State defends loophole in fracking disclosure rules

Jefferson Dodge | Boulder Weekly

Critics of new state rules that would require oil and gas companies to disclose the chemicals they use in hydraulic fracturing, or “fracking,” say the proposed regulations contain a massive loophole that will allow corporations to keep their ingredients secret.

But state officials with the Colorado Oil and Gas Conservation Commission (COGCC) disagree.

The new rules, which will be the subject of a hearing on Monday, Dec. 5, allow companies to keep trade secrets confidential. If approved by the commission, Rule 205A would go into effect on Feb. 1 and would define “trade secret” as “any confidential formula, pattern, process, device, information or compilation of information that is used in an employer’s business, and that gives the employer an opportunity to obtain an advantage over competitors who do not know or use it.”

Critics of fracking in Boulder County and around the state say the practice of shooting a high-pressure cocktail of water, chemicals and sand deep into the earth to extract oil and gas poses serious environmental risks, and they say the loophole leaves the new rules toothless.

“In essence, this trade secret rule means that there is no disclosure,” says Sam Schabacker of Food and Water Watch in Colorado. “The industry doesn’t have to fill out a form to claim trade secret and there’s no review — by anyone — of these claims. There’s no regulation, no accountability, and no way for citizens to oppose the trade secret designation.”

But Dave Neslin, COGCC director, points out that companies have already voluntarily disclosed the chemicals they use in about 1,300 wells, approximately half of the wells in the state, on, a hydraulic fracturing chemical registry created by the Ground Water Protection Council and the Interstate Oil and Gas Compact Commission.

“Companies are asserting trade secret claims infrequently in Colorado,” Neslin told Boulder Weekly. “And even if a chemical is claimed to be a trade secret, the operator still has to disclose that information to us and to health professionals upon request, for purposes of our investigation or a health professional’s diagnosis or treatment of a patient.”

He adds that if there is misuse of the trade-secret provision, the COGCC will address it.

“If it becomes apparent that operators are abusing the trade-secret process, we can take appropriate action, which might include challenging those trade-secret claims, bringing enforcement actions or amending the rules,” he says.

Neslin counters critics’ suspicions that the commission is not tough enough when cracking down on the possible environmental impacts of fracking.

“We think our existing regulations provide appropriate protection for public health and safety, and we think these proposed disclosure rules will add to that process,” he says. “They will provide additional information to the public and additional transparency, and hopefully generate greater public confidence in the safety and oversight of this industry.”

The COGCC accepted written public comments about the new rules until Nov. 25, and there will be a public comment period at Monday’s hearing, which is scheduled for 9 a.m. in the State Land Board Conference Room, at 1127 Sherman St., Ste. 300, in Denver.

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