In the past ten days, the federal government has articulated different views on the utility and effectiveness of FracFocus, a website used by many operators to report the chemicals used to fracture their wells. [1] In its final regulations issued on March 20, the Bureau of Land Management embeds the website as a primary reporting tool. [2] In contrast, EPA issued a study of FracFocus on March 27 that contains a critique of the information collection service, particularly its allowance of confidential business information (CBI) claims. [3] However, provisions in the BLM rule and limitations in the EPA study combine to mitigate the potential use of the study to undermine the continuing utility of FracFocus.

The BLM Rule

The BLM rule, published in the Federal Register on March 26, concludes a three-year rulemaking effort to update regulations in place since 1988. In the rule, operators must submit information about the chemicals contained in fluids used to fracture a well. This information must be submitted through FracFocus or directly to BLM. [4] As expected, the rule contains specific provisions concerning the extent to which operators may assert claims of confidentiality regarding fracturing fluid components. [5] These provisions include the requirement for an affidavit from a corporate officer substantiating the claim. [6] The scope and rigor of the CBI requirements will almost certainly be debated as the rule undergoes judicial review.

The EPA Study

For the past several years, EPA has been engaged in an assessment of the potential impacts of hydraulic fracturing on drinking water. Completion of the assessment was originally scheduled for 2014, but progress has not kept pace with the Agency's target deadlines. [7] As an installment, EPA issued the results of its analysis of over 38,000 disclosures posted to FracFocus between January 1, 2011, and February 29, 2013. A prominent finding of the study is that "[o]perators designated 11% of all ingredient records as confidential business information, [and] [o]ne or more ingredients were claimed confidential in more than 70% of disclosures." [8]

Implications

Some stakeholders have interpreted the finding as evidence that FracFocus should not be used in the BLM rule for reporting. [9] However, such claims ignore several points, many of which are noted in the study report itself. First, the data do not constitute a complete picture of all fracturing chemicals, because not all wells are covered by the database and many of the states covered in the analysis did not have mandatory reporting during the entire 2011-2013 time frame. [10] Second, EPA studied FracFocus 1.0, a version superseded in June 2013 by 2.0, which in turn will be replaced by version 3.0, both of which have substantial upgrades that yield more robust reporting. [11] Third, while specific ingredient identities may be withheld, FracFocus provides information about the general classes of chemicals reported as CBI. [12] More importantly, the BLM rule provisions bolster FracFocus' reporting requirements and raise the threshold for claiming information as CBI.[13] Moreover, the rule requires disclosure of a general chemical class for each CBI claim. [14]

The BLM believes that the generic chemical name that was or should be provided to the EPA under TSCA or other statutes and published in the Federal Register would not constitute a trade secret because it is or should be public, and the operator can still withhold the specific chemical identity. . . . Therefore, final section 3162.3-3(j)(6) requires the operator to include the generic chemical name for each such chemical. The BLM expects that the generic chemical name submitted pursuant to this rule will be the same as that submitted to EPA; if the generic chemical name is less descriptive than that submitted to EPA, the owner of the information should have a credible explanation for the difference. [15]

These reasons suggest that the EPA study should serve as an informative retrospective, not as evidence that undermines BLM's reliance on FracFocus as a centerpiece in its regulatory scheme.