Did an Ohio Spill Expose a Leak in Ohio’s Hydraulic Fracturing Disclosure Laws?

by BakerHostetler
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After a recent accident at an Ohio unconventional drilling site, Governor Kasich expressed concern about the state’s fracturing-fluids-disclosure laws. The June accident spilled chemicals ­– including the drilling company’s proprietary hydraulic fracturing fluid – into a nearby stream. But under Ohio’s disclosure laws, the company didn’t have to reveal the contents of its proprietary fluid to first responders, which caused controversy among environmental groups and the national media.

The spill occurred on June 28 when a broken hydraulic hose sprayed fluid onto hot equipment, igniting it and spreading the fire throughout the facility. The fire consumed most of the equipment and chemicals at the drilling site. First responders doused the fire with thousands of gallons of water, which caused the chemicals to run into a nearby stream. The Ohio Department of Natural Resources (ODNR) Division of Wildlife removed 70,000 dead fish in the days following the spill.

Controversy sprung from the U.S. Environmental Protection Agency (USEPA) report, which stated that the drilling company did not inform the USEPA or the Ohio Environmental Protection Agency (OEPA) of the ingredients in its proprietary fracking liquid until July 3 – five days after responders first arrived on the scene. This raised concern among environmental groups and politicians, including Governor Kasich. Kasich told the Columbus Dispatch that it would be unacceptable for emergency responders to be restricted from the full list of chemicals that might have spilled into the stream. He added that “[w]e want people to know what the fracking fluid contains.”

Ohio law only requires companies to disclose the contents of its proprietary hydraulic fracturing fluids to the ODNR – at its request – in response to a spill, or to medical professionals treating someone affected by a drilling incident. In either instance, neither the ODNR nor the medical professional may disclose any information labeled as a trade secret. The USEPA report does not clearly state that the disclosure law was the reason why the USEPA did not find out about the proprietary chemicals until five days into the response. But now, many people – including the Ohio Governor – are demanding disclosure laws that would give first responders access to the complete lists of chemicals involved in a fire or spill.

The Ohio spill also could influence disclosure requirements being considered on a national level. The USEPA is currently taking comments regarding the adoption of its own disclosure rules. And while the USEPA acknowledged that the late disclosure in Ohio didn’t have any negative effects on its investigation, the optics were bad. At minimum, the incident caught the nation’s attention and might invoke a wave of comments asking for more stringent disclosure rules. The comment period on the USEPA’s advance notice of proposed rulemaking ends on September 18, 2014.

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