FracFocus Out of Focus? Harvard Law Says YES!

Harvard Law’s Environmental Law Program issued FracFocus a big F as a compliance tool, according to the April 23, 2013 study.

The study’s title says it all:

LEGAL FRACTURES IN CHEMICAL DISCLOSURE LAWS – WHY THE VOLUNTARY CHEMICAL DISCLOSURE REGISTRY FRACFOCUS FAILS AS A REGULATORY COMPLIANCE TOOL

FracFocus has been touted by the energy industry and their supporters as being a effective means of reporting what chemicals are used in the process of hydraulic fracturing (fracking).

Currently, 11 states rely on it and the Bureau of Land Management (BLM) has proposed adopting FracFocus as a reporting method for companies fracking on federal and tribal lands.

States requiring use of FracFocus include:  Mississippi, Utah, Oklahoma, Louisiana, Montana, Pennsylvania, South Dakota, North Dakota, Texas, Ohio and Colorado.

FracFocus is operated by two groups: the Ground Water Protection Council, a group of state water officials; and the Interstate Oil and Gas Compact Commission, an association of states that produce the fuels.

“We believe the research done by the Harvard team fails to reflect the true capabilities of the FracFocus system and misrepresents the system’s relationship to state regulatory programs,” the Ground Water Protection Council said in an e- mailed statement.

The study cites 3 shortcomings of FracFocus:

RELATED TO MEDICAL GAGS

Current and pending legislation often include the use of FracFocus as justification to gag medical personnel by saying the chemicals are listed on FracFocus’s site and available.

However, chemicals deemed as “trade secrets” are not on FracFocus, and medical personnel are being required to sign a non-disclosure form for access to the “trade secrets”.  There are no standards for determining what is or isn’t a trade secret.   It is left up to the Gas and Oil corporations to decide what is or isn’t a trade secret.

States protect “trade secrets” and other “confidential business information” from disclosure under public information laws. Federal laws also contain proprietary exemptions to public disclosure requirements, including those set forth in the Occupational Safety and Health Act (OSHA), the Toxic Substances Control Act (TSCA), the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), and the Emergency Planning and Community Right to Know Act (EPCRA). A comparative review of these regimes suggests that three procedures may contribute to higher rates of disclosure, while protecting true trade secrets: substantiation by the company seeing protection; agency verification; and public challenge

STRUCTURALLY SKEWED TO DISCOURAGE CORRECTIONS

Whether it was poor inception from get-go or for other reasons, the FracFocus disclosure procedure for operators is cumbersome and inconsistent.   More often than not, when an error in reporting is found, correcting that error takes a long and involved process.  This discourages operators from taking the time to make those corrections.

In addition, FracFocus has a “deletion default” for forms that need to be corrected. FracFocus enables well operators to pull down forms off the site when they “discover an error in a disclosure but [are] unable to correct the error immediately.”  When the operator selects this function, the document is stored for 90 days in a temporary holding container. During this time, the operator can replace the form with a corrected version, or restore the original form.  However, if no action is taken, the form is deleted.  It is easy to imagine a busy company pulling down a form to correct later, and forgetting about the form. Therefore, FracFocus appears structurally skewed to discourage corrections and facilitate deletions.

WHO IS GUARDING THE FOX GUARDING THE HEN HOUSE?

Apparently, no one is verifying the accuracy.   CAS Registry Numbers are unique numerical identifiers assigned by the CHEMICAL ABSTRACTS SERVICE to every chemical described in the open scientific literature (currently including those described from at least 1957 through the present) and including elements, isotopes, organic and inorganic compounds, ions, organometallics, metals, nonstructurable materials (aka ‘UVCB’s- i.e., materials of Unknown, Variable Composition, or Biological origin). They are also referred to as CAS RNs and CAS Numbers.

FracFocus does not appear to reject incorrect CAS numbers.

FracFocus does not review the submissions for completeness or accuracy.  Together with the cumbersome “correction” process, the lack of review encourages inadequate reporting by operators.   As far as we know, an operator entering gummy bears and ketchup as chemical ingredients would go unnoticed.

There are no minimum state reporting standards, or requirements for alternative compliance should FracFocus fall off the face of the earth (with the exception of Texas).

FracFocus is all fluff and no stuff and a prime example of garbage in garbage out (GIGO).

Related:

• FracUNfocusED
• FracFocus and Fig Leaves

 

© 2013 by Dory Hippauf