State oversight laws requiring disclosure of the chemicals used in hydraulic fracturing (commonly referred to as fracking) are in need of an overhaul. A new OMB Watch report, The Right to Know, the Responsibility to Protect: State Actions Are Inadequate to Ensure Effective Disclosure of the Chemicals Used in Natural Gas Fracking, examines state chemical disclosure rules and aims to empower the public. It also encourages state and local authorities to improve their chemical disclosure standards, especially in those regions of the country most involved in and affected by natural gas fracking.

Disclosing the chemicals associated with fracking is the necessary first step to ensuring that our search for new domestic energy supplies does not compromise our water resources or threaten the health of our people. "Citizens need to have adequate information to evaluate the potential risks and rewards of allowing natural gas fracking in their communities," said Sean Moulton, Director of Information Policy at OMB Watch and an author of the report.

Background

Since the fracking of horizontal wells expanded in the last decade, tens of thousands of wells have been fracked in areas across the country. Fracking is a natural gas extraction process that uses sand and fluids pumped underground at very high pressure to cause fissures in rock and force natural gas to the surface. Although most of the fluid is water, numerous toxic chemicals are typically added to the mixture. Fracking fluid is known to often contain benzene (a known carcinogen), toluene, and pesticides, among other harmful substances.

The process of hydraulic fracturing has been linked to contamination of drinking water, and the fluids involved in the process create public health and environmental hazards. Despite its risks to public health and the environment, fracking is not subject to the same standards as other industries when it comes to disclosing the toxic chemicals used and protecting underground sources of drinking water.

In most cases, the Safe Drinking Water Act authorizes the U.S. Environmental Protection Agency (EPA) to regulate the injection of fluids underground and limit pollution levels in drinking water. However, the 2005 Energy Policy Act stripped the EPA of its authority to monitor fracking, making it the only industry to benefit from such an exemption.

With the absence of federal regulation and as citizen pressure for new protections and greater oversight mounts, more state governments are establishing rules requiring disclosure of the chemicals used in fracking and better monitoring of their potential impacts on local water supplies and public health. Unfortunately, none of the current state efforts sufficiently addresses all of the key elements needed for effective oversight.

Elements of an Effective Chemical Disclosure Policy

The Right to Know, the Responsibility to Protect identifies the gap between effective policy on chemical disclosure and existing practice. It finds that disclosure of the chemicals used in fracking is spotty and incomplete, and essential safeguards are missing. The report lays out what an effective chemical disclosure policy would look like, highlighting four key elements:

1. Before receiving a drilling permit, the owners and operators of natural gas wells should gather baseline information on nearby water sources and water and air quality. They should disclose the chemicals they intend to use in the fracking process and commit to regularly monitoring the water and air near the gas wells and near wastewater storage facilities for potential contamination for as long as the well is operating and for some period after operations have ceased.
2. Information on the chemicals used in fracking should be collected from drilling companies, well operators, and manufacturers and should include specific information on the unique chemical identification numbers, concentrations, and the quantity of the chemicals used.
3. States should have clear guidelines limiting "trade secrets" exemptions from disclosure laws to prevent companies from invoking this loophole to avoid disclosure.
4. Information about the chemicals used at each individual well where fracking occurs should be posted on a public website in a way that allows users to easily search, sort, and download data by chemicals used, companies involved, and well location.

How do States Measure Up?

The Right to Know, the Responsibility to Protect shows that no state has yet established all of the elements of a chemical disclosure policy strong enough to ensure the quality of the water and the health of communities near gas wells. "Public officials in state government are struggling to find a way to protect water supplies and public health in the wake of the rapid expansion of natural gas drilling and extraction. They haven’t gotten it right yet," said Katherine McFate, president of OMB Watch.

Currently, at least 30 states are engaged in natural gas drilling; six states have more than 30,000 wells; another five have between 10,000 and 30,000 wells. Yet only 13 states with active gas reserves have passed laws or established rules requiring some level of public disclosure of the chemicals used in fracking. Four other states have proposed chemical disclosure policies but have not finalized them.

Surprisingly, seven states with significant natural gas drilling activity (over 1,000 wells) have no state laws or rules requiring public disclosure of the chemicals used in the process. One of these states – West Virginia – has more than 52,000 wells in operation.

Colorado has made the most progress, putting in place several elements of an effective disclosure policy, including requiring detailed information on the chemicals used in fracking, limiting confidential business information exemptions, and requiring online public posting of some of the information collected. However, Colorado does not mandate baseline studies of air and water quality.

Most state rules do not contain any requirement for the public disclosure of the chemicals well owners and operators are planning to use before fracturing takes place. Wyoming’s rule provides for some disclosure prior to fracking, and the Montana, Arkansas, and Pennsylvania rules provide much more limited prior disclosure.

According to the OMB Watch report, a major shortcoming of current state chemical disclosure laws is the exemption that allows companies to withhold "confidential business information." This loophole allows companies to conceal specific information on the ingredients in their products by claiming that disclosure would undermine their business model or give competitors an advantage. Already, gas drillers in Wyoming have used a "trade secrets" claim to resist the state’s disclosure laws, and a legal challenge has been required to try to wrestle the information from them. Honoring the public’s right to know and the government’s responsibility to protect public health and water resources will require moving away from automatic exemptions when trade secrets are claimed, toward a new process of public review of business claims.

However, this shift to more limited trade secrets rules has been increasingly difficult as the American Legislative Exchange Council (ALEC), an organization funded by large corporations and dedicated to moving state legislation that reflects their priorities, has been promoting an industry-approved approach to legislation. ALEC’s December 2011 model bill, sponsored by ExxonMobil, is based on Texas’ chemical disclosure bill. The model bill has broad "trade secrets" exemptions and fails to include baseline reporting of chemical and water quality data. State legislatures that build on this approach are unfortunately establishing flawed programs that will provide very little in terms of real oversight. In a March blog post, ALEC claimed that legislators in Pennsylvania, Illinois, Indiana, New York, and Ohio had introduced versions of its model bill.

Next Steps

The gas industry’s quest to expand the production of fracking across the nation has outpaced the development of regulatory protections aimed at protecting Americans' health. The report offers recommendations for steps at both the state and federal levels.

At the federal level, no action would be more useful than for Congress to eliminate the Safe Drinking Water Act (SDWA) loophole created in 2005. Given the growing concerns about contaminated well water, the SDWA is the most relevant and comprehensive vehicle to oversee fracking activities.

On July 28, a nationwide coalition of citizens, communities, and organizations are coming to Washington, DC, to demand that Congress eliminate the SDWA exemption, as well as close other loopholes that allow reduced supervision of the oil and gas industry under the Clean Air Act and Clean Water Act. The rally, called Stop the Frack Attack, will call for the pursuit of clean, renewable energy, rather than practices that put the environment and public health at risk.

Until the federal loopholes are closed, oversight responsibility for natural gas drilling will remain with state governments. To fulfill their responsibility to protect public health and welfare, The Right to Know, the Responsibility to Protect encourages government officials – legislators and administrators – to develop or strengthen chemical disclosure rules to meet the principles set out in the OMB Watch report.

"The secrets and loopholes that keep people in the dark are resulting in pollution and community health degradation everywhere the industry goes," said Tracy Carluccio, Deputy Director of the Delaware Riverkeeper Network. "This report will be an important weapon in our struggle to protect the river’s drinking water for over 15 million people, including New York City and Philadelphia, to protect the Wild and Scenic Delaware River, and stop the industry’s free-for-all in the shale regions."