Most of the criticism thus far of Colorado’s proposed changes to rules governing hydraulic fracturing chemical disclosure – and the vast majority of online comments – has centered on the so-called “trade secret” loophole that would allow oil and gas companies to obtain exemptions from disclosing certain chemicals for proprietary reasons.
And that will most certainly be a hot topic at today’s meeting of the Colorado Oil and Gas Conservation Commission (COGCC) to possibly approve the new rules. The hearing is set to begin at 9 a.m. at the State Land Board offices at 1127 Sherman Street (Suite 300) in Denver.
But some local government officials, water regulators and environmental groups are equally concerned about the timing of mandatory disclosures of the chemicals used in hydraulic fracturing — or “fracking” – pointing out the new rules don’t compel public disclosure on the FracFocus website until up to two months after a frack job is completed.
“The COGCC is asking for local government input on drilling proposals, but not letting them know what is being proposed,” said Trési Houpt, a local government representative on the COGCC board until she was defeated as a Garfield County commissioner last year. “If toxic chemicals are proposed for use in water supply areas, or near homes, local government health departments must have that information.”
Fracking injects millions of gallons of water and sand, laced with chemicals, deep into oil and gas wells under very high pressure to fracture tight geological formations and free up more oil and natural gas. As drilling is once again taking off in Colorado, especially in more populous areas on the state’s Front Range, there is mounting pressure to find out exactly what chemicals are being used.
Gov. John Hickenlooper, a former petroleum geologist who says “hydraulic fracturing doesn’t connect to groundwater, that it’s almost inconceivable that groundwater will be contaminated,” still is pushing for the current rulemaking to improve industry transparency and public trust.
Houpt previously advocated for a federal law requiring full public disclosure that has been repeatedly introduced by U.S. Rep. Diana DeGette, D-Denver, but COGCC director David Neslin has consistently opposed such requirements. He argues disclosure won’t stop spills but instead will divert staff from prevention and enforcement.
Local governments can currently comment on drilling permits they think could pose a public health risk, and the Colorado Department of Public Health and Environment (CDPHE) must review drilling applications proposed near drinking water supplies. But under the proposed disclosure rule, fracking or the chemicals that will be used won’t be part of that notification process.
“Water and waste water management entities need to be aware of the chemicals being used,” said Jim Miller, a water treatment engineer and member of the Colorado Water Utility Council. “Pre-disclosure would benefit water utilities and the environment.”
The COGCC staff, however, opposes pre-disclosure because “hydraulic fracturing fluids are often modified shortly before or at the time of treatment” and because it “would require either a substantial increase in staff size or a substantial reduction in other staff work.”
According to the COGCC website, “The latter could potentially diminish environmental protection because much of the staff’s existing work involves ensuring well bore integrity, seeing that wastes are property handled, evaluating potential environmental effects from new development, compiling environmental data, and overseeing remediation projects.”
As for the so-called trade-secret loophole, the state argues “all other states that require hydraulic fracturing chemical disclosure and virtually all federal environmental laws protect trade secrets.”
Further, the state officials say trade-secret exemptions don’t occur often: “A recent COGCC survey of 300 random Colorado disclosure forms on the [currently voluntary] FracFocus website indicates that trade secret claims are rare. Only 5.8% of the chemicals listed were subject to a trade secret claim, and 63% of the disclosure forms contained no trade secret claims.”
Bur environmentalists argue such a loophole will undermine Hickenlooper’s public-trust goal.
“If we don’t close the trace secret loophole, this rule is meaningless,” said Clean Water Action’s Gary Wockner. “Gov. Hickenlooper needs to see this promise through and make sure COGCC closes the loophole.”
And Wockner also wants a clearer picture of where the water used in fracking is coming from and how much is needed for each frack job.
“Nobody seems to know how much water drilling and fracking uses,” Wockner said. “Let’s go right to the source and have the drillers and frackers report their water use so that Colorado knows how much additional stress this will place on our rivers and farms, which are already being drained and dried up.”