Shale Daily / NGI All News Access

West Virginia Nears Passage of Frack Fluid Trade Secret Bill

A bill that would allow companies to classify as trade secrets chemicals and concentrations used in hydraulic fracturing (fracking) fluids passed the muster of a key committee on Tuesday, and is nearing final passage in the West Virginia Legislature.

The House Judiciary Committee passed SB 243, which calls for an operator or service provider, as part of its well completion report to the state Department of Environmental Protection (DEP), to list all of the additives used in fracking, including each additive's specific trade name, supplier and purpose. They must also list each chemical of each additive, with concentrations expressed as a mass percent.

But the bill also allows an operator or service provider to "designate the information regarding the specific identity or concentration or both of a chemical as a confidential trade secret." Under that scenario, the information would not be disclosed to anyone unless an investigation by the DEP or a medical emergency requires full disclosure.

"Upon receipt of such notification of need, such information shall be disclosed by the operator or service provider, as applicable, directly to the [secretary of the DEP] or his or her designee and shall in no way be construed as publicly available," the bill says.

Another section mandates that health care professionals sign a confidentiality agreement and written statement of need, and stipulates that the information can only be used "for diagnosis or treatment of an individual." The bill says disclosure to anyone else would constitute a violation of trade secrets.

SB 243 would amend current West Virginia law, which requires that operators submit to the DEP a list of the additives they anticipate using for fracking operations. The rule was part of the Natural Gas Horizontal Wells Control Act, which Gov. Earl Ray Tomblin signed into law in late 2011 (see Shale Daily, Dec. 27, 2011; Dec. 15, 2011).

"The amendment was adopted due to pressure from Halliburton [Co.]," said the West Virginia Surface Owners' Rights Organization on its website. "These changes are not protective of human health, or our rights to know what chemicals are being transported on our roads, being worked with in our communities and on our land, and pumped in the ground below us."

Joe Ward, an attorney representing Halliburton, countered that companies should be allowed to protect their investment.

"There's tens of millions of dollars that goes into this technology and part of that is going to include trade secret claims that have to made to prevent competitors from reverse engineering the formulas that have to be disclosed," Ward told the West Virginia MetroNews Network. "In the event there is an emergency, even an investigation, DEP can request the information and it has to be provided on the spot."

SB 243, sponsored by Sen. Herb Snyder (D-Shenandoah Junction), has been read three times in the state House of Delegates and could face a vote as early as Friday. The bill passed the state Senate by a 33-1 vote on March 27.

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