State requires chemical disclosure on fracking

Dec 16, 2011

Colorado residents advocating for more stringent oil and gas industry regulations applauded last week’s announcement about new Colorado rules which require the industry to disclose the chemicals used in hydraulic fracturing.

The new rules, endorsed by industry and environmental groups and approved by the nine-member Colorado Oil and Gas Conservation Commission (COGCC), require oil and gas operators to publicly disclose all chemicals used in the hydraulic fracturing of their wells, while still recognizing and protecting trade secrets.

The rules allow energy companies to withhold some details about compounds they deem proprietary except in cases of an accident, but they are required to share not only the chemicals, but the proportions or concentrations of those chemicals. The companies would have to explain the proprietary nature of the chemicals and name the chemical family of those compounds. Should an accident occur, the companies would be obligated to provide full details to emergency responders.

The mandatory disclosure rules will take effect April 1, 2012, and apply to all oil and gas wells hydraulically fractured in Colorado.

“These new rules give Colorado the fairest and most transparent set of fracking regulations in the country and will likely serve as a model for other states,” Gov. John Hickenlooper said.

The amended rules adopted last week require that operators post the hazardous and non-hazardous chemicals used to hydraulically fracture a well, as well as the concentrations of each chemical, to the disclosure website Disclosure must be made within 60 days of completion of hydraulic fracturing.

The rules strike a balance by recognizing and protecting industry trade secrets.

Such confidential business information is already protected by state laws, including the Colorado Open Records Act and the Colorado Uniform Trade Secrets Act, and major federal environmental statutes. Regulators and medical professionals, however, can still obtain trade secret information upon request under the rules. Further, operators must file a form ensuring trade secret claims meet the appropriate definition, and sign an affidavit—under penalty of perjury—that chemicals cited qualify for trade secret protection.

The rule builds upon existing chemical disclosure regulations associated with oil and gas development. In 2008, nationally groundbreaking amendments to COGCC rules mandated disclosure of hydraulic fracturing chemicals to state regulators and health professionals upon request. Earlier this year, COGCC worked with industry for voluntary disclosure to the publicly available website.

Since then, operators have posted information, on about half of the wells drilled this year in Colorado, to the site, with substantially all of the state’s largest operators participating.

COGCC unanimously approved the rules last week, but state environmental groups and drillers are calling the regulations a “compromise.”

The recent finding by the Environmental Protection Agency (EPA) that fracking fluids are a possible cause of well-water contamination in Pavillion, WY, adds to the growing concern. But energy industry officials are saying the EPA’s report is unfounded. — Traci Eatherton, WLJ Editor