How Pennsylvania’s Fracking Chemical Disclosure Rules Stack Up Against Other States

Scott Detrow / StateIm­pact Pennsylvania

A well in Brad­ford County

When peo­ple hear poi­so­nous chem­i­cals are being shot into the ground, they under­stand­ably get ner­vous. Dur­ing the early years of the country’s shale drilling boom, there was next to no trans­parency, when it came the details of chem­i­cals used dur­ing the hydraulic frac­tur­ing process. But over the past year, Penn­syl­va­nia and four other states have passed laws or reg­u­la­tions requir­ing much more dis­clo­sure from drilling companies.

A fed­eral Depart­ment of Energy report released this week pressed for imme­di­ate well-by-well dis­clo­sure of chem­i­cals used dur­ing the hydraulic frac­tur­ing process. While the energy panel con­cluded the pos­si­bil­ity of frack­ing fluid pol­lut­ing drink­ing sources is “remote,” the report said “pub­lic con­fi­dence in the safety of frac­tur­ing would be sig­nif­i­cantly improved by com­plete disclosure.”

Cur­rently, there’s no fed­eral dis­clo­sure require­ment in place. That’s due to the much-publicized 2005 “Hal­libur­ton loop­hole,” which excludes frack­ing fluid from fed­eral dis­clo­sure rules. Within the past year, Penn­syl­va­nia and four other states have passed their own dis­clo­sure reg­u­la­tions, requir­ing com­pa­nies to report what chem­i­cals they’re inject­ing deep under­ground in order to extract nat­ural gas.

A StateIm­pact analy­sis of dis­clo­sure guide­lines in five other frack­ing states — Penn­syl­va­nia, Arkansas, Michi­gan, Texas and Wyoming — found the com­mon­wealth lag­ging behind in one key area: pub­lic access to the well-by-well chem­i­cal infor­ma­tion. When it comes to how detailed com­pa­nies are required to be in list­ing each frack­ing chem­i­cal, Penn­syl­va­nia falls in the mid­dle of the pack.

Where Things Stand in Pennsylvania

Pennsylvania’s dis­clo­sure reg­u­la­tions went into effect in Feb­ru­ary, 2011. Here’s how they work: Within thirty days of well com­ple­tion, an oper­a­tor sub­mits a report to the state Depart­ment of Envi­ron­men­tal Pro­tec­tion, includ­ing “a list of the chem­i­cal addi­tives used in the stim­u­la­tion fluid, [and] the per­cent by vol­ume of those chem­i­cal additives.”

For chem­i­cals deemed haz­ardous by the fed­eral Occu­pa­tional Safety and Health Admin­is­tra­tion, the reports go a step fur­ther. Com­pa­nies are required to report those chem­i­cals to the Depart­ment of Envi­ron­men­tal Pro­tec­tion, and include each compound’s chem­i­cal abstract ser­vice num­ber. That’s a unique iden­ti­fier — a fin­ger­print, of sorts — for the sub­stance used. (OSHA reg­u­la­tions require those haz­ardous chem­i­cals to be listed at each site, on what’s called a mate­r­ial safety data sheet.)

Once DEP receives that infor­ma­tion, it’s reviewed by an inspec­tor and filed in one of the agency’s regional offices. The reports aren’t posted online. One DEP offi­cial says the depart­ment doesn’t have the tech­nol­ogy to do that right now, though the agency is hop­ing to launch a pub­lic data­base within the next few years. An indi­vid­ual can request the com­ple­tion reports through the Right to Know process, though he or she won’t be able to view the chem­i­cals oper­a­tors had des­ig­nated as “trade secrets.”

UPDATE: Have you ever filed a RTK request to learn what chem­i­cals are in a well near you? We want to hear what the expe­ri­ence was like. Email sdetrow@stateimpact.org.

The Mar­cel­lus Shale Coali­tion, which rep­re­sents gas drillers in Penn­syl­va­nia, is “over­whelm­ingly on board” with the dis­clo­sure reg­u­la­tions, accord­ing to spokesman Travis Win­dle, who said the group would sup­port a move toward post­ing the infor­ma­tion online. Envi­ron­men­tal­ists want to see a pub­lic data­base, too. “I don’t think we’re quite there yet,” said PennEnvironment’s clean water advo­cate, Erika Staaf. “[The reg­u­la­tion] needs some tweak­ing, so not only our…agencies, but really our gen­eral pub­lic can know what’s going under­ground, and what’s com­ing back up.”

Dis­clo­sure Reg­u­la­tions Dif­fer in Other States

Wyoming was the first state to pass dis­clo­sure reg­u­la­tions. Its guide­lines went into effect about a year ago, in Sep­tem­ber 2010. The state’s rules are stronger than Pennsylvania’s in two respects: First, com­pa­nies are required to dis­close the details of all of their chem­i­cals, not just the com­pounds deemed haz­ardous by OSHA. Sec­ond, the reports are then posted on the Wyoming Oil and Gas Con­ser­va­tion Commission’s web­site. And while the state’s web­site has a labyrinthine mid-90s design, that infor­ma­tion is still out there for pub­lic consumption.

Steve Jones, a lawyer with the Wyoming Out­door Coun­cil, called the reg­u­la­tions a good first step. “I think there is enough speci­ficity with the require­ment that they post the [chem­i­cal abstract ser­vice num­bers]. We do like that about it,” he said. “One prob­lem that both­ers me is the trade secrets deal.”

Like Penn­syl­va­nia and every other state, Wyoming allows com­pa­nies to strike cer­tain chem­i­cals off the pub­lic list, out of con­cerns their iden­tity would harm the drillers’ com­pet­i­tive advan­tage. But unlike in the com­mon­wealth, the Wyoming reg­u­la­tion gives the final say on whether or not a chem­i­cal is, in fact, a “trade secret,” to state reg­u­la­tors, not the companies.

Arkansas’ reg­u­la­tions have been on the books since Jan­u­ary, 2011, and they’re the strongest of the five states requir­ing some form of dis­clo­sure. The state’s Oil and Gas Com­mis­sion requires drilling com­pa­nies to pre-register lists of chem­i­cals they plan to use dur­ing frack­ing, and then file well-specific reports once com­ple­tion has fin­ished. Abstract ser­vice num­bers are required for all chem­i­cals – not just haz­ardous ones – and if a com­pany files a trade secret request, it still needs to list the chemical’s fam­ily name. “We have 362 chem­i­cals with CAS num­bers that have been released,” said Com­mis­sion Direc­tor Lawrence Ben­gal. “Only 64 don’t have numbers.”

If a com­pany wants a trade secret exemp­tion, it needs to file a detailed report to the state. Ben­gal said reg­u­la­tors have rejected or nar­rowed sev­eral of those request. The chem­i­cal infor­ma­tion is all doc­u­mented on the commission’s web­site. “You can search by com­pany, well name, loca­tion, or per­mit num­ber,” explained Bengal.

Michi­gan recently enacted its own, more lim­ited dis­clo­sure reg­u­la­tions, for wells using more than 100,000 gal­lons of fluid dur­ing the frack­ing process. The state’s Depart­ment of Envi­ron­men­tal Qual­ity requires drillers to hand over a copy of their mate­r­ial safety data sheets dur­ing the per­mit­ting process. It doesn’t ask for the chem­i­cal abstract num­ber, and lets the com­pa­nies deter­mine whether or not infor­ma­tion is pro­pri­etary, but will post the results online. (The state’s direc­tor of geo­log­i­cal sur­veys, Harold Fitch, says no wells have qual­i­fied for dis­clo­sure in the two months since the new rules were enacted.)

Texas Passes First Law

While Penn­syl­va­nia, Michi­gan, Wyoming and Arkansas all require dis­clo­sure, the guide­lines come from agency reg­u­la­tions, not laws. Texas is the first state to put a dis­clo­sure mea­sure on the books, after law­mak­ers okayed the mea­sure this past spring and Gov­er­nor Rick Perry signed it into law in late June. The law is sim­i­lar to Arkansas’ model, though its details are still being worked out.

OSHA-defined haz­ardous chem­i­cals – the ones posted on those mate­r­ial safety data sheets – will be listed by chem­i­cal abstract num­ber, unless they’re des­ig­nated as trade secrets. All other frack­ing chem­i­cals will be listed by name. Texas will use FracFocus.org, a web­site run by the National Ground­wa­ter Pro­tec­tion Coun­cil, to post the infor­ma­tion online.

Like their coun­ter­parts in the four other states, Texas envi­ron­men­tal­ists see the new law as a solid first step, but they’re trou­bled by some of its pro­vi­sions. Luke Met­zger, the direc­tor of Envi­ron­ment Texas, called the trade secrets pro­vi­sion prob­lem­atic. “The only one who can chal­lenge that is the land owner or a neigh­bor,” he said. Groups like Envi­ron­ment Texas, an envi­ron­men­tal advo­cacy group, would be barred from appeal­ing a company’s trade secret des­ig­na­tion. “The peo­ple who own the prop­erty [where a well’s being drilled] are being paid,” Met­zger said. “They’re likely not going to con­test it.”

Trade secret appeals will go to the Texas Attor­ney General’s Office. “This is an exist­ing process,” said David Black­mon, who leads the Amer­i­can Nat­ural Gas Alliance’s Texas com­mit­tee, that pushed for the dis­clo­sure law. “A process every­one is used [to], and knows works well.”

Many of Texas’ details still need to be sorted out, though. While the law sets broad dis­clo­sure para­me­ters, law­mak­ers are leav­ing its details up to the Texas Rail­road Com­mis­sion, which reg­u­lates the energy indus­try and pub­lic util­i­ties. “The Rail­road Com­mis­sion has to draft reg­u­la­tion,” explained Black­mon. “How the report­ing will take place, what the due date is.” The com­mis­sion has until July 1, 2012 to fin­ish its work, but Black­mon said the goal is to wrap things up by Jan­u­ary 1.

Once that’s com­plete, Black­mon said the energy indus­try will push for Texas’ first-in-the-nation law to become a model piece of leg­is­la­tion, for other states con­sid­er­ing sim­i­lar mea­sures. “It would be won­der­ful to have as a model,” he said. “Because…the reg­u­la­tion the Rail­road Com­mis­sion comes up with is going to be the most trans­par­ent, expan­sive one that exists.”

Would a law be stronger than agency-issued reg­u­la­tion? Only if the stan­dards were dif­fer­ent – say, if Penn­syl­va­nia passed a law requir­ing the Depart­ment of Envi­ron­men­tal Pro­tec­tion to post chem­i­cal infor­ma­tion online. Oth­er­wise, offi­cials in Penn­syl­va­nia and other states say cur­rent reg­u­la­tions are just as effec­tive. “Rules and leg­is­la­tion have the same enforce­ment author­ity,” said the Arkansas Oil and Gas Commission’s direc­tor, Lawrence Ben­gal. “We already have the same leg­isla­tive author­ity to adopt a rule like this any­way,” he added, say­ing a law would give the com­mis­sion “no increased enforcement.”

The direc­tor of the Penn­syl­va­nia DEP’s Bureau of Oil and Gas Man­age­ment, Scott Perry, agreed. “To the extent the leg­is­la­ture wants dis­clo­sure within a time frame, that could change things [com­pared to the cur­rent reg­u­la­tions],” he said. “But as far as force and effect, I think it’s the same. If those words [from the newly-revised reg­u­la­tions] showed up in the Oil and Gas Act, noth­ing would change.”

If Gov­er­nor Cor­bett endorses his Mar­cel­lus Shale Advi­sory Commission’s rec­om­men­da­tions, things might. In last month’s final report, the panel called for a shift  in the way drillers file well com­ple­tion reports, so that the doc­u­ments include a “list of all haz­ardous chem­i­cals used for hydraulic frac­tur­ing,” and are then posted on the Depart­ment of Envi­ron­men­tal Protection’s web­site. Pub­lic access would bring Penn­syl­va­nia in line with the four other dis­clo­sure states. It’s unclear whether the rec­om­men­da­tion would change the scope of chem­i­cals reported.