Fracking Chemical Disclosure in Ohio: New report points to problems

NRDC is releasing a new analysis today of requirements in states across the country that oil and gas companies disclose the chemicals they use in fracking. The report evaluates the states’ rules for disclosure of chemicals used in fracking fluids, water usage, wastewater generation, how and where fracking occurs, and sets forth guidelines for effective disclosure.  It concludes that, at present, no state has an adequate set of disclosure rules – this, notwithstanding the many claims made by states to have “the best” rules in the country.

Ohio is one of those states.  The Ohio legislature recently adopted new fracking chemical disclosure rules in May, as part of Governor Kasich’s energy bill.  As I blogged about at the time that the bill was up for a vote, the new legislation does not go nearly far enough to make meaningful information available to the public about the chemicals that are being pumped under their feet – and potentially into their drinking water. 

Ohio’s fracking chemical disclosure law contains a loophole big enough to drive a truck full of toxic chemicals through:  the law gives oil and gas companies the primary say over what they disclose.  If a company decides that certain information about the chemicals it uses is a “trade secret” – no matter how important that information might be to protecting public health and safety – then the company doesn’t have to disclose it to the state, much less the public.  Doctors can get access to the information if they need it to treat a patient, but only if they agree to keep it a secret, too (which potentially subjects the doctor to the risk of getting sued if they use it for any other purpose).  And the only members of the public who can challenge them are those who can prove that they have already been “adversely affected” by the use of the chemicals at a particular well site.  Thus, under these provisions, other members of the general public – including journalists and public health researchers – would not be able to challenge the company’s trade secrecy claims or get access to the information.  And even those property owners who might be able to bring a challenge are put in a Catch 22 situation where the only way that they can get access to information about the chemicals that might have harmed them is to first already be able to prove that they’ve been harmed.

Ohio’s chemical disclosure provisions include blatantly unfair requirements that give the oil and gas industry special treatment that no other industry receives.  Every other industry in Ohio has to hand over basic health and safety information to the state rather than just posting it on an industry-approved web site.  If companies in other industries want to request that some of their information be protected as confidential trade secrets, they can do so, but only if they provide evidence to support their claims to the state so that the agency can decide for itself whether the claims are legitimate.  And if members of the general public want access to the information, they can request it from the state under the Freedom of Information Act and challenge any overbroad claims that the information should be kept confidential without any special requirement that they first prove that the company has harmed them.

There is no reason why the oil and gas industry should not play by the same set of rules as everyone else.  The protections for trade secrets that apply to other industries under Ohio law strike a fair balance between protecting legitimate business interests and allowing agencies and the public access to necessary information that is critical to protect public health and safety.

Disclosure of fracking chemicals needs to be mandated at the federal level, by closing the so-called “Halliburton loophole” in the Safe Drinking Water Act that exempts fracking from basic reporting requirements for chemicals being injected through underground sources of drinking water.  But in the absence of strong federal standards, Ohio can and should do much more.