Reprinted from Land Letter with permission from Environment & Energy Publishing, LLC.

By Scott Streater, E&E reporter

DENVER — A major fight is set to erupt over how much information oil and gas drillers should be required to publicly disclose about the chemicals used in hydraulic fracturing, government and industry lawyers said during a recent seminar.

Disagreement over the issue could even interfere with a $1.9 million congressionally mandated U.S. EPA study designed to determine whether the widespread use of the drilling practice is contaminating drinking water supplies, said Avi Garbow, EPA’s deputy general counsel.

Hydraulic fracturing, or fracking, involves injecting a pressurized mixture of water, sand and chemicals deep underground to push natural gas to the surface. While used within the industry for decades, hydraulic fracturing has come under increased public scrutiny in recent years as its use becomes more widespread in places like the Marcellus and Barnett shale formations.

“It’s an issue of national concern and getting a great deal of national attention,” Garbow told attorneys attending the day-long seminar hosted by the Natural Resources Law Center at the University of Colorado.

EPA in September asked nine hydraulic fracturing service companies to provide information about the chemicals they put into hydraulic fracturing fluids, though the first set of deadlines has already been missed due to what industry officials describe as a voluminous request from the agency.

In addition to the fracking fluid ingredients, EPA also is seeking information the companies have on the effects of the chemicals on human health and the environment, standard operating procedures at their fracturing sites and the locations where fracturing has been conducted.

John Martin, a Washington, D.C., attorney who has represented the energy industry on a number of regulatory issues, told the seminar that the industry is willing to share fracturing fluid information with regulators.

However, drillers insist that the information remain withheld from the public, said Martin, a former Interior Department attorney.

Martin said that contrary to public opinion, the constituents of most fracking mixtures are available to the public. “But if you’re talking about the formulas, that’s a different subject. They are trade secrets … and a business asset,” he said.


Several panelists and audience members questioned how the public could assess the potential impacts of fracturing on water quality without access to data outlining the volume of each chemical that is used.

Wyoming and Colorado, for example, have attempted to fill in the gaps. And Garbow said the role of states and counties in adopting policies to protect drinking water “is paramount.”

The Wyoming Oil and Gas Conservation Commission last summer adopted a first-ever rule requiring drilling companies to disclose the chemicals injected into that state’s oil and gas wells, and eight other states are considering similar measures.

Wyoming Gov. Dave Freudenthal (D), appearing this week on E&ETV’s OnPoint, said that other states with heavy drilling activity need to adopt their own fracking disclosure policies because the federal government has been unwilling or unable to do so.

“I mean, I’m a governor, so generally I believe we can do a better job of anything than the federal government,” Freudenthal said. “And I think the proof of that is that the federal government is back here kind of with one foot nailed to the floor wandering around in circles, and we’ve adopted rules and we’re proceeding forward. And I think that the states [have] the capacity to react quickly and react fairly succinctly … particularly in this fracking area.”

Although two companies — California-based ChemEOR Inc. and Oklahoma-based CESI Chemical Inc. — have asked Wyoming to exempt them from the disclosure requirement, claiming the fluid ingredients are a trade secret, Freudenthal said the industry overall has cooperated with the state’s program.

“I think the issue of transparency is one that has risen within the last … couple or three years, and so I think that everybody is starting to get used to it. In our case, the simplest thing for us to do is just adopt some rules. Require the transparency, put it in place,” he said.

Colorado now requires drilling operators to keep an inventory of fracking liquids on-site and submit them to the state upon request.

Though there has been industry concern about public disclosure, the Colorado policy has already been put to the test twice and worked effectively both times, David Neslin, director of the Colorado Oil and Gas Conservation Commission, told the Denver seminar audience.

In one recent incident, Neslin said state regulators were able to use a driller’s inventory log to determine that fracking fluids were not responsible for a contaminated drinking water well.

“We got the chemical information we sought immediately,” Neslin said, adding that overall the policy “is having a beneficial effect.”


But without detailed data on fracking ingredients, state and local governments are often left grappling for answers when water contamination problems occur.

Example: The Mamm Creek gas field in Garfield County, in the southeast portion of the Piceance Basin, where natural gas drilling activity has dramatically expanded over the last decade.

Garfield County officials suspected that some of the more than 1,000 new gas wells in Mamm Creek had contributed to the contamination of dozens of domestic water wells with methane, chlorates and other substances.

In a detailed 2008 analysis for the county, University of Wyoming geologist Geoffrey Thyne supported Garfield residents’ concerns, finding an apparent trend “of increasing methane in groundwater samples over the last seven years that is coincident with the increased number of gas wells installed in the Mamm Creek Field.”

Judy Jordan, Garfield County’s oil and gas liaison, said researchers believe the gas is still moving up into shallower groundwater and surface water by improperly sealed boreholes.

Yet after five years of study, officials still do not know exactly what volume of chemicals are being injected into the ground, or how they might react with the surrounding geology of the region.

“People are becoming more and more alarmed about water contamination caused by the oil and gas industry,” Jordan said, adding that as long as this perception exists it will affect “how this resource is developed.”


The debate over the safety of fracking activities comes as industry is developing huge shale gas plays in the Barnett Shale in north Texas and the massive Marcellus Shale that extends across portions of Pennsylvania and New York.

Industry interest in the Barnett and Marcellus shales have brought increased public scrutiny to fracking because they are located in densely populated areas, and most of the gas reserves underlie private land.

One major issue discussed during the seminar was whether the volume of natural gas — both in traditional gas fields and the burgeoning shale gas plays — are plentiful enough to warrant the environmental and health risks associated with tapping the resource.

Mean estimates for total U.S. natural gas supply are about 1,800 trillion cubic feet, said Richard Nehring, the president of Colorado Springs, Colo.-based Nehring Associates Inc.

“But there’s a lot of uncertainty,” Nehring added. “We have to take that uncertainty seriously in formulating energy policies.”

Streater writes from Colorado Springs, Colo.

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