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New fracking disclosure rules considered

An oilfield worker checks tanks at a well near Sidney in this file photo. The Legislature is considering new rules for fracking chemical disclosures.

HELENA – A group of farm and ranch owners, along with two environmental advocacy groups, are suing the Montana Board of Oil and Gas Conservation over rules that allow oil and gas companies to keep secret the chemicals they use for hydraulic fracturing, also known as fracking.

But the timeline for the lawsuit has been pushed back as a bill that could change disclosure laws works its way through the Legislature.

The suit alleges that the board’s rules, which don’t require companies to provide specific information on the chemicals they use until after fracking is complete or in some cases not at all if companies claim the mix of chemicals is a trade secret, violate the rights of Montanans under the state’s Constitution, which guarantees a right to know and the right to a clean and healthful environment.

The Montana Environmental Center, a state-level nonprofit environmental advocate; Natural Resources Defense Council, a national environmental advocacy organization; and a handful of landowners filed the lawsuit in January in Lewis and Clark County District Court. They agreed to extend the timeline for the board to respond to the suit as Senate Bill 299, carried by Sen. Tom Richmond, R-Billings, is deliberated by the 65th Montana Legislature.

On Monday, the bill cleared an initial vote in the House 70-30, moving it one step forward to the governor's desk. The bill clears up Montana Environmental Information Center's concerns over what constitutes a trade secret, but does not go nearly far enough on requiring companies to disclose the chemicals they use in fracking, said Derf Johnson, center's clean water program director.

The bill does not call for baseline testing of wells, which Johnson said is necessary to monitor any contamination from fracking. And while it does require disclosure of the chemicals used in fracking, it does not require that be done before the fracking occurs, making it impossible to track the source of any contamination, he said.

“If this legislation passes, it’s potentially going to prevent meaningful disclosure because the board can point to the Legislature and say ‘we’re preempted from doing anything because the Legislature acted and now there’s a law in place,’ ” Johnson said. 

Jim Halvorson with the board said he could not comment on the lawsuit, but said the Senate bill would allow the board to do the majority of what was in the center’s request last July to change its disclosure rules.

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In the lawsuit, the center and others said they want information about the chemicals used in fracking so they can “understand the risks fracking operations may pose to property, human health and the environment and take steps to safeguard their water supplies.”

The practice of fracking involves pumping fluid into wells to crack rock formations and release gas and oil. The practice is highly controversial. Those who support it say it it makes wells more productive, while opponents claim it contaminates ground and surface water and increases seismic activity.

Last July the group that filed the lawsuit petitioned the board to change its rules. The group asked for disclosure of chemicals to be part of the application process for drilling a well and the information be made public at least 45 days before fracking occurs.

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The board rejected that petition in September in a decision the lawsuit calls “factually erroneous, unsupported and irrational.” The group wants Lewis and Clark County District Court to throw out that decision and force the board to reconsider.

There have been somewhere between 4,000 and 7,000 wells fracked in 132 different fields in Montana. In 2015, 65 percent of oil production and 39 percent of natural gas production in the state involved fracking.

Under rules set by the Montana Board of Oil and Gas Conservation in 2011, oil and gas operators do not have to tell the board or public about the specific chemical ingredients it uses for fracking until after operations are complete. The board does require the disclosure of the brand name or generic name of fracking fluids, which consists of industry labels such as “DWP-621” or “Slick Frac,” but disclosure of the specific chemical ingredient list is not required before fracking occurs.

The generic information is “effectively useless for landowners” because it does not provide enough information for landowners to conduct baseline testing.

Even after fracking occurs, the rules also let oil and gas companies withhold any chemical information operators claim to be a trade secret.

In Wyoming, operators have to disclose the specific ingredients of their fracking fluids to a state official before they are approved for use. “There is no legitimate reason why Montanans should have less access to chemical information than their neighbors,” the lawsuit states.

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