A couple days ago, the Railroad Commission of Texas (RRC) issued its proposed new rules purporting to regulate the disclosure of the chemicals used in hydraulic fracturing. Sunlight is the best disinfectant and Earthworks Oil and Gas Accountability Project is closely monitoring state and federal efforts to reveal the hazardous ingredients contained in fracking fluids.
The Texas rules are terrible. Let me list the ways:
- covered chemicals
- trade secret loophole.
To begin, these rules have only prospective application. Just last year, the RRC issued 15,466 permits of which 85% use hydraulic fracturing. This means that the roughly 13,000 wells permitted in 2010 do not have to disclose anything. Next, the industry only need disclose chemicals initially and intentionally placed in the fracking fluid. This absolves them from any additional toxic substances absorbed in to the fracking fluid as it travels underground or gets swept up in the flowback. Part of our concern is not just what Halliburton wants to put in the fracking fluid, but how those chemicals react with the hazardous or radioactive elements already in the ground that are disturbed by these high pressure injections.
It gets worse. The rules require disclosure only of those chemicals listed in 29 CFR 1910.1200(g)(2) which is an under inclusive OSHA regulation intended to apply only to workplace hazards unrelated to where sensitive human populations or ecosystems live. Analogous legislation in California added a similar provision at the urging of Halliburton’s lobbyists.
Finally, Texas created a huge trade secret loophole. We already saw last week how Wyoming regulators allowed the industry to keep 146 chemicals secret. In Texas, this cloak of secrecy is likely to have serious public health implications. If you want to challenge a chemical’s trade secret designation, you have a two-year statute of limitations. Many health concerns related to toxic contamination take a very long time to manifest. The trick here is that the clock begins to run as soon as the driller files a well completion report to the RRC- not when a person gets sick, not even when drilling begins. Next, only landowners of record, adjacent landowners, or a relevant agency have standing to try to uncover the secret chemical. Folks who lease their land are out of luck.
If I were a fracker, I would buy the lot for the drill, buy the adjacent lots, and wait two years to begin fracking. If the Texas regulators are anything like Wyoming, I d be free keep all the secrets I want. Now, to be fair, industry does have to disclose trade secrets to certified health professionals for the purposes of diagnosis or treatment of their patients. It makes me wonder, if they were injecting orange juice, why the need for this concession?