On May 16, the U.S. Department of the Interior's Bureau of Land Management (BLM) released a revised proposed rule for hydraulic fracturing on federal public lands (commonly referred to as fracking). The new proposed rule not only ignores concerns about the public health and environmental risks of the natural gas drilling method, it also disregards recommendations by lawmakers and the U.S. Department of Energy's Shale Gas Production Subcommittee, which called for transparency and full public chemical disclosure. The proposed rule suggests the agency has placed industry concerns ahead of public health and safety. It also contradicts the new data standards the Obama administration issued just last week by executive order.

Background

In his 2012 State of the Union address, President Obama pledged to require "all companies that drill for gas on public lands to disclose the chemicals they use" and to "develop this resource without putting the health and safety of our citizens at risk." The Department of the Interior estimates that 90 percent of the 3,400 wells drilled each year on public and Indian lands use fracking, a process that pumps large amounts of water, sand, and toxic chemicals into gas wells at very high pressure to cause fissures in shale rock that contains methane gas.

In May 2012, BLM released a proposed rule, and over 170,000 comments came in, a large number from environmental and public interest organizations and lawmakers asking the agency to strengthen public health and environmental provisions in the proposed rule.

In December 2012, BLM announced that it was withdrawing the proposed rule and would issue a new proposal with changes based on comments received. Unfortunately, the new proposal ignores the recommendations submitted to the agency last September by public health and environmental organizations and lawmakers, and instead addresses issues raised by the oil and gas industry. Further, the agency disregarded recommendations made by the Shale Gas Production Subcommittee. In 2011, President Obama asked the U.S. Department of Energy to form this expert panel to identify any immediate steps to "improve the safety and environmental performance" of fracking.

Disclosure of Toxic Chemicals Required Only After Fracking Has Begun

The public has voiced concerns about the lack of reporting and water testing requirements prior to drilling. These components are seen as essential to protecting water resources and the health of those living in the area and drinking the water. But the proposed rule would not require drillers to disclose the chemicals they are using until 30 days after drilling.

The agency acknowledged the comments requesting pre-disclosure of chemicals, but simply noted that the "proposed rule was not revised based on these comments." Instead, BLM explained that it agreed with oil and gas industry comments, which opposed pre-disclosure of chemical constituents, primarily because of trade secrets concerns and that chemicals used may change. The agency explained that it believes that disclosure after fracking would provide adequate assurances in protecting public health and safety and protect federal and Indian resources.

This language represents a direct capitulation to the oil and gas industry. An earlier draft of the rule, leaked in February 2012, required companies to disclose the chemicals used in fracking fluid before beginning operations. It prompted vigorous complaints from the gas industry, and it seems industry interests won.

Without such pre-drilling disclosure, public health officials cannot track changes in water and air quality and guard against toxics seeping into groundwater and/or threatening public health. The lack of such information also prevents lawmakers, communities, and public inspectors from holding companies accountable if contamination occurs.

Trade Secrets Free Pass

The proposed rule would neither require drilling companies to disclose trade secrets information to the BLM, nor require drillers to submit a detailed explanation of why the information is confidential. The proposal specifically instructs companies not to disclose information considered to be confidential. Public interest and environmental organizations contend that this amounts to giving drilling companies a free pass to decide what chemical information they want kept secret, with no oversight or review.

The proposed rule does require drillers to submit an affidavit, similar to the one required by Colorado's chemical disclosure rule. However, it only requires drillers to provide generalized affirmations, with no specific factual justification. There is also no process in place for evaluating and challenging trade secrets claims that give undue advantages to industry. Some states like Wyoming provide a record of their trade secrets decisions online; BLM should have required this.

Additionally disappointing, under the BLM proposed rule, health professionals, such as emergency medical technicians, nurses, and doctors, would not have easy access to the chemical information claimed as trade secrets. Several states, such as Montana, Pennsylvania, and Colorado, have established rules to allow health professionals fast access to chemical data in case of emergency. Fast access in the case of accidents and emergencies is another reason a government agency should collect all chemical disclosure data – including information considered to be trade secrets.

BLM claims that the Federal Trade Secrets Act prevents the agency from disclosing trade secrets information to health officials. But, in comments submitted to the agency last September, public interest organizations provided a detailed legal explanation about how the act does not constrain the agency's ability to require public disclosure of trade secrets information to health professionals.

No Federal Oversight of Data

The chemical disclosure requirements of BLM's proposal represent major concessions to the oil and gas industry, with little explanation to public health and environmental organizations of the reasons. The agency decided to allow drilling companies to report the chemicals used in fracking to an industry-funded website, called FracFocus.org, undermining public safeguards for complete public disclosure.

On numerous occasions, public interest and environmental organizations have argued that this site is not subject to federal laws or oversight. FracFocus is managed by the Ground Water Protection Council (GWPC) and the Interstate Oil and Gas Compact Commission (IOGCC), nonprofit intergovernmental organizations comprised of state agencies that promote oil and gas development. Moreover, the site has received funding from industry associations, including the American Petroleum Institute, a major trade association representing the interests of private oil, gas, and drilling companies.

Although BLM publicly noted that there are concerns that FracFocus is not updated in a timely manner, needs a dedicated funding source independent from the oil and gas industry, and is not subject to federal laws or oversight, the agency simply stated that that it did "not revise the rule in response to these comments."

Instead of explaining how its decision to proceed with FracFocus.org would be best for the public, BLM explained that this approach would be more "cost-effective" and beneficial to the agency and the oil and gas industry. It is remarkable that a government agency would simply dismiss concerns about the reliability and accessibility of data that it is requiring companies to report with no explanation beyond that it would take a great deal of work for the federal government to implement properly.

The agency also failed to address the concern that the data will not be accessible through Freedom of Information Act (FOIA) requests. The Interstate Oil and Gas Compact Commission has already declared that it is not subject to federal or state open records laws, despite the fact that it is collecting government-mandated data. BLM could have included a simple acknowledgement that it would hold copies of all submitted data and these records would be available under FOIA, but FOIA is not mentioned anywhere in the proposed rule.

Violates Open Data Order

The proposed rule will also violate the executive order President Obama signed just last week requiring new government information to be made available to the public in open, machine-readable formats. Concurrently, the administration issued an accompanying Open Data Policy designed to make previously unavailable government data accessible to entrepreneurs, researchers, and the public.

BLM's approach to data collection and distribution appears to violate the new executive order and the Open Data Policy guidelines. Instead of establishing a modern example of government information collection and sharing, BLM's proposed rule would put government required data on a third-party, industry-funded website and collect and distribute the information in formats that are not machine-readable. The FracFocus.org website only allows users to download PDF files of reports, which are not machine-readable. The oil and gas industry has publicly opposed making chemical data easier to download or evaluate for fear that the public "might misinterpret it or use it for political purposes." (subscription required)

Lawmakers Object to the Proposed Rule

Rep. Ed Markey (D-MA) claimed that the changes in the new BLM proposal "make regulations weaker, not stronger." Last September, Markey and several other House Democrats from across the country submitted comments on the BLM's first proposed fracking rule. They recommended the agency require companies to disclose the chemicals and volume before fracking a well, instead of only after the fact.

In addition, the lawmakers called the BLM proposed rule a "direct contraction with the President's goal of transparency and public participation." The lawmakers noted that the proposal fails to comply with President Obama's 2009 Open Government Directive, which instructed all agencies to "publish information online in an open format that can be retrieved, downloaded, indexed and searched by commonly used web search applications."

In its 90-day report, President Obama's Shale Gas Production Subcommittee recommended that chemical data on fracking fluid be "posted on a publicly available website that includes tools for searching and aggregating data by chemical, well, by company, and by geography." In fact, in its final report, the Subcommittee praised BLM for having stated its intention during an Oct. 31, 2011, public hearing to follow the Subcommittee's recommendation.

Conclusion

"We are interested in good public disclosure," stated David Hayes, Deputy Director of the Department of the Interior, during a press teleconference last week. But the proposed final rule ignores the concerns and recommendations of lawmakers, public interest groups, and the public. It is a capitulation to industry interests.

Once the new proposed rule is officially published in the Federal Register, the American people will have another 30 days to voice their indignation at this failure to respond to the public's demand to know about the possible toxins being released in their communities. BLM's mission is "to sustain the health, diversity, and productivity of America's public lands for the use and enjoyment of present and future generations." This rule fails to do that.