask CalGEM witness Emanuel Otaru whether he 23 was a reasonable response to experiencing a flange leak, believed plugging and abandonment 24 however CalGEM’s attorney objected “This is outside the scope of the emergency determination” 25 (Exhibit 14 to my Declaration filed in this matter which was sustained by the DOC Hearing Officer. 26 See also Exhibit 13 at on April 19, 2023 and incorporated herein by reference at p. 60, lines 11-21. 27 p. 63, lines 7-14.) 28 Mr. Otaru subsequently testified as follows: 22. CLIFFORD & BROWN ‘A Professional Corporation 1430 Truxtun Ave, Ste, 900 Bakersfield, CA 93301 6 (661) 322-6023 DECLARATION OF DONALD C, OLDAKER IN SUPPORT OF OPPOSITION TO EX PARTE APPLICATION TO LIFT STAY 2. If, as of July 1, 2022, the well was exhibiting little to no pressure and was not leaking, you would not consider that to be an emergency, would you? A No, if there’s no leak and there’s no pressure then there’s no emergency. (Exhibit 14 to Declaration filed April 19, 2023 at p. 64, lines 2-6.) 23. On September 30, 2022, I asked Griffin’s expert, Wayman Gore whether the fact Griffin was placing the Subject wells back on production constituted an emergency and was admonished by the DOC Hearing Officer that “this hearing is a limited scope hearing on the reasonableness of the Supervisor’s determination that there is an emergency. And I want to make sure that we are very focused on that and that we are not going into the weeds on geology and 10 formations and things of that nature. Water injections and things of that nature are not within 11 the scope of this hearing.” (Exhibit 15 to my Declaration filed in this matter on April 19, 2023 and 12 incorporated herein by reference at p. 30, lines 6 — 15.) 13 24. On October 31, 2022, the DOC issued its Decision Determining Emergency with 14 respect to the limited scope first hearing on Griffin’s appeal of Order 1267A. (The “DOC 15 Decision.”) A true and correct copy of the DOC Decision is attached hereto as Exhibit 16 and to my 16 Declaration filed in this matter on April 19, 2023 and incorporated herein by reference. 17 25. In relevant part the DOC Decision affirmed that the hearing had been “solely to 18 consider the reasonableness of the Supervisor’s determination that an emergency exists, or existed 19 at the time he issued the order.” (Exhibit 16 to my Declaration filed in this matter on April 19, 20 2023 and incorporated herein by reference at p. 1, lines 17 — 19.) 21 26. True to that restriction the DOC Decision did not address, made no findings 22 concerning, and did not decide issues concerning the actual existence of any emergency, or whether 23 requirements imposed by Order 1267A were necessary to address any emergency. 24 27. The DOC Decision found only, and only on very limited grounds, that the 25 Supervisor’s determination that an emergency existed was reasonable and that at the time of the 26 decision there was a risk to public health, property and the environment. (Exhibit 16 at p. 22, lines 4 27 — 10.) The DOC did not find that an emergency exists, and the DOC’s findings concluded that there 28 CLIFFORD & BROWN 'A Professional Corporation 1430 Truxtun Ave, Ste. 900 Bakersfield, CA 93301 7 (661) 322-6023 DECLARATION OF DONALD C. OLDAKER IN SUPPORT OF OPPOSITION TO EX PARTE APPLICATION TO LIFT STAY were no leaks as of July 1, 2022, and that tubing and casing pressures for wells A84 and D87 were zero as of September 30, 2022 (i.e., the last day of the hearing. (Exhibit 16 at p. 5, lines 6-19.) 28. Further, the DOC Decision concluded that CalGEM had proven only three of the 6 bases relied on by CalGEM for its determination of the existence of an emergency, and that the other the bases were not reasonable. The three bases on with the DOC concluded that the Supervisor’s determination that an emergency existed on July 1, 2022 were: A A belief based on documented instances of rebounding or rising pressures that the well pressures of wells A84 and D87 “could continue to rise again after being bled down.” (Exhibit 16 at p. 11, lines 11-16.) (Underlining added.) B The fact that wells A84, B52, and D87 were “close to areas where people 10 live, work, play and commute. (Exhibit 16 at p. 14, lines 18 — 22), however regarding that issue the DOC also expressly “emphasize[d] that none of these well — A84, B52, 11 or D87 — have ever exploded, caught fire or failed . . in such a way to cause the hypothetical damage described above. . .[and that] the OA does not suggest or 12 speculate that a fire or explosion will occur, merely that if such an event should 13 occur, proximity to people would be something the Supervisor could and should consider.” (Exhibit 16 at p. 14, lines 13 — 17,) (underlining added.) and 14 Cc A conclusion that with respect to well D87, which CalGEM had ordered 15 Driltek to depressurize on Memorial Day weekend (May 29 - 30, 2022), Griffin had 16 not acted with sufficient urgency after learning of the elevate pressure and fluid in the cellar. In that regard the DOC concluded that “the operator’s failure to respond 17 quickly to an emergency is a reasonable factor to consider when weighing an emergency since a failure to timely act could exacerbate an already dangerous 18 situation. Although Griffin has shown some cooperation, the Supervisor has 19 proven that Griffin failed to act with urgency.” (Exhibit 16 at p. 21, lines 15 — 18.) (Underlining added) 20 21 29. The DOC Decision concluded, however that CalGEM had not proven that the 22 following was a reasonable basis for concluding that an emergency existed: 23 A Methane Leaks In that regard the DOC concluded that while “[a]methane leak, or methane leaks could potentially cause harm to public health and the 24 environment, and leaks would certainly support a violation of CalGEM statutes . . . 25 based on the testimony of the witnesses and particularly the BFD, the methane leaks do not provide a reasonable basis for an emergency based on risks to health.” 26 (Exhibit 16 at p. 13, lines 11-14.) (Underlining added.) 27 B Well Condition The DOC concluded that while “[t]he condition of Griffin’s 28 wells is an appropriate factor to consider in determining whether there is an emergency [because] poor well equipment may not be able to handle extremely high CLIFFO! & BROWN A Frofe ie ‘Corporation 1430 Troxt ¢, 900 Bakersfield, CA 93301 8 (661) 322-6023, DECLARATION OF DONALD C. OLDAKER IN SUPPORT OF OPPOSITION TO EX PARTE APPLICATION TO LIFT STAY pressures [i]n this case the Supervisor has proven that there are concerns with the well equipment, but he has not proven that the wells are in such grave condition that an_ emergency is warranted.” (Exhibit 16 at p. 15, line 25 — p. 16, line 3.) (Underlining added.) Cc History of non-compliance The DOC concluded that although “[a] history of non-compliance was a reasonable criterion for the Supervisor to consider . . in this case he has not proven that Griffin has a history of violation(s) beyond what is contained in Order No 1267 or 1267A. Therefore Griffin’s alleged history of non- compliance was not a reasonable basis to declare an emergency.” (Exhibit 16 at p. 19, lines 13-16.) (Underlining added.) 30. In concluding that “noncompliance” was not a reasonable basis to declare an emergency, the DOC found that “the evidence shows that Griffin has acted to comply with some of 10 the emergency actions, even if they have not been entirely successful. For example Griffin bled 11 down their wells as required and installed functioning pressure gauges on 23 of its 25 wells after 12 being served with Order No. 1267 and 1267A ... In addition, Griffin hired Montrose to come to 13 its facilities in the Fruitvale Field, perform inspections over 2 days, at which time Montrose 14 repaired 25 leaks, and even if the leaks were not entirely repaired, the methane emissions were 15 reduced [and] lastly SOGE Kimber testified there were no high-pressure situations or concerns 16 with wells A84 or D87 on either July 1, 2022 or August 19, 2022... Although CalGEM can take 17 responsibility for the reduced pressure on July 1, Griffin has maintained the pressure at a lower 18 level even after cleaning the mud out of the wells and restoring A84 back to production in late 19 July.” (Exhibit 16 to my Declaration filed in this matter on April 19, 2023 at p. 19, lines 1-16.) 20 31. On or about January 24, 2023, as the parties prepared for the second hearing, i.e., the 21 formal OAH hearing, i.e., the hearing on all other charges and allegations contained in Emergency 22 Order 1267... pursuant to Public Resources Code section 3351(a) and Government Code, Title 23 2, Division 3, Part 1, Chapter 5, commencing with section 11500 described in the 24 Acknowledgement of Appeal (Exhibit “3”) the Notice of Hearing (Exhibit 4) and the Amended 25 Notice of Hearing (Exhibit 7), CalGEM served a Motion in Limine to Preclude Respondent 26 Contesting Supervisor’s Emergency Determination and to Exclude Evidence to That Effect. (The 27 28 CLIFFORD & BROWN ‘A Professional Corporation 1430 Truxtun Ave, Ste. 900 Bakersfield, CA 93301 9 (661) 322-6023, DECLARATION OF DONALD C. OLDAKER IN SUPPORT OF OPPOSITION TO EX PARTE APPLICATION TO LIFT STAY “Motion in Limine.”) A true and correct copy of the Motion in Limine is attached hereto as Exhibit 17 to my Declaration filed in this matter on April 19, 2023 and incorporated herein by reference. 32. Despite its title, and although CalGEM characterized its Motion in Limine as precluding the relitigation of the determinations made in the DOC Decision following the limited scope hearing, the Motion in Limine actually sought to prevent Griffin from presenting any evidence concerning the requirements contained in Order 1267A, including the requirement to plug and abandon wells A84, B52 and D87, arguing that the first “limited scope” hearing during which Griffin had been precluded from presenting evidence related to anything other than the subjective reasonableness of the Supervisor’s determination that an emergency existed was, in fact, a separate 10 proceeding that resulted in a “Final Appealable Decision” and that because Griffin had not 11 separately appealed the DOC decision, Res Judicata applied to preclude Griffin from offering 12 evidence relevant to the requirements imposed under Order 1267A with respect to wells A84, B52 13 and D87. (See Exhibit 17 to my Declaration filed in this matter on April 19, 2023 at p. 2 lines 1-21.) 14 33. Although CalGEM acknowledged that the OAH had jurisdiction over Griffin’s appeal 15 of the non-emergency portion of Order 1267A and the remedial actions listed in the emergency 16 portion of Order 1267A, it asserted that the determination of the limited scope issue decided in the 17 first hearing ordered under Public Resources Code section 3351, subd. (d) acted as a bar to litigating 18 the remaining issues before the OAH, and which were not decided in the limited scope hearing. 19 (Exhibit 17 to my Declaration filed in this matter on April 19, 2023 at p. 2, lines 22-28.) 20 34, On page 5 of its Motion in Limine CalGEM argued that through wording inserted on 21 pages 12 and 13 of Order 1267A, CalGEM had restricted the scope of Griffin’s appeal by stating that 22 the second hearing would be consider only the finding that Griffin’s wells were deserted under 23 Public Resources Code section 3237 and should be plugged and abandoned. (Exhibit 17 to my 24 Declaration filed in this matter on April 19, 2023 and incorporated herein by reference, p. 5, lines 25 10-16.) CalGEM did not mention or rely on any other section, including Public Resources Code 26 section 3236 as the basis for the order to plug and abandon nor did CalGEM claim that is was 27 proceeding under the portion of Public Resources Code section 3236 that states “if the Supervisor 28 CLIFFORD & BROWN ‘A Professional Corporation 1430 Truxtun Ave, Ste, 900 Bakersfield, CA 93301 10 (661) 322-6023 DECLARATION OF DONALD C. OLDAKER IN SUPPORT OF OPPOSITION TO EX PARTE APPLICATION TO LIFT STAY determines that and emergency exists, the Supervisor may order or undertake the actions the Supervisor deems necessary to protect life, health, property or natural resources.”. 35. On or about February 8, 2023, Griffin filed its written opposition to the Motion in Limine. (The “Opposition”) A true and correct copy of the Opposition is attached hereto as Exhibit “18” to my Declaration filed in this matter on April 19, 2023 and incorporated herein by reference. 36. In the Opposition Griffin explained that much of the evidence presented on the limited issue of the reasonableness of the supervisor’s determination that an emergency existed was also relevant to whether the requirements imposed by Order 1267A were reasonable and necessary to address the emergency (Exhibit 18 at pp. 7-10,) and that the principles of res judicata and 10 collateral estoppel could not apply because the “limited scope” hearing was not a separate 11 proceeding, it was the first of two proceedings in a single appeal, and that no final decision on Order 12 1267A had been issued. (Exhibit 18 to my Declaration filed in this matter on April 19, 2023 at pp. 13 11-13.) 14 37. Over Griffin’s Opposition, the OAH granted CalGEM’s Motion in Limine and 15 precluded Griffin from offering significant amounts of evidence, including the testimony of several 16 key witnesses concerning the appropriate response to the conditions existing at Griffin’s wells A84, 17 B52 and D87. 18 38. CalGEM presented no evidence regarding the existence of any actual emergency, 19 and no evidence of what actions were “necessary to protect life, health, property or natural 20 resources” under Public Resources Code section 3236 on any of the 6 days during which the second 21 phase hearing occurred. CalGEM called a total of three witnesses — James Donnelly who testified 22 regarding idle well compliance, Jeff Kimber who testified regarding several Notices of Violation 23 served on Griffin concerning numerous wells and leases other than the K.C.L. Lease, as well as 24 orders directed at the K.C.L. Lease over several years, and Rohit Sharma who testified briefly 25 concerning the number of pressure reports he had received from Griffin after Jun 2022. 26 39. In March 2023 Griffin received information that CalGEM intended to plug and 27 abandon wells A84, D87 and B52 prior to issuance of the Decision by the Office of Administrative 28 Hearings. CLIFFORD & BROWN ‘A Professional Corporation 1430 Truxtun Ave, Ste, 900 Bakersfield, CA 93301 11 (661) 322-6023 DECLARATION OF DONALD C, OLDAKER IN SUPPORT OF OPPOSITION TO EX PARTE APPLICATION TO LIFT STAY 40. Accordingly, Griffin applied for an obtained a restraining order under Public 2 Resources Code section granting GRIFFIN’s request for a Restraining Order subject to the certain 3 conditions. (DCO Dee. at 40, and Exhibit 19, to my Declaration filed in this matter on April 19, 4 2023 and incorporated herein by reference.). 5 The conditions imposed by the Court were: 1 Monitor pressure levels at the subject wells a minimum of three times per week Bleed down pressure levels at the subject wells as necessary to maintain safe levels. Report excessive pressure level readings within 24 hours of obtaining a 10 reading of excessive pressure at any of the Subject Wells.! 11 Secure the well enclosures at the Subject Wells with combination locks and provide the combinations to CalGEM; 12 File weekly inspection reports with CalGEM regardless of the pressure 13 readings. 14 Comply with all laws related to the operation of the Subject Wells, including submission, and filing monthly production reports. 15 Install and/or maintain adequate pressure control equipment at the Subject 16 Wells. 17 Post a surety bond in the amount of $150,000 and take any other 18 reasonable actions it deems appropriate to ensure the safety of the public. 19 41. In addition, the Order stated that CalGEM may apply to the Court for ex-parte relief 20 from the stay if strict compliance with these conditions is not maintained and that the stay would 21 terminate once the administrative appeal had concluded. 22 42. The May 16, 2023 was later clarified and modified on June 30, 2023 to provide that 23 Griffin was permitted to continue production of the Subject Wells pending the outcome of the 24 appeal. 25 26 27 1 For purposes of the Order excessive pressure level readings are deemed to be 400 PSI or higher for wells 281] A84 and B52 and 100 PSI or higher casing pressure or the tubing pressure of 200 PSI or higher at D87. CLIFFORD & BROWN ‘A Professional Corporation 1430 Truxtun Ave., Ste, 900 Bakersfield, CA 93301 12 (661) 322-6023, DECLARATION OF DONALD C. OLDAKER IN SUPPORT OF OPPOSITION TO EX PARTE APPLICATION TO LIFT STAY 43. On or about May 31, 2023 the Office of Administrative Hearings issued its Proposed Decision which concluded that wells A84, D87 and B43 were deserted, but the remaining 22 wells, including Well B52 were not. 44, On September 8, 2023, the Director served a Notice of Rejection of the Administrative Law Judge’s decision and elected to issue its own decision pursuant to Government Code section 11517, subd. (C)(2)(E). 45. After requesting and receiving additional briefing on October 19, 2023, on December 7, 2023, the Director issued the Final Decision concluding in effect, that based on an alleged poor history of compliance, poor physical maintenance, untimely fee payment and delayed or missing 10 documentation at any of the wells GRIFFIN owned and operated, and without connecting any 11 specific conditions or violations to a particular well, that all 25 of Griffin’s KCL wells were 12 “deserted,” and could order any or all of the operator’s wells to be plugged and abandoned as a 13 result. 14 46. CalGEM immediately sought an Order terminating the May 16, 2023, Restraining