A coalition of Montana property owners and environmental groups filed suit to gain access to what is claimed to be proprietary information about the chemicals companies use for hydraulic fracturing, or “fracking.” The suit against the Montana Board of Oil and Gas Conservation was announced in a press release from The Natural Resources Defense Council.
The Montana Board of Oil and Gas oversee compliance to laws and permit the operations of oil and gas companies in the state. The board has complied with Montana law in recognizing industry requests to withhold the information from the public to protect trade secrets, but the coalition wants the information.
“Montanans have the right to know what chemicals oil and gas operators plan to pump into the ground on their farms and ranches and near their homes so they can take steps to protect their property and health,” said Earth justice attorney Katherine O’Brien, who is representing the coalition in the lawsuit. “Operators just down the road in Wyoming already are required to disclose this information, so we know that broader disclosure is workable for industry.”
Earth Justice is a nonprofit environmental law organization.
Fracking involves pumping millions of gallons of chemical-laced water as much as two miles below ground surface, under high pressure, to release oil and gas deposits. Environmentalists claim that “numerous fracking chemicals are toxic or carcinogenic to humans.”
Industry spokesman have consistently claimed that most of the chemicals used are commonly found under the kitchen sink in most homes or on the shelf of the local drug store.
Environmentalists fear there may be health risks involved in exposure to the chemicals “through surface spills of fracking fluids, groundwater contamination, and chemical releases into the air.” They claim that “Studies have documented adverse health effects in people who live or use water wells near fracking operations.”
The Montana Petroleum Association (MPA) has no plans to intervene in the lawsuit, according to Jessica Sena, MPA Communications Advisor. Sena further stated, “The Montana Petroleum Association recognizes the concern of landowners who believe the public’s right to know is being circumvented by existing BOGC rules on trade secrets, however, the state’s statutory protections of proprietary information place the Board in a difficult position.” Additionally, “Montana has a strong environmental record with respect to hydraulic fracturing, with no demonstrated cases of groundwater contamination.”
And, ironically, “What’s maintained as confidential information is typically the most environmentally beneficial, conferring a competitive advantage over other service providers who conduct fracture stimulation,” said Sena.
Rules promulgated by the Board in 2011 allow oil and gas operators to withhold the identities of specific chemicals they use for fracking from the Board and the public until after fracking occurs. Even then, operators may continue to withhold any fracking chemical information they claim is a trade secret. Further, say plaintiffs, the rules do not require operators to provide any evidence demonstrating that withheld chemical information actually qualifies as a trade secret under state law.
There was a bill in 2015 to require complete disclosure of all constituents used in hydraulic fracturing, according to Sena, but it was tabled in House Federal Relations, Energy and Telecommunications (FRET), largely because of Montana’s uniform trade secrets act, and the stiff penalties assessed for misappropriation of trade secrets under the law.
Another reason the House FRET committee tabled the bill was because in 60 years of “fracking”, there have been no proven cases of groundwater contamination, said Sena. This has been confirmed by the EPA, which issued a statement last year saying there have been no widespread or systemic effects on groundwater from hydraulic fracturing.
“This is true for Montana and verified by former Board Administrator Tom Richmond, who sat on the House FRET committee,” said Sena.
Disclosure to the Board is publicly available and many companies upload disclosure forms to FracFocus.org (also publicly available), managed by the Ground Water Protection Council and Interstate Oil and Gas Compact Commission, two organizations whose missions revolve around conservation and environmental protection.
The coalition is concerned that landowners are denied the information they need in order to test for the presence of fracking chemicals in their water before fracking occurs, which is essential to determine the source of any contamination.
The coalition petitioned the Board in July 2016 to close gaps in the existing disclosure rules and ensure that Montanans who live and farm near fracking operations have access to chemical information they need to safeguard their property rights, health, and environment. The petition requested that the rules be changed to require operators to disclose specific chemical information before fracking occurs and to require operators to justify their trade secret claims. But on September 23, 2016, the Board denied the petition.
The coalition’s lawsuit asks a state district court judge to overturn the Board’s September 2016 decision rejecting a request to strengthen the state’s fracking chemical disclosure rules. The lawsuit was filed by the nonprofit environmental law firm Earth justice on behalf of Montana Environmental Information Center, Natural Resources Defense Council, Dr. Mary Anne Mercer, David Katz, Anne Moses, Jack and Bonnie Martinell, Dr. Willis Weight, and Dr. David Lehnherr.
“My family home is less than a mile away from numerous fracked oil wells on the edge of the Bakken oil field,” said plaintiff Dr. Mary Anne Mercer, a public health expert who has witnessed fracking operations on her family ranch. “I worry about what the potentially toxic solutions used for fracking are doing to the soil and water of the land that I’ll always call home.”
Plaintiff Bonnie Martinell, who operates a chemical-free farm near Belfry, stated: “As a chemical-free produce farmer, my livelihood and lifestyle are totally dependent on knowing what my water and soil is exposed to. And as a Montana citizen I have a right to a clean and healthy environment.”
According to MPA, 99.95% of frac fluid is water and sand; the remaining .5% of chemicals include guar gum (which helps to suspend oil and gas and move it out of fractures), emulsifying agents (like dish soap), surfactants (which are used in laundry detergent), and other ingredients found in common household cleaners.
Explained Sena, “The number one reason companies file trade secrets for proprietary ingredients is because they confer a competitive advantage with other service companies. These also tend to be the most environmentally conscience ‘chemicals’. Halliburton, for example, produced a completely ‘organic’ fluid which former CO Governor Hickenlooper even drank at a committee to prove how safe it was.”
According to Sena, Montana oil and gas producers pay a Resource Indemnity and Groundwater Assessment tax. Several hundred thousand dollars a year is allocated to the Bureau of Mines and Geology for statewide groundwater monitoring and testing. In fact, there was additional money made in the 2013 or 2015 legislature for conservation districts to offer well testing in “high risk” (oil and gas) areas. “The requests from concerned landowners was abysmal, indicating that most people were not concerned with the quality of their groundwater in these areas,” said Sena.

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