| (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 Cont'd... |
