HARVARD ISSUES STUDY ON DISCLOSURE PRACTICES OF FRACFOCUS

(The following is a reformatted version of a press release
issued by The Harvard Environmental Policy Initiative and
received via electronic mail. The release was confirmed by the
sender.) 
NEW STUDY DETAILS SERIOUS FLAWS IN RELIANCE ON WEBSITE USED FOR
VOLUNTARY DISCLOSURE OF HYDRAULIC FRACTURING CHEMICALS 
Reliance on FracFocus as a Regulatory Compliance Tool Is
Misplaced or Premature 
April 23, 2013 - A new study by the Harvard Environmental Law
Program’s Policy Initiative reveals serious deficiencies in the
disclosure practices of FracFocus, a widely-used website that
allows companies to voluntarily disclose the hydraulic
fracturing chemicals they use in the process of natural gas
drilling known as “fracking.” 
Currently, 18 states require some amount of fracturing chemicals
disclosure. Of those, 11 direct or allow companies to report
chemical use on FracFocus. The report found that the dependence
on FracFocus as a regulatory compliance tool is misplaced or
premature. 
The report, titled “Legal Fractures in Chemical Disclosure
Laws,” details numerous areas of public disclosure deficiencies
from relying on FracFocus. These include: 
·      A lack of transparency about when disclosures are filed,
allowing for late disclosures without penalties; 
·      An impenetrable interface that prevents users from
accessing more than one disclosure form (PDF) at a time, thereby
virtually eliminating any real search functionality; 
·      A lack of state-specific disclosure forms, leaving it to
companies to determine how to account for individual state
reporting requirements; 
·      No review of disclosures by FracFocus and rare pass-through of disclosure filings to states (a review found that 29%
of the chemical identification numbers (CAS) reported at Texas
wells in July 2012 did not exist); and, 
·      An overly broad trade secret regime giving companies sole
discretion to determine when to assert trade secrets. 
“In many instances, states have written tough disclosure
requirements, backed by robust public information laws,” said
Kate Konschnik, Policy Director of the Harvard Environmental Law
Program. “However, when those same states direct companies to
report to FracFocus, they give up a lot of oversight authority.
Meanwhile, the public’s ability to seek additional information
or challenge trade secret claims is lost when an agency is not
in possession of the disclosures.” 
As its name suggests, hydraulic fracturing involves injecting a
large volume of fluid (usually water-based) into a well at high
pressure, to fracture rock. The practice is used to extract oil
and gas from large shale formations across the United States.
Chemicals represent a small fraction of the fracturing fluid;
however, given that millions of gallons of fracturing fluid may
be injected into each well, the fluid may contain thousands of
gallons of chemicals. 
FracFocus was created two years ago this April in response to
public concerns about the chemicals used in the hydraulic
fracturing process. Industry worked with the Interstate Oil and
Gas Compact Commission and the Groundwater Protection Council to
create the voluntary registry. However, FracFocus is not a
regulatory body, nor does it verify the information submitted by
producers and suppliers. 
The report concludes that relying on FracFocus as a de facto
regulatory practice is premature and does not serve the
interests of the public. 
“The reliance by states on FracFocus to provide regulatory
accountability is simply misplaced,” said Konschnik. “Until
significant changes are made, FracFocus remains little more than
a repository for disclosure forms and lacks the necessary
technical capacity and regulatory mandate to effectively provide
the sort of oversight demanded by most states.” 
The Harvard Environmental Policy Initiative works to produce
more effective energy and environmental policy. We identify
regulatory gaps and implementation failures. Then, we propose
solutions and support informed energy and environmental
decision-making with policy-relevant products. 
Contact: Kate Konschnik
Tel.: 617-495-5704
Cell: 240-533-4332
Email: kkonschnik@law.harvard.edu 
(bjh) NY 
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