Michael Giberson
The Texas legislature has passed the nation’s first hydraulic fracturing fluids disclosure bill. The governor is expected to sign the bill into law. The text of the bill is available from the Texas Legislature Online website.
In summary, a oil or gas well operator performing hydraulic fracturing will have to disclose the volume of water and the chemical ingredients of the fracturing fluids used. An operator will be able to withhold from disclosure information for which it claims trade secret protections, but affected property owners and neighbors to the property owners will be able to challenge the trade secret designation. In addition, a means will be provided to supply the information to health professionals and emergency responders in case of an injury or other accident.
Aspects of the bill remain controversial, for example the NRDC has criticized limiting public disclosures to ingredients found on the Material Safety Data Sheet (as the law requires) and broad trade secret protection limits.
The requirements will only apply to wells for which the initial drilling permit is issued on or after regulations implementing the law have been adopted by the Texas Railroad Commission. Any well with an initial drilling permit issued before the regulations are adopted will be governed by preexisting laws.
The website of State Rep. Jim Keffer, who introduced the bill in the State House, provided these additional details:
Upon the adoption of rules by the Texas Railroad Commission, an operator with a well that has undergone a hydraulic fracturing treatment will use the website www.fracfocus.org to disclose chemical ingredients of hydraulic fracturing fluids on a well-by-well basis. The registry is a joint project of the Ground Water Protection Council and the Interstate Oil and Gas Compact Commission, and was designed for operators to report chemical ingredients listed by the federal Material Safety Data Sheet (MSDS). Under HB 3328, all chemicals intentionally used in the fracturing process (whether listed by MSDS or not) must be reported and publicly disclosed.
Some companies have already posted disclosures voluntarily at www.fracfocus.org. For example, Chesapeake Energy disclosed that on April 7, 2001 at a well in Hidalgo County, Texas, it injected fluids that were composed of about 94 percent fresh water, 4.5 percent CO2, 1.5 percent sand, and a handful of other materials in concentrations ranging from 0.032 percent to 0.0006 percent of the hydraulic fluids.* (As the form says, “Information is based on the maximum potential for concentration and thus the total may be over 100%”)
A Caspar Star-Tribune story reports that Wyoming already has fracking disclosure laws and several other states are considering such laws. Regulators in Montana have proposed fracking disclosure rules, also challenged due to trade secret protection rules.
*In order of decreasing concentration: Petroleum Distillate Blend, Polysaccharide, Mineral Oil (Paraffin Oil, White Mineral Oil), Magnesium Hydroxide, Magnesium Peroxide (Magnesium Dioxide), Magnesium Oxide, Methanol (Methyl Alcohol), Ethoxylated Nonyl Phenol (Nonyl Phenol Ethoxylate), Zirconium sodium hydroxy lactate complex, Triisopropanolamine, Ammonium Hydroxide, Acetic Anhydride, and Acetic acid.