by Shannon Julius
Hydraulic fracturing requires a large quantity of fluid; most estimates place the amount at 2 to 4 million gallons per well. This fluid is composed of 90% water, 8–9.5% proppants (sand which is needed to keep fractures open once hydraulic fracturing occurs), and 0.5–2% chemicals. Companies that perform hydraulic fracturing invest time and resources into creating their fracturing fluid formulas, so they insist on keeping those formulas proprietary because revealing the information could cause the company to lose its competitive edge. However, some common fracturing chemicals have been identified and are known to cause adverse human health effects, so keeping the composition of fracturing fluid confidential could be dangerous in the case of an emergency situation. Even in normal operating circumstances, these fracturing fluids could theoretically make their way into surface water or groundwater because hydraulic fracturing creates new flow paths through deep shale formations and speeds up the natural flow of fluids closer to the surface or aquifers. Maule et al. (2013) investigated recent efforts to regulate the disclosure of fracturing chemicals. Current systems in place include a voluntary reporting website, limited state regulation, and no federal regulation. Regulation efforts have faced problems of exemptions or loopholes, inadequate or incomplete information reporting, lack of enforcement, and competing state and federal interests.
Maule et al. investigated and analyzed voluntary fracturing fluid chemical disclosure efforts, federal regulation attempts, and current regulations in Texas and Pennsylvania. Efforts to encourage voluntary reporting of fracturing fluid composition began when the Groundwater Protection Council and Interstate Oil and Gas Compact created FracFocus.org in 2011 as a website for industry operators to self-report well-specific fracturing fluid information. Industry and some state governments view this system as adequate. However this system has a number of problems, the primary one being that it is completely voluntary so there is no way to guarantee complete or accurate information. It is common for industry operators to report only the general class of chemical used instead of the exact chemical identity, and there is no government oversight to guarantee that information is sufficient for lawmakers, regulators, and communities.
Current federal programs meant to protect the public against contamination and misinformation have loopholes and exemptions that allow hydraulic fracturing to go largely unregulated. One case is the Emergency Planning and Community Right-to-Know Act (EPCRA). This act created the Toxic Release Inventory (TRI), which was intended to make information about intentional and unintentional discharge of toxic chemicals available to the public. Hydraulic fracturing is exempt from reporting to this inventory because “Oil and Gas Extraction” is not included in the list of industries that need to report to the TRI. Another program that could be interpreted as responsible for hydraulic fracturing is the Underground Injection Control (UIC) Program of the Safe Drinking Water Act (SDWA), which requires injection wells to undergo permitting, reporting, and monitoring. The US EPA does not include hydraulic fracturing under this program because they consider the whole process as an “extraction” instead of an “injection” process. In 1997, the Legal Environmental Assistance Fund sued the EPA in order to reclassify wells that perform hydraulic fracturing as a particular type of injection well. The court’s decision required the EPA to do a study to assess the risk posed to human health by hydraulic fracturing. In 2004, the EPA published a report stating that no further study was necessary. However, this report utilized only existing literature (which was extremely limited) and interviews with industry and government representatives. Additionally, it only considered the effects of drilling in coal beds, while hydraulic fracturing happens within a variety of geological formations. This highlights the recurring pattern in hydraulic fracturing regulation in which lack of information leads to lack of investigation and regulation; lack of investigation and regulation leads to lack of information. Because no conclusions could be drawn from the 2004 EPA study, an Energy Policy Act that Congress passed in 2005 exempted hydraulic fracturing from regulation under the Safe Drinking Water Act.
Two acts introduced in Congress in the last five years have explicitly attempted to put regulation of hydraulic fracturing in federal hands, but neither was passed into law. The American Power Act, introduced in 2010 by Senators John Kerry and Joseph Liebermen, would have amended EPCRA to include hydraulic fracturing. The bill required hydraulic fracturing companies to disclose to the public all chemicals used in each fracturing operation. For reasons unrelated to the hydraulic fracturing amendment clause, the Act was opposed and did not make it out of the committee level. The Fracturing Responsibility and Awareness (FRAC) Act was under consideration in House and Senate committees during the 111th and 112th Congressional Sessions. Had it passed, this act would have removed the clause of the SDWA that exempts hydraulic fracturing from the UIC program. Hydraulic fracturing operators would have been required to disclose to a designated government regulator the identity and volumes of the intended chemicals before injection and the actual chemicals injected into the well. Information about nonproprietary chemicals would have been released to the public, but proprietary chemicals would not have faced public disclosure under any circumstances. In the case of an emergency, regulators and emergency responders would be informed of the identity of all chemicals, but the public would not. Therefore, FRAC would have made more information available to the public but kept trade secrets hidden, and protected the public in case of emergency. FRAC was very contentious; industry argued that it would force them to reveal too much proprietary information, state governments didn’t want federal agents to have control, and environmental groups pushed for even more stringent regulation. The bill never made it out of committee.
State regulations in Texas and Pennsylvania at present require companies to disclose the chemical compositions of fracturing fluids, but have limited control and significant loopholes. Texas, which has a long history of fighting federal control, enacted fracturing disclosure regulation in 2012 in order to pre-empt the FRAC Act while it was in Congress. These regulations require disclosure of nonproprietary chemicals in fracturing fluids for wells with permits issued after February 2012. Disclosure is only required after completion of a fracturing treatment, not before, and unintended releases do not need to be reported. Proprietary chemicals need only be reported in an emergency situation. Also, it is only required to report the maximum concentration of each chemical, not its total volume. The information is put on the internet by industry operators and the Railroad Commission (which regulates much of Texas’ oil and gas industry) is responsible for enforcing disclosure. However, industry operators are not held responsible for reporting inaccurate information, and the lack of enforcement capability allows information to go missing or unreported. In fact, it is estimated that half of new wells drilled in Texas do not have disclosure reports submitted to the online registry. The Pennsylvania Legislature followed Texas’ lead by updating their 1984 Oil and Gas Act in early 2012 to include a requirement that well operators submit a chemical disclosure form and post to a registry within 60 days after drilling activities. The updated regulations have the similar loopholes to their Texas equivalents, and incomplete or incomplete information reporting is common. Enforcement of disclosure is extremely difficult due to the fact that there are simply not enough regulators to handle the thousands of new well operations that occur each year.
Much of the difficulty with regulation stems from the clash between state and federal authorities. States argue that fracturing operations only affect in-state interests, so states should regulate them without federal intervention. A new act in Congress, Fracturing Regulations are Effective in State Hands (FRESH) Act, acknowledges this perspective. If passed, this act would guarantee that states would have exclusive authority to regulate the fracturing operations within state boundaries. However, Maule et al. argue that federal oversight may be necessary in order to ensure sufficient and accurate reporting.
Some government officials and environmental groups also recognize that federal involvement may be necessary in this matter, but all efforts have been progressing slowly. In 2011, the Shale Gas Production Subcommittee of the Secretary of Energy Advisory Board (SEAB) recommended that disclosure of fracturing fluid composition be implemented immediately. They stated that the voluntary reporting on FracFocus.org must be advanced to include reporting of proprietary chemicals and have well-specific information available to the public. Though forward-thinking, the SEAB recommendation did not specify a plan to implement disclosure and instead delegated that responsibility to the Department of Interior (DOI). Other current efforts attempt to include hydraulic fracturing under major environmental laws. For example, in 2011 the environmental group Earthjustice petitioned the DOI to include hydraulic fracturing under the Toxic Substances Control Act (TSCA) Section 4, which states that the EPA can require testing of chemicals which may either present significant human health risk or which are produced in high quantities. The EPA responded by saying there is not explicit evidence that hydraulic fracturing chemicals fall under either of TSCA Section 4’s requirements. Of course, the lack of evidence is due to the lack of disclosure and research, which were the cause of slow regulatory progress throughout this investigation.
Maule, A., Makey, C., Benson, E., Burrows, I., Scammell, M., 2013. Disclosure of hydraulic fracturing fluid chemical additives: Analysis of regulations. New Solutions 23, 167–187.