Bill Text: TX HB3328 | 2011-2012 | 82nd Legislature | Introduced
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Relating to the disclosure of the composition of hydraulic fracturing fluids used in hydraulic fracturing treatments.
Spectrum: Slight Partisan Bill (Republican 7-4)
Status: (Passed) 2011-06-17 - Effective on 9/1/11 [HB3328 Detail]
Download: Texas-2011-HB3328-Introduced.html
Bill Title: Relating to the disclosure of the composition of hydraulic fracturing fluids used in hydraulic fracturing treatments.
Spectrum: Slight Partisan Bill (Republican 7-4)
Status: (Passed) 2011-06-17 - Effective on 9/1/11 [HB3328 Detail]
Download: Texas-2011-HB3328-Introduced.html
82R12623 SMH-F | ||
By: Keffer | H.B. No. 3328 |
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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. |