State Rep. Jim Keffer of Eastland, chair of the Texas House Committee on Energy Resources, last week introduced a bill to require limited disclosure of the chemicals used in hydraulic fracturing of natural gas wells. Since Texas currently has no disclosure requirements, we d like to be able to say HB 3328 is a step forward but we can t.
Why? Because, as Jim Hightower says, The water won t clear up until we get the hogs out of the creek.
The hogs in this instance are the oil and gas industry, which helped write the bill. Unsurprisingly, it does little to protect Texans right to know about chemicals that may contaminate their drinking water, but bends over backwards to protect the industry’s interest in keeping its fracking formulas secret. The bill appears to be written largely from the perspective of industry and without much consideration for the landowners whose problems it is ostensibly trying to solve.
The bill was jointly drafted by the Texas office of the Environmental Defense Fund and Southwestern Energy Company of Houston, a growing independent energy company primarily engaged in natural gas and crude oil exploration, development and production in Texas, Arkansas, Oklahoma, Pennsylvania and Canada. We believe EDF is sincere in supporting full disclosure of all chemicals used in natural gas hydraulic fracturing, but respectfully have to point out why this bill will not accomplish that even worse, why it could further entrench the power of the oil and gas industry to hide behind claims that the composition of its fracking fluids are trade secrets.
Full public disclosure of chemicals used in fracking fluids is essential for landowners, the public and regulators to understand the full picture of toxics in our air, soil and water due to oil and gas development. It’s essential for holding the industry accountable.
But HB 3328 continues a long Texas tradition of letting the oil and gas industry decide what’s best. It requires only incomplete chemical disclosure of fracturing fluids, no advance notice to landowners that this information is available, and has no provision for third-party challenges to any trade secret exceptions.
While the bill requires disclosure of fracking chemicals on a well-by-well basis, there is no requirement to post the well-specific information on a public website or even provide any notice to landowners when the information is filed with the state. Without notice, chemical information may be posted on an aggregate basis and put into use at a drill site before landowners can move forward to obtain baseline water testing. Landowners are once again left in the dark as to specifically what chemicals are being used within hundreds of feet of their water wells and homes.
Most of HB 3328 focuses on how industry may claim a trade secrets exemption and avoid chemical disclosure, and with no provision for a water user or a landowner to challenge the claim. Rep. Keffer’s bill may very well end up further entrenching the power of the oil and gas industry to hide behind trade secret claims. Property owners and citizens may be unable to extract the information they need from the oil and gas industry to conduct their own baseline testing and evaluate health impacts, and industry will be able to claim transparency.
Full public disclosure of all oil and gas drilling, stimulation and workover fluids is necessary for property owners and the public to have an understanding of the health risks associated with oil and gas development and production. Our experience working with landowners in Colorado, Wyoming, Pennsylvania and other states shows that effective full public disclosure must require:
- Drilling and service companies to disclose chemical constituents, volumes and concentrations used prior to their use on a well-by-well basis
- Notice to nearby water users of the availability of the chemical constituent list prior to well operations
- After completion of operations, submission by drillers of any deletions or additions to the initial chemical list
- A presumption that contamination of water within one mile of the well by any of the chemicals on the list was caused by the well operation, unless the operator has baseline monitoring data taken prior to the operations that shows the existing background levels for the specific chemicals used
- Provisions that allow for third-party challenges to any trade secret exceptions to disclosure.
Then and only then do landowners have a real chance to demonstrate the full impacts of oil and gas development and to hold the industry accountable. Texas can do better than HB 3328.
