The Administration's New Fracking Rule Has a Few Catches
by Amanda Starbuck, 3/23/2015
The Bureau of Land Management (BLM) just released a long-awaited rule that regulates fracking on federal and tribal lands, the first revision to federal fracking standards in almost 30 years. BLM currently manages over 100,000 oil and gas wells – over 90 percent of which are fracked. The rule establishes minimum safeguards that must be followed when drilling occurs on federal or tribal lands.
The Rule Does Not Establish a Clear Right-to Know
The new rule requires companies to disclose the chemicals used during fracking. While the data is officially reported to BLM, the bureau directs companies to file the information through FracFocus, an industry-funded database. Numerous states already mandate reporting through the website.
This raises right-to-know concerns. Since FracFocus is not a federal agency, the Freedom of Information Act (FOIA) would not apply and the website could refuse requests to share data. However, BLM will be notified of reports from wells on public land, and stated in the rule that it will retain this information in its records. If so, these bureau-held records would be accessible under FOIA.
Public interest groups and environmental organizations urged the agency not to use FracFocus for chemical disclosure. The website posts PDFs of chemical reports, making it difficult to run searches and to download and analyze data. The bureau noted that a Memorandum of Understanding (MOU) being finalized with FracFocus will ensure improvements to the website will be made.
Since many states already require operators to report to FracFocus, any improvements to the website would advance public access to fracking data. However, the BLM rule goes into effect in 30 days, and FracFocus has yet to be updated. There is no indication of when these changes will occur or whether they will be a substantial improvement over the current website. It is not clear what the Bureau will do if FracFocus fails to make the promised improvements.
Trade secrets exemptions could allow oil and gas companies to withhold information about toxic chemicals.
The rule allows operators to withhold certain chemical information by seeking “trade secret” exemptions. Although BLM requires operators to substantiate trade secret claims (unlike some states) and maintains the right to investigate these claims, this could slow down public access to information and result in information being withheld from the public. In Wyoming, for instance, regulators routinely accepted trade secrets claims without sufficient scrutiny. Public interest advocates had to take the state's oil and gas agency to court to establish a stronger review process. CEG was involved in the law suit, which took three years to reach a final ruling.
The BLM rule doesn't allow affected communities to identify potentially damaging chemicals before fracking occurs.
The new rule requires companies to disclose the toxic chemicals used within 30 days of completing the hydraulic fracturing process. But community groups and public interest advocates want to know the chemicals companies intend to use before any fracking occurs so that they can conduct baseline testing of water and soil. Not knowing what chemicals are going to be used makes it difficult to carry out efficient, targeted testing. Maryland’s proposed fracking regulations require drillers to report the name of every chemical brought on-site – even if a chemical isn't injected into a well. BLM ignored this model.
Moreover, how often and over what period operators will be required to file reports is unclear. The rule specifies that the 30 day deadline for reporting does not start until the last stage of fracking is completed. So if operators plan multi-stage fracking operations over an extended period of time, no chemicals have to be reported until all the fracking is completed. This could easily be misused by drilling companies to significantly delay reporting.
On the plus side, the rule does include several improvements over current BLM regulations, last revised in 1988. For instance, operators must submit to BLM detailed information about the well site before drilling, including the location of fault lines. Operators must also test well integrity before drilling and manage any flowback fluids (fluids that come to the surface during drilling). Flowback fluids must be stored in sealed, above-ground tanks – not the open pits permitted in some states.
But the disclosure choices BLM made are troubling. The oil and gas industry has a poor track record of providing information to the public on the toxins used in its operations. This is public land. The Bureau’s mission is to protect it for the American people and future generations.
Collecting chemical records on a public website – managed by public employees with the primary goal of protecting public land – is a better choice than relying on an inadequate, industry-sponsored website. The American people deserve better.
Photo by Simon Fraser University, used under a Creative Commons license.