More Disclosure From Frackers Required Under Proposed Oil Spill BillJul 19, 2010 | Parker Waichman LLP
A new bill being considered by Congress in the wake of the BP oil spill would require companies engaged in hydraulic fracturing on federal lands to disclose the fluids they use in the process. The bill passed the House Natural Resources Committee last Thursday.
Hydraulic fracturing, also called fracking, involves injecting water, sand, and a cocktail of chemicals at high pressure into rock formations thousands of feet below the surface. Critics of fracking have long been concerned about the chemicals used in the process. Because the federal Energy Policy Act of 2005 exempted hydraulic fracturing from regulation under the Safe Drinking Water Act, shale gas drillers don’t have to disclose what chemicals they use. According to the Environmental Working Group, fracking has already been linked to drinking water contamination and property damage in Colorado, Ohio, Pennsylvania and Wyoming.
The law now under consideration, HR 3534, deals mainly with offshore drilling, but one section addresses fracking specifically. It requires drillers to disclose “the chemical constituents of mixtures, Chemical Abstracts Service numbers, and material safety data sheets” to a Web site maintained by the Department of the Interior’s Bureau of Safety and Environmental Enforcement. However, it does not authorize the agency to require the public disclosure of “proprietary chemical formulas,” – something critics of the industry have long wanted to know.
As environmental groups push for more regulation for hydraulic drilling, the industry has been pushing back, and some drillers have even considered voluntary disclosure to head off rules at the federal level. For instance, earlier this month, Range Resources Corp. of Texas announced it would disclose the amount of additives used at each well site, along with their classifications, volumes, dilution factors, and specific and common purposes. Some of that information falls under what other companies consider proprietary trade secrets.
Chesapeake Energy Corp. has also said it is considering disclosing chemicals used in fracking on a well-by-well basis as Range is planning.
The industry’s main trade group, the American Petroleum Institute (API), is finalizing a proposal for disclosure, according to a recent New York Times report. But it falls short of what environmentalists want, and requires less disclosure than what Range is doing. API supports rules like those on the books in Colorado, which requires disclosure to regulators and physicians in emergency situations, but doesn’t provide the information to the public. It also opposes federal regulation of fracking.