April 24, 2012, Introduced by Reps. Brown, Bledsoe, Lipton, Bauer, Tlaib and Byrum and referred to the Committee on Energy and Technology.
A bill to amend 1994 PA 451, entitled
"Natural resources and environmental protection act,"
(MCL 324.101 to 324.90106) by adding sections 61506d, 61531, 61532,
61533, 61534, 61535, 61536, and 61537.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 61506d. In addition to other requirements of this part,
sections 61531 to 61537 apply to wells that are used or are
intended for use for hydraulic fracturing treatments.
Sec. 61531. As used in this section and in sections 61532 to
61537:
(a) "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, whether or not the function of any
such substance or combination of substances is to create fractures
in a formation.
(b) "Applicant" means an applicant for a permit under this
part for a natural gas well.
(c) "Base fluid" means the base fluid type used in a
particular hydraulic fracturing treatment, such as water, including
fresh water and recycled water, nitrogen gas and foam fluids, and
hydrocarbon gas.
(d) "Chemical abstracts service" or "CAS" means the chemical
registry that is the authoritative collection of disclosed chemical
substance information.
(e) "Chemical abstracts service registry number" or "CAS
number" means the unique identification number assigned by the
chemical abstracts service to a chemical ingredient.
(f) "Chemical ingredient" means a discrete chemical
constituent with its own specific name or identity, such as a CAS
number, that is contained in an additive.
(g) "Fracturing additive system" means a specific combination
of additives that is made available as a total system that is
designed to serve multiple purposes and is added to a base fluid in
the context of a hydraulic fracturing treatment.
(h) "Health professional" means a physician, industrial
hygienist, toxicologist, epidemiologist, nurse, or emergency
responder providing medical or other health services to a person
exposed to a chemical ingredient.
(i) "Hydraulic fracturing fluid" means the fluid used to
perform a particular hydraulic fracturing treatment and includes
the applicable base fluid and all additives.
(j) "Hydraulic fracturing treatment" means the action of
stimulating a well by the application of hydraulic fracturing fluid
under pressure to create fractures in a formation in order to
enhance production of hydrocarbons.
(k) "Master list" means a list of all chemical ingredients,
and their associated CAS numbers, that were used by a permittee or
a service company, or were supplied by a supplier to a permittee or
a service company, during a calendar year in connection with any
hydraulic fracturing treatments conducted in this state.
(l) "Material safety data sheet" means a material safety data
sheet authorized under 29 CFR 1910.
(m) "Permittee" means a person that has been issued a permit
under this part for a natural gas well.
(n) "Proppant" means sand or another natural or man-made
material that is used in a hydraulic fracturing treatment to
prevent artificially created or enhanced fractures from closing
once the treatment is completed.
(o) "Purpose" means a brief descriptor of the intended use or
function of an additive, or the intended uses or functions of a
fracturing additive system, such as acid, biocide, breaker,
corrosion inhibitor, crosslinker, demulsifier, friction reducer,
gel, iron control agent, oxygen scavenger, pH adjusting agent,
proppant, scale inhibitor, or surfactant.
(p) "Service company" means a person that performs hydraulic
fracturing treatments in this state for a permittee.
(q) "Supplier" means a person, including an operator but
excluding a service company, that provides an additive or a
fracturing additive system to a permittee for use in connection
with a hydraulic fracturing treatment.
(r) "Trade name" means the name under which an additive or a
fracturing additive system is sold or marketed.
(s) "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.
Sec. 61532. (1) The department shall not issue a permit under
this part to drill a well for the production of natural gas that
will use a hydraulic fracturing treatment as a production technique
unless the applicant provides to the department all of the
following information for its review and approval:
(a) The type and volume of base fluid used in the hydraulic
fracturing treatment, expressed in gallons or other units approved
by the department.
(b) The trade name and supplier of each additive or the trade
name and supplier of the fracturing additive system, as applicable,
that is to be used in the hydraulic fracturing fluid.
(c) The purpose of each additive or the purposes of the
fracturing additive system, as applicable.
(d) A list of all chemical ingredients contained in each
additive or in the fracturing additive system, as applicable,
described under subdivision (b), and their associated CAS numbers,
excluding any chemical ingredients entitled to trade secret
protection under section 61534.
(e) The actual or maximum concentration of each chemical
ingredient listed under subdivision (d), expressed as a percent by
mass of the total volume of hydraulic fracturing fluid used.
(f) The material safety data sheets associated with chemical
ingredients to be used in the hydraulic fracturing treatment.
(g) The name of the service company that will be used, if
known.
(h) An evaluation of whether there are alternative hydraulic
fracturing treatments that could be utilized that provide less
potential risk to public health, safety, or welfare or to the
environment than the proposed hydraulic fracturing treatment and,
if an alternative exists, the reasons why the alternative is not
being proposed.
(i) The information required under section 61535, if
applicable.
(2) A permittee that intends to use a hydraulic fracturing
treatment that was not previously authorized in the permit shall
provide the information described in subsection (1) to the
department for its review and approval.
(3) A permittee that wishes to modify his or her hydraulic
fracturing treatment in a manner inconsistent with the information
provided to the department under subsection (1) or (2) shall
provide updated information to the department for its review and
approval.
(4) Except for trade secrets that are exempt from disclosure
under section 61534, the department shall post the information
provided under subsections (1), (2), and (3) on the department's
website for a period of at least 60 days prior to making a decision
under this section, to allow for public notice and comment. The
information shall remain on the website until 3 years after
completion of the hydraulic fracturing treatment. In addition, the
department shall provide notice to both of the following that
information regarding a proposed hydraulic fracturing treatment has
been posted on its website:
(a) Media outlets in the vicinity of the location of the
proposed hydraulic fracturing treatment.
(b) The county or counties in which the proposed hydraulic
fracturing treatment will occur.
(5) Following the period specified for public notice and
comment under subsection (4), the department may approve a proposed
hydraulic fracturing treatment proposal submitted under this
section. However, if the department determines that an alternative
hydraulic fracturing treatment that provides greater protection to
public health, safety, or welfare or to the environment is
feasible, the department shall disapprove the proposed hydraulic
fracturing treatment. If the department disapproves a proposed
hydraulic fracturing treatment proposal under this subsection, the
applicant or permittee may resubmit a modified hydraulic fracturing
treatment proposal for the department's consideration.
(6) An applicant or permittee is not responsible for unknown
inaccuracies in the information that is provided to the department
under subsection (1)(b) that the applicant or permittee received
from a supplier or third-party manufacturer of the additives.
Sec. 61533. (1) On or before February 1 of each year, a
permittee that utilized a hydraulic fracturing treatment during the
previous calendar year shall submit to the department both of the
following related to the use of hydraulic fracturing treatments
during that year:
(a) A master list.
(b) A report listing the total quantity of each chemical
ingredient, identified by name and CAS number, that was used for
hydraulic fracturing treatments in this state during the previous
calendar year.
(2) If the specific identity of any chemical ingredient under
subsection (1) is entitled to be withheld as a trade secret under
section 61534, then all of the following apply:
(a) The permittee shall supply both the identity of the
chemical ingredient and the chemical family associated with the
chemical ingredient.
(b) The department shall protect and hold confidential the
identity of the chemical ingredient and its associated CAS number.
(c) The department shall note that the identity of the
chemical ingredient has been withheld as a trade secret and
disclose the chemical family associated with the chemical
ingredient on the department's website.
(3) On or before March 1 of each year, the department shall
compile a publicly available comprehensive list of chemical
ingredients and quantities used aggregated from all the information
submitted to the department pursuant to subsection (1).
Sec. 61534. (1) To receive trade secret protection under this
section, a person, including an applicant for a permit under this
part, a permittee, a service company, or a supplier, shall provide
to the department both of the following:
(a) The specific identity of the relevant chemical ingredient
and its associated CAS number.
(b) A written claim that the chemical ingredient and its
associated CAS number are entitled to that protection.
(2) The department shall protect and hold confidential the
identity of the chemical ingredient and the chemical ingredient's
associated CAS number unless and until the chemical ingredient and
its associated CAS number are determined not to be entitled to
trade secret protection under subsection (7). A claim of
entitlement to trade secret protection shall include substantiating
facts in the form of the information required by 40 CFR 350.7(a).
If requested by the trade secret claimant, the department shall
treat any substantiating facts as confidential and shall not
disclose them to any third party or the public for any purpose. A
claim of entitlement to trade secret protection shall be submitted
to the department on or before the date the claimant is otherwise
required to provide the identity of the relevant chemical
ingredient to the department or the permittee under section 61532
or 61533, as applicable. A trade secret claimant shall not submit a
claim of entitlement to trade secret protection for a chemical
ingredient that has been determined not to be entitled to trade
secret protection under subsection (7) unless the claim of
entitlement to trade secret protection for the chemical ingredient
is made with respect to the use of the chemical ingredient in a
different additive. Subject to the requirements of section 61536, a
claimant may withhold from an operator the specific identity and
associated CAS number of the chemical ingredient described in the
claim of entitlement to trade secret protection until the claim is
successfully challenged under this section.
(3) Any person may challenge a claim of entitlement to trade
secret protection under this section.
(4) A person that challenges a claim of entitlement to trade
secret protection may do so by filing with the department a
challenge petition, on a form designated or approved by the
department, not later than the second anniversary of the date the
chemical that is the subject of the challenge is used in a
hydraulic fracturing treatment in the state. However, if the
department is the person challenging the trade secret claim, a
petition is not required. Not later than the tenth day after the
date the department receives a challenge petition or the date the
department elects to institute its own challenge, as applicable,
the department shall submit a written request for decision to the
office of the attorney general and shall notify the trade secret
claimant of the challenge and the request for decision. If the
party notified of a challenge by the department is not the owner of
the trade secret and is not the proper party to respond to the
challenge, that party shall promptly notify the department of the
identity of the owner of the trade secret and the department shall
notify the owner of the trade secret of the challenge and provide
the owner an opportunity to substantiate its trade secret claim.
The office of the attorney general shall process a request for
decision in accordance with the procedures provided by the freedom
of information act, 1976 PA 442, MCL 15.231 to 15.246.
(5) The office of the attorney general shall uphold a claim of
entitlement to trade secret protection against a challenge of the
claim if the office determines that the claim satisfies the
requirements for trade secret protection under the exception for
trade secrets provided by the freedom of information act, 1976 PA
442, MCL 15.231 to 15.246. Except as provided by subsection (6),
once a determination is made by the office of the attorney general,
the trade secret status of the specific identity of the chemical
ingredient and the chemical ingredient's associated CAS number
shall not be challenged under this section until the fifth
anniversary of the date the determination is made.
(6) A trade secret claimant or a person challenging a trade
secret claim under subsection (4) may appeal a determination by the
office of the attorney general with regard to a claim of
entitlement to trade secret protection in the manner provided by
the administrative procedures act of 1969, 1969 PA 306, MCL 24.201
to 24.328.
(7) If the office of the attorney general or, in the event of
an appeal of the decision of the office of the attorney general, a
court determines that the specific identity of the chemical
ingredient and the chemical ingredient's associated CAS number are
not entitled to trade secret protection, the department shall
require the trade secret claimant to disclose the specific identity
of the chemical ingredient and the chemical ingredient's associated
CAS number.
(8) Notwithstanding any other provision of this section, the
department may do either or both of the following:
(a) Disclose information otherwise subject to trade secret
protection under this section to an accredited laboratory in
connection with the investigation of a claim of contamination of
surface water or groundwater if the laboratory agrees in writing to
keep the information confidential.
(b) Use the results of a test conducted by an accredited
laboratory in connection with an investigation of surface water or
groundwater in any manner the department considers necessary to
protect public health and the environment.
Sec. 61535. (1) If the specific identity of a chemical
ingredient and the chemical ingredient's associated CAS number are
claimed or have been finally determined to be entitled to
protection as a trade secret under section 61534, a person may
withhold the specific identity of the chemical ingredient and the
chemical ingredient's associated CAS number from the information
provided to the applicant or permittee, as applicable. If the
person elects to withhold that information, the information
provided to the applicant or permittee, as applicable, shall
include both of the following:
(a) A disclosure of the chemical family associated with the
chemical ingredient, its trade name, and its purpose.
(b) A statement that the specific identity of the chemical
ingredient and the chemical ingredient's associated CAS number are
entitled to protection as a trade secret.
(2) If an applicant or permittee seeks to use a supplier or
service company that has withheld information under a claim of
trade secret, that applicant or permittee shall request that the
supplier or service company disclose the information to the
department pursuant to section 61534.
(3) An applicant's or permittee's application to the department
under section 61532 shall not be considered administratively
complete and shall not be granted until information from service
companies and suppliers has been disclosed as provided in this
section.
Sec. 61536. (1) Notwithstanding section 61534, a person shall
supply the following information to a health care professional:
(a) Information regarding additives or chemical ingredients
required by the health care professional who needs the information
for diagnostic purposes. This information shall be provided
directly to the health care professional as follows:
(i) Immediately upon request, in a case identified by the
health care professional as a medical emergency. The health care
professional's initial request for information need not satisfy the
requirements of a statement of need as described in subsection (2).
As soon after the emergency as circumstances permit, the health
care professional shall then provide to the person disclosing the
information a written statement of the need for the information.
(ii) Upon receipt of a written statement of need from the
health care professional, in cases that are not medical
emergencies.
(b) Any other information, the disclosure of which is required
by a state or federal law.
(2) The statement of need referred to in subsection (1)(a)(i)
or (ii) shall state all of the following:
(a) The health care professional has a reasonable basis to
believe the information is needed for diagnosis or treatment of an
individual.
(b) The individual being diagnosed or treated may have been
exposed to the chemical ingredient.
(c) Knowledge of the specific chemical ingredient identity is
likely to assist in diagnosis or treatment.
(3) The person disclosing information pursuant to subsection
(1)(a) shall provide the health care professional a statement of
the professional's confidentiality obligations pursuant to section
61537. This notification shall accompany the disclosure in
nonemergency situations or be made as soon as circumstances permit
in emergencies.
Sec. 61537. A health professional to whom information is
disclosed under section 61536 shall hold the information
confidential, except that the health professional may, for
diagnostic or treatment purposes, disclose information provided
under that section to another health professional or accredited
laboratory. A health professional or accredited laboratory to which
information is disclosed by another health professional under this
section shall hold the information confidential and the disclosing
health professional shall 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
section.