Please visit ELP’s new website:
http://environment.law.harvard.edu/information-disclosure/
What Do We Need to Know about Fracking, to Guide Policy Responses?
Information drives reasoned public debate about the risks of shale gas development, and guides more practical and protective policy responses.
Timely, relevant information also empowers private stakeholders to make shale gas development safer, cleaner, and more protective of workers and communities. Aligning private interests – the ability to attract institutional investors, lower insurance rates, or secure capital – with environmental considerations rewards safer practices more effectively than regulation alone. Meanwhile, private sector analysts may spot patterns in the data that help prioritize policy responses.
In the following clip (at 4:05) from a conference hosted by UCLA and the Union of Concerned Scientists, EPI Director Kate Konschnik how information can guide thoughtful policy responses. Here, Kate stresses the need for baseline (pre-drill) testing and ongoing monitoring to evaluate health and environmental impacts of shale gas development.
Policy responses should turn on availability of information. The more that is known about a problem or a solution, the more likely agencies may proceed directly to regulation. Where less is known, agencies may want to collaborate with industry to characterize risk and identify causes. EPI Director Kate Konschnik recently published a peer-reviewed article on this topic with Mark Boling of Southwestern Energy.
New Rules Have Focused on Collecting Chemical Information
Since 2010, states have moved quickly to draft or update oil and gas laws in response to the US shale gas boom. This lawmaking frenzy focused early and often on the disclosure of chemicals used in the hydraulic fracturing process.
History of Chemical Disclosure Laws
Before the widespread use of high volume hydraulic fracturing to produce natural gas from horizontal shale wells, fracking was used to mine natural gas from coal bed seams. In 1994, the Legal Environmental Assistance Foundation (LEAF) asked the federal EPA to make Alabama apply the Safe Drinking Water Act to coal bed fracking. When EPA sided with Alabama, LEAF sued, and the Eleventh Circuit ruled that the Safe Drinking Water Act applied to fracking.
Following the court’s decision, EPA launched a study of hydraulic fracturing. In 2004, the agency published its Evaluation of Impacts to Underground Sources of Drinking Water by Hydraulic Fracturing of Coalbed Methane Reservoirs Study, and determined that “the injection of hydraulic fracturing fluids into coal bed methane wells poses little or no threat to Underground Sources of Drinking Water.” EPA did express concern about the use of diesel in frac fluids, and brokered a voluntary agreement with the three largest gas services companies to stop this practice. Congress ratified EPA’s non-action in the 2005 Energy Policy Act, when it exempted all hydraulic fracturing, except fracturing with diesel, from the Safe Drinking Water Act. EPA took no additional steps to regulate fracturing under the Safe Drinking Water Act, until February 2014, when the agency issued non-binding guidance for states wishing to write permits for diesel use in fracturing.
As shale gas and the practice of hydraulic fracturing expanded, Congress began hearing concerns from constituents. Beginning in 2009, Congressional hearings debated the chemicals used in fracturing, and Members introduced bills in the House and Senate to repeal the Safe Drinking Water Act exemption. In 2010, three Members of Congress launched a broad investigation into the chemical make-up of fracturing fluid. In 2011, Representatives DeGette, Markey, and Waxman identified hundreds of chemical compounds being used to fracture shale. Notably, the chemicals included 32 million gallons of diesel compounds, despite the agreement EPA had brokered with industry to ban the use of diesel fifteen years earlier.
Chemical Disclosure Begins
States and industry began to respond. In September 2010, Wyoming became the first state to require disclosure of chemicals in fracturing fluid. The Ground Water Protection Council and the Interstate Oil and Gas Compact Commission then launched a website called FracFocus, http://fracfocus.org/. In 2011, companies began disclosing fracturing fluid information on this website, on a voluntary basis.
Additional states began writing chemical disclosure requirements. Currently, eighteen states have some form of disclosure law. Of those, twelve direct companies to send the chemical information directly to FracFocus, or provide companies the option of using FracFocus. The Environmental Policy Initiative published a critique of this website, and suggestions for enhancing disclosure, in April 2013. Read here for some of the press coverage of the report.
Confidential Business Information
All states allow companies to assert trade secret protections over some chemicals. Most states do not require substantiation of trade secret claims. Nor do most states review those claims for accuracy. FracFocus does not review claims, either. As a result, the database contains numerous examples of inconsistent reporting and trade secret assertions. EPI Director, Kate Konschnik, testified regarding trade secret assertions before the FracFocus Task force of the Secretary of Energy Advisory Board (SEAB) on shale gas information disclosure, and in February 2014, the SEAB issued FracFocus recommendations.
Beefing up procedural requirements and conducting random audits of submissions could limit trade secret assertions and provide the public with a more complete list of the chemicals used, stored, blended, and disposed of in communities. Likewise, chemical disclosure rules can be written to prevent reverse engineering by competitors and so limit the need for trade secrets. For instance, Oklahoma enables companies to aggregate relative concentrations (provision 165:10-3-10(b)(1)(H), so that they don’t have to disclose what percentage a chemical makes up of any single product in the fracturing fluid.
EPI has commented on chemical reporting requirements proposed by state agencies, to ensure more complete, accurate public disclosure of this information. For instance, we submitted comments on New York’s Supplemental Generic Environmental Impact Statement in early 2013.
There is no federal hydraulic fracturing chemical disclosure law. However, the federal Bureau of Land Management has proposed requirements, including chemical reporting requirements, for hydraulic fracturing on federal and Tribal lands. On May 24, 2013, the Bureau published a Supplemental Notice of Proposed Rulemaking. The Bureau received 1,348,450 comments on the Supplemental Notice, including comments on the BLM proposal from the Environmental Policy Initiative.
Information Disclosure Events
On October 16, 2013, the Environmental Policy Initiative and CERES hosted a panel entitled, “Hydraulic Fracturing Disclosure Laws: Are We Getting the Information We Really Need?” EPI Director Kate Konschnik moderated the panel, which featured a Professor of Emergency Medicine, a gas company executive, and risk analysts for the insurance, investor, and lender communities. Watch video:
NOTE: Statements made in this panel were made off the record and should not be attributed to any of the institutions represented by the speakers.
While chemical disclosures are a good start, these lists don’t tell us all we need to know about the risks of shale gas development. CERES has been raising issues about water use for shale gas development in high or extreme water stressed areas. Some of their work may be found here.
