A critical review of the energy industry's FracFocus registry by the Harvard Law School's Environmental Law Program last week was taken to the woodshed for allegedly including false statements and misrepresentations in its review.
In a 16-page report, researchers Kate Konschnik, Margaret Holden and Alexa Shasteen said the registry looked promising when it first came online in April 2011 (see NGI, April 11, 2011). But they said the 11 states that use FracFocus -- by directing or allowing operators and services companies to list the chemicals used in hydraulic fracturing (fracking) -- had acted prematurely or had misplaced trust in the site.
"Our review suggests that FracFocus prevents states from enforcing timely disclosure requirements, creates obstacles for compliance for reporting companies, and allows inconsistent trade secret assertions," the researchers said. "Furthermore, the reliance on FracFocus by numerous states as a de facto regulatory mechanism sends a strong signal to industry that careful reporting and compliance is not a top priority."
The Harvard researchers said the states that use FracFocus penalize companies for failing to submit chemical disclosures to the registry, or for filing them late. But they claimed the registry doesn't notify the states when it receives the disclosures, and most states can't determine when the disclosures were actually made. They also said none of the 11 states that use FracFocus have set minimum reporting standards, FracFocus staff doesn't review the submissions it receives, and the registry provides overly broad protection for what companies would classify as trade secrets.
Representatives of the Ground Water Protection Council (GWPC) and the Interstate Oil and Gas Compact Commission (IOGCC), which jointly manage FracFocus, took the Harvard researchers to task.
"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," they said in a statement. "FracFocus not only notifies states of the submission of disclosures and provides them with lists of such disclosures on a routine basis, it allows states to download the data from the disclosures so that it can be incorporated into the states own data system."
The organizations said they were developing a method for the states -- Colorado, Louisiana, Mississippi, Montana, North Dakota, Ohio, Oklahoma, Pennsylvania, South Dakota, Texas and Utah -- to load data directly into their state systems.
"The FracFocus website was developed and is managed by the state oil and gas regulatory programs," said GWPC President Stan Belieu. "I am not aware of any state regulatory program that has been contacted by Harvard University to make inquiry of its capabilities. I do not understand how, without direct contact, this study can draw the conclusions it has."
The organizations also denied that FracFocus provides too much cover for companies looking to protect trade secrets. "As with all information in a FracFocus disclosure, it is the responsibility of the state regulatory program to review and act upon trade secret claims. FracFocus cannot act on behalf of state regulatory programs as it does not have such authority. Obviously, it is up to each operating company to know and understand individual state laws regarding disclosure. It is also up to each state to enforce compliance with its own laws."
The U.S. Department of Interior's Bureau of Land Management has proposed using FracFocus for its reporting needs on federal and tribal lands.
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