82R12623 SMH-F
By: Keffer H.B. No. 3328
A BILL TO BE ENTITLED
AN ACT
relating to the disclosure of the composition of hydraulic
fracturing fluids used in hydraulic fracturing treatments.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 91, Natural Resources Code, is amended
by adding Subchapter S to read as follows:
SUBCHAPTER S. DISCLOSURE OF COMPOSITION OF HYDRAULIC FRACTURING
FLUIDS
Sec. 91.851. DEFINITIONS. In this subchapter, unless the
context otherwise requires:
(1) "Additive" means any substance or combination of
substances found in a hydraulic fracturing fluid, including a
proppant, that is added to a base fluid in the context of a
hydraulic fracturing treatment.
(2) "Base fluid" means the base fluid type, such as
water or nitrogen foam, used in a particular hydraulic fracturing
treatment.
(3) "Chemical Abstracts Service" or "CAS" means the
chemical registry that is the authoritative collection of disclosed
chemical substance information.
(4) "Chemical constituent" means a discrete chemical
with its own specific name or identity, such as a CAS number, that
is contained in an additive.
(5) "Hydraulic fracturing fluid" means the fluid used
to perform a particular hydraulic fracturing treatment and includes
the applicable base fluid and all additives.
(6) "Hydraulic fracturing treatment" means the
stimulation of a well by the forceful application of hydraulic
fracturing fluid into the relevant geological formation for the
purpose of creating fractures in the formation in order to
facilitate production of hydrocarbons.
(7) "Operator" means the person authorized to conduct
operations on a well.
(8) "Proppant" means sand or another natural or
man-made inert material that is used in a hydraulic fracturing
treatment to prevent artificially created or enhanced fractures
from closing once the treatment is completed.
(9) "Trade secret" means any confidential formula,
pattern, process, device, information, or compilation of
information that is used in a person's business and that gives the
person an opportunity to obtain an advantage over competitors that
do not know or use it.
(10) "Well" means a hydrocarbon production well.
(11) "Well completion report" means the report an
operator is required to file with the commission following the
completion or recompletion of a well, if applicable.
Sec. 91.852. INFORMATION SUBMITTED CONSIDERED PUBLIC
INFORMATION; POSTING ON INTERNET WEBSITE. Notwithstanding any
other law, unless the information is entitled to be withheld as a
trade secret under Section 91.853(b) or (c)(4) or 91.854(c),
information submitted to the commission under Section 91.853 or
91.854 is public information, and the commission shall post the
information on a publicly accessible Internet website.
Sec. 91.853. SERVICE COMPANY DISCLOSURES. (a) A person
performing hydraulic fracturing treatments in this state shall
disclose to the commission and maintain an updated master list of:
(1) all base fluids to be used by the person during any
hydraulic fracturing treatment in this state;
(2) all additives to be used by the person during any
hydraulic fracturing treatment in this state; and
(3) all chemical constituents to be used by the person
in any hydraulic fracturing treatment in this state and their
associated CAS numbers.
(b) Notwithstanding Subsection (a)(3), if the specific
identity of any chemical constituent to be used in any hydraulic
fracturing treatment in this state is entitled to be withheld as a
trade secret pursuant to the criteria provided by 42 U.S.C. Section
11042(a)(2) and Section 91.856 of this chapter, the commission
shall protect and hold confidential the identity of the chemical
constituent and its associated CAS number. To qualify for trade
secret protection, the person performing the hydraulic fracturing
treatment must submit to the commission on an approved form a formal
claim of entitlement to that protection in the manner required by
Section 91.856.
(c) A person performing hydraulic fracturing treatments in
this state shall provide to the operator of each well for which the
person performs a hydraulic fracturing treatment:
(1) the maximum pump pressure measured at the surface
and the type and volume of base fluid used in each stage of the
hydraulic fracturing treatment;
(2) a list of all additives used in the hydraulic
fracturing fluid, specified by general type, such as acid, biocide,
breaker, corrosion inhibitor, crosslinker, demulsifier, friction
reducer, gel, iron control, oxygen scavenger, pH adjusting agent,
proppant, scale inhibitor, and surfactant;
(3) for each additive type listed under Subdivision
(2), the specific name of the additive used and the actual rate or
concentration of each additive, expressed as pounds per thousand
gallons or gallons per thousand gallons and expressed as a
percentage by volume of the total hydraulic fracturing fluid used;
(4) a list of all the chemical constituents used in the
hydraulic fracturing fluid and their associated CAS numbers, except
to the extent that the specific identity of any chemical
constituent is entitled to be withheld as a trade secret as provided
by Subsection (b); and
(5) for each chemical constituent identified under
Subdivision (4), the actual rate or concentration of each chemical,
expressed as pounds per thousand gallons or gallons per thousand
gallons and expressed as a percentage by volume of the total
hydraulic fracturing fluid used.
(d) Subsections (b) and (c)(4) do not authorize a person to
withhold information that federal or state law, including this
section, requires to be provided to any health care professional
who needs the information for diagnostic or treatment purposes. A
person performing a hydraulic fracturing treatment shall provide
directly to a health care professional, immediately on request, all
information required by the health care professional, including the
percent by volume of the chemical constituents of the hydraulic
fracturing fluid and their associated CAS numbers. In a case that
is not a medical emergency, the health care professional must
provide the person performing the hydraulic fracturing treatment a
written statement of need for the information before the person is
entitled to receive the information. In a medical emergency, the
health care professional must provide the person performing the
hydraulic fracturing treatment a written statement of need for the
information as soon as circumstances permit.
(e) A health care professional to whom information is
disclosed under Subsection (d) shall hold the information
confidential, except that the health care professional may, for
diagnostic or treatment purposes, disclose information provided
under that subsection to another health care professional, a
laboratory, or a third-party testing firm. A health care
professional, laboratory, or third-party testing firm to which
information is disclosed by another health care professional under
this subsection shall hold the information confidential.
Sec. 91.854. OPERATOR DISCLOSURES. (a) Following the
completion of a hydraulic fracturing treatment on a well, the
operator shall include in the well completion report, on a form
approved by the commission:
(1) the maximum pump pressure measured at the surface
and the type and volume of base fluid used in each stage of the
hydraulic fracturing treatment;
(2) a list of all additives used in the hydraulic
fracturing treatment, specified by general type, such as acid,
biocide, breaker, corrosion inhibitor, crosslinker, demulsifier,
friction reducer, gel, iron control, oxygen scavenger, pH adjusting
agent, proppant, scale inhibitor, and surfactant;
(3) for each additive type listed under Subdivision
(2), the specific name of the additive used and the actual rate or
concentration of each additive, expressed as pounds per thousand
gallons or gallons per thousand gallons and expressed as a
percentage by volume of the total hydraulic fracturing fluid used;
(4) the information provided under Sections
91.853(c)(4) and (5) to the operator by the person who performed the
hydraulic fracturing treatment; and
(5) if the operator caused any additives to be used
during the hydraulic fracturing treatment that are not required to
be disclosed under Section 91.853(c) to the operator by the person
who performed the hydraulic fracturing treatment:
(A) a list of the additives used; and
(B) for each additive listed, the chemical
constituents of the additive and their associated CAS numbers and
the actual rate or concentration of each additive or chemical,
expressed in the manner provided by Section 91.853(c).
(b) The operator may supply field service company tickets,
excluding pricing information, and reports regarding the hydraulic
fracturing treatment, as used in the normal course of business, to
satisfy some or all of the requirements of Subsection (a).
(c) Notwithstanding Subsection (a)(5), if the specific
identity of a chemical constituent contained in an additive is
entitled to be withheld as a trade secret pursuant to the criteria
provided by 42 U.S.C. Section 11042(a)(2) and Section 91.856 of
this chapter, the commission shall protect and hold confidential
the identity of the chemical constituent and its associated CAS
number. To qualify for trade secret protection, the operator must
submit to the commission on an approved form a formal claim of
entitlement to that protection in the manner required by Section
91.856.
(d) Subsection (c) does not authorize an operator to
withhold information that federal or state law, including this
section, requires to be provided to any health care professional
who needs the information for diagnostic or treatment purposes. An
operator shall provide directly to a health care professional,
immediately on request, all information required by the health care
professional, including the percent by volume of the chemical
constituents of the hydraulic fracturing fluid and their associated
CAS numbers. In a case that is not a medical emergency, the health
care professional must provide the operator a written statement of
need for the information before the person is entitled to receive
the information. In a medical emergency, the health care
professional must provide the operator a written statement of need
for the information as soon as circumstances permit.
(e) A health care professional to whom information is
disclosed under Subsection (d) shall hold the information
confidential, except that the health care professional may, for
diagnostic or treatment purposes, disclose information provided
under that subsection to another health care professional, a
laboratory, or a third-party testing firm. A health care
professional, laboratory, or third-party testing firm to which
information is disclosed by another health care professional under
this subsection shall hold the information confidential.
Sec. 91.855. USE OF SERVICES OF NONCOMPLYING SERVICE
COMPANY PROHIBITED. An operator may not use the services of another
person in performing a hydraulic fracturing treatment in this state
unless the other person is in compliance with the requirements of
Section 91.853.
Sec. 91.856. TRADE SECRET PROTECTION. (a) A claim of
entitlement to trade secret protection made under Section 91.853(b)
or (c)(4) or 91.854(c) must include substantiating facts in the
form of the information required by 40 C.F.R. Section 350.7(a). If
requested by the trade secret claimant, the commission shall treat
any such substantiating facts as confidential and may not disclose
them to any third party or the public for any purpose. Until a final
determination that the information is not entitled to trade secret
protection is made under this section, the commission shall treat
the information implicated by the claim of trade secret entitlement
as a confidential trade secret, and the information is not subject
to disclosure under Chapter 552, Government Code.
(b) The commission shall determine a claim of entitlement to
trade secret protection made under Section 91.853(b) or (c)(4) or
91.854(c) to be sufficient if the information set forth in the claim
supports all the conclusions set forth in 40 C.F.R. Section
350.13(a) and the supporting information is true. In making a
determination as to a claim, the commission may require the trade
secret claimant to submit additional supplemental information if
the information is necessary for the commission to make its
determination under this section. If requested by the trade secret
claimant, the commission shall treat any supplemental information
provided as confidential and may not disclose the information to
any third party or the public for any purpose.
(c) If the commission determines a claim of entitlement to
trade secret protection to be insufficient, the commission shall
notify the trade secret claimant in writing of the determination by
certified mail. Not later than the 15th day after the date the
trade secret claimant receives notice of the determination, the
claimant may request another review of the claim. The trade secret
claimant must show good cause for the additional review. What
constitutes good cause for purposes of this subsection is solely
within the reasonable discretion of the commission and may include
the availability of new supporting information or a good faith
error or omission on the part of the trade secret claimant in the
original claim. Not later than the 30th day after the date the
commission receives the request, the commission shall provide
written notice to the trade secret claimant of the commission's
acceptance or rejection of the request. If a trade secret claimant
makes a request for review under this subsection, the commission
shall treat the information implicated by the claim of trade secret
entitlement as a confidential trade secret until the commission
makes a determination with regard to the review request. If the
commission rejects the review request, the commission shall
continue to treat the information as a confidential trade secret
until the earlier of the 30th day after the date the trade secret
claimant receives notice that the commission has rejected the
review request or the date the claimant withdraws the disclosure
under Subsection (e).
(d) Not later than the 30th day after the date the trade
secret claimant receives notice from the commission that the
commission has rejected the claim of entitlement to trade secret
protection, the claimant may appeal the determination by filing a
petition in a district court of Travis County. If a trade secret
claimant files an appeal under this subsection, the commission
shall treat the information implicated by the claim of trade secret
entitlement as a confidential trade secret until the appeal is
resolved. If the resolution of the appeal affirms the commission's
determination of the insufficiency of the claim, the commission
shall continue to treat the information as a confidential trade
secret until the earlier of the 30th day after the date the trade
secret claimant receives notice that the appeal has been resolved
or the date the claimant withdraws the disclosure under Subsection
(e).
(e) Not later than the 30th day after the date the trade
secret claimant receives notification under Subsection (c) that the
commission has rejected the claim of entitlement to trade secret
protection or the date a final judgment affirming the commission's
determination of the insufficiency of the claim is entered under
Subsection (d), as applicable, and only to the extent that the
relevant chemical constituent has not been used by or for the trade
secret claimant in any hydraulic fracturing treatment in this
state, the trade secret claimant may formally withdraw the
disclosure of a chemical constituent by notifying the commission of
its intent to withdraw the disclosure. If the trade secret claimant
withdraws the disclosure of a chemical constituent, the commission
shall protect and hold confidential the identity of the chemical
constituent and any corresponding CAS number, and the information
is not subject to disclosure under Chapter 552, Government Code.
After the withdrawal, the chemical constituent may not be used by or
for the trade secret claimant in any hydraulic fracturing treatment
in this state unless the trade secret claimant satisfies the
requirements of this chapter relating to the disclosure of
information regarding the chemical constituent.
(f) Notwithstanding any other provision of this section,
the commission may:
(1) disclose information otherwise subject to trade
secret protection under this section to a third-party testing firm
in connection with the investigation of a claim of contamination of
surface water or groundwater if the firm agrees in writing to keep
the information confidential; and
(2) use the results of a test conducted by a
third-party testing firm in connection with an investigation
described by Subdivision (1) in any manner the commission considers
necessary to protect public health and the environment.
SECTION 2. Subchapter S, Chapter 91, Natural Resources
Code, as added by this Act, applies only to a hydraulic fracturing
treatment performed on a well for which an initial drilling permit
is issued on or after the effective date of this Act. A hydraulic
fracturing treatment performed on a well for which an initial
drilling permit is issued before the effective date of this Act is
governed by the law as it existed immediately before the effective
date of this Act, and that law is continued in effect for that
purpose.
SECTION 3. This Act takes effect September 1, 2011.