Illinois’ new hydraulic fracturing regulations

On June 17, 2013, Illinois Governor Pat Quinn signed into law hydraulic fracturing legislation that is possibly the strongest in the nation. The Hydraulic Fracturing Regulatory Act (S.B. 1715) (the “Act”) went into effect immediately and is being enforced by the Illinois Environmental Protection Agency (IEPA) and the Illinois Department of Natural Resources (IDNR). The disclosure of hydraulic fracturing chemicals is an important part of the Act. The Act requires the disclosure of hydraulic fracturing chemicals both before the process takes place and after the process is complete.

The hydraulic fracturing operation must be fully described in the permit application along with a chemical disclosure report identifying all chemicals anticipated to be used in each stage of the process (§1-35(b)(8)); or, if not included with the application, then the disclosure must be made at least 21 days prior to initiating hydraulic fracturing work (§1-77(a)). This report requires identification of chemicals and proppants, including: (a) the total volume of water anticipated to be used or the type and total volume of the base fluid anticipated to be used; (b) each hydraulic fracturing additive anticipated to be used, including the trade name, vendor, a brief descriptor of the intended use or function, and the Material Safety Data Sheet, if applicable; (c) each chemical anticipated to be intentionally added to the base fluid, including the Chemical Abstracts Services number, if applicable; and (d) the anticipated concentration in the base fluid, in percent by mass of each chemical to be intentionally added to the base fluid. §1-35(b)(8)(A)-(D). Within 60 days of finishing hydraulic fracturing activities, the operator must file a completion report with a chemical disclosure report providing the actual volume of chemicals and fluids used. §1-35(f).

Chemicals claimed to be trade secrets can be protected if the person files a justification of the claim containing the following: (a) a detailed description of the procedures used to safeguard the information from becoming available to persons other than those selected by the person to have access to the information; (b) a detailed statement identifying the persons or class of persons to whom the information has been disclosed; (c) a certification that the person has no knowledge that the trade secret information has ever been published or disseminated or otherwise became a matter of general public knowledge; (d) a detailed discussion of why the person believes the information to be of competitive value; and (e) any other information to support the claim. §1-77(g).

These claims can be challenged through the state’s freedom of information law. An exemption can be made for disclosure to a health professional who states why the information is needed. §1-77(l).

In addition to the above, the Act sets out an application process for hydraulic fracturing (§1-35), a public notice requirement (§1-40), a public comment period before fracturing can begin (§1-45), well preparation, construction, and drilling requirements (§1-70), hydraulic fracturing operations requirements (including casing, cementing, and handling of flowback) (§1-75), water quality monitoring (§1-80), and a presumption of pollution (§1-85).