A pumpjack works tirelessly near Bayfield on Tuesday. After several meetings, hearings and presentations, the Colorado Oil and Gas Conservation Commission developed a set of rules requiring companies to disclose the chemicals, additives  and concentrations used in the hydraulic fracturing process.­­/Photo by Steve Eginoire

A clearer view of fracking’s future

State OKs new disclosure rules for hydraulic fracturing
by Tracy Chamberlin
The chemical curtain is rising – at least when it comes to fracking for fossil fuels. The Colorado Oil and Gas Conservation Commission unanimously approved new rules Tuesday requiring companies to disclose the chemicals they use for hydraulic fracturing.
“We think that these rules are a model for other states,” said David Neslin, director of the commission, during Tuesday’s meeting. “But I think even more important, they’re the right rules for Colorado.”
These requirements direct companies to publicly reveal the specific types of chemicals, additives and concentrations used in the process of hydraulic fracturing, commonly called fracking. The process uses pressurized fluids to generate fractures within rock layers to release oil, natural gas or other substances so it can be extracted.
Not everyone is completely satisfied with the new rules. Josh Joswick, Colorado Energy Issues Organizer for the San Juan Citizens Alliance, said the approved rules are a significant improvement from what was considered just one week ago during deliberations, and he wants to give credit where credit is due. However, he and other conservationists still have some concerns. Like a base fine for violating the rules of only $1,000, and a 60-day window given for completing the disclosure process.
“They certainly didn’t go as far as I would like to have seen them go,” he said.
The COGCC took these concerns into consideration and will conduct a scheduled review of the rules exactly one year from now. Joswick said he is pleased about the one-year review mechanism, and that the San Juan Citizens Alliance will be keeping an eye on the situation.
“I have enough faith in the commission that if presented with real evidence why something isn’t working that they would address that,” he added.
The COGCC began the rulemaking process in October following a call by Gov. John Hickenlooper to publicly disclose fracking ingredients.
Comments were taken from industry and environmental advocates, including the San Juan Citizens Alliance and Exxon Mobil XTO Energy, owner of a gas well in La Plata County.
After several meetings, hearings and presentations, the COGCC chose a set of rules and regulations it felt best represented a worthwhile compromise.
“The staff and the parties involved believe that these rules will materially improve transparency and strike a responsible balance,” Neslin said.
The COGCC will require disclosure of all chemicals, not just hazardous chemicals as was previously the case. The concentration of the chemical will also be mandatory, while providing a plan for protecting industry secrets, the most contentious debate during the process. The debate focused on where to draw the line between the public’s right to know and the industry’s right to maintain secrecy.
The COGCC’s answer was Form 41, also called a Claim of Entitlement. “The purpose of the form is to explain the basis for their trade secret claim, and to provide contact information for the claimant,” Neslin said.
When a company does claim a chemical or concentration is a trade secret, they are required to submit this form. It allows the company to keep sensitive materials under wraps, and the commission to have that information on hand in case it is needed for medical or emergency purposes.
Language has also been included that allows concerned parties to take action when they feel these claims are being abused.
According to the COGCC, once the forms are filed they are a matter of public record under Colorado law. Therefore, the management of these forms still needs to be worked out among the interested parties.
Another tool for protecting industry secrets is how the information will be displayed in the disclosure database, called FracFocus.org.
For example, chemicals will be listed in different areas of the disclosure forms than additives, water and sand. The public will be able to see exactly what is being injected into the wells but will not receive details on how those chemicals might work together.
A joint project of the Ground Water Protection Council and the Interstate Oil and Gas Compact Commission, FracFocus will maintain a database of chemicals used in hydraulic fracturing across the country. The site is currently searchable by state, county, company or well number. The COGCC proposed the site extend its search ability to specific chemicals.
If that does not happen within the next year, the COGCC said it will begin the development of its own database. However, it believes FracFocus will step up to the plate.
FracFocus currently has 1,617 wells registered in the state of Colorado and two in La Plata County, including one owned and operated by Exxon Mobil XTO Energy.
Companies operating a well have 60 days following the conclusion of a hydraulic fracturing treatment to complete and post the disclosure forms on FracFocus. This 60-day window is still a concern for some conservation and environmental groups because the treatment can take place before the chemicals are disclosed.
“The timing is an issue that we may be able to revisit in a year or two as companies get experience with this expanded exposure,” Neslin said.
He added one reason he thinks the window is acceptable is that groundwater samplings, field inspections and the disclosure registry are considered the third line of defense in protecting the environment and the public. The first is the permitting process, with the subsequent regulations the second line.
On the same day of the COGCC approval, Texas passed similar requirements, however they are not requiring companies to disclose concentrations.
The Texas Railroad Commission is asking companies to reveal publicly the water volumes and chemicals used for hydraulic fracturing as of Feb. 1. The Colorado requirements will not go into effect until April 1.
As for the trade secret concerns, the Texas commission states, “a supplier, service company or operator is not required to disclose trade secret information unless the Attorney General or court determines the information is not entitled to trade secret protection.”
All of this comes on the heels of an Environmental Protection Agency’s investigation into whether or not ground water was contaminated by hydraulic fracturing procedures in Pavillion, Wyo.
Citizens in the area requested the EPA look into concerns about water quality in private wells. After a three-year study, the EPA drafted a report stating the ground water in the aquifer contained compounds “likely associated with gas production practices, including hydraulic fracturing.”
The findings were released for public comment and independent scientific review on Dec. 8.
Encana Oil & Gas Inc., the owner of the gas field in the area, released comments Monday, refuting the EPA’s claims.
“The EPA’s data from existing domestic water wells aligns with all previous testing done by Encana in the area and shows no impacts from oil and gas development,” the company said in a statement.
The EPA study, mandated by Congress last year, is the agency’s first look at the impact of fracking, but it won’t be the last.
The agency plans to examine drilling sites in Pennsylvania, Louisiana, North Dakota, Texas and Colorado. The earliest results of these studies should be available next year. n

For additional information on the Colorado rules, visit www.cogcc.state.co.us. To check out the current chemical database, visit www.fracfocus.org.