Secrecy Loophole Could Still Weaken Bureau of Land Management’s Tougher Fracking Regulations

New regulations drafted by the federal Bureau of Land Management would increase pressure on energy companies to disclose information about the chemicals they use in hydraulic fracturing, a process that extracts oil and natural gas from deep inside the earth.

Nine states already have disclosure laws for hydraulic fracturing, also known as fracking. But only one state—Colorado—requires what the BLM would require: the names and concentrations of the individual chemicals pumped into each well. Colorado's hotly-contested rules go into effect in April.

Click here for a chart that compares BLM's proposed regulations with fracking fluid disclosure laws in the nine states that have them.

Health care professionals and scientists say they need this information to track water and air quality near drilling sites, to study the health effects of natural gas development and to deal with emergency spills.

The proposed BLM regulations, which were leaked to InsideClimate News and several other media outlets last week, would apply only to wells drilled on federal land. But critics of hydraulic fracturing said they're an important step forward because they're stronger than most state laws.

The agency “should be congratulated,” said Theo Colborn, an environmental health analyst who has studied the health effects of natural gas drilling for eight years and has testified before Congress on the need for full industry disclosure. The rules “really begin to reflect the seriousness of the chemicals they're dealing with.”

But Colborn and other critics of hydraulic fracturing say there are gaps in the rules that could make them less effective.

Like all the state laws, the BLM would allow companies to exempt certain chemicals or mixtures of compounds that are considered trade secrets. The rules seem to indicate that getting an exemption will be difficult—but how difficult it will be isn't clear. The rules are also unclear about whether companies will be allowed to keep this proprietary information secret from regulators as well as the public.

The other problem is vague wording about who would have access to the disclosed data. While many states post the information online, the BLM rules don't specify how—or even if—it would make the information available to the public, to health care professionals or to researchers.

Dusty Horwitt, senior counsel at the Environmental Working Group, a nonprofit that advocates for public health, said the trade secret exemptions “could potentially make the rules meaningless if applied broadly.”

“If you know what's being injected, you'd know what to monitor and track,” Horwitt said. “That would [help] local landowners and scientists … It's also important so officials can make informed decisions about where and how to permit drilling.”

A BLM spokesman said he couldn't comment on the proposed rules because they haven't been officially released and may still be changed. He said the official version of the rules will be made available at a later time for public comment.

Full Disclosure vs. 'Trade Secrets'

During hydraulic fracturing, companies pump a mixture of water, sand and fracking products underground at high pressure to increase the flow of gas coming out of a well. The chemical products help break up the rock and release the gas trapped inside.

Hundreds of fracking products are available, some created from a single chemical compound, others from a mixture of chemicals. Although the products make up a tiny fraction (sometimes less than 1 percent by volume) of the total fluid injected during fracking, the overall volumes are so high—up to millions of gallons per well—that a single well often requires thousands of gallons of chemicals.

Those chemicals sometimes include formic acid, which can cause blindness; trimethyl ammonium chloride, which can damage the kidneys and brain, and benzene, which is a known carcinogen.

A single well can be fracked many times, and fracking is now used for 90 percent of the wells drilled in the United States.

In December, the U.S. Environmental Protection Agency linked fracking to contaminated groundwater in Pavillion, Wyoming. Other scientific studies are underway, but progress has been slow, in part because scientists don't have a complete list of the chemicals they're trying to track.

The rules drafted by the BLM would require companies to report all the products and individual chemicals used at each well, in addition to the chemical concentrations. But the chemicals would not be matched with the products that they go into. The same is true of Colorado's disclosure laws.

Colborn says that's a problem, because if someone is exposed to a particular product, it's important to know the specific chemicals found in that product. The information could help doctors make medical decisions, she said, or guide emergency workers in the event of a spill.

But industry spokespeople say that by keeping the fracking products separate from the individual chemicals they contain, companies can maintain their trade secrets and still allow for public disclosure.

“[It's] just like how you know the ingredients of Coke, but you don't know the exact proportions,” said Kathleen Sgamma, vice president of Government and Public Affairs at the industry group Western Energy Alliance. “There's a lot of research and development that goes into the fracking formulas that will work for a particular geology, and that R&D needs to be protected…Without that, you don't encourage innovation.”

Sgamma said the BLM regulations are unnecessary, because they represent “a top-down federal approach to something that states should and are [already] regulating.”

Steve Everley, a spokesman for the industry group Energy in Depth, said that instead of creating new rules, the BLM should use FracFocus, a website set up by regulators and the industry where companies voluntarily post information about the chemicals used in individual wells.

But critics say voluntary disclosure leaves crucial gaps. Many companies reveal only a fraction of the chemicals they use on FracFocus, and when they label a product “proprietary,” they don't offer any indication of its composition.

Everley called the argument for full disclosure a “classic case of moving the goalposts.”

“I think the effort itself is being led by people who are against hydraulic fracturing,” he said. “It's not about disclosure anymore, it's about some sort of talking point against the industry to paint it in a negative light.”

Colborn said full disclosure is important for several reasons, including the safety of rig workers and nearby residents. She is president of the Endocrine Disruption Exchange, a nonprofit in Paonia, Colo., that studies how chemicals in the environment affect public health.

Drilling companies often contract the fracking process to other companies, so rig workers might “have no idea” what they're dealing with, she said. “If they knew what they were using, they wouldn't go out there without respirators and moon suits.”

Colborn says local residents also deserve to know what they're being exposed to on a daily basis. A recent ProPublica investigation found that many people who live near drilling rigs complain of headaches, nausea and skin rashes, along with more rare but serious conditions such as cancer. Determining whether their ailments are linked to natural gas development has been difficult, however, because there are few health studies about the impacts of drilling.

To adequately monitor air and water quality, scientists “need to use techniques that are designed to look for specific chemicals or specific classes of chemicals,” said Robert Howarth, a Cornell University ecology professor who has been deeply involved in the fracking controversy. “This is difficult to do even when we know what is being added. It becomes far more difficult, and far more expensive, when one does not know what you are looking for.”

Short-term tests, long-term exposure

Colborn and her colleagues at the Endocrine Disruption Exchange learned firsthand about those research barriers when they set out to survey the health effects of products used in drilling and fracking. Their results were published in September in the peer-reviewed journal Human and Ecological Risk Assessment: an International Perspective.

After more than five years of combing through government and industry reports, they came up with a list of 944 products used at drilling sites. But gaps in data made it impossible for them to evaluate the health impacts of each product.

They discovered that the manufacturers of most of the products revealed only a fraction of their chemical makeup. Of the 632 chemicals that were revealed, only 353 came with CAS numbers—the unique codes that the Chemical Abstracts Service (a division of the American Chemical Society) assigns to individual chemical compounds. These codes help scientists and regulators distinguish among different chemicals that share a common name.

CAS numbers are crucial, Colborn said, because chemicals in the same family or class can lead to dramatically different health effects.

Most of the 353 chemicals can affect multiple body systems, the study said. More than 80 percent can damage the skin, eyes and sensory organs, and 52 percent affect the brain and nervous system.

Much of the researchers' information came from Material Safety Data Sheets, because that was the only source of information available. The data sheets are required by the U.S. Occupational Safety and Health Administration and are used to inform workers about the chemicals' dangers and health effects.

Michael Wilson, director of UC-Berkeley's Labor Occupational Health Program, said Material Safety Data Sheets are “not at all sufficient for public health decision-making.” “They're been plagued for a long time with confidential [and] incomplete information, and virtually no information on long term health and environmental effects.”

Aaron Bernstein, a pediatrician and professor at Harvard Medical School, has also studied Material Safety Data Sheets and found them inadequate. He said they may not reveal “whether the chemicals have been tested for potential [health] effects and what they may be.”

The subject of testing brings up another challenge. About 80,000 chemicals are registered for use with the EPA, but Colborn said most of them have been tested only for short-term, high dose exposures. Meanwhile, many of the people exposed to natural gas production are experiencing low doses over the long term.

“It would be like putting a new prescription drug on the market only by looking at its effects over a few weeks, when the drug needs to be taken over a lifetime,” Bernstein said. “Unfortunately there are people who put chemicals into the environment, and it's entirely legal [to do so] without understanding the potential health risks. And I think fracking is one of them.”

“I don't have anything against natural gas per se,” Bernstein said. “[But] the industry has not been candid about their practice … Why is it so important to keep [information] from the public?”

InsideClimate News intern Zoe Schlanger contributed to this report.