Hydraulic Fracturing:
Chemical Disclosure Requirements
Brandon J. Murrill
Legislative Attorney
Adam Vann
Legislative Attorney
April 4, 2012
Congressional Research Service
7-5700
www.crs.gov
R42461
CRS Report for Congress
Pr
epared for Members and Committees of Congress
Hydraulic Fracturing: Chemical Disclosure Requirements
Summary
Hydraulic fracturing is a technique used to free oil and natural gas trapped underground in low-
permeability rock formations by injecting a fluid under high pressure in order to cause cracks in
the formations. The composition of a fracking fluid varies with the nature of the formation, but
typically contains mostly water; a proppant to keep the fractures open, such as sand; and a small
percentage of chemical additives. Some of these additives may be hazardous to health and the
environment. The Shale Gas Production Subcommittee of the Secretary of Energy Advisory
Board (SEAB) has recommended public disclosure, on a well-by-well basis, of all of the chemical
ingredients added to fracking fluids, with some protection for trade secrets.
Currently, no such law or regulation exists at the federal level. In his 2012 State of the Union
Address, President Barack Obama said he would obligate “all companies that drill for gas on
public lands to disclose the chemicals they use,” citing health and safety concerns. Not long
afterward, the draft of a proposed fracking chemical disclosure rule from the Bureau of Land
Management (BLM) was disclosed. This draft rule would require companies employing hydraulic
fracturing on lands managed by BLM to disclose the content of the fracking fluid. In addition,
there have been legislative efforts in the 112th Congress. H.R. 1084 and S. 587, the Fracturing
Responsibility and Awareness of Chemicals Act (FRAC Act), would create more broadly
applicable disclosure requirements for parties engaged in hydraulic fracturing.
Chemical disclosure laws or proposals at the state level vary widely. Of the 11 current laws and
three proposals examined in this report, only a few require direct public disclosure of chemical
information by mandating that parties post the information on the FracFocus chemical disclosure
website. The level of detail required to be disclosed often depends on how states protect trade
secrets, as these protections may allow submitting parties to withhold information from disclosure
at their discretion or to submit fewer details about proprietary chemicals, except, perhaps, in
emergencies. Even if a disclosure law does not protect information from public disclosure, other
state laws, such as an exemption in an open records law, may do so. States also have varying laws
regarding the timing of these disclosure requirements.
This report provides an overview of current and proposed laws at the state and federal levels that
require the disclosure of the chemicals added to the fluid used in hydraulic fracturing. Appendix
A provides a glossary of many of the terms used in this report. Appendix B contains a table
summarizing the fracking chemical disclosure requirements described in this report. For an
overview of the relationship between hydraulic fracturing and the Safe Drinking Water Act
(SDWA), including a discussion of baseline water testing issues, see CRS Report R41760,
Hydraulic Fracturing and Safe Drinking Water Act Issues, by Mary Tiemann and Adam Vann.
Congressional Research Service
Hydraulic Fracturing: Chemical Disclosure Requirements
Contents
Introduction...................................................................................................................................... 1
Federal Proposals............................................................................................................................. 2
Legislation in the 112th Congress: The FRAC Act .................................................................... 2
Draft Proposed Bureau of Land Management Rule .................................................................. 3
State Disclosure Laws...................................................................................................................... 4
Who Must Make Disclosures and To Whom............................................................................. 4
What Must Be Disclosed ........................................................................................................... 6
Trade Secret Protections............................................................................................................ 8
When Disclosures Must Be Made ........................................................................................... 10
Conclusion ..................................................................................................................................... 12
Tables
Table B-1.Hydraulic Fracturing Chemical Disclosure Requirements............................................ 14
Appendixes
Appendix A. Glossary of Terms..................................................................................................... 13
Appendix B. Summary of Chemical Disclosure Laws .................................................................. 14
Contacts
Author Contact Information........................................................................................................... 18
Congressional Research Service
Hydraulic Fracturing: Chemical Disclosure Requirements
Introduction
Hydraulic fracturing is a technique used to free oil and natural gas trapped underground in low-
permeability rock formations by pumping a fracturing fluid under high pressure in order to cause
cracks in the formations.1 The composition of a fracking fluid varies with the nature of the
formation, but typically contains mostly water; a proppant to keep the fractures open, such as
sand; and a small percentage of chemical additives.2 A primary function of these additives is to
assist the movement of the proppant into the fractures made in the formation by reducing friction
between the fracking fluid and the pipe used to pump the fluid into the formation.3 Although
some of these chemical additives may be harmless, others may be hazardous to health and the
environment.4 A report by the minority staff of the House Committee on Energy and Commerce
found that between 2005 and 2009, the 14 leading oil and gas service companies used “780
million gallons of hydraulic fracturing products” in fracking fluids, with “95 of the products
containing 13 different carcinogens.”5
The Shale Gas Production Subcommittee of the Secretary of Energy Advisory Board (SEAB) has
made several recommendations intended to address the effect of shale gas production on health
and the environment.6 One recommendation calls for the public disclosure, on a “well-by-well
basis,” of all of the chemical ingredients—“not just those that appear on Material Safety Data
Sheets”—added to fracking fluids, with some protection for trade secrets.7 Proponents of
chemical disclosure laws maintain that public disclosure would allow for health professionals to
better respond to medical emergencies involving human exposure to the chemicals; assist
researchers in conducting health studies on shale gas production; and permit regulators and others
to perform baseline water testing to track potential groundwater contamination if it occurs.8
However, some manufacturers of the additives, as well as others in the industry, remain reluctant
to disclose what they consider to be proprietary chemical formulas, expressing concerns that they
would lose their valuable trade secrets if competitors had access to them.9
This report provides an overview of current and proposed laws at the state and federal levels that
require the disclosure of the chemicals added to the fluid used in hydraulic fracturing. Currently,
1 DEP’T OF ENERGY, MODERN SHALE GAS DEVELOPMENT IN THE UNITED STATES: A PRIMER, ES-4 (2009) [hereinafter
DEP’T OF ENERGY PRIMER], available at http://www.netl.doe.gov/technologies/oil-gas/publications/epreports/
shale_gas_primer_2009.pdf.
2 See id. at 56, 61-64.
3 Id.; RESERVOIR STIMULATION §§7-6.2, 7-6.4 (Michael J. Economides et al. eds, 3d ed. 2000).
4 DEP’T OF ENERGY PRIMER, supra note 1, at 62.
5 MINORITY STAFF OF H. COMM. ON ENERGY AND COMMERCE, 112TH CONG., CHEMICALS USED IN HYDRAULIC
FRACTURING 5, 9 (2011) [hereinafter MINORITY REPORT ON FRACKING CHEMICALS], available at
http://democrats.energycommerce.house.gov/sites/default/files/documents/
Hydraulic%20Fracturing%20Report%204.18.11.pdf.
6 DEP’T OF ENERGY, SHALE GAS PRODUCTION SUBCOMMITTEE SECOND NINETY DAY REPORT 1 (2011), available at
http://www.shalegas.energy.gov/resources/111811_final_report.pdf.
7 Id. at 5-6, 17. Employers are required to use MSDSs to warn employees of certain hazardous chemicals in the
workplace under the Occupational Safety and Health Act. See 29 C.F.R. §1910.1200.
8 See Lisa Song, Secrecy Loophole Could Still Weaken BLM’s Tougher Fracking Regs, INSIDECLIMATE NEWS, February
15, 2012, available at http://insideclimatenews.org/news/20120215/blm-fracking-chemicals-disclosure-hydraulic-
fracturing-proprietary-natural-gas-drilling.
9 See MINORITY REPORT ON FRACKING CHEMICALS, supra note 5, at 11-12.
Congressional Research Service
1
Hydraulic Fracturing: Chemical Disclosure Requirements
no such law or regulation exists at the federal level. In his 2012 State of the Union Address,
President Barack Obama said he would obligate “all companies that drill for gas on public lands
to disclose the chemicals they use,” citing health and safety concerns.10 Not long afterward, a
draft of a proposed fracking chemical disclosure rule from the Bureau of Land Management
(BLM) that would require disclosure of the content of fracking fluids used on lands managed by
BLM was disclosed. In addition, there have been legislative efforts in the 112th Congress. H.R.
1084 and S. 587, the Fracturing Responsibility and Awareness of Chemicals Act (FRAC Act),
would create more broadly applicable disclosure requirements for parties engaged in hydraulic
fracturing.
At the state level, the Interstate Oil and Gas Compact Commission, an organization with members
that include state regulators and industry representatives, has argued that current regulation of
hydraulic fracturing by the states is sufficient.11 At least 11 states already have some form of
chemical disclosure requirements. These provisions vary widely, but generally indicate (1) which
parties must disclose information about chemical additives and whether these disclosures must be
made to the public or a state agency; (2) what information about chemicals added to a fracking
fluid must be disclosed, including how specifically individual chemical ingredients and their
actual concentrations within particular additives must be described; (3) what protections, if any,
will be given to trade secrets; and (4) at what time disclosure must be made in relation to when
the fracking takes place. Others states are in the process of considering disclosure laws or
regulations.
For a glossary of some of the terms used in this report, see Appendix A. For a table summarizing
the chemical disclosure laws and proposals described in this report, see Appendix B.
Federal Proposals
Legislation in the 112th Congress: The FRAC Act
On March 15, 2011, the Fracturing Responsibility and Awareness of Chemicals Act of 2011
(FRAC Act), H.R. 1084 and S. 587, was introduced in both the Senate and the House of
Representatives. The bills have some minor language differences, but are substantially similar.
(They also are similar to bills introduced in the past Congress.) Each contains two amendments to
the Safe Drinking Water Act (SDWA)—one that would amend the definition of underground
injection to include hydraulic fracturing, and another that would create a new disclosure
requirement for the chemicals used in hydraulic fracturing.
The second amendment to the SDWA in the FRAC Act would create a new hydraulic fracturing
disclosure requirement. H.R. 1084 would create a new statutory obligation requiring anyone
conducting hydraulic fracturing to
10 President Barack Obama, 2012 State of the Union Address (January 24, 2012), available at
http://www.whitehouse.gov/photos-and-video/video/2012/01/25/2012-state-union-address-enhanced-
version#transcript.
11 See, e.g., Interstate Oil and Gas Compact Comm’n, Hydraulic Fracturing, available at http://www.iogcc.state.ok.us/
hydraulic-fracturing.
Congressional Research Service
2
Hydraulic Fracturing: Chemical Disclosure Requirements
disclose to the State (or the Administrator [of the Environmental Protection Agency] if the
Administrator has primary enforcement responsibility in the State)—(I) prior to the
commencement of any hydraulic fracturing operations at any lease area of portion thereof, a
list of chemicals intended for use in any underground injection during such operations,
including identification of the chemical constituents of mixtures, Chemical Abstracts Service
numbers for each chemical and constituent, material safety data sheets when available, and
the anticipated volume of each chemical; and (II) not later than 30 days after the end of any
hydraulic fracturing operations the list of chemicals used in each underground injection
during such operations, including identification of the chemical constituents of mixtures,
Chemical Abstracts Service numbers for each chemical and constituent, material safety data
sheets when available, and the volume of each chemical used.12
The bill would also require that the state or the Environmental Protection Agency (EPA) “make
the disclosure of chemical constituents ... available to the public, including by posting the
information on an appropriate Internet Web site,” and the bill clarifies that the disclosure
requirements “do not authorize the State (or the [EPA]) to require the public disclosure of
proprietary information.”13 In other words, the disclosure requirements address only the
chemicals used, not the manner of their use or the amounts or ratios in which they are used. This
language attempts to protect proprietary business information, that is, “secret” formulas or
practices that drilling companies may feel they should not be required to disclose to their
competitors.
Furthermore, the FRAC Act would require operators to disclose proprietary chemical information
to medical professionals in cases of medical emergencies.14 Although most state oil and gas rules
do not require disclosure of proprietary chemical information to medical professionals, such
disclosure broadly parallels federal requirements under the Occupational Safety and Health Act
(OSHAct).15 Calls for disclosure of hydraulic fracturing chemicals have increased as homeowners
and others express concern about the potential presence of unknown chemicals in tainted well
water near oil and gas operations.
Draft Proposed Bureau of Land Management Rule
In early 2012, BLM circulated a draft version of proposed regulations that would require parties
holding oil and gas leases on federal lands managed by BLM to disclose publicly the additives in
hydraulic fracturing fluid.16 The draft version would require proposals for “well stimulation
operations” on BLM-managed land to submit, among other things, a report that “discloses all
additives of the proposed stimulation fluid by additive trade name” as well as a report that
12 H.R. 1084, §2(b).
13 Id.
14 Id.
15 The Occupational Safety and Health Administration has promulgated a set of regulations under Occupational Safety
and Health Act (OSHAct), referred to as the Hazard Communication Standard (29 C.F.R. §1910.1200). Additionally,
OSHAct regulations require operators to maintain Material Safety Data Sheets (MSDS) for hazardous chemicals at the
job site. The federal Emergency Planning and Community Right to Know Act (EPCRA) requires that facility owners
submit an MSDS for each hazardous chemical present that exceeds an EPA-determined threshold level, or a list of such
chemicals, to the local emergency planning committee (LEPC), the state emergency response commission, and the
local fire department. For non-proprietary information, EPCRA generally requires a LEPC to provide an MSDS to a
member of the public on request.
16 Mike Soraghan, Hydraulic Fracturing: BLM Proposes More Disclosure than Most States, Greenwire, February 6,
2012.
Congressional Research Service
3
Hydraulic Fracturing: Chemical Disclosure Requirements
“discloses the complete chemical makeup of all materials used in the proposed stimulation fluid
without regard to original source additive.”17 The proposed rule would require the submission of
other details regarding the “well stimulation program” in addition to the composition of the fluid
to be used, including things like volume of fluid to be used, injection pressure, estimated fracture
length, plans for recovery of the fluid, and plans for treatment of recovered fluid.18 Information
about the fracking operation must be updated after the drilling on the Subsequent Report Sundry
Notice.19
This draft rule has not yet been published in the Federal Register as of the date of this report.
State Disclosure Laws
Of the states that produce oil, natural gas, or both, at least 11 require some disclosure of
information about the chemicals added to the hydraulic fracturing fluid used to stimulate a
particular well.20 State requirements, which take the form of laws, regulations, and administrative
interpretations, vary widely. Generally, they fall into four overlapping categories: (1) which
parties must disclose information about chemical additives and whether these disclosures must be
made to the public or a state agency; (2) what information about chemicals added to a fracking
fluid must be disclosed, including how specifically individual chemical ingredients and their
actual concentrations within particular additives must be described; (3) what protections, if any,
will be given to trade secrets; and (4) at what time disclosure must be made in relation to when
the fracking takes place. States update their laws on fracking chemical disclosure frequently, and
thus this section is designed to show trends in how states structure these provisions rather than to
describe the current status of the law in any particular state. Appendix A provides a glossary of
many of the terms used in this section. Appendix B contains a table summarizing the chemical
disclosure requirements discussed in this report.
Who Must Make Disclosures and To Whom
State disclosure laws require at least one party involved in the hydraulic fracturing of a specific
well to divulge information about the chemicals added to the fluid used to frack that well. Under
these laws, parties that must make disclosures include well owners, well operators, drilling permit
holders, or “persons” that perform a fracking treatment, such as service companies.21 Parties
typically must divulge chemical information to the public, a state agency, or both. States that
require public disclosure often mandate that parties post the information on an Internet website
such as the FracFocus Chemical Disclosure Registry run by the Groundwater Protection Council
17 BLM Proposed Draft Rules at §3162.3-3(a)(4) and (5), available at http://www.eenews.net/assets/2012/02/06/
document_gw_01.pdf.
18 Id. at §3162.3-3(a)(8) and (9).
19 Id. at §3162.3-3(f).
20 At least three additional states have taken significant steps toward the adoption of disclosure obligations.
21 Some states specifically provide for an intermediate stage of disclosure before the information is submitted to
regulators or the public. See, e.g., 178-00 ARK. CODE R. §001:B-19(k), (l)(4) (person fracking the well to permit
holder); COLO. CODE REGS. §404-1:205A(b)(1), (2) (certain service providers and vendors to operator); 58 PA. CONS.
STAT. §3222.1(b)(1), (2) (certain service providers and vendors to operator); 16 TEX. ADMIN. CODE §3.29(c)(1)(A),
(2)(A) (supplier or service company to operator).
Congressional Research Service
4
Hydraulic Fracturing: Chemical Disclosure Requirements
and the Interstate Oil and Gas Compact Commission.22 Some state laws do not require direct
public disclosure of fracking chemicals. However, some state agencies may choose to post the
information they receive on their own websites. Additionally, state open records laws may allow a
person to obtain chemical information submitted to a state agency upon request, provided that the
information is not shielded from disclosure by an exception, such as an exemption for trade
secrets.23
Mandatory disclosure directly to the public already occurs in at least three states: Colorado,24
Pennsylvania (for unconventional wells),25 and Texas.26 In these states, parties must post chemical
information on the FracFocus Chemical Disclosure Registry or a comparable website.27 At least
two states give disclosing parties a choice as to whether they will submit the information to a
state agency or post it on a website accessible to the public: Louisiana28 and Montana.29 At least
two additional states have proposed public disclosure. North Dakota would require that chemical
information be posted on FracFocus,30 and a California bill would have a state agency add the
information to maps on its website so that the public could view a “list of chemicals ... associated
with each specific well where those chemicals were injected.”31
At least six states where commercial natural gas exploration and production occur do not
specifically provide for public disclosure, choosing instead to have parties submit details on
chemical additives solely to state agencies, some of which may opt to post these disclosures to
their websites.32 These include Arkansas,33 Michigan,34 New Mexico,35 West Virginia,36 and
22 The website is located at http://fracfocus.org/.
23 See, e.g., WYO. CODE RULES AND REGS. OIL GEN. §45(f) (stating that fracking chemical information will be protected
to the extent of the Wyoming Public Records Act’s exemption for “trade secrets, privileged information and
confidential commercial, financial, geological or geophysical data furnished by or obtained from any person.”).
24 COLO. CODE REGS. §404-1:205A(b)(2).
25 58 PA. CONS. STAT. §3222.1(b)(2). The law takes effect on April 14, 2012.
26 TEXAS ADMIN. CODE §3.29(c)(2)(A).
27 The FracFocus website is not currently searchable or sortable by characteristics such as “geographic area, chemical
ingredient, chemical abstract service number, time period and operator.” See 58 PA. CONS. STAT. §3222.1(b)(6). A
couple of state laws provide that if it does not become searchable or sortable by a certain date, then chemical
information may have to be disclosed to a state agency for posting on a state website that is searchable and sortable.
See, e.g., 58 PA. CONS. STAT. §3222.1(b)(6); COLO. CODE REGS. §404-1:205A(b)(3).
28 Louisiana’s regulation states that the operator must make disclosures to the state agency or “furnish a statement
signifying that the required information has been submitted” to the FracFocus site or a comparable registry, so long as
“all information is accessible to the public free of charge.” LA. ADMIN. CODE tit. 43, §118(C)(1), (C)(4).
29 For disclosures made after fracking, the Montana Board of Oil and Gas may waive disclosure to the state if the owner
or operator of the well “demonstrates that it has posted the required information” to FracFocus or another website that
can be accessed by the public and meets with the state agency’s approval. MONT. ADMIN. R. 36.22.1015(4).
30 Proposed Rule on Hydraulic Fracture Stimulation (November 9, 2011) (would be codified at N.D. ADMIN. CODE 43-
02-03-27.1(2)(h)) [hereinafter N.D. PROPOSED RULE], available at https://www.dmr.nd.gov/oilgas/
rules2012changes.pdf.
31 Assemb. B. 591, §5, 2011-12 Gen. Assemb., Reg. Sess. (Ca. 2011).
32 See, e.g., State of Ark. Oil and Gas Comm’n, Well Fracture Information, http://www.aogc.state.ar.us/
Well_Fracture_Companies.htm.
33 178-00 ARK. CODE R. §001:B-19(k), (l)(3).
34 See MICH. DEP’T OF ENVTL. QUALITY, SUPERVISOR OF WELLS INSTRUCTION 1-2011, HIGH VOLUME HYDRAULIC
FRACTURING WELL COMPLETIONS 3 (2011) [hereinafter MICH. FRACKING INSTRUCTION], available at
http://www.michigan.gov/documents/deq/SI_1-2011_353936_7.pdf.
35 N.M. ADMIN. CODE §19.15.16.19(B).
Congressional Research Service
5
Hydraulic Fracturing: Chemical Disclosure Requirements
Wyoming.37 New York’s proposed rule would do the same.38 In Ohio, disclosures are made to the
state agency, but the chief of the agency must post a Material Safety Data Sheet for chemicals on
the agency’s website if a data sheet is not already available, so that the public may view it.39
The particular parties involved in the fracking of a well that must disclose chemical information
to regulators or the public vary by state. In about half of the states with these laws, only the
operator of the well must disclose information about the chemicals used. This occurs in
Colorado,40 Louisiana,41 Michigan,42 New Mexico,43 Pennsylvania,44 and Texas.45 State laws or
proposals that require disclosure by either the owner or operator of the well include California
(proposed law),46 Montana (after fracking),47 and New York (proposed rule).48 The operator, well
owner, or service company would have to divulge chemical information after fracking in
Wyoming,49 and a rule has been proposed that would create a similar requirement in North
Dakota (after fracking).50 In Arkansas, any “person” fracking a well in the state must disclose
chemical information before fracking, and the permit holder must divulge more detailed
information afterward.51 In Ohio, responsibility for disclosure falls to any “person drilling within
the state.”52
What Must Be Disclosed
State disclosure laws require parties to provide various levels of detail about the composition of
the chemical additives used in a fracking fluid. Because some states contain protections for trade
secrets that may allow parties to withhold chemical information from regulators or the public, it
may be difficult to compare the actual level of disclosure required.53 Moreover, in a few states,
(...continued)
36 W. VA. CODE §22-6A-7(a)-(b), (e)(5).
37 WYO. CODE RULES AND REGS. OIL GEN. §45(d), (h).
38 Proposed Rule on Operations Associated with High-Volume Hydraulic Fracturing, 33 N.Y. Reg. 11, 11-16
(September 28, 2011) (would be codified at 6 N.Y. CODES, RULES AND REGS. §560.3(c)(1)) [hereinafter N.Y. PROPOSED
RULE], available at http://www.dec.ny.gov/regulations/77401.html.
39 OHIO REV. CODE §1509.10(A), (E).
40 COLO. CODE REGS. §404-1:205A(b)(2). The rule took effect on April 1, 2012.
41 LA. ADMIN. CODE tit. 43, §118(C)(1), (C)(4).
42 See MICH. FRACKING INSTRUCTION, supra note 34, at 3.
43 N.M. ADMIN. CODE §19.15.16.19(B).
44 58 PA. CONS. STAT. §3222.1(b)(2).
45 16 TEX. ADMIN. CODE §3.29(c)(2)(A).
46 Assemb. B. 591, §5, 2011-12 Gen. Assemb., Reg. Sess. (Ca. 2011).
47 See MONT. ADMIN. R. 36.22.1015(1), (4).
48 N.Y. PROPOSED RULE, supra note 38 (would be codified at 6 N.Y. CODES, RULES AND REGS. §560.3(c)(1)).
49 WYO. CODE RULES AND REGS. OIL GEN. §45(d), (h).
50 N.D. PROPOSED RULE, supra note 30 (would be codified at N.D. ADMIN. CODE 43-02-03-27.1(2)(h)).
51 178-00 ARK. CODE R. §001:B-19(k), (l)(3). In West Virginia, the permit applicant must make the disclosures before
fracking, and the operator must make them after fracking. W. VA. CODE §22-6A-7(a)-(b), (e)(5).
52 OHIO REV. CODE §1509.10(A).
53 For a discussion of these protections, see “Trade Secret Protections,” infra. These protections may be contained in a
state’s fracking chemical disclosure law or, for disclosures made to state agencies, an exemption for trade secrets
contained in a state’s open records law.
Congressional Research Service
6
Hydraulic Fracturing: Chemical Disclosure Requirements
decisions about what details are trade secrets exempt from disclosure are made by the state
attorney general or a state agency. These decision makers may shield information from public
disclosure at their discretion, typically subject to judicial review.54 This section provides a few
examples of state laws that require different levels of disclosure, but does not take into account
the trade secret protections in those states. For a table showing the most specific level of
disclosure required on a state-by-state basis, see Appendix B.
The level of disclosure required by a particular law depends on how specifically parties must
describe the chemical composition of the fracking fluid and the additives that are combined with
it. Some states require a relatively high level of disclosure, at least before trade secret protections
are taken into account. For example, Colorado requires parties to identify each chemical
ingredient in the overall fracking fluid by its Chemical Abstracts Service (CAS) number55 and to
provide the maximum concentration of each ingredient within the fluid.56 Louisiana obligates
parties to provide the CAS numbers and maximum concentrations of hazardous ingredients
within the additives, but not nonhazardous ingredients.57 Other states require fewer details about
the composition of a fracking fluid. For example, West Virginia requires only that a list of
additives be provided.58 Between these two ends of the spectrum are laws or proposals such as a
California bill that would require parties to submit a complete list of chemical ingredients in the
fracking fluid by CAS number, but would not require them to provide any information about
chemical ingredient concentrations.59 Similarly, some states obligate parties to furnish the specific
identities of ingredients within the total fracking fluid but do not require that these identities be
linked to particular additives, as Arkansas does.60 At least three states require disclosures to be
made before and after fracking. In these states, the level of disclosure differs depending on
whether the information is submitted before or after treatment of the well.61
Some states require that parties submit Material Safety Data Sheets (MSDSs) for additives or
chemical ingredients in a fracking fluid.62 Employers are required to use MSDSs to warn
employees of hazardous chemicals in the workplace under the OSHAct.63 Because MSDSs
54 See, e.g., 178-00 ARK. CODE R. §001:B-19(k)(8), (l)(3)(C) (director of state agency); TEXAS ADMIN. CODE §3.29(f)
(state attorney general); WYO. CODE RULES AND REGS. OIL GEN. §45(f) (state agency).
55 For more about these numbers, see CAS Registry Numbers, http://www.cas.org/expertise/cascontent/registry/
regsys.html.
56 COLO. CODE REGS. §404-1:205A(b)(2)(A)(ix)-(xii). It does not require parties to link the ingredients to the additive of
which they are a part.
57 LA. ADMIN. CODE tit. 43, §118(C)(1)(d)-(e). The Louisiana rule states that this information must be provided for
“ingredients contained in the hydraulic fracturing fluid that are subject to the requirements of 29 CFR Section
1910.1200(g)(2).” In other words, the information must be provided for those ingredients that are hazardous according
to the OSHAct regulations on workplace hazard communication.
58 See, e.g., W. VA. CODE §22-6A-7(e)(5). Other information that may provide a relatively low level of disclosure
includes information such as additive type (for example, acid, biocide, or breaker); trade name or vendor of an additive;
or volume an additive. See, e.g., LA. ADMIN. CODE tit. 43, §118(C)(1)(a)-(c) (requiring some of these characteristics but
also requiring a higher level of disclosure for hazardous ingredients).
59 Assemb. B. 591, §4, 2011-12 Gen. Assemb., Reg. Sess. (Ca. 2011).
60 178-00 ARK. CODE R. §001:B-19(k)(7)-(8), (l)(3)(C).
61 These states include Arkansas (more detail afterward), Montana (more detail afterward), and Wyoming (less detail
afterward). See 178-00 ARK. CODE R. §001:B-19(k)(7)-(8), (l)(3)(C); MONT. ADMIN. R. 36.22.608; MONT. ADMIN. R.
36.22.1015; WYO. CODE RULES AND REGS. OIL GEN. §45(d), (h).
62 See, e.g., OHIO REV. CODE §1509.10(E); MICH. FRACKING INSTRUCTION, supra note 34, at 3.
63 See 29 C.F.R. §1910.1200(a)(1).
Congressional Research Service
7
Hydraulic Fracturing: Chemical Disclosure Requirements
provide data only on chemicals considered to be hazardous under OSHA regulations, they may
offer a relatively low level of disclosure. The most specific details that parties must include on
MSDSs are the common or chemical names of certain hazardous ingredients, assuming that the
names do not qualify for trade secret protection.64 Thus, under the regulations, CAS numbers or
the concentrations of ingredients within an additive do not have to be listed.65 This does not
mean, however, that a state agency could not require parties to list more detailed information on
MSDSs, or that some parties would not voluntarily submit data sheets with more information.
A few states specifically exempt certain information from disclosure. In Colorado, a party is not
required to
(1) disclose chemicals that are not disclosed to it by the manufacturer, vendor, or service
provider; (2) disclose chemicals that were not intentionally added to the hydraulic fracturing
fluid; or (3) disclose chemicals that occur incidentally or are otherwise unintentionally
present in trace amounts, may be the incidental result of a chemical reaction or chemical
process, or may be constituents of naturally occurring materials that become part of a
hydraulic fracturing fluid.66
Laws in Pennsylvania67 and Texas68 contain similar language.
Trade Secret Protections
Closely related to what must be submitted under a particular disclosure law are the protections
provided for trade secrets. More than half of the disclosure laws or proposals examined contain
trade secret protections. A state may require detailed disclosure of chemical information, but if it
also provides a high degree of protection for trade secrets, parties may be able to avoid making
significant disclosures to a state agency or the public. Although the definition of a “trade secret”
may differ under various states’ laws, this section assumes that a trade secret is: (a) information
valuable to its owner because others who could obtain value from it do not know the information
and cannot easily discover it; and (b) information that is subject to reasonable measures to protect
it from disclosure.69 Whether a particular law requires the public disclosure of trade secrets may
have implications for whether a court would find that the law effects a taking of property under
the Takings Clause of the Fifth Amendment—a finding that could potentially require that just
compensation be made to the owner of the trade secrets.70
Some disclosure laws or proposals lack trade secret protections. These include California
(proposed law), Michigan, North Dakota (proposed rule), Ohio, and West Virginia. Some of these
64 See id. §1910.1200(g)(2), (i).
65 See id.
66 COLO. CODE REGS. §404-1:205A(c).
67 58 PA. CONS. STAT. §3222.1(c).
68 16 TEX. ADMIN. CODE §3.29(d).
69 See U.T.S.A. §1(4) (1985). A few states continue to rely on the definition provided in the Restatement of Torts,
RESTATEMENT OF TORTS §757 cmt. b (1939). Texas provides a definition of “trade secret” within its chemical
disclosure law that is based on the Restatement definition. 16 TEX. ADMIN. CODE §3.29(a)(26).
70 See generally Ruckelshaus v. Monsanto, 467 U.S. 986 (1984) (holding that when the government discloses trade
secrets that a party has been required to submit to the government by law, a taking could result in some circumstances);
Philip Morris v. Reilly, 312 F.3d 24 (1st Cir. 2002) (en banc) (holding that a law that compels disclosure of a party’s
trade secrets may effect a taking).
Congressional Research Service
8
Hydraulic Fracturing: Chemical Disclosure Requirements
states may not provide trade secret protections because the information required to be disclosed
under their laws is not detailed enough to be considered a trade secret, perhaps because it is
knowledge that is generally known or easily discoverable.71 Or, in some instances, trade secret
protections may be provided in another state law, such as an exemption for trade secrets contained
in an open records law that could allow a state agency that had received chemical information to
prevent it from being disclosed to the public.72
At least one state allows parties to withhold all details about fracking additives that the parties
consider to be trade secrets. New Mexico’s rule states, “The division does not require the
reporting or disclosure of proprietary, trade secret or confidential business information,”
apparently leaving the determination of what may be excluded to the discretion of the submitter.73
In contrast, a few states allow withholding only if parties provide alternative information about
chemical ingredients to regulators or the public for disclosure, such as the chemical family for the
ingredients. For example, Montana asks that, for withheld trade secret chemicals, parties provide
the “trade name, inventory name, chemical family name, or other unique name and the quantity of
such constituent(s) used.”74 In Montana, as well as in Colorado75 and Louisiana,76 when parties
withhold information and provide a less detailed description of chemical additives, regulators do
not have the authority to force disclosure in ordinary circumstances. However, as described
below, some states make an exception and require disclosure in special circumstances like spills
or medical emergencies.
Some disclosure laws give the state attorney general or a state agency the authority to approve or
deny an exemption for trade secrets. These laws vary as to whether parties may withhold the
information prior to the decision or must first submit it to the state. For example, the Texas rule,
which allows parties to initially withhold information, allows landowners and others to challenge
a claim of trade secret protection and lists procedures to be used by the state attorney general to
decide whether to exempt the information from disclosure.77 New York’s proposed rule would
require that parties first submit the information to a state agency. Parties could request an
exemption for their trade secrets under the state environmental agency’s open records rules,
which provide procedures and standards by which the agency decides whether to grant or deny
confidentiality protection to proprietary information.78 In Wyoming, the state oil and gas
commission decides whether information that has been submitted to it is exempt from public
disclosure.79
At least six disclosure laws make an exception to trade secret protections for situations in which a
health care professional needs the information in order to provide medical care. Typically, the
71 See supra sources cited note 69; see also Philip Morris, 312 F.3d at 27 (lead opinion) (discussing how companies
challenging a disclosure law feared that the disclosure of the relative amounts of ingredients in their products would
allow competitors to reverse engineer the chemical formulas for them).
72 See WYO. CODE RULES AND REGS. OIL GEN. §45(f).
73 N.M. ADMIN. CODE §19.15.16.19(B).
74 MONT. ADMIN. R. 36.22.1016(1).
75 COLO. CODE REGS. §404-1:205A(b)(2)(B)-(C), (d).
76 LA. ADMIN. CODE tit. 43, §118(C)(2)(a).
77 16 TEX. ADMIN. CODE §3.29(e)-(f).
78 N.Y. PROPOSED RULE, supra note 48 (would be codified at 6 N.Y. CODES, RULES AND REGS. §560.3(c)(2)).
79 WYO. CODE RULES AND REGS. OIL GEN. §45(f) (referring to a provision in the Wyoming Public Records Act).
Congressional Research Service
9
Hydraulic Fracturing: Chemical Disclosure Requirements
professional must execute a confidentiality agreement before or after disclosure occurs.80 For
example, Colorado’s rule states the following:
Vendors, service companies, and operators shall identify the specific identity and amount of
any chemicals claimed to be a trade secret to any health professional who requests such
information in writing if the health professional provides a written statement of need for the
information and executes a confidentiality agreement, Form 35. The written statement of
need shall be a statement that the health professional has a reasonable basis to believe that
(1) the information is needed for purposes of diagnosis or treatment of an individual, (2) the
individual being diagnosed or treated may have been exposed to the chemical concerned, and
(3) knowledge of the information will assist in such diagnosis or treatment.81
In addition, Colorado’s rule provides that in immediate medical emergencies, trade secret
information must be provided to the health professional “upon a verbal acknowledgement by the
health professional that such information shall not be used for purposes other than the health
needs asserted and that the health professional shall otherwise maintain the information as
confidential.”82 A written confidentiality agreement may be requested “as soon as circumstances
permit.”83 Other states with some form of medical emergency exception include Arkansas
(confidentiality agreement not required in law),84 Louisiana (confidentiality agreement not
required in law),85 Montana (confidentiality agreement may be required in non-emergencies; may
be requested in emergencies),86 Pennsylvania (written confidentiality agreement required in non-
emergencies; may be requested in emergencies when circumstances permit),87 and Texas
(information must be held confidential).88 Colorado’s rule provides a similar kind of exception for
disclosures provided to state agency employees responding to a spill or release, with provisions
for confidentiality,89 as do similar provisions in states such as Montana90 and Pennsylvania.91
When Disclosures Must Be Made
A few states mandate disclosures both before and after each fracking treatment. For example,
Wyoming requires a party to divulge additives and compounds “proposed to be mixed and
injected” prior to stimulation of the well.92 After the procedure, at least one of the applicable
80 This may be intended to ensure that a disclosing party preserves any trade secrets disclosed, as trade secrets may be
destroyed if revealed to a third party without a confidentiality agreement. See sources cited supra note 69.
81 COLO. CODE REGS. §404-1:205A(b)(5).
82 Id.
83 Id.
84 178-00 ARK. CODE R. §001:B-19(k)(9), (l)(5). A couple of states’ exceptions provide that trade secrets must be
disclosed in emergencies when state or federal law requires disclosure. See, e.g., 178-00 ARK. CODE R. §001:B-
19(k)(9), (l)(5); LA. ADMIN. CODE tit. 43, §118(C)(3).
85 LA. ADMIN. CODE tit. 43, §118(C)(3).
86 MONT. ADMIN. R. 36.22.1016(3)-(4).
87 PA. CONS. STAT. §3222.1(b)(10)-(11). If a confidentiality agreement is requested, the health professional must
provide one.
88 16 TEX. ADMIN. CODE §3.29(c)(4), (g). The Texas rule borrows some of its confidentiality procedures from OSHA’s
regulations on hazard communication at 29 C.F.R. §1910.1200(i). 16 TEX. ADMIN. CODE §3.29(c)(4).
89 COLO. CODE REGS. §404-1:205A(d).
90 MONT. ADMIN. R. 36.22.1016(2).
91 PA. CONS. STAT. §3222.1(d)(2).
92 WYO. CODE RULES AND REGS. OIL GEN. §45(d).
Congressional Research Service
10
Hydraulic Fracturing: Chemical Disclosure Requirements
parties must disclose information about the actual chemicals used.93 Similar rules exist in
Arkansas94 and Montana,95 which both require that disclosures made after fracking contain a
higher level of detail than those made before fracking. Disclosures made prior to fracking that
specifically identify the chemicals that will be used potentially give parties with access to the data
the opportunity to perform baseline testing on water sources near the drilling site for those
particular chemicals.96 Baseline testing results can then be compared with results from post-well
stimulation testing to see if any groundwater contamination has occurred and, if it has, to possibly
locate its source.97
Most of the other state disclosure laws require parties to submit information about the chemicals
used to frack a well at a single time following the drilling, fracking, or completion of the well.
States with laws that require disclosure after completion of a well that has been fracked include
Louisiana (within 20 days),98 New Mexico (within 45 days),99 and Texas (timeframe varies).100
Ohio law mandates disclosures within 60 days after completion of the drilling of the well to the
“proposed total depth” or “after a determination that a well is a dry or lost hole.”101 A California
bill,102 Colorado,103 and Pennsylvania (unconventional wells)104 require disclosure within 60 days
after a fracking treatment ends.
North Dakota’s proposed rule is unique. In addition to requiring disclosure after fracking is
carried out, it would also require disclosure when pressure in the space between the intermediate
casing and surface casing in the well goes beyond a certain threshold.105
93 Id. §45(h).
94 178-00 ARK. CODE R. §001:B-19(k), (l)(3).
95 MONT. ADMIN. R. 36.22.608; MONT. ADMIN. R. 36.22.1015. New York has proposed to require disclosure prior to
fracking in the drilling permit application, but not after fracking. N.Y. PROPOSED RULE, supra note 38 (would be
codified at 6 N.Y. CODES, RULES AND REGS. §560.3(c)).
96 AM. PETROLEUM INST., HYDRAULIC FRACTURING OPERATIONS—WELL CONSTRUCTION AND INTEGRITY GUIDELINES
§10.2 (2009), available at http://www.api.org/~/media/Files/Policy/Exploration/API_HF1.ashx; see also CRS Report
R41760, Hydraulic Fracturing and Safe Drinking Water Act Issues, by Mary Tiemann and Adam Vann.
97 See sources cited supra note 96.
98 LA. ADMIN. CODE tit. 43, §118(C)(1) (referring to LA. ADMIN. CODE tit. 43, §105 for the timeframe).
99 N.M. ADMIN. CODE §19.15.16.19(B).
100 In Texas, the operator must divulge chemicals to the public “on or before the date the well completion report” is sent
to the state agency. 16 TEX. ADMIN. CODE §3.29(c)(2)(A). Well completion reports are due on the earlier date of 30
days after well completion or 90 days after drilling is finished. Id. §3.16(b).
101 OHIO REV. CODE §1509.10(A). “If a well is not completed within sixty days after the completion of drilling
operations,” the owner must file a “supplemental well completion record” with the pertinent information “within sixty
days after the completion of the well.” Id. §1509.10(B)(2). West Virginia requires disclosures to be made with a report
that must be filed within a “reasonable time” after drilling. W. VA. CODE §22-6A-7(e)(5); see also id. §22-6-22(a).
102 Assemb. B. 591, §5, 2011-12 Gen. Assemb., Reg. Sess. (Ca. 2011). “Upon a showing of hardship, the supervisor
may extend the time within which to comply with this section for a period not to exceed 60 additional days.” Id.
103 COLO. CODE REGS. §404-1:205A(b)(2). However, Colorado specifies that disclosure must be made no later than 120
days after fracking begins.
104 58 PA. CONS. STAT. §3222.1(b)(2).
105 N.D. PROPOSED RULE, supra note 30 (would be codified at N.D. ADMIN. CODE 43-02-03-27.1(2)(h), (3)).
Congressional Research Service
11
Hydraulic Fracturing: Chemical Disclosure Requirements
Conclusion
Many federal and state legislators and regulatory authorities have adopted or proposed measures
that would create new disclosure requirements applicable to the practice of hydraulic fracturing, a
natural resource recovery technique that is widely used in the recovery of natural gas from shale
formations. The Shale Gas Production Subcommittee of the Secretary of Energy Advisory Board
has recommended the public disclosure, on a well-by-well basis, of all of the chemical ingredients
added to fracking fluids—even those ingredients that do not meet OSHA’s standards for
hazardous chemicals requiring MSDSs. The subcommittee recommended that some protection for
trade secrets be provided.
At the federal level, legislation has been introduced in the 112th Congress that would create
disclosure requirements for all hydraulic fracturing operations nationally. BLM is reportedly
considering disclosure requirements that would be applicable for hydraulic fracturing on all lands
managed by the agency.
Chemical disclosure laws or proposals at the state level vary widely. Of the 11 current laws and
three proposals examined in this report, only a few require direct public disclosure of chemical
information by mandating that parties post the information on the FracFocus chemical disclosure
website. The level of detail required to be disclosed often depends on how states protect trade
secrets, as these protections may allow submitting parties to withhold information from disclosure
at their discretion or to submit fewer details about proprietary chemicals, except, perhaps, in
emergencies. Even if a disclosure law does not protect information from public disclosure, other
state laws, such as an exemption in an open records law, may do so. A few states require the
submission of MSDSs for certain chemicals. MSDSs may offer a relatively low level of
disclosure, as the most specific details that parties must include on the data sheets under OSHA
regulations are the chemical or common names of certain hazardous ingredients instead of
chemicals’ internationally unique CAS numbers and concentrations. With regard to the timing of
disclosure, a few state laws require at least some disclosure of information about fracking fluid
chemical composition before fracking is performed, but these states typically require less detailed
information to be provided before fracking than afterward.
Congressional Research Service
12
Hydraulic Fracturing: Chemical Disclosure Requirements
Appendix A. Glossary of Terms
Additive
A product composed of one or more chemical constituents that is added to a
primary carrier fluid to modify its properties in order to form hydraulic
fracturing fluid
Chemical Abstracts Service
The unique identification number assigned to a chemical by the division of the
(CAS) Number
American Chemical Society that is the globally recognized authority for
information on chemical substances
Chemical
A discrete chemical with its own specific name or identity, such as a CAS
Constituent/Ingredient
number, that is contained in an additive
Chemical Family
A group of chemicals that share certain physical and chemical characteristics and
have a common general name
Completion
The activities and methods used to prepare a well for production after drilling
FracFocus.org
The chemical disclosure registry website developed by the Ground Water
Protection Council and the Interstate Oil and Gas Compact Commission
Hydraulic Fracturing
The treatment of a wel by the application of hydraulic fracturing fluid under
pressure for the express purpose of initiating or propagating fractures in a target
geologic formation to enhance production of oil and/or natural gas
Hydraulic Fracturing Fluid
The primary carrier fluid and all applicable additives
Material Safety Data Sheet
A written or printed document that is prepared for a chemical mixture or
(MSDS)
ingredient considered to be hazardous under OSHA standards according to
OSHA’s regulations on hazard communication at 29 C.F.R. §1910.1200(g)(2)
Operator
A person who assumes responsibility for the physical operation and control of a
well
Owner
A person who owns, manages, leases, controls, or possesses a wel property
Primary Carrier Fluid
The base fluid, such as water, into which additives are mixed to form the
hydraulic fracturing fluid that transports proppant
Product
A hydraulic fracturing additive that is manufactured using precise amounts of
specific chemical constituents and is assigned a commercial name under which
the substance is sold or utilized
Proppant
Sand or any natural or man-made material that is used in a hydraulic fracturing
treatment to prop open the artificially created or enhanced fractures once the
treatment is completed
Service Company
An entity that performs hydraulic fracturing treatments on a well
Supplier
A company that sells or provides an additive for use in a hydraulic fracturing
treatment
Trade Secret
Any formula, pattern, device, or compilation of information that is used in a
person’s business, and that gives the person an opportunity to obtain an
advantage over competitors who do not know or use it
Source: Compiled by the Congressional Research Service from definitions contained in the Department of
Energy’s primer on shale gas development; the Arkansas, Pennsylvania, and Texas disclosure laws or regulations;
and New York’s proposed disclosure rule.
Note: This glossary provides common definitions for terms found in the report. A particular law may define
these terms differently.
Congressional Research Service
13
Hydraulic Fracturing: Chemical Disclosure Requirements
Appendix B. Summary of Chemical Disclosure Laws
Table B-1.Hydraulic Fracturing Chemical Disclosure Requirements
Laws and Proposals at the State and Federal Levels
What Must Be
Law
Who Must Disclose
Disclosed (Most
Trade Secret
When Disclosures
(or Proposal)
and To Whoma
Specific Details)b
Protectionsc
Must Be Made
FRAC Act
Person conducting
Before and after
No public disclosure of
S. 587: before and after
(S. 587;
fracking operations
fracking: CAS numbers
chemical formulas.
fracking (same level of
H.R. 1084)
discloses to state (or
of ingredients in frack
Disclosure to state (or
disclosure); deadlines
EPA, if it has primary
fluid; Material Safety
EPA) or health
set by state (or EPA).
enforcement
Data Sheets when
professional upon
responsibility in the
available; “chemical”
request in a medical
H.R. 1084: before
state), which posts on
volumes.
emergency. Fracking
fracking and within 30
Internet.
party may require
days after the end of
confidentiality
fracking (same level of
agreement after
disclosure).
disclosure.
Bureau of Land Operator discloses to
Before and after
Operators may claim
At least 30 days before
Management
BLM before and after
fracking: CAS numbers
that a federal statute or
fracking.
(draft
fracking (same level of
of ingredients in frack
regulation protects
proposed rule
disclosure at both
fluid; ingredient
information from public
Also after fracking.
for federal
times). Operator
concentrations in fluid
disclosure; must identify Unclear if additional
lands)
certifies that fluid
(% by mass); information
law, explain why
disclosures must be
complies with
not linked to specific
information is exempt,
made within 15 days
applicable laws,
additives.
and tell BLM if
after certain annulus
regulations, etc.
information is available
pressure exceeds
to the public elsewhere. threshold.
Arkansas
Disclosures are made
Before fracking: CAS
Chemical families must
Some disclosure before
to state agency. Any
numbers of ingredients
be provided when
fracking.
“person” fracking a
in frack fluid.
ingredient identities are
well in the state
withheld. A person
More detailed
makes less detailed
After fracking: CAS
fracking a well and/or
disclosures must be
disclosures before
numbers of ingredients
the permit holder may
made within 30 days of
fracking, and the
added to the frack fluid
submit claim of
completion of a fracked
permit holder makes
by any person fracking
protection to state
well.
more detailed
the well and the permit
agency for decision.
disclosures after
holder; additive
Exceptions for medical
fracking.
concentrations (% by
emergencies when state
volume) in the fluid.
or federal law requires
disclosure.
California
Owner or operator
CAS numbers of
None in the proposed
Within 60 days after
(proposed
makes disclosures to
ingredients in the frack
legislation.
fracking. Upon a
legislation)
state agency, which
fluid.
showing of hardship, the
posts a list of
state agency may extend
ingredients used to
timeframe for disclosure
frack each well on
by up to 60 more days.
maps on the agency’s
website.
Congressional Research Service
14
Hydraulic Fracturing: Chemical Disclosure Requirements
What Must Be
Law
Who Must Disclose
Disclosed (Most
Trade Secret
When Disclosures
(or Proposal)
and To Whoma
Specific Details)b
Protectionsc
Must Be Made
Colorado,
Operator makes
CAS numbers and max
Operator discloses
Within the earlier of 60
effective
disclosures to public
concentrations (% by
information not claimed days after fracking ends
April 1, 2012
by posting on the
mass in fluid) of
to be a trade secret,
or 120 days after
FracFocus Internet
ingredients intentionally
along with chemical
fracking begins.
website. If, as of Jan. 1, added to the frack fluid.
family or similar
2013, state agency
Some disclosures not
descriptor for
finds that the site will
required: e.g., chemicals
information withheld.
not be searchable and
not disclosed to
Claim of protection is
sortable by operator,
operator by
submitted to state
CAS number,
manufacturer, vendor,
agency by vendor,
geographic area, etc.
or service company;
service provider, or
by date certain, then
chemicals that are
operator. Information is
state may require
unintentional y present
then automatically
operator to disclose
in trace amounts.
protected. Exceptions
to state agency for
for medical
posting on a site that
emergencies and spills
is searchable and
(with confidentiality
sortable.
protections).
Louisiana Operator
makes For hazardous
Chemical identities and
Within 20 days after
disclosures to state
ingredients (under
CAS numbers may be
well completion.
agency or submits
OSHA standards): CAS
withheld if claimed to
statement that it has
numbers; maximum
be trade secrets or
disclosed information
ingredient
found to be trade
to the public via
concentrations within
secrets under 29 C.F.R.
FracFocus or a
additives (% by mass)
§1910.1200(i). Chemical
comparable website
and within the frack fluid
family must still be
that is accessible to
(% by mass of total
provided. Exception in
the public and free of
volume). Operator is
medical emergencies
charge.
not required to disclose
when state or federal
information not
law requires disclosure.
disclosed to it by an
entity claiming trade
secret protection.
Michigan Operator
makes Material Safety Data
None in the disclosure
Filed with record of
disclosures to state
Sheets that are provided
rule.
well completion
agency when it
by service company for
operations, which is due
conducts a high-
“additives” used.
within 60 days of drilling
volume fracking well
completion.
completion.
Montana Before
fracking: Before fracking:
Owner, operator, or
Less specific disclosures
operator discloses to
disclosures may include
service contractor may
made before fracking in
state agency in drilling
trade name of “principal
withhold trade secret
drilling permit
permit application or
components or
chemical and identify it
application or notice.
notice.
chemicals”; estimated
by trade name,
amount or volume of
inventory name,
More specific
After fracking: owner
“principal components.” chemical family, etc. and disclosures made after
or operator discloses
quantity used.
fracking upon
to state agency or
After fracking: CAS
Exceptions for medical
completion of the well.
public. Public
numbers of ingredients
emergencies and spills
disclosure occurs on
in frack fluid; additive
(with confidentiality
FracFocus or other
concentrations in fluid.
protections).
publicly accessible
website approved by
the state agency.
Congressional Research Service
15
Hydraulic Fracturing: Chemical Disclosure Requirements
What Must Be
Law
Who Must Disclose
Disclosed (Most
Trade Secret
When Disclosures
(or Proposal)
and To Whoma
Specific Details)b
Protectionsc
Must Be Made
New Mexico
Operator discloses to
CAS numbers of
“The division does not
Within 45 days after
state agency.
ingredients in frack fluid;
require the reporting
well completion.
Operator must certify
max concentrations of
or disclosure” of trade
that disclosures are
ingredients in additives
secrets.
true and complete to
and fluid (% by mass).
the best of its
However, no more
knowledge and belief.
disclosure must be made
than would be included
on a Material Safety Data
Sheet under 29 C.F.R.
§1910.1200.
New York
Owner or operator
Material Safety Data
Persons who supply
Before fracking in
(proposed
discloses to state
Sheets for proposed
information may
application for permit to
rule)
agency in application
additives; additive
request exemption
drill, deepen, plug back,
for permit to drill,
concentrations in frack
under state agency’s
or convert a well when
deepen, plug back, or
fluid (% by weight of
open records rule.
high-volume fracking is
convert a well when it water). Also may have to Agency determines
planned.
plans to use high-
show that proposed
whether records are
volume fracking.
additives pose lower risk exempt from public
to water and
disclosure.
environment than
alternatives.
North Dakota
After fracking: owner,
CAS numbers of
None in the proposed
After fracking.
(proposed
operator, or service
ingredients in frack fluid;
disclosure rule.
rule)
company discloses to
max ingredient
Also possibly when
public on FracFocus
concentrations in
pressure in the
website.
additives and fluid.
intermediate casing-
surface casing annulus
During fracking: when
exceeds a certain
pressure in
threshold (same level of
intermediate casing-
disclosure; owner or
surface casing annulus
operator discloses).
exceeds threshold;
owner or operator
posts on FracFocus.
Ohio
Any person drilling
Material Safety Data
None in the disclosure
Within 60 days after the
within the state
Sheets for materials
law. Parties have
end of drilling
discloses to state
used.
withheld some
operations or after
agency, which posts
information about trade determination that well
Material Safety Data
secret chemicals, such
is a dry or lost hole. If
Sheets on its website.
as CAS numbers, from
the well is not
Material Safety Data
completed within 60
Sheets posted on the
days of drilling, owner
state’s website.
must file a supplement
with the information
required within 60 days
after well completion.
Congressional Research Service
16
Hydraulic Fracturing: Chemical Disclosure Requirements
What Must Be
Law
Who Must Disclose
Disclosed (Most
Trade Secret
When Disclosures
(or Proposal)
and To Whoma
Specific Details)b
Protectionsc
Must Be Made
Pennsylvania,
For unconventional
For unconventional
For unconventional
For unconventional
effective
wells: operator
wells: ingredients cannot
wells: vendor, service
wells: within 60 days
April 14, 2012
discloses to public on
be linked to additives;
provider, or operator
after fracking.
FracFocus. By Jan. 1,
regulations pending. Not
may withhold trade
2013, state agency
required: chemicals not
secrets from public.
For conventional wells:
determines whether
disclosed by vendor,
Operator discloses
within 30 days after well
FracFocus can be
service provider, or
chemical family or
completion.
searched or sorted by
operator; chemicals not
similar descriptor.
CAS number,
intentionally added to
Medical emergency/spill
operator, geographic
frack fluid, etc.
exceptions (with
area, etc. If not, then
confidentiality
agency must consider
For conventional wells:
protections).
posting data on its
CAS numbers of
website so it can be
hazardous ingredients
For conventional wells:
searched and sorted.
(under OSHA standards) operator may claim
intentionally added to
trade secret protection
For conventional
frack fluid linked to
and state agency
wells: operator
additives; hazardous
determines if
discloses to state
ingredient
information qualifies for
agency.
concentrations (% by
exemption under state
volume) in the fluid. CAS open records law or
numbers and max
other applicable state
concentrations (% by
law.
mass) of other
ingredients added to the
fluid.
Texas
Operator discloses to
CAS numbers and
Supplier, service
On or before the date
public on FracFocus
actual/max.
company, or operator
the well completion
website.
concentrations (% by
may claim trade secret
report is due
mass) of hazardous
protection. Chemical
(timeframe varies).
ingredients (according to family or similar
OSHA standards) in
description must be
frack fluid. Also, CAS
provided for chemicals
numbers for
withheld. Certain
nonhazardous
landowners and others
ingredients intentionally
may challenge trade
put in frack fluid.
secret claims. State
Disclosures not required attorney general
include chemicals not
decides if information is
disclosed by
protected, subject to
manufacturer, supplier,
appeal. Exceptions for
or service company;
emergencies; borrows
chemicals naturally
some confidentiality
occurring in fluid.
procedures from 29
C.F.R. §1910.1200(i).
West Virginia
Horizontal well work:
Before fracking: list of
None in the disclosure
Before fracking: list of
permit applicant
anticipated “additives”
law.
anticipated “additives”
(before fracking) and
that may be used.
that may be used.
operator (after
fracking) disclose to
After fracking: list of
After fracking: list of
state agency.
“additives” actually used
“additives” actually used
submitted with well
submitted with well
completion log.
completion log.
Congressional Research Service
17
Hydraulic Fracturing: Chemical Disclosure Requirements
What Must Be
Law
Who Must Disclose
Disclosed (Most
Trade Secret
When Disclosures
(or Proposal)
and To Whoma
Specific Details)b
Protectionsc
Must Be Made
Wyoming
Owner, operator, or
Before fracking: for each
Claim made to state
More detailed
service company
stage, CAS numbers and
agency. Trade secrets
disclosures before
discloses to state
concentrations in frack
protected to extent of
fracking.
agency.
fluid of proposed
state open records
“additives” and
law’s exemption for
Less detailed disclosures
“compounds”; state
trade secrets. Agency
after fracking (no CAS
agency may request
decides whether
numbers).
chemical formulas.
information is exempt
from public disclosure.
After fracking: for each
stage, each “actual
chemical additive name”
and the additive’s
concentration within the
frack fluid.
Source: Compiled by the Congressional Research Service from disclosure laws, regulations, and proposals.
Note: States update their laws on fracking chemical disclosure frequently, and thus this table is designed to
show trends in how states structure these provisions rather than to describe the current status of the law in any
particular state.
a. This category does not include intermediate disclosures required to be made in some states, including
Arkansas (person fracking the well to permit holder), California (proposed bill) (person fracking the well to
owner or operator), Colorado (certain service providers and vendors to operator), Pennsylvania (certain
service providers and vendors to operator), and Texas (supplier or service company to operator). When
disclosures are made to a government agency, some agencies may choose to disclose information to the
public, for example by posting the information on their websites.
b. This category includes only the most specific details that must be disclosed. To determine the actual level of
disclosure required, trade secret protections must be considered, as these protections may allow parties to
prevent the disclosure of information to regulators or the public.
c. This category refers only to trade secret protections contained in the disclosure law itself and not in other
laws that may provide protections, such as open records laws.
Author Contact Information
Brandon J. Murrill
Adam Vann
Legislative Attorney
Legislative Attorney
bmurrill@crs.loc.gov, 7-8440
avann@crs.loc.gov, 7-6978
Congressional Research Service
18