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Texas’ Proposed Rule 3.29 for Hydraulic Fracturing Chemicals Disclosure

Last fall, the Texas Railroad Commission held a hearing to consider a new rule for disclosure of hydraulic fracturing chemicals. At the hearing, Chemistry Professor Andrew Barron from Rice University claimed that the rule would serve to demystify the chemicals used and help assure the public that the chemicals were not overly dangerous.

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The new rule will be codified as 16 Texas Administrative Code section 3.29 and would implement House Bill 3328. House Bill 3328 has already been passed by the Texas state legislature and signed by Governor Perry. Section 3.29(c) lists disclosure requirements for suppliers, service companies, and operators who are involved with hydraulic fracturing. Under the Rule, not later than 30 days after the completion of a hydraulic fracturing treatment, suppliers and service companies must provide the well operator with the names of each chemical substance that was purposely added to the hydraulic fracturing fluid. In particular, any chemical ingredient that requires a Material Safety Data Sheet must be listed.

The rule defines “chemical ingredient” as “a discrete chemical constituent with its own specific name or identity.” An additive is “any chemical substance or combination of substances” contained in a hydraulic fracturing fluid that is purposely added to the base fluid for a specific reason whether or not that reason is to create fractures in a formation.

Under the rule, operators of wells have the responsibility of submitting information to a hydraulic fracturing chemical disclosure online registry. The data that must be given includes the operator’s name, the date of the treatment, the well’s location, the well’s API number, the amount of water used in the treatment, each chemical treatment used, and several other important pieces of information. Operators must also submit a well completion report for each well that received a hydraulic fracturing treatment to the Railroad Commission. Certain chemical ingredients are exempt from being listed under Section 3.29(d), such as ingredients not disclosed by their manufacturer, or ingredients not intentionally added to the hydraulic fracturing treatment. Ingredients that are trade secrets would also be protected from disclosure.

The proposed rule was published in the Texas Register on September 9, 2011. A 32-day public comment period — including the October 5th hearing — has already concluded. Some of the comments came from sources such as Pioneer Natural Resources. In an October 11, 2011 letter, Pioneer’s Vice President of Government Affairs, Roger Wallace wrote: “Pioneer strongly supports mandatory public disclosure of the chemical ingredients used in hydraulic fracturing.” Wallace expressed concern that the Railroad Commission would come under pressure to create a rule that gives suppliers, service companies, and operators too much discretion, and thought that the trade secret section would make it too easy for certain ingredients to be kept hidden. Meanwhile, the Texas Oil and Gas Association — which produces 90% of Texas’s crude oil and natural gas — expressed general support and proposed several revisions to the rule. These revisions include clarifying a number of terms, such as “hydraulic fracturing treatment” and “landowner,” and promoting a clearer process for challenging a claim of trade secrets. Already, several oil and gas companies voluntarily post the ingredients of their frac fluids on their websites. I suspect that the disclosures made will allow people to see that the chemicals used are pretty mundane, and hopefully some of the hysteria about fraking will dissipate.