On Disclosures of Fracking Chemicals — Part II

by Duane Nichols on May 9, 2017

FactCheck.org and FracFocus.org provide some answers

The Facts on Fracking Chemical DisclosureFactCheck.org, April 7, 2017

Q: Are the chemicals in fracking solution protected from being made public by a law passed while Dick Cheney was vice president?

A: Yes. A 2005 law bans the federal government from requiring companies to disclose fracking chemicals. But 28 states do require disclosure of some fracking fluids.


Is it true that the chemicals in fracking solution are protected from being made public by a law or bill passed by Congress while Dick Cheney was in President Bush’s cabinet? Is it true that Cheney strong-armed members in Congress to pass the bill? Is it true that the fracking companies don’t have to reveal the chemicals in fracking solution?


Regulating Fracking Under State Law

Even though fracking can’t be regulated by the federal government, it can under state law.

Along with other regulations related to the practice, as of January 2016, 28 states require the disclosure of some, but not all, chemicals used during fracking. Twenty-three states use a registry called FracFocus, which is the most comprehensive database on fracking chemicals.

But fracking operators don’t have to report all the chemicals they use in part because of trade secrets laws, which also protect Coca-Cola’s recipe, for example. So what proportion of fracking chemicals do companies reveal in states with disclosure laws?

According to the EPA, fracking operators withheld 11 percent of the chemicals they reported to FracFocus between January 2011 and February 2013. As a reason for not disclosing information, companies said the information was “confidential,” a “trade secret” or “proprietary.” The EPA also found that 70 percent of disclosures withheld one chemical or more.

But the rate of withheld chemicals may have increased since then, according to researchers at Harvard University.

Kate Konschnik, the policy director at Harvard’s Environment Law Program, and a colleague found that 18.9 percent of fracking chemicals reported on over 53,000 forms filed to FracFocus between November 2012 and April 2015 “were intentionally withheld from public disclosure.” And 92.3 percent of these forms included “at least one withheld ingredient,” the researchers reported in their paper published in the journal Energy Policy in January 2016.

Like the EPA, the researchers found that companies didn’t always specifically cite “trade secret” as the reason for withholding chemical information: Companies also cited “proprietary,” “confidential” and “n/a” as reasons.

Trade secrets have the “clearest and most rigorous legal standards,” as they’re “limited to information about a production method, process or formula … which the owner has taken steps to protect,” the researchers pointed out.

The term “confidential,” on the other hand, is mentioned in some state disclosure requirements, but it’s often not defined. And there are “virtually no definitions or standards” for citing “proprietary” or “n/a” as reasons for withholding information, the researchers said.

The study found that fracking companies withheld chemicals citing “confidential” or “proprietary” grounds in states that only accept “trade secret” as an acceptable justification. For this reason, the researchers reasoned that “some companies are unaware of state-specific rules or do not expect enforcement.”

Overall, “the less rigorous the standard” for justification (i.e., proprietary instead of trade secret), “the more likely it has been used to justify withholding information in FracFocus,” the researchers concluded.

Fracking Chemicals and the Environment

But are the chemicals associated with fracking hazardous to human health and the environment in the first place? And are they reaching sources of drinking water?

The EPA attempted to answer these questions in its final report on the relationship between fracking and drinking water resources that was released in December 2016.

Here’s what the agency found: There are select cases where evidence suggests that fracking chemicals have reached drinking water resources and impacted human health and the environment. But limited data prevents the agency from making general conclusions.

For example, the EPA report cites studies that have linked fracking and the contamination of drinking water resources in instances where companies spilled fracking fluids, experienced equipment failure or fracked wells too close in depth to drinking water resources (i.e., shallow fracking), for example.

The report also notes studies that found associations between the proximity of pregnant mothers living next to natural gas wells and increased cases of congenital heart defects and lower birth weights. Other studies cited in the report found an association between living closer to natural gas wells and an increase in the number of reported respiratory and skin issues. And another study found evidence to support a link between the contamination of streams by fracking fluids and the death of fish and other aquatic animals.

Overall, “while combined evidence suggests hydraulic fracturing has the potential to impact human health via contamination of drinking water resources, the actual public health impacts are not well understood and not well documented,” the EPA concluded.

At least three factors prevented the agency from making definitive conclusions.

First, scientists haven’t evaluated the potential human health and environmental toxicity of the majority of chemicals known to be used in fracking. But this dearth of data isn’t specific to fracking – researchers have estimated that “tens of thousands of chemicals in commercial use” have “not undergone significant toxicological evaluation,” the EPA report notes.

The “potential hazards” associated with chronic ingestion of the chemicals with toxicological profiles include cancer, immune system effects, changes in body weight and changes in blood chemistry. Other fracking chemicals also are known to be specifically toxic to the heart, nervous system, liver, kidneys, reproduction and development.

Second, scientists don’t have comprehensive, national data on when, where and how much of these chemicals are reaching drinking water resources and being ingested by people.

In select cases, fracking fluids have reached drinking water resources through spills, leaks and inadequate disposal, as mentioned previously. Fracking chemicals have also been detected in drinking water resources at levels that could impact human health. Still, “there is a lack of systematic studies examining actual human exposures to these chemicals in drinking water as a result of hydraulic fracturing activity,” the report said.

Third, companies don’t reveal all the chemicals they use, for the reasons described above. “Having a better understanding of the chemicals and formulations, including those that are [deemed confidential business information], along with their frequency of use and volumes, would greatly benefit risk assessment and risk management decisions,” the EPA report concluded.

To sum up, the federal government can’t regulate fracking, including chemical disclosure, because of a provision in the Energy Policy Act of 2005. This act was preceded by a 2001 energy policy report that advocated for the expanded use of fracking and was released by a group chaired by Cheney. While 28 states do have chemical disclosure laws on the books, companies do not disclose all the chemicals they use and sometimes do not fully comply with the laws. In order to make a definitive conclusion about the impact of these chemicals on human health and the environment nationally, scientists need to conduct more research. However, there is evidence to support their impact in select cases.

Note: SciCheck is made possible by a grant from the Stanton Foundation, funded from estate of Frank Stanton, PhD, former President of the CBS Broadcasting System.  His PhD was in psychology from the Ohio State University.

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