More than one-fifth of the reports to FracFocus.org for frack jobs in two states last year were filed late, according to an EnergyWire review of state records.
Neither Colorado nor Pennsylvania has penalized companies for missing the deadlines, though they mandated disclosure of fracturing fluid chemicals more than a year ago.
"That's lousy. You're not enforcing," said Bruce Baizel, an environmentalist and lawyer with Earthworks who helped hammer out Colorado's disclosure provisions.
Colorado and Pennsylvania are two of about a dozen states that require or allow disclosure through the privately run FracFocus website, and they were chosen by EnergyWire as representative. FracFocus has come under increased scrutiny after a study by Harvard Law School's Environmental Law and Policy Program said it "fails as a regulatory compliance tool" and said states shouldn't use it (EnergyWire, April 23).
Industry officials defend their record of disclosure.
"Our companies are committed to using FracFocus as the database on which natural gas producers report the contents of chemicals used in the hydraulic fracturing process," said Dan Whitten, spokesman for America's Natural Gas Alliance, a trade group. "We have taken these disclosures and reporting to the database itself very seriously."
Spokesmen for oil and gas agencies in both states said they hope to see reporting and timeliness improve now that the mandatory reporting provisions have passed the one-year mark.
Fracturing is a part of drilling a well and producing oil and gas. In the shale drilling that has revolutionized the U.S. oil and gas industry, fracking crews pump millions of gallons of chemical-laced water and sand to crack open the rock and release gas.
The only state known to have penalized a company for failure to file is North Dakota, which fined Slawson Exploration Co. $300,000. After a December blowout near the banks of Lake Sakakawea, officials at the state's Department of Mineral Resources found the company hadn't filed with FracFocus and demanded $12,500 for each day it was delinquent.
"We felt it was important that we set an example that reporting to FracFocus is important," department Director Lynn Helms explained in a brief interview.
Slawson Exploration is contesting the charges and fines, which also include $75,000 for the accident itself. Slawson has since filed a report disclosing the chemicals used, but the report omits information on six ingredients as trade secrets.
That's the only company Helms' agency has fined. But he said his staff regularly sends out late notices to companies. The agency recently set up its database to compare dates from electronic frack notices sent by operators and FracFocus filing dates. It then flags delinquent wells by API number, each well's unique number.
"That API better be in there in 60 days," Helms said.
Pa. is 'working with operators'
Colorado and Pennsylvania require reports to be filed to FracFocus within 60 days of a frack job. But spokesmen for agencies in both states said they have not taken enforcement action against late filers.
"We expect world-class performance from operators in all aspects, from proper casing and cementing to timely submissions of reports," said Kevin Sunday, spokesman for the Pennsylvania Department of Environmental Protection. "We are working with operators to make sure they are filing these reports on time."
Pennsylvania's disclosure requirement is part of the revisions to drilling laws called "Act 13." Sunday said it is "one of the most progressive fracturing fluid disclosure statutes in the nation."
Colorado officials are expecting to see compliance improve, said Todd Hartman, spokesman for the Colorado Department of Natural Resources, which includes the state Oil and Gas Conservation Commission.
"With operators now having had a year to fine-tune their reporting process," Hartman said, "we will expect more diligent compliance with filing deadlines going forward."
Industry hailed Colorado's rules as some of the toughest in the nation when they were adopted in December 2011 by the state's Oil and Gas Conservation Commission.
"These new rules give Colorado the fairest and most transparent set of fracking regulations in the country and will likely serve as a model for other states," Gov. John Hickenlooper (D) said at the time. "We believe oil and gas development can thrive while also meeting our high standards for protection of public health, water and the environment."
But Earthworks' Baizel said 80 percent compliance isn't meeting "high standards."
"If you stood up and said, 'We think this regulation will get 80 percent compliance,' the commissioners would laugh at you," Baizel said.
The well-by-well records made available to the public on the FracFocus website do not include the date they were filed. So it can't be determined from the FracFocus site itself whether a report was filed on time.
But the Groundwater Protection Council (GWPC), which runs the site, regularly sends Excel spreadsheets of the data to state oil and gas agencies with filing dates and other data.
EnergyWire obtained the spreadsheets for 2012 through open records requests to the state agencies in Colorado and Pennsylvania.
Disclosure became mandatory April 1, 2012, in Colorado and April 16, 2012, in Pennsylvania. In Pennsylvania, there were 684 reports filed between May 1 and Dec. 31 for wells fracked after May 1. Of those, 165 were late, or 24 percent. In Colorado, there were 1,440 filings between April 1 and the end of 2012, and 305 were late, or 21 percent.
Harvard's critique stirs debate
The 2-year-old FracFocus website is funded by two industry trade groups and run by GWPC, a private nonprofit, in conjunction with the Interstate Oil and Gas Compact Commission.
The Obama administration has endorsed the site for disclosure of the fracturing chemicals used on federal public lands.
It was originally designed for voluntary disclosure, providing people who live near a well with information about the chemicals poured into it. But as states have started ordering disclosure of chemical information, it has evolved into a tool to comply with those state rules.
It fails in that function, the Harvard report states, because it gives drilling companies too much leeway to miss deadlines. The report said FracFocus doesn't notify states when disclosures are filed. GWPC responded that it regularly provides updates to state agencies on what reports have been filed to FracFocus. Those are the records obtained by EnergyWire.
"We merely provide the means by which a state receives the information so that they may review it for regulatory compliance," GWPC said in a statement.
Industry advocates faulted the researchers for not interviewing the creators of FracFocus. But the author of the Harvard report, Kate Konschnik, said her study reflected what could be found on the site, in law and regulation, not the inner workings of the system.
Konschnik, policy director of the school's Environmental Law and Policy Program, said it's troubling that companies are filing late and that members of the public can't see that for themselves on the FracFocus site.
"Taken together," she said, "it would lead a company not to spend a lot of time or resources to report on time, or accurately."
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