Open, Accountable Government
Leaked BLM Draft May Hinder Public Access to Chemical Information
by Sofia Plagakis, 2/26/2013
On Feb. 8, EnergyWire released a leaked draft proposal from the U.S. Department of the Interior's Bureau of Land Management on natural gas drilling and extraction on federal public lands. If finalized, the proposal could greatly reduce the public's ability to protect our resources and communities. The new draft indicates a disappointing capitulation to industry recommendations.
In his 2012 State of the Union address, President Obama pledged to require "all companies that drill for gas on public lands to disclose the chemicals they use" and to "develop this resource without putting the health and safety of our citizens at risk." In May 2012, the Bureau of Land Management (BLM) released a proposed rule to set standards for natural gas drilling and extraction (commonly referred to as fracking) on federal land and tribal land, which received more than 170,000 comments, including extensive input from the oil and gas industry and environmental and public interest organizations. In December 2012, BLM announced that it was withdrawing the proposed rule and would issue a new proposal with changes based on comments received.
The draft rule affects oil and natural gas drilling operations on the 700 million acres of public land administered by BLM, plus 56 million acres of Indian lands. This includes national forests, which are the sources of drinking water for tens of millions of Americans, national wildlife refuges, and national parks, which are widely used for recreation.
The Department of the Interior estimates that 90 percent of the 3,400 wells drilled each year on public and Indian lands use natural gas fracking, a process that pumps large amounts of water, sand, and toxic chemicals into gas wells at very high pressure to cause fissures in shale rock that contains methane gas. Fracking fluid is known to contain benzene (which causes cancer), toluene, and other harmful chemicals. Studies link fracking-related activities to contaminated groundwater, air pollution, and health problems in animals and humans.
Hindering Public Access to Chemical Information
If the leaked draft is finalized, the changes in chemical disclosure requirements would represent a major concession to the oil and gas industry. The rule would allow drilling companies to report the chemicals used in fracking to an industry-funded website, called FracFocus.org. Though the move by the federal government to require online disclosure is encouraging, the choice of FracFocus as the vehicle is problematic for many reasons.
First, the site is not subject to federal laws or oversight. The site is managed by the Ground Water Protection Council (GWPC) and the Interstate Oil and Gas Compact Commission (IOGCC), nonprofit intergovernmental organizations comprised of state agencies that promote oil and gas development. However, the site is paid for by the American Petroleum Institute and America's Natural Gas Alliance, industry associations that represent the interests of member companies.
BLM would have little to no authority to ensure the quality and accuracy of the data reported directly to such a third-party website. Additionally, the data will not be accessible through the Freedom of Information Act since BLM is not collecting the information. The IOGCC has already declared that it is not subject to federal or state open records laws, despite its role in collecting government-mandated data.
Second, FracFocus.org makes it difficult for the public to use the data on wells and chemicals. The leaked BLM proposal fails to include any provisions to ensure minimum functionality on searching, sorting, downloading, or other mechanisms to make complex data more usable. Currently, the site only allows users to download PDF files of reports on fracked wells, which makes it very difficult to analyze data in a region or track chemical use. Despite some plans to improve searching on FracFocus.org, the oil and gas industry opposes making chemical data easier to download or evaluate for fear that the public "might misinterpret it or use it for political purposes."
When government agencies determine that information needs to be made public, they have an obligation to ensure the data is complete, accurate, and available. Farming out such responsibilities to an industry-funded site raises significant questions about the reliability of the data.
The Trade Secrets Loophole
In another significant concession to the oil and gas industry, drilling companies may not be required to disclose trade secret information to the BLM along with an explanation of why the information is confidential. The leaked draft specifically instructs companies not to disclose information considered to be confidential to the government or FracFocus. This amounts to giving drilling companies a free pass to decide what chemical information they want to label a trade secret, with no oversight or review.
The BLM must require a fast, secure, and transparent process for evaluating and challenging trade secrets claims that does not give undue advantages to industry. The burden of proof should be on the company making the trade secrets claim. For example, states such as Wyoming provide a record of their trade secrets decisions online, and Colorado's rule on chemical disclosure in fracking creates a new form for claiming data as a trade secret. The form requires submitters to substantiate and document the legitimacy of their claims.
Furthermore, under the BLM leaked draft, health professionals, such as emergency medical technicians, nurses, and doctors, would not have access to the identity of chemicals in products – including trade secrets. Several states, such as Montana, Pennsylvania, and Colorado, include provisions in their chemical disclosure rules on fracking to allow health professionals to access chemical information in cases of emergencies. Fast access to such information is another reason a government agency should hold chemical disclosure data – including those considered to be trade secrets. In emergencies, health professionals should not have to search for who has the needed data or negotiate to get access.
In addition to problematic provisions in the leaked draft, there are also troubling omissions of issues critical to protecting public health. For instance, baseline water testing should be required prior to any drilling. Also, well operators should be required to disclose the chemicals that will be used in fracking before a well is drilled. These components are essential to protecting water resources and the health of those living in the area and drinking the water. The leaked draft would give drillers up to 30 days after drilling to disclose chemicals being used.
Without such pre-drilling disclosure, public health officials cannot track changes in water and air quality and guard against toxics seeping into groundwater and/or threatening public health. The lack of such information also prevents communities and public inspectors from holding companies accountable if contamination occurs.
The hope was that the federal government would create a "best practices" standard to ensure safe drilling practices and to protect the purity of the water and land around the well sites, and that such a model might even serve as a template for state drilling laws and regulations going forward. However, the proposal, if finalized, would not only be much weaker than many state rules on fracking, it would hinder public access to health and environmental information, putting Americans at risk.
Once the new proposed rule is officially published, members of the public and representatives of public interest groups must make their voices heard that the concessions made to oil and gas companies are not in the public interest. The BLM needs to strengthen the rule to ensure safe oil and gas drilling with proper requirements for disclosure and accountability.