Friday, April 15, 2011

When Threatened Regulation Leads to Innovative Private Response

On April 12, the Ground Water Protection Council and the Interstate Oil and Gas Compact Commission announced the opening of a new and innovative website ( that reveals the specific chemicals that twenty-four hydraulic fracturing ("fracing" or "fracking") companies use in oil and natural gas wells around the country.  This is an important and interesting development.  Several states require fracing companies to disclose the chemicals that they plan to use in a fraced well in their permit applications or to reveal the actual chemicals used in a well completion report.  These agencies have, in turn, published general lists of the more than 250 unique chemicals that producers potentially use in fraced wells in their state, but this tells a member of the public little about the specific handful of chemicals that may be mixed with water and injected at any given site.  It appears that only a minority of state agencies, such as those in Wyoming and Arkansas, have made more specific information about chemicals used at fraced wells available to the public.  Further, although the public may currently request material safety data sheets from local emergency planning committees under the Emergency Planning and Community Right-to-Know Act, EPCRA allows those entities submitting material safety data sheets to claim trade secret status for the chemicals that they are supposed to disclose. 

The new website that discloses fracing chemicals to the public is user-friendly and offers useful, detailed data. A user can search wells by state, which pulls up a long list of individual well sites; searches by specific well are also available. The user may then click on the well site and receive detailed information about the chemicals used there, including a description of the trade name of each product used at the well, the ingredients in the product and the ingredients' Chemical Abstract Service (CAS) numbers, the maximum concentration of each chemical in the frac fluid additive and in the full frac water-chemical solution, the "purpose" of the product, and the supplier.   The companies also disclose the total water volume used at each well.

According to the Tulsa World, "The two state coalitions behind the registry, the Ground Water Protection Council and the Interstate Oil and Gas Compact Commission, are hoping to block federal oversight and keep regulatory authority at the state level."  Indeed, the federal government has recently ramped up attention to fracing.  The EPA is conducting a study of the impacts of fracing in shale on groundwater (at the direction of a House committee) and has subpoenaed companies that have refused to disclose chemical information requested as part of the study, while the Department of the Interior has proposed to require companies that frac wells on public lands to disclose the chemicals used to the public.  Congress, in turn, questioned officials this week about the safety of the practice and has proposed the "FRAC Act," which would also require public disclosure of fracing chemicals.  Whether the motivations behind recent voluntary industry disclosure through FracFocus are to keep regulation at the state level or simply to mollify the public, the website is an encouraging development.  Although certain chemicals on the site remain proprietary, the site provides a wealth of useful information.

-Hannah Wiseman

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