Are Confidential Fracking Ingredients at Risk of Disclosure?

On April 12, 2013, the West Virginia Legislature passed Senate Bill 243 which promulgated the West Virginia Department of Environmental Protection’s (“DEP”) Rules Governing Horizontal Well Development (the “Rules,” codified at W.Va. C.S.R. § 35-8-1 et seq.). While the DEP’s Rules require well operators to report a list of all chemicals and additives used in the hydraulic fracturing process, a legislative amendment was added to the Rules which allowed the well operator to “designate the information regarding the specific identity or concentration or both of a chemical as a confidential trade secret not to be disclosed to the agency or anyone else except in the event of an investigation by the office, medical emergency, or for diagnostic or treatment purposes involving the designated chemical.” See W.Va.C.S.R. § 35-8-10.1.a. This amendment allows well operators to protect confidential trade secrets related to their fracking ingredients, even from the DEP under most circumstances.

A similar confidentiality provision is under attack in Wyoming. In November 2011, several environmental groups made a public records request for the identity of fracking ingredients which were designated as confidential by the oil service companies operating in Wyoming. Those requests were denied, and after several appeals, the issue is now before the Wyoming Supreme Court, which is set to hear argument on November 20, 2013. This blog post further describes the debate in Wyoming and links to the briefs filed by the parties and the live stream of the oral argument before the Wyoming Supreme Court.

The Wyoming Supreme Court’s ultimate decision will set a precedent on this issue which will undoubtedly be heard in the courtrooms of many other gas producing states, including West Virginia. This is one case worthy of some attention for the hydraulic fracturing industry operating in West Virginia.