What’s in the water? What are the chemicals being used? Will they harm me? Or my family? Or my animals? What kind of impacts will my environment experience? These questions have been asked by countless communities since hydraulic fracturing first expanded across the country a few years ago. And during this time period, these questions have often gone unanswered because of a lack of laws to address them. But right now, the EPA has the opportunity to provide some answers.
From their start, many hydraulic fracturing operators have faced criticism from the public, policy makers, and the scientific community for their handling of chemical disclosure (and lack thereof). A 2012 petition to the EPA from the Environmental Integrity Project and 16 other groups said it best.
There is simply no adequate, comprehensive framework to ensure that information as to toxic chemicals used in oil and gas extraction is made available to the public.
The health consequences of no transparency on fracking chemicals
The results haven’t been pretty. Citizens fear the chemicals and potential health effects they are exposed to. Many nearby residents of oil and gas facilities have reported experiencing unexplained health problems. Medical professionals and emergency responders have been left without vital information to treat their patients and protect themselves from harmful chemicals. And whole communities have been left in the dark on the identity of chemicals in their environment—let alone their quantities and known health and environmental effects.
To compensate for the lack of federal regulation, many states have passed chemical disclosure laws that require companies to disclose (either publicly or to regulators) information about the chemicals they use in hydraulic fracturing operations. These laws vary widely between states in terms of (1) what is disclosed, (2) when disclosure happens, and (3) how accessible the information is to those who need it. And importantly, many states with hydraulic fracturing still have no law on the books requiring any chemical disclosure. As a result, many communities have no or limited legal mechanisms to require companies to tell them what chemicals they are using.
The trouble with trade secrets
One major barrier to better chemical disclosure laws has been trade secrets, or confidential business information. Hydraulic fracturing operators claim that a law requiring full disclosure of chemicals will harm their business because they would have to reveal their chemical mixtures to their competitors. Because of this argument, nearly every state chemical disclosure law includes a trade secret exemption that allows companies to conceal chemical identities from the public if they consider the information proprietary.
Such trade secret exemptions can have serious consequences for public health. In 2008, a nurse in Durango, Colorado, fell ill after being exposed to hydraulic fracturing fluid chemicals. With heart, respiratory and liver failure, she came very near death. But despite her dire condition, the company responsible for the chemicals refused to disclose their identity because the fluid’s contents were considered confidential business information. Luckily, doctors were able to save her without knowledge of what chemicals she had been exposed to, but chemical information could undoubtedly speed treatment and potentially save lives in future accidents.
In some states, regulators and medical professionals can still gain access to proprietary chemical information, but it isn’t necessarily accessible and available in timeframes relevant for medical professionals and emergency responders. Pennsylvania’s Act 13 includes what’s been dubbed the “Doctors’ Gag Rule,” which allows doctors who suspect their patient has been exposed to hydraulic fracturing chemicals to obtain proprietary chemical information if they sign an agreement saying they will not share this information. Doctors say this law inhibits their ability to treat their patients since they are not allowed to share this information with other doctors, nor with their patients themselves. Currently, this rule is under review in Pennsylvania’s Commonwealth Court.
The EPA can shed light on hydraulic fracturing chemicals
An opportunity exists for a more comprehensive federal law on chemical disclosure. The EPA is currently taking comments on a rule to require better transparency around chemical substances and mixtures used in hydraulic fracturing. The EPA plans to use its authority under the Toxic Substances Control Act to issue a rule that addresses many of the problems we’ve seen around hydraulic fracturing chemical disclosure. The rule could provide the EPA and the public with better information about the identity and quantity of chemicals, but also more information about their public health and environmental effects—vital information for affected communities, emergency responders, medical professionals, and scientists.
However, the rule will not go without opposition. Hydraulic fracturing operators are expected to work to stop or limit the effectiveness of such a rule. Claiming burdensome paperwork and the importance of confidential business information, we can expect many hydraulic fracturing operators to object.
In the end, public health should trump business interests, as it has for other regulated industries. Citizens have a right to know what chemicals they might be exposed to, and what their potential health and environmental effects are. But the EPA will need support from citizens, medical professionals, emergency responders, public health specialists, and scientists to move forward with a strong rule. Join me in asking the EPA to take full advantage of this opportunity and issue a comprehensive and mandatory chemical disclosure rule around hydraulic fracturing.