Ohio Legislature Passes Fracking Chemical Disclosure Bill

On May 24, 2012, the Ohio legislature passed Sub. S.B. 315, which will expand existing fracking chemical public disclosure requirements in the state. Ohio became the first state to require public disclosure of the chemical content of fracking fluids in 2010, and the new bill, which was proposed by Ohio Governor John Kasich, will bolster the existing law with new disclosure, water sampling, and recordkeeping requirements. Specifically, the bill will require disclosure of the trade name, total amount, and supplier of all fluids used to facilitate the drilling of any portion of a well until the surface casing is set and properly sealed. The bill will also require disclosure of the trade name, total volume, and supplier of each fluid used to stimulate a well. From the time a well is initially completed and stimulated until a well is plugged, well owners must also report within 60 days all materials placed into the formation to refracture, restimulate, or newly complete the well.

Although the bill contains broad disclosure requirements, it also provides significant trade secret protections. The bill will allow well owners to designate as a trade secret, and withhold from reporting, the identity, amount, concentration, or purpose of a product, fluid, or substance or any chemical component thereof. However, the bill will allow property owners, adjacent property owners, or any person or agency with an interest that may be adversely affected by a fracking chemical or a chemical constituent thereof to file a civil action against the well owner challenging a trade secret designation. In the civil action, the court will conduct an in camera review of the withheld information to determine whether it is entitled to trade secret protection.

In addition to the fracking chemical disclosure provisions, the bill also contains water sampling, recordkeeping, and reporting requirements. For example, applicants for a permit to drill a new horizontal well will be required to submit the results of sampling of water wells within 1,500 feet of the proposed horizontal wellhead. With regard to recordkeeping, the bill will require well owners to maintain for at least two years records of all chemicals placed in a well. Further, the bill will require well owners to submit quarterly reports of each shipment of brine or other waste substance they receive for injection into the well.

The bill has been submitted for Governor Kasich's signature, which he is expected to provide. If the Governor does not sign the bill before June 5, the bill will automatically be enacted by operation of law.