El Paso County takes hard line on fracking rule

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They're like the ingredients used in Coke or Pepsi. They should be disclosed to the public.

So say El Paso County commissioners in a letter to the Colorado Oil and Gas Conservation Commission about a pending rule to allow oil and gas drillers to protect what chemicals are used in fracking.

Fracking is a process in which liquids or gels are injected into the ground to cause shale formations to break loose and release oil and gas.

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The Oil and Gas Commission is considering a rule that would allow the types of liquids used to be protected from public disclosure. But El Paso County commissioners say that's not a good idea.

Although some drillers might argue the liquids are proprietary and constitute trade secrets, makers of Pepsi and Coke are required to disclose the ingredients, but not the exact formula, commissioners argue in a letter due for commission approval at Thursday's county commission meeting.

They also argue that rather than give 48 hours notice to surrounding landowners that fracking will begin so that water well owners can test their wells to serve as a baseline in case of contamination, the state should require all domestic water supplies in the vicinity of fracking to be tested ahead of time.

Commissioners also are calling for an inert "marker" to be mixed with whatever fluids are used in fracking, so it can be traced as the cause of pollution, if such circumstances arise.

It's an urgent matter, because oil companies are filing leases to drill in El Paso County, and the Colorado Oil and Gas Conservation Commission will hear testimony and make a decision on the proposed rule on Monday, Dec. 5 in Denver. The meeting will be held at the State Land Board offices (1127 Sherman St. in Denver, third floor conference room) and is scheduled to begin at 9 a.m.

Here's the entire letter:

Colorado Oil and Gas Conservation Commission
1120 Lincoln Street, Suite 801
Denver, CO 80203
December __, 2011
Dear Commissioners and Acting Secretary Gowen:
El Paso County is pleased that the Colorado Oil and Gas Conservation Commission is
pursuing rulemaking regarding the public disclosure of chemicals associated with
hydraulic fracturing. We believe that greater transparency related to these matters will
be of benefit to the general public, landowners, water users and providers, and,
ultimately, oil and gas operators because it will build a greater degree of trust in our
community.
El Paso County is in favor of the creation of a chemical disclosure registry. However,
rather than having this registry posted only on a trade association website
(www.FracFocus.org) as is required in the proposed rule, we believe it is necessary to
support transparency, objectivity, and public confidence by posting the chemical
disclosure registry on the COGCC website from the start, not just if the trade
association website proves inadequate in the future. If the disclosures are to be
pursuant to COGCC rules and pursuant to COGCC permits, the disclosures should be
available from the COGCC website so that it is clear that they are public records,
subject to the Colorado Open Records Act. The “Terms of Use” for the FracFocus.org
website limit the purposes for which the information on the site can be used and also
state that the Terms of Use may be changed, or that the site may be discontinued,
without notice. The FracFocus.org website also permits information to be removed
from the site if, at the sole discretion of FracFocus.org or its agents, any information is
deemed “harmful, objectionable, or inaccurate.” This is not the appropriate repository
for public records and, in fact, may violate the preservation requirements for public
records.
We agree with the COGCC and oil and gas operators there is value in protecting
legitimate trade secrets and we support the creation of regulations which create trade
secret protection. However, it is important that there are standards for what qualifies as
a trade secret. Operators must be required to provide a justification or rationale in
support of a claim of a trade secret, and the regulations must provide for discretionary
review of the validity of a trade secret claim by the COGCC.
In particular, we believe that the individual constituents of a proprietary product should
be available to the public but that the proportions of the ingredients are a legitimate
trade secret. This is no different than products which are intended for human
consumption. The individual constituents of Coke, Pepsi, or any other food product are
on the product’s label but the actual recipe is a highly protected trade secret. Because
the main concern regarding hydraulic fracturing chemicals is that they may make their
way into ground water and be consumed by humans it is logical to take guidance from
the disclosure requirements of products intended for human consumption.
Draft Rule 205A(B)(4) states that vendors are not responsible for inaccuracies in
information provided by third party manufacturers, service providers are not
responsible for inaccuracies provided by vendors, and operators are not responsible for
inaccuracies provided by vendors or service providers. This waiver of liability is
unreasonable and unacceptable. Operators are the ones who receive permits from the
COGCC and/or local governments and they should be held responsible for the errors or
inaccuracies of their agents. Because operators have contractual privity with service
providers and vendors etc. they are in the best position to know who these other entities
are and require accuracy of disclosure in their contracts with vendors and service
providers. Surface owners, neighbors, local governments, and the COGCC are only
able to seek redress from the permitted entity, i.e. the operator. This same concern also
applies to Draft Rule 205A(B)(5)(C) (disclosures not required if not disclosed to
operator by vendor, manufacturer, or service provider).
This is of particular significance because few operators actually perform hydraulic
fracturing themselves. Almost always it is a contractor which performs the process and
provides the chemicals used. The only alternative to prevent a very significant
loophole in the chemical disclosure requirements and significant decrease in public
confidence would be to initiate legislation or rulemaking which would license or permit
hydraulic fracturing contractors and hold them responsible for the disclosure of
chemicals used in the process.
El Paso County supports the proposed requirements that operators provide 48 hours
advance notice of intent to conduct hydraulic fracturing treatment to the Commission
and that landowner notices shall include the COGCC’s information sheet on hydraulic
fracturing treatments. COGCC has stated that the purpose of the revisions to
landowner notices is, in part, to “offer instruction in the collection of baseline water
samples if the surface owner is concerned about potential impacts from hydraulic
fracturing.” Because it should be important to operators and the COGCC to have
concern about potential impacts from hydraulic fracturing as well, we think it should be
the operator’s duty to collect baseline water samples in all cases. Landowners may not
be knowledgeable about the proper protocols for collecting water samples. Operator
employees or contractors are familiar with the proper procedures for collecting accurate
baseline water samples.
While hydraulic fracturing fluids are injected thousands of feet below aquifers
containing drinking water, the public deserves reassurance that if and when, and for
whatever reason, these fluids are inadvertently released into the environment in a
manner that causes contamination of soils at or near the surface and/or of drinking
water resources, those responsible for the contamination are held responsible. To that
end, El Paso County requests that the proposed COGCC rules be amended to require
that all hydraulic fracturing fluids include an inert marker that will enable the fluids to
be traced to the source of any contamination.
Thank you for the opportunity to comment on the proposed rules and we look forward
to revisions in the spirit of greater transparency and accountability.
Sincerely,
THE BOARD COUNTY COMMISSIONERS,
EL PASO COUNTY, COLORADO
___________________________
Amy Lathen, Chair
___________________________
Sallie Clark, Vice-Chair
___________________________
Darryl Glenn, Commissioner
___________________________
Dennis Hisey, Commissioner
___________________________
Peggy Littleton, Commissioner

The Colorado Environmental Coalition opposes the rule. The group said in a press release:

The proposed rule would give drilling companies the loophole they need so Colorado citizens would not have access to the information they need—and information that Gov. John Hickenlooper believes that citizens deserve.

The proposed regulation requires public disclosure of all fracking fluids but allows companies to hide an unlimited number of chemicals simply by labeling them as trade secrets.

“Commerce City residents are worried about the materials and chemicals used in fracking. Allowing companies to avoid disclosure simply by asserting the need for trade secret protection amounts to disclosure on the honor system,” said Dominick Moreno, Mayor Pro-Tem, Commerce City. “Our residents deserve to know what chemicals are being used only yards away from their homes.”

Under the proposal, the privilege of trade secrets protection would be handed out with no questions asked. Companies would not have to justify or certify their trade secret claims and no state agency would review the requests.

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