Current through Reg. 49, No. 12; March 22, 2024
(a) Definitions. The following words and
terms when used in this section shall have the following meanings, unless the
context clearly indicates otherwise.
(1)
Accredited laboratory--A laboratory as defined in Texas Water Code, §
RSA 5.801.
(2) Additive--Any chemical substance or
combination of substances, including a proppant, contained in a hydraulic
fracturing fluid that is intentionally added to a base fluid for a specific
purpose whether or not the purpose of any such substance or combination of
substances is to create fractures in a formation.
(3) Adjacent property--A tract of property
next to the tract of property on which the subject wellhead is located,
including a tract that meets only at a corner point.
(4) API number--A unique, permanent, numeric
identifier assigned to each well drilled for oil or gas in the United
States.
(5) Base fluid--The
continuous phase fluid type, such as water, used in a particular hydraulic
fracturing treatment.
(6) Chemical
Abstracts Service--The division of the American Chemical Society that is the
globally recognized authority for information on chemical substances.
(7) Chemical Abstracts Service number or CAS
number--The unique identification number assigned to a chemical by the Chemical
Abstracts Service.
(8) Chemical
Disclosure Registry--The chemical registry website known as FracFocus developed
by the Ground Water Protection Council and the Interstate Oil and Gas Compact
Commission.
(9) Chemical family--A
group of chemical ingredients that share similar chemical properties and have a
common general name.
(10) Chemical
ingredient--A discrete chemical constituent with its own specific name or
identity, such as a CAS number, that is contained in an additive.
(11) Commission--The Railroad Commission of
Texas.
(12) Delegate--The person
authorized by the director to take action on behalf of the Railroad Commission
of Texas under this section.
(13)
Director--The director of the Oil and Gas Division of the Railroad Commission
of Texas or the director's delegate.
(14) Health professional or emergency
responder--A physician, physician's assistant, industrial hygienist,
toxicologist, epidemiologist, nurse, nurse practitioner, or emergency responder
who needs information in order to provide medical or other health services to a
person exposed to a chemical ingredient.
(15) Hydraulic fracturing fluid--The fluid,
including the applicable base fluid and all additives, used to perform a
particular hydraulic fracturing treatment.
(16) Hydraulic fracturing treatment--The
treatment of a well by the application of hydraulic fracturing fluid under
pressure for the express purpose of initiating or propagating fractures in a
target geologic formation to enhance production of oil and/or natural
gas.
(17) Landowner--The person
listed on the applicable county appraisal roll as owning the real property on
which the relevant wellhead is located.
(18) Operator--An operator as defined in
Texas Natural Resources Code, Chapter 89.
(19) Person--Natural person, corporation,
organization, government or governmental subdivision or agency, business trust,
estate, trust, partnership, association, or any other legal entity.
(20) Proppant--Sand or any natural or
man-made material that is used in a hydraulic fracturing treatment to prop open
the artificially created or enhanced fractures once the treatment is
completed.
(21) Requestor--A person
who is eligible to request information claimed to be entitled to trade secret
protection in accordance with Texas Natural Resources Code, §
RSA
91.851<subdiv>(a)(5)</subdiv>.
(22) Service company--A person that performs
hydraulic fracturing treatments on a well in this state.
(23) Supplier--A company that sells or
provides an additive for use in a hydraulic fracturing treatment.
(24) Total water volume--The total amount of
water in gallons used as the carrier fluid for the hydraulic fracturing job. It
may include recycled water and newly acquired water.
(25) Trade name--The name given to an
additive or a hydraulic fracturing fluid system under which that additive or
hydraulic fracturing fluid system is sold or marketed.
(26) Trade secret--Any formula, pattern,
device, 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
who do not know or use it. The six factors considered in determining whether
information qualifies as a trade secret, in accordance with the definition of
"trade secret" in the Restatement of Torts, Comment B to Section 757 (1939), as
adopted by the Texas Supreme Court in
Hyde Corp. v. Huffines,
314 S.W.2d 763, 776 (Tex.1958), include:
(A)
the extent to which the information is known outside of the company;
(B) the extent to which it is known by
employees and others involved in the company's business;
(C) the extent of measures taken by the
company to guard the secrecy of the information;
(D) the value of the information to the
company and its competitors;
(E)
the amount of effort or money expended by the company in developing the
information; and
(F) the ease or
difficulty with which the information could be properly acquired or duplicated
by others.
(27) Well--A
well as defined in Texas Natural Resources Code, Chapter 89.
(28) Well completion report--The report an
operator is required to file with the Commission following the completion or
recompletion of a well, if applicable, in accordance with §
RSA
3.16<subdiv>(b)</subdiv> of this
title (relating to Log and Completion or Plugging Report.)
(c) Required disclosures.
(1) Supplier and service company disclosures.
(A) As soon as possible, but not later than
15 days following the completion of hydraulic fracturing treatment(s) on a
well, the supplier or the service company must provide to the operator of the
well the following information concerning each chemical ingredient
intentionally added to the hydraulic fracturing fluid:
(i) each additive used in the hydraulic
fracturing fluid and the trade name, supplier, and a brief description of the
intended use or function of each additive in the hydraulic fracturing
treatment;
(ii) each chemical
ingredient subject to the requirements of 29 Code of Federal Regulations
§1910.1200(g)(2);
(iii) all
other chemical ingredients not submitted under subparagraph (A) of this
paragraph that were intentionally included in, and used for the purpose of
creating, hydraulic fracturing treatment(s) for the well;
(iv) the actual or maximum concentration of
each chemical ingredient listed under clause (i) or clause (ii) of this
subparagraph in percent by mass; and
(v) the CAS number for each chemical
ingredient, if applicable.
(B) The supplier or service company must
provide the operator of the well a written statement that the specific identity
and/or CAS number or amount of any additive or chemical ingredient used in the
hydraulic fracturing treatment(s) of the operator's well is claimed to be
entitled to protection as trade secret information pursuant to Texas Government
Code, Chapter 552. If the chemical ingredient name and/or CAS number is claimed
as trade secret information, the supplier or service company making the claim
must provide:
(i) the supplier's or service
company's contact information, including the name, authorized representative,
mailing address, and telephone number; and
(ii) the chemical family, unless providing
the chemical family would disclose information protected as a trade
secret.
(2)
Operator disclosures.
(A) On or before the
date the well completion report for a well on which hydraulic fracturing
treatment(s) was/were conducted is submitted to the Commission in accordance
with §
RSA
3.16<subdiv>(b)</subdiv> of this
title, the operator of the well must complete the Chemical Disclosure Registry
form and upload the form on the Chemical Disclosure Registry, including:
(i) the operator name;
(ii) the date of completion of the hydraulic
fracturing treatment(s);
(iii) the
county in which the well is located;
(iv) the API number for the well;
(v) the well name and number;
(vi) the longitude and latitude of the
wellhead;
(vii) the total vertical
depth of the well;
(viii) the total
volume of water used in the hydraulic fracturing treatment(s) of the well or
the type and total volume of the base fluid used in the hydraulic fracturing
treatment(s), if something other than water;
(ix) each additive used in the hydraulic
fracturing treatments and the trade name, supplier, and a brief description of
the intended use or function of each additive in the hydraulic fracturing
treatment(s);
(x) each chemical
ingredient used in the hydraulic fracturing treatment(s) of the well that is
subject to the requirements of 29 Code of Federal Regulations
§1910.1200(g)(2), as provided by the chemical supplier or service company
or by the operator, if the operator provides its own chemical
ingredients;
(xi) the actual or
maximum concentration of each chemical ingredient listed under clause (x) of
this subparagraph in percent by mass;
(xii) the CAS number for each chemical
ingredient listed, if applicable; and
(xiii) a supplemental list of all chemicals
and their respective CAS numbers, not subject to the requirements of 29 Code of
Federal Regulations §1910.1200(g)(2), that were intentionally included in
and used for the purpose of creating the hydraulic fracturing treatments for
the well.
(B) If the
Chemical Disclosure Registry known as FracFocus is temporarily inoperable, the
operator of a well on which hydraulic fracturing treatment(s) were performed
must supply the Commission with the required information with the well
completion report and must upload the information on the FracFocus Internet
website when the website is again operable. If the Chemical Registry known as
FracFocus is discontinued or becomes permanently inoperable, the information
required by this rule must be filed as an attachment to the completion report
for the well, which is posted, along with all attachments, on the Commission's
Internet website, until the Commission amends this rule to specify another
publicly accessible Internet website.
(C) If the supplier, service company, or
operator claim that the specific identity and/or CAS number or amount of any
additive or chemical ingredient used in the hydraulic fracturing treatment(s)
is entitled to protection as trade secret information pursuant to Texas
Government Code, Chapter 552, the operator of the well must indicate on the
Chemical Disclosure Registry form or the supplemental list that the additive or
chemical ingredient is claimed to be entitled to trade secret protection. If a
chemical ingredient name and/or CAS number is claimed to be entitled to trade
secret protection, the chemical family or other similar description associated
with such chemical ingredient must be provided. The operator of the well on
which the hydraulic fracturing treatment(s) were performed must provide the
contact information, including the name, authorized representative, mailing
address, and phone number of the business organization claiming entitlement to
trade secret protection.
(D) Unless
the information is entitled to protection as a trade secret under Texas
Government Code, Chapter 552, information submitted to the Commission or
uploaded on the Chemical Disclosure Registry is public information.
(3) Inaccuracies in information. A
supplier is not responsible for any inaccuracy in information that is provided
to the supplier by a third party manufacturer of the additives. A service
company is not responsible for any inaccuracy in information that is provided
to the service company by the supplier. An operator is not responsible for any
inaccuracy in information provided to the operator by the supplier or service
company.
(4) Disclosure to health
professionals and emergency responders. A supplier, service company or operator
may not withhold information related to chemical ingredients used in a
hydraulic fracturing treatment, including information identified as a trade
secret, from any health professional or emergency responder who needs the
information for diagnostic, treatment or other emergency response purposes
subject to procedures set forth in 29 Code of Federal Regulations
§1910.1200(i). A supplier, service company or operator must provide
directly to a health professional or emergency responder, all information in
the person's possession that is required by the health professional or
emergency responder, whether or not the information may qualify for trade
secret protection under subsection (e) of this section. The person disclosing
information to a health professional or emergency responder must include with
the disclosure, as soon as circumstances permit, a statement of the health
professional's confidentiality obligation. In an emergency situation, the
supplier, service company or operator must provide the information immediately
upon request to the person who determines that the information is necessary for
emergency response or treatment. The disclosures required by this subsection
must be made in accordance with the procedures in 29 Code of Federal
Regulations §1910.1200(i) with respect to a written statement of need and
confidentiality agreements, as applicable.
(d) Disclosures not required. A supplier,
service company, or operator is not required to:
(1) disclose ingredients that are not
disclosed to it by the manufacturer, supplier, or service company;
(2) disclose ingredients that were not
intentionally added to the hydraulic fracturing treatment;
(3) disclose ingredients that occur
incidentally or are otherwise unintentionally present which may be present in
trace amounts, may be the incidental result of a chemical reaction or chemical
process, or may be constituents of naturally occurring materials that become
part of a hydraulic fracturing fluid; or
(4) identify specific chemical ingredients
and/or their CAS numbers that are claimed as entitled to trade secret
protection based on the additive in which they are found or provide the
concentration of such ingredients, unless the Office of the Attorney General,
or a court of proper jurisdiction on appeal of a determination by the Office of
the Attorney General, determines that the information would not be entitled to
trade secret protection under Texas Government Code, Chapter 552, if the
information had been provided to the Commission.
(e) Trade secret protection.
(1) A supplier, service company, or operator
is not required to disclose trade secret information, unless the Office of the
Attorney General or a court of proper jurisdiction determines that the
information is not entitled to trade secret protection under Texas Government
Code, Chapter 552.
(2) If the
specific identity and/or CAS number of a chemical ingredient, the concentration
of a chemical ingredient, or both the specific identity and/or CAS number and
concentration of a chemical ingredient are claimed or have been finally
determined to be entitled to protection as a trade secret under Texas
Government Code, Chapter 552, the supplier, service company, or operator, as
applicable, may withhold the specific identity and/or CAS number, the
concentration, or both the specific identity and/or CAS number and
concentration, of the chemical ingredient from the information provided to the
operator. If the supplier, service company, or operator, as applicable, elects
to withhold that information, the supplier, service company, or operator, as
applicable, must provide to the operator or the Commission, as applicable,
information that:
(A) indicates that the
specific identity and/or CAS number of the chemical ingredient, the
concentration of the chemical ingredient, or both the specific identity and/or
CAS number and concentration of the chemical ingredient are entitled to
protection as trade secret information; and
(B) discloses the chemical family associated
with the chemical ingredient; or
(C) discloses the properties and effects of
the chemical ingredient(s), the identity of which is withheld.
(f) Trade secret
challenge.
(1) The following persons may
submit a request challenging a claim of entitlement to trade secret protection
for any chemical ingredients and/or CAS numbers used in the hydraulic
fracturing treatment(s) of a well:
(A) the
landowner on whose property the relevant wellhead is located;
(B) the landowner who owns real property
adjacent to property described in subparagraph (A) of this paragraph;
or
(C) a department or agency of
this state with jurisdiction over a matter to which the claimed trade secret
information is relevant.
(2) A requestor must certify in writing to
the director, over the requestor's signature, to the following:
(A) the requestor's name, address, and
daytime phone number;
(B) if the
requestor is a landowner, a statement that the requestor is listed on the
county appraisal roll as owning the property on which the relevant wellhead is
located or is listed on the county appraisal roll as owning property adjacent
to the property on which the relevant wellhead is located;
(C) the county in which the wellhead is
located; and
(D) the API number or
other Railroad Commission of Texas identifying information, such as field name,
oil lease name and number, gas identification number, and well
number.
(3) A requestor
may use the following format to provide the written certification required by
paragraph (2) of this subsection:
Attached
Graphic
(4) A
requestor must file a request no later than 24 months from the date the
operator filed the well completion report for the well on which the hydraulic
fracturing treatment(s) were performed. A landowner who owned the property on
which the wellhead is located, or owned adjacent property, on or after the date
the operator filed with the Commission the completion report for the subject
well may challenge a claim of entitlement to trade secret protection within
that 24-month period only. The Commission will determine whether or not the
request has been received within the allowed 24-month period.
(5) If the Commission determines that the
request has been received within the allowed 24-month period and the
certification is properly completed and signed, the Commission will consider
this sufficient for the purpose of forwarding the request to the Office of the
Attorney General.
(6) Within 10
business days of receiving a request that complies with paragraph (2) of this
subsection, the director must:
(A) submit to
Office of the Attorney General, Open Records Division, a request for decision
regarding the challenge;
(B) notify
the operator of the subject well and the owner of the claimed trade secret
information of the submission of the request to the Office of the Attorney
General and of the requirement that the owner of the claimed trade secret
information submit directly to the Office of Attorney General, Open Records
Division, the claimed trade secret information, clearly marked "confidential,"
submitted under seal; and
(C)
inform the owner of the claimed trade secret information of the opportunity to
substantiate to the Office of the Attorney General, Open Records Division, its
claim of entitlement of trade secret protection, in accordance with Texas
Government Code, Chapter 552.
(7) If the Office of the Attorney General
determines that the claim of entitlement to trade secret protection is valid
under Texas Government Code, Chapter 552, if the information had been provided
to the Commission, the owner of the claimed trade secret information shall not
be required to disclose the trade secret information, subject to
appeal.
(8) The request shall be
deemed withdrawn if, prior to the determination of the Office of the Attorney
General on the validity of the trade secret claim, the owner of the claimed
trade secret information provides confirmation to the Commission and the Office
of the Attorney General that the owner of the claimed trade secret information
has voluntarily provided the information that is the subject of the request to
the requestor subject to a claim of trade secret protection, or the requestor
submits to the Commission and the Office of the Attorney General a written
notice withdrawing the request.
(9)
A final determination by the Office of the Attorney General regarding the
challenge to the claim of entitlement of trade secret protection of any
withheld information may be appealed within 10 business days to a district
court of Travis County pursuant to Texas Government Code, Chapter
552.
(10) If the Office of the
Attorney General, or a court of proper jurisdiction on appeal of a
determination by the Office of the Attorney General, determines that the
withheld information would not be entitled to trade secret protection under
Texas Government Code, Chapter 552, if the information had been provided to the
Commission, the owner of the claimed trade secret information must disclose
such information to the requestor as directed by the Office of the Attorney
General or a court of proper jurisdiction on appeal.
(g) Trade secret confidentiality. A health
professional or emergency responder to whom information is disclosed under
subsection (c)(4) of this section must hold the information confidential,
except that the health professional or emergency responder may, for diagnostic
or treatment purposes, disclose information provided under that subsection to
another health professional, emergency responder, or accredited laboratory. A
health professional, emergency responder, or accredited laboratory to which
information is disclosed by another health professional or emergency responder
under this subsection must hold the information confidential and the disclosing
health professional or emergency responder must include with the disclosure, or
in a medical emergency, as soon as circumstances permit, a statement of the
recipient's confidentiality obligation pursuant to this subsection.
(h) Penalties. A violation of this section
may subject a person to any penalty or remedy specified in the Texas Natural
Resources Code, Title 3, and any other statutes administered by the Commission.
The certificate of compliance for any oil, gas, or geothermal resource well may
be revoked in the manner provided in §
RSA
3.73 of this title (relating to Pipeline
Connection; Cancellation of Certificate of Compliance; Severance) (Rule 73) for
violation of this section.