DeGette Encourages Bureau Of Land Management To Include Disclosure And Water Testing In Revised Proposed Rule For Fracking On Public Lands
"As we continue towards a path of energy independence and clean energy technologies, natural gas development provides significant economic benefits to Colorado and across the nation; however, we must ensure these benefits do not come at the expense of the health and safety of our communities," said DeGette. "Disclosure of fracking fluids and baseline water testing – already required in Colorado and recommended by the American Petroleum Institute – should not be discretionary and will provide key protections for our communities and the oil and gas industry."
The full text of Rep. DeGette's letter and comment to Secretary Jewell is included below:
The Honorable Sally Jewell
Secretary
U.S. Department of the Interior
1849 C Street NW
Washington, DC 20240
Dear Secretary Jewell:
I write today to comment on the revised proposed rule for hydraulic fracturing on public lands. Since 2010, the Bureau of Land Management (BLM) has worked to modernize its management of hydraulic fracturing. The revised proposed rule will enhance the Federal government's ability to protect our surface and subsurface natural resources. However, I encourage BLM to require baseline water testing and subsequent water monitoring, and improve the construction of the chemical disclosure requirement.
The BLM should require baseline water testing and subsequent water monitoring of nearby water sources prior to hydraulic fracturing, rather than reserving the discretion to require it under NEPA and the "downhole review." The definition of usable water in the revised proposed rule currently covers the universe of waters to be tested and monitored. Baseline water testing is now required in my home state of Colorado and is recommended by the American Petroleum Institute. It is an emerging best practice that protects both landowners and operators. Water is our most precious resource, and protecting it for future generations should not be discretionary.
I am also concerned that the chemical disclosure regime described in the revised proposed rule does not encourage compliance. As I suggested in my comments on the initial proposed rule in June 2012, the BLM should require operators to disclose the chemicals they expect to use in hydraulic fracturing before well completion begins. The list of expected chemicals used can be included in the Application for Permit to Drill or Notice of Intent Sundry and should also be posted publicly online. Although the actual chemicals used will vary, disclosure prior to hydraulic fracturing informs baseline water testing, encourages operators to disclose carefully, and promotes the use of less toxic chemicals.
Furthermore, the utility of chemical disclosure is compromised by changes to the trade secret claim process in the revised proposed rule. An effective trade secret claims process requires substantiation of need from the claimant, verification of need by the governing party, and the right to public challenge of a claim. Otherwise, it is too simple for claimants to compromise disclosure by seeking trade secret protection for chemicals that do not qualify. For a model, I suggest BLM review the claims of trade secrecy process under the Emergency Planning and Community Right-to-Know Act. Specifically, the affidavit for disclosure exemption should require operators to justify, not just affirm, their claim. Then, the BLM should audit these requests to ensure their accuracy and integrity. If the general public has concerns about trade secret claims in a certain area or by an operator or operators, they should be able to have the claim reviewed by an impartial third party. The paperwork requirements for operators and BLM are a reasonable expense for trade secret protection.
I also disagree with BLM's legal interpretation of the Federal Trade Secrets Act vis-a-vis disclosure of chemicals in a medical emergency. The Federal Trade Secrets Act certainly allows disclosure of chemical identities in the case of a medical emergency. The Federal Trade Secrets Act protects the recipe of proprietary fracturing fluid blends, but simply the disclosure of a chemical identity in an emergency does not provide enough information for competitors to reverse engineer the blend to gain competitive advantage. I strongly urge the BLM to include emergency disclosure provisions in the final rule.
Finally, the BLM should develop its own public disclosure platform. FracFocus was the first available platform to perform this important service, and the new version of the database released this year has numerous improvements. However, relying on a private third party to enable operators to comply with Federal and state law is not good policy. With its own disclosure platform, BLM can directly oversee trade secret claims and the timeliness of disclosure. Under the revised proposed rule, an alternate platform is already necessary, as operators have the option to submit their disclosures directly to BLM. I encourage BLM to take advantage of this rulemaking opportunity to develop a new public disclosure platform tailored to agency needs.
Thank you for your efforts to modernize the management of our public lands under this important rulemaking.
Sincerely,
Diana DeGette
Member of Congress
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