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Ohio Fracking Spill Highlights Problems with State Disclosure Laws

Matthew McFeeley

Posted July 25, 2014 in Health and the Environment, U.S. Law and Policy

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After tens of thousands of gallons of fracking chemicals flowed into a creek last month in Ohio, officials with the state and federal environmental protection agencies, who oversee the safety of drinking water, were forced to wait for five days before learning the identity of some chemicals, according to a preliminary EPA report

The incident occurred after a fire started at the well site, triggering multiple explosions and forcing the evacuation of about 25 homes.  Fuel, fracking chemicals, and radioactive elements were all being stored onsite and were lost during the incident.  The spill flowed into a tributary of Opossum Creek about five miles upstream of where the Creek flows into the Ohio River.  Less than two miles downstream from there, an intake for a public drinking water supply pulls water from the River.  Two days after the spill, state officials reported that they had found an estimated 70,000 dead fish along the five-mile stretch leading to the River.  But Halliburton, the company hired to frack the well, withheld information on some of the chemicals at the site until five days after the accident occurred. 

Video coverage of the accident and the problems encountered by the local fire department from a local news station is available here:

This incident demonstrates the significant gaps in state fracking chemical disclosure laws.  (My colleague Amy Mall discussed a number of other concerns the incident raises on her blog.)  In Ohio, companies are allowed to keep chemicals secret, even from the state, if they claim they are a confidential “trade secret.”  The law allows the Oil and Gas Division of the state’s Department of Natural Resources to request the confidential information in order to respond to an accident. While the law states that the Division “shall not disclose the information,” it doesn’t specify whether the information can be legally shared with other agencies that need the information or with emergency responders like local fire departments.  Unfortunately, out of more than thirty states with fracking, only a few ensure that emergency responders and officials who need the information to protect the public can all get the information they need.     

In this case, officials with the state and federal EPA reportedly asked Halliburton almost immediately for information on all the chemicals at the site.  But Halliburton apparently told them only about certain chemicals, withholding information on others it deemed confidential.  The state Division of Oil and Gas received the information after two days, but was not a major part of the spill response and did not share with its fellow agencies. 

For days, drinking water was at risk and agency officials had no way of knowing what to test for, or if there was chemical contamination they could not detect.  Because they did not know all the chemicals that could be in the water, they couldn’t be sure that the testing they were doing was adequate to determine whether the water was safe.  State officials at Ohio EPA have told the press that they now believe that drinking water supplies were not affected.  And the US EPA report states that, after eventually learning of the confidential chemicals, the agencies determined their testing was “sufficient for assessing off-site impacts,” even though they hadn’t known the exact chemical identities.  But the officials were only able to determine that the testing they had been doing was adequate on day five, when they finally knew the chemicals that had spilled.

The law in Ohio, while obviously inadequate to protect public health and the environment, is actually better than in many other states.  Of more than thirty states with fracking, nine don’t require companies to give information on chemicals they claim are secret to anyone – not doctors, emergency responders, or any state agency.  Others only allow health professionals to get the information, and only in an emergency, but do not provide the information to emergency responders like fire departments.  Emergency response personnel need to know what’s on site to determine how to address an accident and to protect themselves at the scene. 

Even in states that do allow health professionals and emergency responders to get the information, there are often other problems with these laws that can prevent immediate access to the information for the people who need it.  For instance:   

  • Only six states require advance disclosure of fracking chemicals that will be used.  Most states allow companies to submit the information a month or more after fracking is completed.  If spills or other emergencies occur and the company is not available or refuses to share certain information, significant delays can result. 
  • Of the thirty or more states with fracking, only a few states require companies to submit all chemical information to the state, so that the state has immediate access to confidential information in an emergency.   Ensuring the state has the information in hand, rather than having to ask for it once an emergency has already occurred, is important if a company cannot be reached or is uncooperative.  Additionally, if problems occur years later, a company may be difficult to find or no longer have records of what they used.
  • Unfortunately, when it comes to emergency response, many state laws only allow the agency overseeing oil and gas drilling to get the chemical information and put limits on their ability to share it.  Only a few states have laws which ensure that the information can be obtained by emergency responders, public health officials, and others who need the information to respond to a spill.

It is unacceptable that officials in charge of emergency response, public health, and drinking water safety do not have immediate access to all needed information about fracking chemicals, especially in the event of a spill.  Downstream communities may have been fortunate this time, but if we keep rolling the dice with the safety of communities’ drinking water, we’re eventually bound to lose.

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