North Carolina Mining and Energy Commission approves trade secret protection for chemicals used in hydraulic fracturing

On January 14, 2014, North Carolina’s Mining and Energy Commission passed a rule allowing oil and gas companies to protect trade secrets relating to the chemicals used during hydraulic fracturing. At least 30 days before using the trade secret chemical or mixture, the company must advise the Department of Environment and Natural Resources (“DENR”) and provide the DENR with the following information:
  • The manufacturer’s name, trade or common name of the chemical, CAS registry number, the chemical’s hazardous class and category (if applicable), and the common name or other similar description associated with each chemical contained in the additive or mixture; and
  • The justification for each chemical, additive or mixture to be protected from public disclosure, by filing an affidavit in which the company representative states that the trade secret information is not in the public domain and that the information has been treated in the same manner as other trade secrets within the company, as well as agreeing to notify the DENR if the information loses trade secret status, certifying that the chemical is not regulated under the Federal Safe Drinking Water Act, and certifying that the chemical meets the definition of a trade secret under North Carolina law.
The DENR will then schedule a closed review of the information provided and may require an oral presentation from the company. The rule allows for disclosure to health professionals and emergency responders who provide a written statement of need and execute a confidentiality agreement.

This rule is merely a recommendation to the state legislature which will have a final vote over fracking standards later this year or next. This is one of many regulations that must be issued before the state will lift its moratorium on hydraulic fracturing.

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