FIELD Notes

By Steve Jones

Disclosure is in the public interest

THE WYOMING OUTDOOR COUNCIL, ALONG WITH THE POWDER RIVER BASIN RESOURCE COUNCIL, Earthworks, and the watchdog group OMB Watch, filed suit on Friday, asking a court to require Wyoming to disclose information about chemicals used during the oil and gas development process known as hydraulic fracturing, or fracking.

This is part of an effort to help protect the public from exposure to toxic chemicals.

The nonprofit environmental law firm Earthjustice filed the petition on behalf of our coalition.

I want to emphasize that this is not an academic exercise for us.

In Wyoming, 98 percent of all new oil and gas drilling involves hydraulic fracturing. This means that all over the state, the oil and gas industry is conducting drilling operations that could affect groundwater, which is—or could be—put to beneficial use for livestock, domestic water wells, irrigation and other uses.

Groundwater is not the property of industry. Rather, it is the property of the people of Wyoming, and while water rights can be granted for groundwater, we all have an interest in ensuring that it is protected and kept clean and pure for future generations.

We have found that many companies are claiming trade secret status for their operations using boiler-plate language for all of their claims, without providing specific reasons why each chemical or set of chemicals is entitled to trade secret status.

Nevertheless, the Wyoming Oil and Gas Conservation Commission is approving these petitions right along with claims that are much more specific and detailed.

By our last count, there were 52 claims for trade secret status with regard to the fracking chemical disclosure requirement, and only 2 claims were denied. All the rest were approved by the WOGCC.

In our view, this is abusing the process. Trade secret status should be, as Oil and Gas Commission Supervisor Tom Doll has said, “the exception and not the rule.”

But in practice it is not turning out that way. That is why we are bringing this lawsuit.

We do not believe that trade secret status is justified in most cases, including the ones we are challenging in this lawsuit, and we believe that the State District Court in Natrona County will agree with us.

Background (from our coalition’s media release that was circulated Monday):

Under regulations approved in 2010, Wyoming became the first state in the nation to require well operators to disclose the identities of chemicals that are mixed with water and injected into the ground during fracking.

But since the regulations were adopted, the Commission has approved some 50 chemical secrecy requests by Halliburton and other oil and gas service companies.

“As a landowner facing deep oil and gas development, I need to know what chemicals are being injected underground so I can protect my water and land,” said Cheyenne resident and Powder River Basin Resource Council member Marilyn Ham.

Disclosure of hydraulic fracturing chemical information is a critical step in protecting public health and water quality. A review of the information that is already available is sobering: 78 percent of known fracking chemicals are associated with serious short-term health effects such as burning eyes, rashes, asthma-like effects, nausea, vomiting, headaches, dizziness, tremors, and convulsions. Between 22 and 47 percent of those chemicals also are associated with longer-term health effects, including cancer, organ damage, and harm to the endocrine system.

“Without knowing more about the chemicals used during fracking, it’s nearly impossible for residents to determine whether their drinking water has been contaminated by oil and gas development,” said Earthjustice Attorney Laura Beaton. “The more information we have, the easier it will be to keep people safe and healthy.”

Last November, our coalition of groups submitted a public records request to WOGCC, requesting a complete list of fracking chemicals that had not already been publicly disclosed.

The WOGCC withheld the names of chemicals, saying that drilling companies claimed they were exempt from reporting requirements under trade secret laws.

But a review of agency files found that WOGCC approved industry trade secret claims that were insufficiently justified and overly broad.

“We appreciate Wyoming’s leadership role in getting companies to disclose hydraulic fracturing chemical information,” said Shannon Anderson with the Powder River Basin Resource Council. “But like all new rules, it’s time we took a look at how it’s working. We found a lot of the information is being improperly labeled a trade secret, which means it is not public information as the regulation intended.”

The case now before Wyoming’s Seventh District Court could set a broad legal precedent–as the states of Texas, Arkansas, Pennsylvania, Colorado, Montana, and Michigan all have fracking chemical disclosure regulations similar to Wyoming’s on the books.

“As additional states, such as Oklahoma and Ohio, and the federal government, and even some European countries, begin work on their chemical disclosure regulations, it is more important than ever to make sure that the trade secret exemption is not used improperly,” said Earthworks’ Senior Staff Attorney Bruce Baizel.  “Unfortunately, our initial review of exemption requests showed that some companies appear to be taking advantage of the minimal state review.”

“The public needs to have complete access to information about hydraulic fracturing chemicals used by drillers,” said Steve Jones, Watershed Protection Program Attorney for Wyoming Outdoor Council. “In Wyoming, groundwater belongs to the public, and it can be contaminated by hydraulic fracturing operations, as studies across the country are beginning to show.  Trade secret claims should not be used to obstruct the public’s right to know what is going on beneath the surface with its groundwater.”

“People in Wyoming and throughout the country have a right to know what chemicals are being injected in the ground around their homes,” said Katherine McFate, president of OMB Watch.  “Citizens need complete information to assess the risks of allowing this kind of industrial activity near their homes and ranches and fresh water supplies. Without accurate information about the full range of chemicals used in hydraulic fracturing, neither public officials nor citizens will be able to make informed choices.”

For a link to the petition visit: http://earthjustice.org/documents/legal-document/pdf/wogcc-petition

Other posts you might want to see:

Groups seek better disclosure of fracking chemicals in Wyoming

Lummis, Barrasso respond to EPA investigation

EPA’s Presentation to the Pavillion Community Nov. 2011

EPA’s November 2011 Report on Pavillion Water Contamination

Hydraulic fracturing: what we’d like to achieve

UW hydraulic fracturing forum benefited from public involvement

NYT: Fracking has contaminated drinking water

NPR: Worries over water as fracking becomes pervasive

Fracking linked to water contamination

Fracking not as safe as industry claims

‘I asked them for the data and they wouldn’t share it’