State Fracking Disclosure Rules Don't Protect Public: Report

July 11, 2012

A just-out watchdog group report says Americans' drinking water may be contaminated by "fracking" because incomplete disclosure of the fluids gas companies pump underground makes effective public oversight difficult.

Gas companies are producing huge amounts of new gas by drilling horizontal wells through shale formations and fracturing them with high-pressure fluids to release methane trapped in the rock — a process called "fracking." Many nearby well-owners have complained that fracking contaminates their wells. Companies deny this, but have resisted full advance public disclosure of the chemicals they pump underground.

The nonpartisan, nonprofit group, OMB Watch, has a long record of fighting for information disclosure in the public interest. Its new report calls full advance disclosure of fracking fluid ingredients "the necessary first step" to protecting people's drinking water.

After the gas industry won an exemption from federal drinking water protection laws during the Bush administration, a few states have enacted their own rules. While these state rules often require partial disclosure of fracking fluids, the OMB Watch report concludes that "no state has yet established all of the elements of a chemical disclosure policy strong enough to ensure the quality of the water and the health of communities near gas wells."

OMB Watch looked at rules set by Colorado, Wyoming, Montana, Arkansas, Pennsylvania, California, Illinois, Indiana, Louisiana, Michigan, Nebraska, New Mexico, New York, North Dakota, Ohio, Oklahoma, and Texas.

"Surprisingly, seven states with significant natural gas drilling activity (over 1,000 wells) have no state laws or rules requiring public disclosure of the chemicals used in the process. One of these states – West Virginia – has more than 52,000 wells in operation," the report states.

"Currently, at least 30 states are engaged in natural gas drilling," OMB Watch says. "Six states have more than 30,000 wells; another five have between 10,000 and 30,000 wells. Yet only 13 states with active gas reserves have passed laws or established rules requiring some level of public disclosure of the chemicals used in fracking. Four other states have proposed chemical disclosure policies but have not finalized them."

Colorado won some praise from OMB Watch for its disclosure policies, but even that state didn't meet all of the group's criteria. The things OMB Watch thinks are needed in a good disclosure program include:

Baseline studies of groundwater quality before permits are issued or drilling begins and a plan for monitoring air and water quality until three years after the well is closed.
Complete information about the specific chemical identities of fracking fluid ingredients disclosed to government regulatory agencies.
Limits on claims that ingredients can not be disclosed to the public because they are "trade secrets." Such claims must be substantiated and there must be a procedure for challenging them.
Posting of the chemicals used for each well on a searchable public website.

Under the Safe Drinking Water Act, EPA can regulate most injection of fluids into underground wells. But in a 2005 energy bill, Congress prohibited EPA from regulating underground injection for fracking. In his January 2012 State of the Union Message, President Obama vowed to use his executive authority to require fracking disclosure as part of the lease requirements for wells drilled on federal lands. But after gas lobbyists pled their interests in closed-door meetings with the White House Office of Management and Budget (OMB), the administration proposed rules that didn't require disclosure until after the fluids — often toxic — had been pumped into the ground.

Those proposed rules are still open for public comment, with a comment deadline (extended) of September 10, 2012.