Action Alert
Your help is needed. The Montana Board of Oil and Gas Conservation (BOGC) will be holding a public hearing on its proposed new rules for fracking chemical disclosure. Quite simply, these proposed rules are not strong enough to adequately protect landowners and it is important for you to lend your voice to make sure landowners’ voices are clearly heard.

You can make your voice heard in either of two ways:

• The most effective way is always to be there in person. You can do this by attending the BOGC hearing on September 17 at 2pm at 2535 St. Johns Avenue in Billings. Please come if you can.
• You can also submit written comments via email through September 24 to mtogpub@mt.gov. Reference Hydraulic Fracturing Rulemaking in the subject line.

Background
In July 2016 a group of landowners, along with two environmental groups,  asked the Montana Board of Oil and Gas Conservation (BOGC) to change their rules to require chemical disclosure to be part of the application process for drilling a well and the information be made public at least 45 days before fracking occurs. The BOGC rejected the petition in September 2016.

The BOGC’s current rules, put in place in 2011, are effectively useless for landowners trying to protect their water. 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. This is not enough information to conduct baseline testing, and even after fracking occurs, the rules let oil and gas companies withold any chemical information operators claim to be a “trade secret.”

Richmond

Seeing the handwriting on the wall, State Senator Tom Richmond introduced SB 299 in the 2017 legislative session, and the suit was put on hold until after the bill was passed. Richmond is the former Administrator of the BOGC who now carries water for the industry in the Legislature. The bill passed.

The bill was a clear ploy to take the issue out of the courts and water down the rules that landowners need to protect themselves. It gave the BOGC cover to develop rules that prevent disclosure that truly protects landowners, and that is what has happened.

As a matter of personal disclosure, I am one of the plaintiffs in the lawsuit against the BOGC.

The proposed rules
The proposed rules are clearly a step forward from the ones that exist today. Specifically:

• They no longer allow “generic” chemical disclosures. Oil and gas operators must disclose the specific fracturing fluid ingredients for each proposed well, including the individual chemical ingredient names and unique Chemical Abstract Service (CAS) number.
• Operators are required to request trade secret exemptions from the Board. They must provide a detailed justification for any request to withhold chemical information from the public on the ground that it is a trade secret.

But these rules are simply not enough to protect landowners, excluding several elements the landowner/environmental group coaltion deemed necessary in their lawsuit:

• A reasonable requirement for landowners to receive fracking chemical information in advance of the fracking activities. In order to utilize fracking chemical information for baseline water testing, landowners must have access to that information at least 45 days before fracking occurs.  However, the revised Rule does not provide a minimum time period for advance disclosure and allows operators of wildcat wells to disclose their fracking chemicals as little as 48 hours before fracking.

Here’s why this is critical: If water is contaminated during the fracking process, landowners must prove that the poisonous chemicals did not exist in the water before fracking took place. This requires pre-testing for the specific chemicals used. If there is no time to pre-test (which requires a certified lab), landowners are out of luck if contamination occurs.

Further, pre-testing is expensive, and the pre-testing of wells should be something operators pay for, not landowners. It is a cost of doing business.

• The trade secrets loophole should be closed once and for all.  Operators currently withhold as much as 19% of the chemicals used in fracking as trade secrets, and that number is increasing. This is a result of the “Halliburton Loophole” in our friend Dick Cheney’s Energy Act of 2005. Some companies have already committed to disclosing 100% of their fracking chemicals: Baker Hughes, for example, believes “it is possible to disclose 100 percent of the chemical ingredients we use in hydraulic fracturing fluids without compromising our formulations.” The trade loophole unnecessarily disadvantages landowners.
• Measures are necessary to get chemical information to medical professionals in an emergency. As proposed, the revised Rule still does not direct the Board to provide trade secret chemical information directly to first responders and other medical professionals who need it to take action in an emergency.  Instead, the Board’s proposal requires medical professionals to track down the oil and gas operator to request chemical information in an emergency. This is ridiculous, and jeopardizes lives.

Leaking storage pit near Lindsey, MT

Suggestions for your comments
Let the BOGC know who you are. If you are a landowner, let them know what your concerns are — protecting your water is probably foremost, along with the potential financial loss if contamination occurs. Speaking from your personal concerns is a way to make your voice most powerful. Some points you might touch on:

• Advance disclosure to allow for water testing in advance of fracking is essential. I suggest you read my post Report from the water testing seminar in Lewistown. It will provide you with a basic understanding of the intricacies of testing, and the risk if it is not done properly. The proposed rules do not provide sufficient advance notice of the chemicals used in fracking to protect you if contamination occurs, and the potential liabilities are great.
• Further, the BOGC should address the question of who pays for pre-testing of water, which can be very expensive, often over $1000. This should be a cost of doing business for the oil and gas companies. There is a fundamental inequity if landowners are required to pay to protect themselves from contamination from drilling from which they do not profit. There should not be a divide separating those who can pay from those who can’t.
• The trade secrets provision is inadequate. The standards for declaring a chemical a trade secret are set forward in MCA 82-10-604. Companies have entire legal departments employed to figure out how to meet standards like this, and there is little reason to think the BOGC will be anything more than a rubber stamp for industry requests. The issue here for landowners is simple — is company’s need for trade secret protection greater than my need to know the chemical risks that exist to my water and property?
• Emergency first responders need to have immediate access to chemical information to saves lives.

Thanks for lending your voice.

Background
What’s wrong with the Montana Board of Oil and Gas Conservation?
Montana coalition sues BOGC over fracking chemical disclosure
“Changed circumstanes”: Montana Board of Oil and Gas reconsiders rulemaking on fracking chemical disclosure
Report from the water testing seminar in Lewistown