William A. Ruskin on State Fracking Disclosure Requirements

By William A. Ruskin

Opponents of fracking argue that it is necessary for the public, and health and safety professionals, to have full access to information on the constituents of hydraulic fracturing fluids and waste. In a report released on July 26, 2012 titled, "State Hydraulic Fracturing Disclosure Rules and Enforcement: A Comparison," the Natural Resources Defense Counsel ("NRDC") argues that no state can boast a comprehensive chemical disclosure requirement for oil and natural gas producers using hydraulic fracturing. In an article, dated July 31, 2012, Bloomberg BNA Toxics Law Reporter reported on NRDC's assertion that "each of the state rules we analyzed has significant gaps in its requirements."

In particular, the NRDC report zeroes in on trade secret exemptions, which it claims creates loopholes in most state disclosure rules. According to the report, not only may the companies decide what information is considered proprietary and should not be but, in many cases, the states have not consistently enforced the disclosure requirements on the books.

The oil and gas industry argues that state chemical disclosure rules provide strong evidence that state regulation is adequate and that new federal standards for disclosure are unnecessary.

NRDC's report provides a helpful state-by-state analysis of trade secret exemptions to disclosure requirements and under what circumstances disclosure can be restricted. For example, NRDC reports that six states provide for access to trade secret information by health care providers. These states are: Arkansas, Colorado, Montana, Ohio, Pennsylvania and Texas. Four of the states (all but Ohio and Arkansas) require that health care providers sign a confidentiality agreement before gaining access to the information, except in emergency situations. Health care professionals and health law experts have questioned whether such provisions violate doctors' ethical obligations.

Meanwhile, participants of FracFocus, a joint project of the Ground Water Protection Council and the Interstate Oil and Gas Compact Commission, provide voluntary public disclosure of the fracking chemicals they use. Broad industry commitment to FracFocus suggests that NRDC's concerns concerning inadequate disclosure are being addressed by the industry.

Whatever purported loopholes exist in state statutes, it is likely that toxic tort plaintiffs will be able to obtain full disclosure of chemicals used in fracking through the courts, assuming that they execute Confidentiality Agreements.

For more cutting edge commentary on developing issues, visit Toxic Tort Litigation Blog by William A. Ruskin of Epstein Becker & Green.

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