Fracking Illini? New NRDC report points to issues around chemical disclosure

NRDC is releasing a new analysis of requirements in states across the country that oil and gas companies disclose the chemicals they use in fracking.

Here in Illinois, high-volume fracking may be coming this year, but we currently have no regulations in place to require even basic safeguards like chemical disclosure.  All that an oil and gas company has to do to drill and frack a well in Illinois is file an application telling the Illinois DNR where it wants to drill and slap down $100 as a nominal fee, and then it can start drilling in a matter of days.

This leaves communities in southern Illinois completely vulnerable to the risks of this new and inherently more dangerous form of drilling.  Other states such as Colorado and Pennsylvania have experienced a wide range of negative impacts from natural gas production.  Drinking water sources have been contaminated with explosive methane, as well as other dangerous substances, such as benzene and arsenic, that can cause cancer and other serious illnesses. Toxic chemicals, as well as erosion and runoff from drilling operations, have fouled treasured fishing streams and aquatic habitat.  Leaks and spills of hazardous materials have polluted bodies of water, forests, farms, and backyards.  Farmers and ranchers report serious health symptoms in livestock near natural gas operations.  Exposure to open pits has killed countless birds and other wildlife.  Emissions from drilling rigs, well-pad equipment, storage tanks, compressor stations, and truck traffic contribute to harmful ozone levels.  There have even been incidences of serious human health threats that have led families to abandon their homes in order to preserve their children’s health.

Earlier this year, a bill partially based on ALEC language passed unanimously in the Illinois Senate, with the support of the oil and gas industry, that would require some disclosure by companies of the chemicals they use in their fracking operations. The session ended before a vote could be held on the issue in the Illinois House. Unfortunately, although the Senate bill, SB 3280, is better than nothing, it’s not better by much:

• SB 3280 only requires post-fracking disclosure, at a point in which whatever harm might be caused by toxic chemicals in the fracking fluid has already been set in motion.  Requiring disclosure before any drilling or fracking occurs, as part of a company’s application to drill the well, is much more meaningful.  Pre-fracking disclosure helps inform baseline testing of nearby water wells, because local residents will actually know which of the over 596 chemicals that are used in fracking they should actually be testing for.  It also allows for a meaningful assessment of the risks to public health from the chemicals that are being proposed for use and for a discussion between IDNR, the company, and the public about whether there are safer alternatives.
• Also, SB 3280 does not actually require the company to hand over records of the chemicals they are using to IDNR – they get to keep all of their records to themselves.  Instead, all companies have to do is fill out a form on the FracFocus web site that asks questions about the chemicals they are using.  Experience with FracFocus has shown that companies are highly inconsistent in how they fill out the form and in the amount of information they choose to provide.  There is no policing of the form and the state is not directly involved so it can’t ask follow-up questions.  And because there’s so little consistency among the reporting, it is very difficult to compare one well site to another or draw any meaningful conclusions from the information provided there.
• SB 3280 allows companies to decide that virtually all of the detailed information about the chemicals they are using can be declared a trade secret and withheld from disclosure on the FracFocus form.  Although there may be some genuine need for drilling companies to seek protection of some of their chemical information as trade secrets to keep them away from their competitors, such as the specific recipes or formulas they are using, basic information about the risks that these chemicals pose to public health and safety should never be considered a trade secret.  The public has a right to know about the risks to their health posed by these chemicals.  To take the often-cited Coca-Cola example, we all agree that Coca-Cola should be able to keep its formula a secret, but we also know that Coca-Cola doesn’t have cancer-causing benzene in it or any other dangerous chemicals that pose a risk to our health. 
• A major problem with SB 3280 is that it creates heightened requirements for anyone to challenge in court a company’s claims that its chemical information should be protected as trade secrets if they appear to be too broad.  Although the bill would allow some challenges to trade secrecy protection to be filed in the first two years after the well is drilled, the bill limits the entities that would be allowed to challenge such trade secrecy to either (1) a landowner or farm tenant who has been “directly and substantially” harmed by the hydraulic fracturing operation; or (2) a state department or agency.  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. 
• SB 3280’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 Illinois 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 are already in Illinois 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, states can and should do more. 

Here in Illinois, we have the opportunity to learn from other states’ negative experiences with fracking and get our rules right from the beginning.   Until strong safeguards are in place, there should be no new or expanded fracking in our state.

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