Bills Would Require Disclosure of "Fracking" Chemicals

Bills recently introduced in both the House and Senate seek to force natural gas drilling companies to disclose what chemicals are pumped into the ground in a practice known as hydraulic fracturing, or "fracking." Although the process has been linked [1] to drinking water contamination and other harms to public health and the environment, companies are currently allowed to conceal the toxic chemicals they use.

Hydraulic fracturing is a process where sand and fluids are pumped underground at very high pressure to cause tiny fissures in rock and force natural gas to the surface. Although most of the fluid is water, numerous chemicals, many of them toxic, are typically added to the mixture. Fracking fluid is known [2] to often contain benzene, toluene, and pesticides, among other harmful substances.

Currently, the industry enjoys an exemption from regulation under a federal drinking water statute that permits companies to maintain secrecy around the chemicals used. Gas drillers and the companies that supply them are attempting to fend off Congress’ efforts to close the loophole and to preserve the confidentiality of the chemicals used, claiming the mixtures are trade secrets. Without the information about the chemicals, scientists are unable to research the potential health effects of hydraulic fracturing.

The legislation, known as the Fracturing Responsibility and Awareness of Chemicals Act, or FRAC Act, specifies that drillers must disclose the identities of the chemicals used in the fracturing fluids. In medical emergencies, even trade secrets must be disclosed, with or without a written statement of need. The Senate version [3] of the bill is sponsored by Pennsylvania Sen. Robert Casey, Jr. (D) and New York's Charles Schumer (D).

According [4] to Rep. Henry Waxman (D-CA), whose Energy and Commerce Committee is moving the House bill [3] (H.R. 2766), "The current exemption for the oil and gas industry means that we can't even get the information necessary to evaluate the health threats from these practices."

The bills remove the oil and gas industry’s exemption from regulation under the federal Safe Drinking Water Act (SDWA), which was granted in a previous, Republican-controlled Congress. The SDWA authorizes the U.S. Environmental Protection Agency (EPA) to regulate the injection of fluids underground and limits pollution levels in drinking water. The exemption, known as the "Halliburton loophole" for the company that pioneered the process and the influence of its former CEO, Dick Cheney, was inserted into the Energy Policy Act of 2005 [5]. No other industry enjoys such a blanket exemption from SDWA regulation. Without the authority of the SDWA, EPA scientists are powerless to analyze [6] the chemicals, processes, and dangers of hydraulic fracturing.

Chemicals used in fracking enter the environment in three main ways [7]. Up to one-third of the fracking fluid is left underground during the process, and this can seep into underground drinking water supplies and the source waters for rivers and lakes. Spills and accidents on the surface can also contaminate water supplies. Finally, the two-thirds of the fluid that is retrieved after being injected underground is waste water that must be disposed, presenting another potential avenue for release into the environment.

Rep. Maurice Hinchey (D-NY), one of the House bill's cosponsors, said [8], "It's time to fix an unfortunate chapter in the Bush administration's energy policy and close the 'Halliburton loophole' that has enabled energy companies to pump enormous amounts of toxins, such as benzene and toluene, into the ground that then jeopardize the quality of our drinking water." Hinchey added, "The bill also lifts the veil of secrecy currently shrouding this industry practice."

Another House cosponsor, Rep. Diana DeGette (D-CO), announced [9], "When it comes to protecting the public's health, it's not unreasonable to require these companies to disclose the chemicals they are using in our communities – especially near our water sources."

In DeGette’s home state, Colorado, gas drilling has greatly expanded over the last eight years, and nine Colorado municipalities have already passed resolutions [10] similar to the proposed federal legislation. New state rules in Colorado require gas drillers to give the inventory of chemicals to medical personnel when requested, as well as to state officials. The general public remains barred from access to the information, however.

The federal bills do not require reporting of quantities of fracking fluids used, the amounts of the toxic chemicals used or disposed of, or where the chemicals end up. However, with knowledge of the chemicals themselves and the authority to regulate the process, EPA scientists would be able to track the fate of the fracking fluids and analyze impacts to the environment.

In cases of medical emergencies caused by exposure to fracking chemicals, the legislation gives companies that were forced to disclose proprietary chemical formulas the right to require a confidentiality agreement from the treating nurse or doctor after the emergency. However, it is not clear if the patient must sign a confidentiality agreement, or if the physician is barred from telling the patient what chemicals they have been exposed to. The legislation’s focus on medical emergencies fails to consider or address chronic exposure to fracking chemicals, which could create non-emergency medical situations where disclosure of the chemicals is important.

The industry contends [11] that oil and gas production would drop considerably – threatening the economy and the country's goal of energy independence – if the legislation becomes law. This argument is made despite industry assertions that the value of the natural gas in just one geologic formation in the Northeast would be worth up to one trillion dollars. Opponents of federal regulation also claim [12] that state regulators provide sufficient oversight of fracking operations.

Image in teaser by flickr user Anyhoo [13], used under a Creative Commons license