Friday, September 23, 2011
You may have thought that you'd get a week off from hearing about hydraulic fracturing, but you won't. Sorry. For anyone teaching about chemical disclosure under the Emergency Planning and Community Right-to-Know Act and the Occupational Safety and Health Act, hydraulic fracturing provides a nice case study. EPCRA and the OSH Act require oil and gas operators to keep material safety data sheets on site for certain hazardous chemicals in certain quantities, but this doesn't give the public much access to information, and some of the chemicals used do not fall within the OSH Act's and EPCRA's hazardous definitions. States have, however, jumped on the disclosure bandwagon and have begun to augment these limited disclosure requirements. Texas passed one of the more comprehensive laws this summer, requiring disclosure both of the OSHA chemicals and all other chemicals used in fracturing--and that the chemicals be disclosed to the public, not just regulators. Arkansas (see Rule RB-19), Colorado (click on "Final Amended Rules," then "COGCC Amended Rules," then "200 Series General Rules" and search for "chemical inventory"), Louisiana, Montana, North Dakota (see Rule 43-02-03-27.1), and Wyoming (click on the plus symbol next to "Chapter 3: Operational Rules, Drilling Rules" and then "Section 45. Well Stimulation") for example, have implemented or proposed to implement similar requirements, although not all of these states require disclosure of all chemicals or require disclosure to the public; some only mandate disclosure to certain state agencies and health officials. New York is similarly proposing to require disclosure in its preliminary revised Supplemental Generic Environmental Impact Statement.
Interestingly, several states require disclosure of chemicals through the voluntary disclosure website, FracFocus.org, recently formed by the Ground Water Protection Council (a group of state regulators) and the energy industry. Many of the state disclosure rules allow operators to claim trade secret status for chemicals, although some provide exceptions to trade secret protection when disclosure is needed in emergency situations. Texas allows landowners of sites where hydraulic fracturing occurs and those next to the sites, as well as certain state agencies, to appeal trade secret status claims. It appears that states are slowly coming to understand that the public wants to know about the chemicals used in oil and gas development, which is now closer to our backyards as new technologies allow extraction in previously undeveloped formations.