Harvard Report Gives Failing Grade to FracFocus; Texas Regulators Respond

Photo Courtesy of Harvard Environmental Law and Policy Program.

Kate Konschnik is Policy Director for the Environmental Law and Policy Program at Harvard University and lead author of the study.

FracFocus, the online registry used by Texas and other states to disclose information about hydraulic fracturing, “creates obstacles to [regulatory] compliance” and seems “structurally skewed to delete” records, according to a report from Harvard Law School’s Environmental Law Program.

The website is an integral part of the way drillers disclose what chemicals they are putting in the ground as part of the the drilling process called hydraulic fracturing, or “fracking.” It’s been touted by Texas politicians and state regulators as a way for landowners and concerned citizens to determine how fracking is impacting the environment.

In Texas, drillers have been required to use FracFocus to disclose fracking ingredients since February 2012. But the report says FracFocus is not only unequipped to serve as a database for information, it finds that the site creates obstacles to regulatory compliance.

That might be because states are relying on the website to fill a role it was never intended to fill, says Kate Konschnik, head of Harvard’s Environmental Law and Policy Program and lead author of the study.

“[The site] has been morphing into a regulatory reporting tool — not because FracFocus necessarily is putting itself out as such, but because states have really jumped on to this as a way of delegating the information gathering and posting to the public,” Konschnik told StateImpact Texas.

‘Three Main Concerns’

Though managers of FracFocus and some Texas regulators strenuously object to the findings, the report outlines three ‘main concerns’ where Konschnik says the database falls short.

• Timing: Many states mandate that drillers disclose what chemicals they have put in the ground within a certain date of having “fracked” a well. The report contends that FracFocus doesn’t always inform states of the date disclosures are made, meaning that state regulators may have no way of knowing whether drillers have complied with state law. FracFocus representatives have challenged this assertion.
• Disclosure: The report notes that FracFocus does not supply drillers with state-specific forms to fill out. That means drillers may not know what information they are required to provide in different states. FracFocus staff also does not review submissions, something the website freely concedes. The report contends that many records could be lost completely if the site were to disappear.
• Trade Secrets: The third section of the report takes the site to task for providing no guidance to drillers on what information they can withhold as a “trade secret.” This is a criticism FracFocus has faced before, with detractors saying that companies could exploit trade secret rules to hide information. The report contends that “inconsistent trade secrets assertions are made throughout the registry,” with information being listed as a trade secret on one page and then being publicly disclosed somewhere else in the database.

A Question of Design

Beyond these broader critiques the report singles out specific structural flaws in the online registry that appear to hinder the collection and safekeeping of fracking records.

The report finds that drillers may enter incorrect numbers into the database without being notified by FracFocus. It cites an earlier report by the Environmental Defense Fund that found “that 29 percent of CAS numbers reported in Texas wells in July 2012 did not exist.”

Noting that the website prompts users when they input incorrect numbers to mark the latitude and longitude, Konschnik says “it seems to me that it would be easy have a prompt for nonexistant CAS numbers.”

The report also notes that any records drillers pull from the public view for revision are automatically deleted after 90 days — saying that makes the site “structurally skewed to facilitate deletion.”

Regulators Push Back

In the wake of the report, FracFocus representatives, industry groups and Texas regulators have come to the website’s defense, poking holes in some of the study’s findings.

A spokesperson for the Railroad Commission of Texas [RRC], the agency that regulates oil and gas in Texas, told StateImpact Texas that the agency was not contacted by Harvard researchers for the report.

If the RRC had been contacted “our staff could have informed the Harvard researchers that of the 40 or so Texas wells referenced in their study, the vast majority, 35 of these wells, were not subject to the Commission’s Statewide Rule 29 (Hydraulic Fracturing Chemical Disclosure Requirements),” Ramona Nye, RRC spokeswoman wrote in an email.

Those wells weren’t subject to Texas rules because they were drilled before the laws went into effect.

Representatives from the Groundwater Protection Council [GWPC], one of the two groups that manages FracFocus, would not agree to an interview. But the group took the report to task in an emailed statement, saying FracFocus stays in close communication with states that use it as a regulatory tool.

“FracFocus not only notifies states of the submission of disclosures and provides them with lists of such disclosures on a routine basis, it allows states to download the data from the disclosures so that it can be incorporated into the states own data system,” wrote Mike Nicklaus, special projects director with the GWPC.

“That’s not something that we knew about and we are following up on that,” Konschnick told StateImpact in response to the GWPC’s claim.

How Does Texas Compare?

While the tone of the report is critical, Texas regulations are given credit for promoting greater transparency.

“Texas, in at least two areas, has done a better job than most other states in having back-up guarantees,” Konschnik told StateImpact Texas.

For one, the state requires that FracFocus send the same forms submitted to the site to the Railroad Commission. Texas rules also say that if FracFocus is down temporarily — or if it were to become defunct — companies should immediately start reporting to the Railroad Commission.

“I think that’s a really important to have in law, because being a private third party registry FracFocus could go out of business — and then a lot of states could be scrambling, looking for backup disclosure plans,” said Konschnik.

Where the Buck Stops

In its recommendations, the report urges state and federal governments to revise their laws to improve online registries for fracking information. Konschnik says that’s all the more important as the Federal Bureau of Land Management may decide to use FracFocus in the rules it’s formulating for disclosure on the fracking of federal lands.

“Ultimately I do think that this does fall back on the states and also the federal government,” says Konschnik. “They really have to set minimum requirements for this disclosure site to make sure that it is providing the robust, complete, accurate disclosures that the laws on the books are requiring.”

In Texas, regulators say they continue to work with FracFocus to improve the site.

“The states […] continue to have discussions on enhancements, including queries, to streamline state enforcement of chemical disclosure regulations,” Railroad Commission spokeswoman Ramona Nye wrote to StateImpact Texas.