Posted on March 7, 2013 by Linda Bullen
One of the many controversies surrounding hydraulic fracturing involves the protection of trade secrets in an evolving regulatory environment hungry for more information about every aspect of operations. Regulators, litigants and the public press for disclosure of the composition of hydraulic fracturing fluids while manufacturers and operators resist full disclosure to protect proprietary formulas believed to be valuable secrets.
In a pre-rulemaking decision draft of hydraulic fracturing regulations released on December 18, 2012, California addressed the tension between protecting trade secrets and the public’s right to obtain information under California’s Public Records Act (“Act”). Under the draft regulations, operators are not required to disclose the chemical composition of hydraulic fracturing fluid prior to drilling. After fracking, operators must disclose the chemicals in their fracturing fluid by chemical family and by percent of the fluid. Disclosure of precise chemicals and formulas is not required. Operators must also provide contact information for the person or entity that possesses the information withheld as a trade secret.
The California draft regulations reflect a national trend. Alaska, however, bucks this trend with draft regulations released in December which require full disclosure of each fluid additive type by chemical name, CAS registry number and concentration. The issue is far from resolved and we can certainly expect more regulation and litigation.