Texas’ Fracking Disclosure Law Falls Short, Critics Say

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[Ed. note: This story was published in the March issue of the Observer.]

For those who want the truth, the whole truth, and nothing but the truth, Texas’ new hydraulic fracturing disclosure law falls short. The Texas Legislature passed the law in 2011, hoping to allay fears that oil and gas drillers are contaminating groundwater with toxic chemicals used in the hydraulic fracturing, or fracking, process. Fracking involves pumping a mixture of water, sand and chemicals deep underground to force oil and gas from fissures in the rock. The bill’s author, state Rep. Jim Keffer, R-Eastland, hailed the measure last year as “a landmark piece of legislation.” As of Feb. 1, companies must  report some of the chemical ingredients in their fracking fluids to a website, FracFocus.org.

But the law’s shortcomings have become evident. Only wells drilled after Feb. 1 are subject to the disclosure requirements, though many companies began supplying information voluntarily in April. And companies can take up to 90 days after they’ve fracked a well to send the chemicals list to FracFocus. “Your well could already be contaminated,” says Sharon Wilson, a veteran drilling reform activist who lives in the Barnett Shale area. “You can’t protect yourself with information after the fact.”

And the disclosure sheet for each well—called a “Hydraulic Fracturing Fluid Product Component Information Disclosure”—is about as clear as a Finnish edition of Finnegan’s Wake. Ingredients are listed as a percentage of the total amount of the fluid. Because a typical frack job uses 1 to 8 million gallons of water, the chemical components look tiny by comparison, obscuring the risks from potent toxins.

“It’s to be deceptive,” Wilson said. “It’s to lead us to believe they are using these minuscule amounts of chemicals.”

Instead, each chemical should be reported in a parts per million or parts per billion format, said Wilma Subra, a Louisiana chemist who helps communities take on industrial polluters. That’s the same standard that regulators and scientists use to evaluate risks to the environment and human health.

Even more important is what’s not disclosed. Think of the mix of fracking fluids—water, sand, and a host of chemicals—as a recipe. Citizens and environmental groups want the whole recipe, each ingredient and its precise amount. But the new law allows frackers to withhold chemical components deemed trade secrets. An Observer review of the 25 most recent disclosures, totaling almost 1,300 ingredients, found that trade secrecy is claimed for about 15 percent of the chemical components reported to FracFocus. That’s a “huge flaw,” Subra said.

Another blind spot is that operators aren’t required to test wastewater they may use instead of freshwater. So-called produced water may contain benzene, heavy metals and volatile organic compounds.The law also allows operators to keep secret the amounts of any chemicals not regulated by the federal Occupational Safety and Health Administration. In one instance, the Observer found formaldehyde listed as an “additional ingredient” with no further explanation.

“The bottom line is we will never be able to assess the risk until we have full public disclosure of all the chemicals used,” Wilson said.

Still, some environmentalists say the new data will be useful. “It’s important for us to have a decent if imperfect idea of what chemicals are commonly used,” said Scott Anderson, with the Texas office of the Environmental Defense Fund.

Forrest Wilder, a native of Wimberley, Texas, is associate editor of the Observer. Forrest specializes in environmental reporting and runs the “Forrest for the Trees” blog. Forrest has appeared on Democracy Now!, The Rachel Maddow Show and numerous NPR stations. His work has been mentioned by The New York Times, the Washington Post, the New Yorker, Time magazine and many other state and national publications. Other than filing voluminous open records requests, Forrest enjoys fishing, kayaking, gardening and beer-league softball. He holds a bachelor's degree in anthropology from the University of Texas at Austin.