Florida considers hydraulic fracturing disclosure regulations

On January 14, 2014, Florida’s House of Representatives’ Agriculture & Natural Resources Subcommittee passed two bills concerning hydraulic fracturing. The first (H.B. 71) entitled the “Fracturing Chemical Usage Disclosure Act” would require the disclosure of all chemicals used in the hydraulic fracturing process, and the second (H.B. 157) provides an exemption for trade secrets. H.B. 71 will now move forward to the Agriculture & Natural Resources Appropriations Subcommittee, with H.B. 157 going to the Government Operations Subcommittee. If passed by these subcommittees, both bills will then head to the State Affairs Committee before being considered by the full House.

H.B. 71 would require the Florida Department of Environmental Protection (“Department”) to either establish an on-line chemical registry for the disclosures or to designate FracFocus.org as the official state registry. The disclosures must include, “at a minimum, the total volume of water used in the hydraulic fracturing treatment and each chemical ingredient that is subject to 29 C.F.R. § 1910.1200(g)(2) for each well on which hydraulic fracturing treatments are performed by a service provider or vendor or by the well owner or operator if the owner or operator provides such chemical ingredients.” The bill does not require companies to disclose chemicals by concentration or based on the additive in which they are found. The disclosures must be made within 60 days after initiation of hydraulic fracturing operations at the well site.

H.B. 157 would create a public records exemption for trade secrets relating to hydraulic fracturing treatments. The party submitting a trade secret must (i) request that the trade secret be kept confidential and exempt, (ii) inform the Department of the trade secret, and (iii) clearly mark each page or portion of the document containing the trade secret information.

These bills have been met with a mixed response. Some Florida legislators state that these bills should not be considered until after the Department releases its report on the impacts of fracking which is due later this year. The Sierra Club does not believe that these bills go far enough and want disclosure of the volume and identity of all fracking fluids as well as public participation before any hydraulic fracturing activities occur.

This post was written by Barclay Nicholson (barclay.nicholson@nortonrosefulbright.com or 713.651.3662) from Norton Rose Fulbright's Energy Practice Group.