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Three Reasons Why the Obama Administration Shouldn't Use FracFocus.org in its New Fracking Disclosure Rule

Matthew McFeeley

Posted April 10, 2013 in Health and the Environment, U.S. Law and Policy

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The Obama Administration is developing rules to require fracking chemical disclosure for operations on federal lands  and a recent leaked draft of the new rules requires companies to disclose the chemicals they use on the privately-run website FracFocus.org rather than on a government website.[1]  We do not know if the draft is authentic or represents a finalized proposal.  However, requiring disclosure to FracFocus would run directly counter to the Administration’s pledge to increase transparency, instead handing over public records to a private, unaccountable website.  FracFocus does not meet basic standards for records management, and, in fact, its use hinders public access to information.  Without major improvements in how FracFocus is operated and additional safeguards to ensure proper oversight of fracking by regulators, FracFocus should not be used for mandatory public disclosure.    

What is FracFocus.org?

FracFocus.org is a website that was developed in order to encourage oil and gas companies to voluntarily disclose information on the hydraulic fracturing chemicals they use.  The site is managed jointly by the Groundwater Protection Council and the Interstate Oil and Gas Compact Commission (IOGCC).  The operational costs of the website are partly paid for by the American Petroleum Institute and America’s Natural Gas Alliance, two lobbying groups for the oil and gas industry and it is unclear whether there is any system in place to prevent these groups from influencing how disclosure on the website functions.  As explained below, FracFocus limits access to public information and prevents sharing and dissemination of publicly-mandated disclosures.  Despite the problems with the site, a number of states have already decided to allow disclosure to FracFocus instead of directly to the state regulator that oversees fracking.  This trend has been encouraged by the American Legislative Exchange Council (ALEC) an organization that pushes corporate-friendly policies and which included FracFocus in its “model” state fracking disclosure law.

1) FracFocus Does Not Meet Minimum Standards for Managing Government Records:

Government agencies’ systems for managing electronic records must generally meet certain minimum standards.  FracFocus does not meet those standards. For instance, federal regulations require protections against unauthorized alteration or deletion, and controls such as audit trails to ensure records are complete and unaltered.  Yet when changes are made to records on FracFocus, the original record is not preserved and there is no indication that additions or deletions have occurred.  The records contain no publication date, and operators have full access to change records at any time.  FracFocus even explicitly states that it “assume[s] no responsibility for the timeliness, deletion, misdelivery, or failure to store any” information.  If data on the site were lost, corrupted or deleted, neither the government nor the public would have any recourse.

Any regulatory system for disclosure of hydraulic fracturing should provide a clear indication when each record was published, so that compliance with the reporting deadlines can be tracked.  Any subsequent alterations to an original submission should create a new record to preserve a full history of the information disclosed on separate occasions.  Regulators should also require a system which ensures that data will be properly backed up and that public records will not be lost if a problem occurs with a private website.

2) FracFocus Unreasonably Restricts Public Access and Sharing of Hydraulic Fracturing Data:

The FracFocus site’s official terms of use state that a user “may not copy, reproduce, modify, republish, upload, post, transmit, or distribute any documents or information from this site in any form or by any means without prior written permission.”  No government agency should use a site for public disclosure which purports to limit the public’s ability to share or republish that data. 

FracFocus provides no way for users to download the database in aggregate but only allows access to a single disclosure document at a time.  Preventing access to a database of this information hampers researchers’ efforts to better understand fracking and its impacts.  Public disclosure should only be done on a site which provides full access to public data so that it can be used for scientific or other research. 

FracFocus also makes it impossible to link to individual disclosure documents and prohibits users from reposting them in the site’s terms of use. Thus, it is impossible to share a particular disclosure without violating the terms of use.  This is an unreasonable limitation on the public's right to share and disseminate information and is not appropriate for the public disclosure of fracking chemicals. 

3) The Use of FracFocus May Encourage Poor Compliance with Disclosure Requirements:

Some states currently require operators to report fracking chemicals on FracFocus, while other states require reporting directly to state agencies. A random spot check of reports of both types found that, where disclosure to FracFocus has been mandated by state rules, there appears to be reduced compliance with some reporting requirements.  For instance, concentration ranges, rather than exact concentrations, are routinely reported on FracFocus – even where state rules do not allow them. 

Disclosure using the standardized FracFocus form can also cause confusion where aspects of the standard form conflict with what is required by state disclosure rules.  For instance, Texas rules require companies to report on FracFocus the amount and type of the base fluid used (for instance recycled water, fresh water, or some other base fluid).  However, the FracFocus form provides no field for entry of base fluid type and explicitly states that the figure reported in the “Total Water Volume” field “may include fresh water, produced water, and/or recycled water.”  If FracFocus will be used, agencies regulating fracking must ensure that each report to the site is reviewed for omissions and errors and work with the website to develop a form that is consistent with their rules and requires all the information that must be disclosed.

 


[1]  The new rules by the Bureau of Land Management (BLM) would regulate fracking operations where the federal government manages the rights to the oil and gas, including beneath about 700 million acres of federal and tribal lands and about 57 million acres of private lands. 

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