by James Payne
Recent success by natural gas producers in Texas is due to horizontal drilling and hydraulic fracturing (fracking) in shale formations. According to the Texas Railroad Commission’s (Commission) definition, fracking is the “treatment of a well by the application of hydraulic fracturing fluid under pressure for the express purpose of initiating or propagating fractures in a target geologic formation to enhance production of oil and/or natural gas.” Much of the news regarding the practice of fracking has not been favorable to the gas production industry. Among other reasons, disputes have arisen from allegations that fracking may be contaminating underground drinking water supplies. These concerns have been heightened because some gas producers have not disclosed the various chemicals used in their fracking fluids.
In June 2011, Texas passed legislation requiring the Commission to adopt a disclosure rule for hydraulic fracturing fluids by July 2013. The Commission acted quickly and adopted a comprehensive chemical disclosure rule for hydraulic fracturing fluids in December 2011. Texas’ new Hydraulic Fracturing Chemical Disclosure Rule applies to hydraulic fracturing performed on wells which have been issued an initial drilling permit on or after February 1, 2012.
The new rule requires fracking fluid suppliers and service companies to provide the well operator with the identity of each chemical ingredient intentionally added to the hydraulic fracturing fluid used in a well. This disclosure requirement also includes identifying the trade name, supplier and a brief description of the intended use or function of each ingredient in the fracking fluid. Additionally, the actual or maximum concentration of each chemical ingredient and the Chemical Abstracts Service number for each chemical ingredient must be disclosed. The new rule requires that this disclosure be made to the well operator “as soon as possible, but not later than 15 days following the completion of hydraulic fracturing treatment(s) on a well.”
Using the information provided by suppliers and service companies, well operators must complete a Chemical Disclosure Registry form and upload the form onto the website known as FracFocus. FracFocus was developed, in part, by a national association of state groundwater agencies. The FracFocus website, http://fracfocus.org, was created in order to provide the public access to reported chemicals used for hydraulic fracturing. The Chemical Disclosure Registry form is to be uploaded on or before the date a well completion form is submitted to the Commission.
The chemical disclosure requirement is not absolute. Suppliers and service companies may still claim trade secret protection with regard to the identities or amounts of chemical ingredients used in their fracking fluids. The new disclosure rule allows a claim of trade secret protection to be challenged by one or more of the following: (1) the landowner on whose property the relevant wellhead is located; (2) adjacent landowners; or (3) a department or agency of Texas with jurisdiction over a matter to which the claimed trade secret information is relevant. A challenge to a trade secret claim must be filed within 24 months following the filing of the well completion report, after which the right to challenge is lost. The Office of the Attorney General makes the initial determination on the validity of a trade secret claim. An adverse ruling by the Office of the Attorney General may then be appealed within 10 business days to a district court of Travis County.
Notwithstanding any claim of trade secret protection, suppliers, service companies and well operators may not withhold information related to the chemical ingredients of fracking fluids from any health professional or emergency responder who needs the information for diagnostic, treatment or other emergency response purposes. Health care providers to whom trade secret information is disclosed must hold the information confidential.
At a public hearing regarding the new rule, Dr. Andrew Barron, the Welch Chair of Chemistry at Rice University, testified that “It is my belief that the proposed rule offers significantly greater information and hence better protection to the public than the FDA provides with the labeling of common food and drink.” Railroad Commission Chairman Elizabeth Jones has stated, “With the passage of this mandatory Hydraulic Fracturing Disclosure Rule, Texans can be assured they will know more about what is going into the ground for fracturing than what goes into a can of soda.”
As a result of the new disclosure rule, Texans may soon know more about the chemicals being used in fracking fluids. However, it remains to be seen as to whether such increased knowledge lessens the controversy over fracking in Texas.
James Payne, a partner in Guida, Slavich & Flores, P.C., handles environmental litigation. He is the Secretary of the Environmental Law Section of the DBA. He can be reached at firstname.lastname@example.org.