In September 2012, the Ohio legislature passed regulations requiring oil and gas well operators to report the contents of fracking fluids, recycling fluids, and wastewater to the state’s Department of Natural Resources. These reporting regulations went into effect on September 11,2012, and require the disclosure of the trade name and volume of all “products, fluids, and substances,” maximum concentrations of additives in the fluid, Chemical Abstract Service (CAS) numbers, and maximum concentrations of ingredients intentionally added to the fluid. The total volume of any recycled hydraulic fracturing fluids must also be disclosed. Ohio Rev. Code Ann. § 1509.10(A). This information must be made available to the public on the FracFocus website or by other means approved by the Department. Ohio Rev. Code Ann. § 1509.10(F) The regulation does allow for the protection of trade secrets, but it requires operators to share chemical information with medical professionals in emergencies. § 1509.10(H). It also allows for disclosure of trade secrets in the event of spills and investigations (with confidentiality protections).
In addition to abiding by these Ohio regulations, on September 11, 2013, the Ohio State Emergency Response Commission (SERC) advised oil and gas well owners and operators that they must also comply with the federal Emergency Planning and Community Right-To-Know Act (EPCRA) by reporting all hazardous chemicals (any substance requiring a Material Safety Data Sheet under the Occupational Safety & Health Administration) over the 10,000 pound threshold that are stored at the well site. Written notification of these hazardous chemicals must be given to SERC, the Local Emergency Planning Committee (LEPC), and the local fire department within 90 days of receiving the shipment or producing the substance on site. For any “Extremely Hazardous Substances” (EHS) in amounts from 1 to 500 pounds, depending on the substance, notice must be given within 60 days. The EPCRA also requires annual reports identifying all hazardous chemicals and/or EHS at or above the threshold weights at any time on the site during the calendar year. This information must be provided to the SERC, the LEPC, and the local fire department. Under the EPCRA, there is a procedure for claiming that a reportable chemical is a trade secret. To protect trade secrets, the well owner or operator will have to apply to both the EPCRA and SERC for protection. The SERC points out that failure to comply with EPCRA requirements may result in an enforcement action by the U.S. Environmental Protection Agency with the possibility of civil penalties up to $32,500 per day.
This post was written by Barclay Nicholson (firstname.lastname@example.org or 713.651.3662) from Norton Rose Fulbright’s Energy Practice Group.