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