Water in the 2017 VA General Assembly: Fracking Chemical Disclosure Bills – Updated February 21, 2017

Research and most of the writing for this post was done by Eryn Turney, the Virginia Water Resources Research Center’s spring 2017 intern.

According to the U.S. Environmental Protection Agency (EPA)’s article “The Process of Hydraulic Fracturing” (https://www.epa.gov/hydraulicfracturing/process-hydraulic-fracturing), hydraulic fracturing (commonly known as “fracking”) is the process by which gas and oil are extracted from deep beneath the earth’s surface via fractures in underground rock formations. Special fluids containing water, chemical additives, and sediments are pumped into the ground at extremely high pressures in order to widen fractures in the rocks to allow for increased access to the resources. After the expansion, the fluid returns to the earth’s surface due to internal pressure, which is known as “flowback” or “produced water.” Flowback can contain the chemicals, sediments, and other materials picked up during the process. Though this wastewater is often stored on site before disposal or recycling, it can also be injected underground for disposal. According to another article by the US EPA, “Class II Oil and Gas Related Injection Wells” (https://www.epa.gov/uic/class-ii-oil-and-gas-related-injection-wells), this wastewater has extremely high salinity, as well as traces of radioactive substances and metals. According to the EPA, if discharged to water or land, this wastewater poses a risk to environmental and public health. The deep underground injection of flowback can prevent soil and water contamination given it is isolated from underground sources of drinking water.

During the 2017 Session of the Virginia General Assembly, four bills related to fracking were introduced. This post will be updated throughout Session in order to document the progression and revision of House Bill (HB) 1678, HB 1679, and companion Senate Bills (SB) 1291 and SB 1292. Following are the descriptions for each of these bills. Information was retrieved from the Virginia Legislative Information System (LIS), online at http://lis.virginia.gov/. Please visit this site to explore further the progress of various legislation at the 2017 session of General Assembly.  Please note each of the bills below are hyperlinked to their respective LIS sites.  Below the bills are a list of related news media article.

HB 1678: Virginia Freedom of Information Act (FOIA); trade secrets submitted to the Department of Mines, Minerals and Energy (DMME).

Sponsor: Delegate Roxann Robinson, R-District 27, of Midlothian

As introduced, this bill provides an additional exclusion from FOIA requests for disclosure of information considered trade secrets provided to DMME involving chemicals used in the fracking process. This bill states that in order for the information to be protected, the company must identify the specific materials that they want protected, and state a reason why protection is necessary. From here, the DMME can determine whether or not the information should actually be entitled to protection.

Status and changes:
1/24/17 Reported from General Laws Committee with an amendment defining the trade secret to be disclosed as the “recipe” of the chemical concentrations rather than just a list of chemicals used in the process (focused on “disclosure of amount of concentration of chemicals or ingredients…”).

1/30/17 Passed by House (59 Yes – 37 No).

1/31/17 Referred to Senate General Laws and Technology Committee.

2/13/17 Failed to report from Senate General Laws and Technology Committee; bill defeated.

Current Language of Bill (including amendment) as of 2/21/17, describing the additional exclusion to Virginia’s FOIA:
Trade secrets, as defined in the Uniform Trade Secrets Act (§ 59.1-336 et seq.), submitted to the Department of Mines, Minerals and Energy pursuant to requirements for disclosure of the amount or concentration of chemicals or ingredients used to stimulate a well pursuant to § 45.1-361.29 or regulations promulgated under § 45.1-361.27. In order for such trade secrets to be excluded from the provisions of this chapter, the submitting party shall (i) invoke this exclusion upon submission of the data or materials for which protection from disclosure is sought, (ii) identify the data or materials for which protection is sought, and (iii) state the reasons why protection is necessary. The Department shall determine whether the information claimed to be a trade secret is entitled to such protection.

HB 1679: Well permit applications; disclosure of trade secrets.

Sponsor: Delegate Roxann Robinson, R-District 27, of Midlothian

As introduced, this bill authorizes the DMME to have access to certain information about the chemicals used during the fracking process. This bill also authorizes the director of the DMME to provide others with this information (including emergency personnel, state or local officials, and others on staff) should a mishap occur with the chemicals and present an emergency situation. If the Director shares this information with others, he/she must notify the company who disclosed the trade secret about this as soon as possible, and others are prohibited from furthering sharing the information.

During the House ACNR Natural Resources Subcommittee meeting on Wednesday January 18, 2017, issues discussed regarding this bill were the public’s right to know what is/could be reaching soil and water resources, what degree of access emergency personnel should have to this information prior to a mishap in order to be prepared to respond (including chemical safety sheets, training, etc.), what constitutes a “trade secret” (whether this is the specific names of the chemicals used or the “recipe” of the combination and concentrations of the chemicals used), how the DMME will be granted access to these trade secrets, and how the DMME will further be able to distribute these trade secrets.

Please click this link to listen to a recording (30 min./31 sec.) of the House ACNR Natural Resources Subcommittee discussion of HB 1679 on January 18.

Status and changes:
1/25/17 ANCR subcommittee recommends reporting with an amendment (amendment not yet posted as of 1/31/17).

2/1/17 ACNR Committee reports with an amendment requiring that a well permit applicant provide to the relevant local government Safety Data Sheets for the chemical materials and products proposed for use in the well completion process.

2/6/17 House agrees to Committee amendment.

2/7/17 Passed by House (63 Yes – 34 No).

2/8/17 Referred to Senate ACNR Committee.

2/16/17 Bill stricken (removed from consideration) at request of patron (9 Yes – 0 No).

Current Language of Bill as of 2/21/17:
J. The Department may require an application for a well, a supplement thereto, and a well completion report to include chemical ingredient names, the chemical abstracts numbers for chemical ingredients, or the amount or concentration of chemicals or ingredients, used to stimulate a well provided there is an exclusion from mandatory disclosure under the Virginia Freedom of Information Act (§ 2.2-3700 et seq.) applicable to the extent that such information meets the definition of a trade secret set forth in the Uniform Trade Secrets Act (§ 59.1-336 et seq.). The applicant or permittee, as applicable, shall provide, or cause the trade secret claimant to provide, the required trade secret information to the Department. The Director may disclose information regarding the specific identity of a chemical, the concentration of a chemical, or both the specific identity and concentration of a chemical, claimed to be a trade secret to additional Department staff or any relevant state or local government official to the extent that such disclosure is necessary to assist the Department in responding to an emergency resulting in an order pursuant to subsection D of § 45.1-361.27. No such Department staff or state or local official shall disseminate the information further. Any information so disclosed to Department staff or state or local officials shall at all times be considered confidential and shall not be construed as publicly available. If the Director discloses such information to any state or local government official, then the Director shall notify the party that submitted the trade secret information of that disclosure as soon as practicable. No order issued pursuant to § 45.1-361.27 shall include trade secret information.

K. The applicant for a drilling permit shall provide to the governing body of the locality in which a well is proposed to be located information necessary for the local government to access the safety data sheet, as defined in 29 C.F.R.1910.1200, for each of the chemical materials and products proposed for use in the well completion process. Such information shall be provided to the local government within seven days of the date the permit application is submitted to the Department.

SB 1291: Well permit applications; disclosure of trade secrets.

Sponsor: Senator A. Benton Chafin, R-District 38, of Lebanon

As introduced, companion bill to HB 1679 (see that bill above for provisions as introduced).

Status and changes:
1/30/17 Reported from General Laws and Technology with amendment requiring that a well permit applicant provide to the relevant local government Safety Data Sheets for the chemical materials and products proposed for use in the well completion process. Referred to Finance Committee.

2/2/17 Failed to report from Senate Finance Committee (8 Yes – 8 No); bill defeated.

Current Language of Bill as of 2/21/17:
J. The Department may require an application for a well, a supplement thereto, and a well completion report to include chemical ingredient names, the chemical abstracts numbers for chemical ingredients, or the amount or concentration of chemicals or ingredients, used to stimulate a well provided there is an exclusion from mandatory disclosure under the Virginia Freedom of Information Act (§ 2.2-3700et seq.) applicable to the extent that such information meets the definition of a trade secret set forth in the Uniform Trade Secrets Act (§ 59.1-336et seq.). The applicant or permittee, as applicable, shall provide, or cause the trade secret claimant to provide, the required trade secret information to the Department. The Director may disclose information regarding the specific identity of a chemical, the concentration of a chemical, or both the specific identity and concentration of a chemical, claimed to be a trade secret to additional Department staff or any relevant state or local government official to the extent that such disclosure is necessary to assist the Department in responding to an emergency resulting in an order pursuant to subsection D of § 45.1-361.27. No such Department staff or state or local official shall disseminate the information further. Any information so disclosed to Department staff or state or local officials shall at all times be considered confidential and shall not be construed as publicly available. If the Director discloses such information to any state or local government official, then the Director shall notify the party that submitted the trade secret information of that disclosure as soon as practicable. No order issued pursuant to § 45.1-361.27 shall include trade secret information.

K.  The applicant for a drilling permit shall provide to the local government where a well is proposed to be located information necessary for the local government to access the Safety Data Sheets, as defined in 29 CFR1910.1200, for the chemical materials and products proposed for use in the well completion process. This information shall be provided to the local government within seven (7) days of the date the permit application is submitted to the Department.

SB 1292: FOIA; trade secrets submitted to the Department of Mines, Minerals and Energy.

Sponsor: Senator A. Benton Chafin, R-District 38, of Lebanon

As introduced, companion bill to HB 1678 (see that bill above for provisions as introduced).

Status and changes:
1/30/17 Reported from General Laws and Technology Committee with amendment defining the trade secret to be disclosed as the “recipe” of the chemical concentrations rather than just a list of chemicals used in the process (focused on “disclosure of amount of concentration of chemicals or ingredients…”).  This is the same amendment passed for companion bill HB 1678.

Referred to Finance Committee.

2/2/17 Failed to report from Senate Finance Committee (8 Yes – 8 No); bill defeated.

Current Language of Bill as of 2/21/17, describing the additional exclusion to Virginia’s FOIA:
Trade secrets, as defined in the Uniform Trade Secrets Act (§ 59.1-336 et seq.), submitted to the Department of Mines, Minerals and Energy pursuant to requirements for disclosure of the amount or concentration of chemicals or ingredients used to stimulate a well pursuant to § 45.1-361.29 or regulations promulgated under § 45.1-361.27. In order for such trade secrets to be excluded from the provisions of this chapter, the submitting party shall (i) invoke this exclusion upon submission of the data or materials for which protection from disclosure is sought, (ii) identify the data or materials for which protection is sought, and (iii) state the reasons why protection is necessary. The Department shall determine whether the information claimed to be a trade secret is entitled to such protection.

Some News Media Items Related to the Bills
(Hyperlinks were functional when the headlines were initially added to this post.)

Virginia agency says it will not exempt information on fracking fluid from disclosure, Richmond Times-Dispatch, 2/26/17.

Fracking chemical recipes could be kept secret in Virginia under bill passed by HouseRichmond Times-Dispatch, 1/30/17.

Fracking bills draw concern from environmentalists, McAuliffe, [Newport News] Daily Press, 1/25/17.

Open-government advocates upset over fracking shield billFredericksburg Free Lance-Star, 1/17/17.

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