[ ] is old law to be omitted.
LBD13392-05-1
A. 8805--A 2
4. "CHEMICAL CONSTITUENT" MEANS A DISCRETE CHEMICAL WITH ITS OWN
SPECIFIC NAME OR IDENTITY, SUCH AS A CAS NUMBER, THAT IS CONTAINED IN AN
ADDITIVE.
5. "HYDRAULIC FRACTURING FLUID" MEANS THE FLUID USED TO PERFORM A
PARTICULAR HYDRAULIC FRACTURING TREATMENT AND INCLUDES THE APPLICABLE
BASE FLUID AND ALL ADDITIVES.
6. "HYDRAULIC FRACTURING TREATMENT" MEANS THE STIMULATION OF A WELL BY
THE FORCEFUL APPLICATION OF HYDRAULIC FRACTURING FLUID INTO THE RELEVANT
GEOLOGICAL FORMATION FOR THE PURPOSE OF CREATING FRACTURES IN THE FORMA-
TION IN ORDER TO FACILITATE PRODUCTION OF HYDROCARBONS.
7. "OPERATOR" MEANS THE PERSON OR ENTITY AUTHORIZED TO CONDUCT OPER-
ATIONS ON A WELL.
8. "PROPPANT" MEANS SAND OR ANOTHER NATURAL OR MAN-MADE INERT MATERIAL
THAT IS USED IN A HYDRAULIC FRACTURING TREATMENT TO PREVENT ARTIFICIALLY
CREATED OR ENHANCED FRACTURES FROM CLOSING ONCE THE TREATMENT IS
COMPLETED.
9. "TRADE SECRET" MEANS ANY CONFIDENTIAL FORMULA, PATTERN, PROCESS,
DEVICE, INFORMATION OR COMPILATION OF INFORMATION THAT IS USED IN A
PERSON'S OR ENTITY'S BUSINESS AND THAT GIVES SUCH PERSON OR ENTITY AN
OPPORTUNITY TO OBTAIN AN ADVANTAGE OVER COMPETITORS THAT DO NOT KNOW OR
USE IT.
10. "WELL" MEANS A HYDROCARBON PRODUCTION WELL.
11. "WELL COMPLETION REPORT" MEANS THE REPORT AN OPERATOR IS REQUIRED
TO FILE WITH THE COMMISSION FOLLOWING THE COMPLETION OR RECOMPLETION OF
A WELL, IF APPLICABLE.
S 23-1503. INFORMATION SUBMITTED CONSIDERED PUBLIC; POSTING ON INTERNET
WEBSITE.
NOTWITHSTANDING ANY OTHER PROVISIONS OF LAW, UNLESS THE INFORMATION IS
OTHERWISE AUTHORIZED TO BE WITHHELD AS A TRADE SECRET PURSUANT TO THIS
TITLE, INFORMATION SUBMITTED TO THE DEPARTMENT PURSUANT TO SECTION
23-1505 OR 23-1507 OF THIS TITLE IS PUBLIC INFORMATION, AND THE DEPART-
MENT SHALL POST THE INFORMATION ON ITS PUBLICLY ACCESSIBLE INTERNET
WEBSITE.
S 23-1505. SERVICE COMPANY DISCLOSURES.
1. AN OPERATOR WHICH AUTHORIZES ANY PERSON OR ENTITY TO CONDUCT
HYDRAULIC FRACTURING TREATMENTS UPON ANY OF SUCH OPERATOR'S WELLS IN
THIS STATE SHALL DISCLOSE TO THE DEPARTMENT AND MAINTAIN AN UPDATED
MASTER LIST OF:
A. ALL BASE FLUIDS TO BE USED BY SUCH PERSON OR ENTITY DURING ANY
HYDRAULIC FRACTURING TREATMENT IN THIS STATE;
B. ALL ADDITIVES TO BE USED BY SUCH PERSON OR ENTITY DURING ANY
HYDRAULIC FRACTURING TREATMENT IN THIS STATE; AND
C. ALL CHEMICAL CONSTITUENTS TO BE USED BY SUCH PERSON OR ENTITY IN
ANY HYDRAULIC FRACTURING TREATMENT IN THIS STATE AND THEIR ASSOCIATED
CAS NUMBERS.
2. NOTWITHSTANDING THE PROVISIONS OF PARAGRAPH C OF SUBDIVISION ONE OF
THIS SECTION, IF THE SPECIFIC IDENTIFY OF ANY CHEMICAL CONSTITUENT TO BE
USED IN ANY HYDRAULIC FRACTURING TREATMENT IN THIS STATE IS ENTITLED TO
BE WITHHELD AS A TRADE SECRET PURSUANT TO THE CRITERIA PROVIDED BY 42
U.S.C. SECTION 11042(A)(2) AND SECTION 23-1511 OF THIS TITLE, THE
DEPARTMENT SHALL PROTECT AND HOLD CONFIDENTIAL THE IDENTITY OF THE CHEM-
ICAL CONSTITUENT AND ITS ASSOCIATED CAS NUMBER. TO QUALIFY FOR TRADE
SECRET PROTECTION, THE PERSON PERFORMING THE HYDRAULIC FRACTURING TREAT-
MENT MUST SUBMIT TO THE DEPARTMENT ON AN APPROVED FORM A FORMAL CLAIM OF
ENTITLEMENT TO THAT PROTECTION IN THE MANNER REQUIRED BY SECTION 23-1511
OF THIS TITLE.
A. 8805--A 3
3. A PERSON OR ENTITY PERFORMING HYDRAULIC FRACTURING TREATMENTS IN
THIS STATE SHALL PROVIDE TO THE OPERATOR OF EACH WELL FOR WHICH THE
PERSON OR ENTITY PERFORMS A HYDRAULIC FRACTURING TREATMENT:
A. THE MAXIMUM PUMP PRESSURE MEASURED AT THE SURFACE AND THE TYPE AND
VOLUME OF BASE FLUID USED IN EACH STAGE OF THE HYDRAULIC FRACTURING
TREATMENT;
B. A LIST OF ALL ADDITIVES USED IN THE HYDRAULIC FRACTURING FLUID,
SPECIFIED BY GENERAL TYPE, SUCH AS ACID, BIOCIDE, BREAKER, CORROSION
INHIBITOR, CROSSLINKER, DEMULSIFIER, FRICTION REDUCER, GEL, IRON
CONTROL, OXYGEN SCAVENGER, PH ADJUSTING AGENT, PROPPANT, SCALE INHIBITOR
AND SURFACTANT;
C. FOR EACH ADDITIVE TYPE LISTED UNDER PARAGRAPH B OF THIS SUBDIVI-
SION, THE SPECIFIC NAME OF THE ADDITIVE USED AND THE ACTUAL RATE OR
CONCENTRATION OF EACH ADDITIVE, EXPRESSED AS POUNDS PER THOUSAND GALLONS
OR GALLONS PER THOUSAND GALLONS AND EXPRESSED AS A PERCENTAGE BY VOLUME
OF THE TOTAL HYDRAULIC FRACTURING FLUID USED;
D. A LIST OF ALL THE CHEMICAL CONSTITUENTS USED IN THE HYDRAULIC FRAC-
TURING FLUID AND THEIR ASSOCIATED CAS NUMBERS, EXCEPT TO THE EXTENT THAT
THE SPECIFIC IDENTITY OF ANY CHEMICAL CONSTITUENT IS ENTITLED TO BE
WITHHELD AS A TRADE SECRET AS PROVIDED BY SUBDIVISION TWO OF THIS
SECTION; AND
E. FOR EACH CHEMICAL CONSTITUENT IDENTIFIED UNDER PARAGRAPH D OF THIS
SUBDIVISION, THE ACTUAL RATE OR CONCENTRATION OF EACH CHEMICAL,
EXPRESSED AS POUNDS PER THOUSAND GALLONS OR GALLONS PER THOUSAND GALLONS
AND EXPRESSED AS A PERCENTAGE BY VOLUME OF THE TOTAL HYDRAULIC FRACTUR-
ING FLUID USED.
4. THE PROVISIONS OF SUBDIVISIONS TWO AND THREE OF THIS SECTION SHALL
NOT BE DEEMED TO AUTHORIZE ANY OPERATOR, PERSON OR ENTITY TO WITHHOLD
INFORMATION THAT FEDERAL OR STATE LAW, INCLUDING THIS SECTION, REQUIRES
TO BE PROVIDED TO ANY HEALTH CARE PROFESSIONAL WHO NEEDS THE INFORMATION
FOR DIAGNOSTIC OR TREATMENT PURPOSES. THE OPERATOR AND PERSON OR ENTITY
PERFORMING A HYDRAULIC FRACTURING TREATMENT SHALL PROVIDE DIRECTLY TO A
HEALTH CARE PROFESSIONAL, IMMEDIATELY IN REQUEST, ALL INFORMATION
REQUIRED BY THE HEALTH CARE PROFESSIONAL, INCLUDING THE PERCENT BY
VOLUME OF THE CHEMICAL CONSTITUENTS OF THE HYDRAULIC FRACTURING FLUID
AND THEIR ASSOCIATED CAS NUMBERS. IN A CASE THAT IS NOT A MEDICAL EMER-
GENCY, THE HEALTH CARE PROFESSIONAL SHALL PROVIDE THE OPERATOR AND THE
PERSON OR ENTITY PERFORMING THE HYDRAULIC FRACTURING TREATMENT A WRITTEN
STATEMENT OF NEED FOR THE INFORMATION BEFORE THE HEALTH CARE PROFES-
SIONAL IS ENTITLED TO RECEIVE THE INFORMATION. IN A MEDICAL EMERGENCY,
THE HEALTH CARE PROFESSIONAL SHALL PROVIDE THE OPERATOR AND THE PERSON
OR ENTITY PERFORMING THE HYDRAULIC FRACTURING TREATMENT A WRITTEN STATE-
MENT OF NEED FOR THE INFORMATION AS SOON AS CIRCUMSTANCES PERMIT.
5. A HEALTH CARE PROFESSIONAL TO WHOM INFORMATION IS DISCLOSED PURSU-
ANT TO SUBDIVISION FOUR OF THIS SECTION SHALL HOLD THE INFORMATION
CONFIDENTIAL, EXCEPT THAT THE HEALTH CARE PROFESSIONAL MAY, FOR DIAGNOS-
TIC OR TREATMENT PURPOSES, DISCLOSE SUCH INFORMATION TO ANOTHER HEALTH
CARE PROFESSIONAL, A LABORATORY OR A THIRD-PARTY TESTING FIRM. A HEALTH
CARE PROFESSIONAL, LABORATORY OR THIRD-PARTY TESTING FIRM TO WHICH
INFORMATION IS DISCLOSED BY ANOTHER HEALTH CARE PROFESSIONAL SHALL HOLD
SUCH INFORMATION CONFIDENTIAL.
S 23-1507. OPERATOR DISCLOSURES.
1. FOLLOWING THE COMPLETION OF A HYDRAULIC FRACTURING TREATMENT ON A
WELL, THE OPERATOR SHALL INCLUDE IN THE WELL COMPLETION REPORT, ON A
FORM APPROVED BY THE DEPARTMENT:
A. 8805--A 4
A. THE MAXIMUM PUMP PRESSURE MEASURED AT THE SURFACE AND THE TYPE AND
VOLUME OF BASE FLUID USED IN EACH STAGE OF THE HYDRAULIC FRACTURING
TREATMENT;
B. A LIST OF ALL ADDITIVES USED IN THE HYDRAULIC FRACTURING TREATMENT,
SPECIFIED BY GENERAL TYPE, SUCH AS ACID, BIOCIDE, BREAKER, CORROSION
INHIBITOR, CROSSLINKER, DEMULSIFIER, FRICTION REDUCER, GEL, IRON
CONTROL, OXYGEN SCAVENGER, PH ADJUSTING AGENT, PROPPANT, SCALE INHIBITOR
AND SURFACTANT;
C. FOR EACH ADDITIVE TYPE LISTED UNDER PARAGRAPH B OF THIS SUBDIVI-
SION, THE SPECIFIC NAME OF THE ADDITIVE USED AND THE ACTUAL RATE OR
CONCENTRATION OF EACH ADDITIVE, EXPRESSED AS POUNDS PER THOUSAND GALLONS
OR GALLONS PER THOUSAND GALLONS AND EXPRESSED AS A PERCENTAGE BY VOLUME
OF THE TOTAL HYDRAULIC FRACTURING FLUID USED;
D. THE INFORMATION PROVIDED PURSUANT TO SUBDIVISION THREE OF SECTION
23-1505 OF THIS TITLE TO THE OPERATOR BY THE PERSON OR ENTITY WHO
PERFORMED THE HYDRAULIC FRACTURING TREATMENT; AND
E. IF THE OPERATOR CAUSED ANY ADDITIVES TO BE USED DURING THE HYDRAU-
LIC FRACTURING TREATMENT THAT ARE NOT REQUIRED TO BE DISCLOSED PURSUANT
TO SUBDIVISION THREE OF SECTION 23-1505 OF THIS TITLE TO THE OPERATOR BY
THE PERSON OR ENTITY WHO PERFORMED THE HYDRAULIC FRACTURING TREATMENT:
(1) A LIST OF THE ADDITIVES USED; AND
(2) FOR EACH ADDITIVE LISTED, THE CHEMICAL CONSTITUENTS OF THE ADDI-
TIVE AND THEIR ASSOCIATED CAS NUMBERS AND THE ACTUAL RATE OR CONCEN-
TRATION OF EACH ADDITIVE OR CHEMICAL, EXPRESSED IN THE MANNER PROVIDED
PURSUANT TO SUBDIVISION THREE OF SECTION 23-1505 OF THIS TITLE.
2. THE OPERATOR MAY SUPPLY FIELD SERVICE COMPANY TICKETS, EXCLUDING
PRICING INFORMATION, AND REPORTS REGARDING THE HYDRAULIC FRACTURING
TREATMENT, AS USED IN THE NORMAL COURSE OF BUSINESS, TO SATISFY SOME OR
ALL OF THE REQUIREMENTS OF SUBDIVISION ONE OF THIS SECTION.
3. NOTWITHSTANDING THE PROVISIONS OF PARAGRAPH E OF SUBDIVISION ONE OF
THIS SECTION, IF THE SPECIFIC IDENTITY OF A CHEMICAL CONSTITUENT
CONTAINED IN AN ADDITIVE IS ENTITLED TO BE WITHHELD AS A TRADE SECRET
PURSUANT TO THE CRITERIA PROVIDED BY 42 U.S.C SECTION 11042(A)(2) AND
SECTION 23-1511 OF THIS TITLE, THE DEPARTMENT SHALL PROTECT AND HOLD
CONFIDENTIAL THE IDENTITY OF THE CHEMICAL CONSTITUENT AND ITS ASSOCIATED
CAS NUMBER. TO QUALIFY FOR TRADE SECRET PROTECTION, THE OPERATOR SHALL
SUBMIT TO THE DEPARTMENT ON AN APPROVED FORM A FORMAL CLAIM OF ENTITLE-
MENT TO THAT PROTECTION IN THE MANNER REQUIRED BY SECTION 23-1511 OF
THIS TITLE.
4. THE PROVISIONS OF SUBDIVISION THREE OF THIS SECTION SHALL NOT BE
DEEMED TO AUTHORIZE AN OPERATOR TO WITHHOLD INFORMATION THAT FEDERAL OR
STATE LAW, INCLUDING THIS SECTION, REQUIRES TO BE PROVIDED TO ANY HEALTH
CARE PROFESSIONAL WHO NEEDS THE INFORMATION FOR DIAGNOSTIC OR TREATMENT
PROPOSES. AN OPERATOR SHALL PROVIDE DIRECTLY TO A HEALTH CARE PROFES-
SIONAL, IMMEDIATELY ON REQUEST, ALL INFORMATION REQUIRED BY THE HEALTH
CARE PROFESSIONAL, INCLUDING THE PERCENT BY VOLUME OF THE CHEMICAL
CONSTITUENTS OF THE HYDRAULIC FRACTURING FLUID AND THEIR ASSOCIATED CAS
NUMBERS. IN A CASE THAT IS NOT A MEDICAL EMERGENCY, THE HEALTH CARE
PROFESSIONAL SHALL PROVIDE THE OPERATOR A WRITTEN STATEMENT OF NEED FOR
THE INFORMATION BEFORE THE PERSON IS ENTITLED TO RECEIVE THE INFORMA-
TION. IN A MEDICAL EMERGENCY, THE HEALTH CARE PROFESSIONAL SHALL PROVIDE
THE OPERATOR A WRITTEN STATEMENT OF NEED FOR THE INFORMATION AS SOON AS
CIRCUMSTANCES PERMIT.
5. A HEALTH CARE PROFESSIONAL TO WHOM INFORMATION IS DISCLOSED PURSU-
ANT TO SUBDIVISION FOUR OF THIS SECTION SHALL HOLD THE INFORMATION
CONFIDENTIAL, EXCEPT THAT THE HEALTH CARE PROFESSIONAL MAY, FOR DIAGNOS-
A. 8805--A 5
TIC OR TREATMENT PROPOSES, DISCLOSE SUCH INFORMATION TO ANOTHER HEALTH
CARE PROFESSIONAL, A LABORATORY OR A THIRD-PARTY TESTING FIRM. A HEALTH
CARE PROFESSIONAL, LABORATORY OR THIRD-PARTY TESTING FIRM TO WHICH SUCH
INFORMATION IS DISCLOSED BY ANOTHER HEALTH CARE PROFESSIONAL SHALL HOLD
THE INFORMATION CONFIDENTIAL.
S 23-1509. USE OF SERVICES OF NONCOMPLYING SERVICE COMPANY PROHIBITED.
AN OPERATOR SHALL NOT USE THE SERVICES OF ANOTHER PERSON OR ENTITY IN
PERFORMING A HYDRAULIC FRACTURING TREATMENT IN THIS STATE UNLESS THE
OTHER PERSON OR ENTITY IS IN COMPLIANCE WITH THE REQUIREMENTS OF SECTION
23-1505 OF THIS TITLE.
S 23-1511. TRADE SECRET PROTECTION.
1. A CLAIM OF ENTITLEMENT TO TRADE SECRET PROTECTION PURSUANT TO THIS
TITLE SHALL INCLUDE SUBSTANTIATING FACTS IN THE FORM OF THE INFORMATION
REQUIRED BY 40 C.F.R. SECTION 350.7(A). IF REQUESTED BY THE TRADE SECRET
CLAIMANT, THE DEPARTMENT SHALL TREAT ANY SUCH SUBSTANTIATING FACTS AS
CONFIDENTIAL AND SHALL NOT DISCLOSE THEM TO ANY THIRD PARTY OR THE
PUBLIC FOR ANY PURPOSE. UNTIL A FINAL DETERMINATION THAT THE INFORMATION
IS NOT ENTITLED TO TRADE SECRET PROTECTION IS MADE UNDER THIS SECTION,
THE DEPARTMENT SHALL TREAT THE INFORMATION IMPLICATED BY THE CLAIM OF
TRADE SECRET ENTITLEMENT AS A CONFIDENTIAL TRADE SECRET, AND THE INFOR-
MATION IS NOT SUBJECT TO DISCLOSURE PURSUANT TO ARTICLE SIX OF THE
PUBLIC OFFICERS LAW.
2. THE COMMISSION SHALL DETERMINE A CLAIM OF ENTITLEMENT TO TRADE
SECRET PROTECTION MADE PURSUANT TO THIS TITLE TO BE SUFFICIENT IF THE
INFORMATION SET FORTH IN THE CLAIM SUPPORTS ALL THE CONCLUSIONS SET
FORTH IN 40 C.F.R. SECTION 350.13(A) AND THE SUPPORTING INFORMATION IS
TRUE. IN MAKING A DETERMINATION AS TO A CLAIM, THE DEPARTMENT MAY
REQUIRE THE TRADE SECRET CLAIMANT TO SUBMIT ADDITIONAL SUPPLEMENTAL
INFORMATION IF THE INFORMATION IS NECESSARY FOR THE DEPARTMENT TO MAKE
ITS DETERMINATION UNDER THIS SECTION. IF REQUESTED BY THE TRADE SECRET
CLAIMANT, THE DEPARTMENT SHALL TREAT ANY SUPPLEMENTAL INFORMATION
PROVIDED AS CONFIDENTIAL AND MAY NOT DISCLOSE THE INFORMATION TO ANY
THIRD PARTY OR THE PUBLIC FOR ANY PURPOSE.
3. IF THE DEPARTMENT DETERMINES A CLAIM OF ENTITLEMENT TO TRADE SECRET
PROTECTION TO BE INSUFFICIENT, THE DEPARTMENT SHALL NOTIFY THE TRADE
SECRET CLAIMANT IN WRITING OF THE DETERMINATION BY CERTIFIED MAIL. NOT
LATER THAN THE FIFTEENTH DAY AFTER THE DATE THE TRADE SECRET CLAIMANT
RECEIVES NOTICE OF THE DETERMINATION, THE CLAIMANT MAY REQUEST ANOTHER
REVIEW OF THE CLAIM. THE TRADE SECRET CLAIMANT MUST SHOW GOOD CAUSE FOR
THE ADDITIONAL REVIEW. WHAT CONSTITUTES GOOD CAUSE FOR PURPOSES OF THIS
SUBDIVISION IS SOLELY WITHIN THE REASONABLE DISCRETION OF THE DEPARTMENT
AND MAY INCLUDE THE AVAILABILITY OF NEW SUPPORTING INFORMATION OR A GOOD
FAITH ERROR OR OMISSION ON THE PART OF THE TRADE SECRET CLAIMANT IN THE
ORIGINAL CLAIM. NOT LATER THAN THE THIRTIETH DAY AFTER THE DATE THE
DEPARTMENT RECEIVES THE REQUEST, THE DEPARTMENT SHALL PROVIDE WRITTEN
NOTICE TO THE TRADE SECRET CLAIMANT OF THE DEPARTMENT'S ACCEPTANCE OR
REJECTION OF THE REQUEST. IF A TRADE SECRET CLAIMANT MAKES A REQUEST FOR
REVIEW UNDER THIS SUBDIVISION, THE DEPARTMENT SHALL TREAT THE INFORMA-
TION IMPLICATED BY THE CLAIM OF TRADE SECRET ENTITLEMENT AS A CONFIDEN-
TIAL TRADE SECRET UNTIL THE DEPARTMENT MAKES A DETERMINATION WITH REGARD
TO THE REVIEW REQUEST. IF THE DEPARTMENT REJECTS THE REVIEW REQUEST, THE
DEPARTMENT SHALL CONTINUE TO TREAT THE INFORMATION AS A CONFIDENTIAL
TRADE SECRET UNTIL THE EARLIER OF THE THIRTIETH DAY AFTER THE DATE THE
TRADE SECRET CLAIMANT RECEIVES NOTICE THAT THE DEPARTMENT HAS REJECTED
THE REVIEW REQUEST OR THE DATE THE CLAIMANT WITHDRAWS THE DISCLOSURE
PURSUANT TO SUBDIVISION FIVE OF THIS SECTION.
A. 8805--A 6
4. NOT LATER THAN THE THIRTIETH DAY AFTER THE DATE THE TRADE SECRET
CLAIMANT RECEIVES NOTICE FROM THE DEPARTMENT THAT THE DEPARTMENT HAS
REJECTED THE CLAIM OF ENTITLEMENT TO TRADE SECRET PROTECTION, THE CLAIM-
ANT MAY COMMENCE AN ACTION PURSUANT TO ARTICLE SEVENTY-EIGHT OF THE
CIVIL PRACTICE LAW AND RULES. IF A TRADE SECRET CLAIMANT COMMENCES SUCH
AN ACTION, THE DEPARTMENT SHALL TREAT THE INFORMATION IMPLICATED BY THE
CLAIM OF TRADE SECRET ENTITLEMENT AS A CONFIDENTIAL TRADE SECRET UNTIL
SUCH ACTION AND ALL APPEALS THEREOF ARE RESOLVED. IF THE ACTION AFFIRMS
THE DEPARTMENT'S DETERMINATION OF THE INSUFFICIENCY OF THE CLAIM, THE
DEPARTMENT SHALL CONTINUE TO TREAT THE INFORMATION AS A CONFIDENTIAL
TRADE SECRET UNTIL THE EARLIER OF THE THIRTIETH DAY AFTER THE DATE THE
TRADE SECRET CLAIMANT RECEIVES NOTICE THAT THE ACTION HAS BEEN RESOLVED
OR THE DATE THE CLAIMANT WITHDRAWS THE DISCLOSURE PURSUANT TO SUBDIVI-
SION FIVE OF THIS SECTION.
5. NOT LATER THAN THE THIRTIETH DAY AFTER THE DATE THE TRADE SECRET
CLAIMANT RECEIVES NOTIFICATION THAT THE DEPARTMENT HAS REJECTED THE
CLAIM OF ENTITLEMENT TO TRADE SECRET PROTECTION OR THE DATE A FINAL
JUDGMENT AFFIRMING THE DEPARTMENT'S DETERMINATION OF THE INSUFFICIENCY
OF THE CLAIM IS ENTERED, AS APPLICABLE, AND ONLY TO THE EXTENT THAT THE
RELEVANT CHEMICAL CONSTITUENT HAS NOT BEEN USED BY OR FOR THE TRADE
SECRET CLAIMANT IN ANY HYDRAULIC FRACTURING TREATMENT IN THIS STATE, THE
TRADE SECRET CLAIMANT MAY FORMALLY WITHDRAW THE DISCLOSURE OF A CHEMICAL
CONSTITUENT BY NOTIFYING THE DEPARTMENT OF ITS INTENT TO WITHDRAW THE
DISCLOSURE. IF THE TRADE SECRET CLAIMANT WITHDRAWS THE DISCLOSURE OF A
CHEMICAL CONSTITUENT, THE DEPARTMENT SHALL PROTECT AND HOLD CONFIDENTIAL
THE IDENTITY OF THE CHEMICAL CONSTITUENT AND ANY CORRESPONDING CAS
NUMBER, AND THE INFORMATION IS NOT SUBJECT TO DISCLOSURE PURSUANT TO
ARTICLE SIX OF THE PUBLIC OFFICERS LAW. AFTER THE WITHDRAWAL, THE CHEMI-
CAL CONSTITUENT SHALL NOT BE USED BY OR FOR THE TRADE SECRET CLAIMANT IN
ANY HYDRAULIC FRACTURING TREATMENT IN THIS STATE UNLESS THE TRADE SECRET
CLAIMANT SATISFIES THE REQUIREMENTS OF THIS TITLE RELATING TO THE
DISCLOSURE OF INFORMATION REGARDING THE CHEMICAL CONSTITUENT.
6. NOTWITHSTANDING ANY OTHER PROVISION OF THIS SECTION, THE DEPARTMENT
MAY:
A. DISCLOSE INFORMATION OTHERWISE SUBJECT TO TRADE SECRET PROTECTION
UNDER THIS SECTION TO A THIRD-PARTY TESTING FIRM IN CONNECTION WITH THE
INVESTIGATION OF A CLAIM OF CONTAMINATION OF SURFACE WATER OR GROUNDWA-
TER IF THE FIRM AGREES IN WRITING TO KEEP THE INFORMATION CONFIDENTIAL;
AND
B. USE THE RESULTS OF A TEST CONDUCTED BY A THIRD-PARTY TESTING FIRM
IN CONNECTION WITH AN INVESTIGATION DESCRIBED IN PARAGRAPH A OF THIS
SUBDIVISION IN ANY MANNER THE DEPARTMENT CONSIDERS NECESSARY TO PROTECT
PUBLIC HEALTH AND THE ENVIRONMENT.
TITLE 16
REGULATION OF HYDRAULIC FRACTURING
SECTION 23-1601. DEFINITIONS.
23-1603. CONCESSION OF LIABILITY.
23-1605. AGREEMENTS WITH REAL PROPERTY OWNERS.
23-1607. DAMAGES.
S 23-1601. DEFINITIONS.
AS USED IN THIS TITLE, UNLESS THE CONTEXT OTHERWISE REQUIRES:
1. "HYDRAULIC FRACTURING" MEANS THE USE OF CHEMICALS, WATER AND OTHER
SUBSTANCES INJECTED OR PUMPED INTO A NATURAL GAS WELL TO STIMULATE THE
EXTRACTION OF NATURAL GAS.
A. 8805--A 7
2. "PRODUCER" MEANS ANY INDIVIDUAL OR ENTITY ENGAGED IN THE DRILLING
FOR OR EXTRACTION OF NATURAL GAS THROUGH THE UTILIZATION OF HYDRAULIC
FRACTURING.
S 23-1603. CONCESSION OF LIABILITY.
1. EVERY PRODUCER, PRIOR TO THE ISSUANCE OF ANY PERMIT, PURSUANT TO
THIS ARTICLE, TO ENGAGE IN HYDRAULIC FRACTURING, SHALL EXECUTE AND
DELIVER TO THE DEPARTMENT A CONCESSION OF LIABILITY AND WAIVER OF ALL
DEFENSES ARISING OUT OF ANY CAUSE OF ACTION RELATED TO PROPERTY,
PERSONAL AND WRONGFUL DEATH DAMAGES ALLEGED TO HAVE BEEN CAUSED BY
HYDRAULIC FRACTURING CONDUCTED BY SUCH PRODUCER. SUCH CONCESSION AND
WAIVER SHALL BE EXECUTED IN SUCH FORM AND MANNER AS SHALL BE DETERMINED
BY THE ATTORNEY GENERAL, AND SHALL PROVIDE FOR STRICT LIABILITY TO THE
PEOPLE OF THE STATE OF NEW YORK AND EVERY PERSON WITHIN THE STATE FOR
ANY AND ALL DAMAGES ARISING FROM THE CONDUCTING OF HYDRAULIC FRACTURING
WITHIN THIS STATE.
2. EVERY PRODUCER WHICH ENTERS INTO AN AGREEMENT WITH AN OWNER OF REAL
PROPERTY IN THIS STATE WHICH PROVIDES FOR THE LEASE, LICENSE OR GRANT
OF AUTHORITY TO CONDUCT HYDRAULIC FRACTURING UPON SUCH REAL PROPERTY,
SHALL INCLUDE A COPY OF ITS CONCESSION OF LIABILITY EXECUTED PURSUANT
TO SUBDIVISION ONE OF THIS SECTION AND A SIMILAR CONCESSION OF LIABILITY
EXECUTED IN FAVOR OF THE REAL PROPERTY OWNER. SUCH CONCESSION OF LIABIL-
ITY IN FAVOR OF A REAL PROPERTY OWNER SHALL BE IN SUCH FORM AS SHALL BE
DETERMINED BY THE ATTORNEY GENERAL.
S 23-1605. AGREEMENTS WITH REAL PROPERTY OWNERS.
1. NO AGREEMENT FOR THE LEASE, LICENSE OR GRANT OF AUTHORITY TO
CONDUCT HYDRAULIC FRACTURING UPON REAL PROPERTY IN THIS STATE, SHALL BE
EXECUTED UNTIL THREE INDEPENDENT APPRAISALS OF THE VALUE OF SUCH REAL
PROPERTY HAVE BEEN CONDUCTED. SUCH APPRAISALS SHALL BE CONDUCTED AT THE
EXPENSE OF THE PRODUCER BY APPRAISERS SELECTED BY THE REAL PROPERTY
OWNER. UPON COMPLETION OF SUCH APPRAISALS A COPY OF EACH APPRAISAL SHALL
BE PROVIDED TO THE REAL PROPERTY OWNER, THE PRODUCER AND THE DEPARTMENT,
AND SHALL BE ATTACHED TO EVERY AGREEMENT PROVIDING FOR HYDRAULIC FRAC-
TURING UPON SUCH REAL PROPERTY.
2. NO AGREEMENT FOR THE LEASE, LICENSE OR GRANT OF AUTHORITY TO
CONDUCT HYDRAULIC FRACTURING UPON REAL PROPERTY IN THIS STATE, SHALL BE
EXECUTED UNTIL THE DEPARTMENT SHALL HAVE CONDUCTED WATER AND SOIL
CONTAMINATION TESTING UPON SUCH REAL PROPERTY FOR THE PRESENCE OF
HYDRAULIC FRACTURING FLUIDS. A REPORT OF THE RESULTS OF SUCH TESTING
SHALL BE PROVIDED TO BOTH THE REAL PROPERTY OWNER AND THE PRODUCER.
3. EACH PRODUCER SHALL INCLUDE IN EVERY AGREEMENT IT ENTERS INTO WITH
THE OWNER OF REAL PROPERTY IN THIS STATE FOR THE LEASE, LICENSE OR GRANT
OF AUTHORITY TO CONDUCT HYDRAULIC FRACTURING UPON SUCH REAL PROPERTY:
A. A STATEMENT OF THE FINANCIAL, HEALTH AND ENVIRONMENTAL RISKS POSED
BY OR POTENTIALLY POSED BY CONDUCT OF HYDRAULIC FRACTURING. SUCH STATE-
MENT SHALL BE JOINTLY DEVELOPED AND PERIODICALLY UPDATED BY THE COMMIS-
SIONER, THE ATTORNEY GENERAL AND THE COMMISSIONER OF HEALTH;
B. A STATEMENT OF THE RISKS OF GROUND SOIL AND GROUND WATER CONTAM-
INATION POSED BY OR POTENTIALLY POSED BY THE CONDUCT OF HYDRAULIC FRAC-
TURING;
C. A STATEMENT OF THE HEALTH RISKS POSED BY SPILLS OF AND CONTAM-
INATION BY HYDRAULIC FRACTURING FLUIDS; AND
D. A STATEMENT OF THE PRODUCER'S STRICT LIABILITY FOR ANY AND ALL
DAMAGES RESULTING FROM THE CONDUCTING OF HYDRAULIC FRACTURING, AND THE
DAMAGES THAT WILL BE AWARDED THEREFOR PURSUANT TO THIS TITLE.
S 23-1607. DAMAGES.
A. 8805--A 8
1. NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO THE CONTRARY, UPON
THE CONTAMINATION OF GROUND SOIL AND/OR GROUND WATER BY ANY PRODUCER,
SUCH PRODUCER SHALL BE LIABLE FOR THE FOLLOWING DAMAGES:
A. TO THE AFFECTED REAL PROPERTY OWNER, AN AMOUNT EQUAL TO ONE HUNDRED
FIFTY PERCENT OF THE REAL PROPERTY VALUE, AS DETERMINED PURSUANT TO
SUBDIVISION ONE OF SECTION 23-1605 OF THIS TITLE, AND THE FULL COST OF
REMEDIATING THE CONTAMINATED GROUND SOIL AND GROUND WATER; AND
B. TO ANY PERSON AFFECTED BY SUCH CONTAMINATION, AN AMOUNT EQUAL TO
THE COST OF THE DIAGNOSIS, TREATMENT, MONITORING AND CARE OF SUCH
PERSON, FOR LIFE, RELATED TO ANY DISEASE OR CONDITION ARISING OUT OF
SUCH CONTAMINATION.
2. UNDER NO CIRCUMSTANCES SHALL ANY AMOUNT OF DAMAGES AWARDED OR PAID
PURSUANT TO THIS SECTION BE DEEMED TO BE INCOME TO ANY PERSON. ALL SUCH
DAMAGES SHALL BE REIMBURSEMENT FOR LOSSES ACTUALLY INCURRED BY THE
RECIPIENT THEREOF.
S 2. Subdivision 9 of section 8-0109 of the environmental conservation
law, as added by chapter 219 of the laws of 1990, is amended to read as
follows:
9. An environmental impact statement shall be prepared for any action
found to have a significant impact on the special groundwater protection
area, as defined in section 55-0107 of this chapter OR FOR ANY NATURAL
GAS OR OIL DRILLING INVOLVING THE USE OF HYDRAULIC FRACTURING FLUID.
Such statement shall meet the requirements of the most detailed environ-
mental impact statement required by this section or by any such rule or
regulation promulgated pursuant to this section.
S 3. Subdivision 2 of section 23-0303 of the environmental conserva-
tion law is REPEALED and a new subdivision 2 is added to read as
follows:
2. FOR THE PURPOSES STATED HEREIN, THIS SECTION SHALL SUPERSEDE ALL
OTHER STATE AND LOCAL LAWS RELATING TO THE OIL, GAS AND SOLUTION MINING
INDUSTRIES; PROVIDED, HOWEVER, THAT NOTHING IN THIS SECTION SHALL BE
CONSTRUED TO PREVENT ANY LOCAL GOVERNMENT FROM:
A. ENACTING OR ENFORCING LOCAL LAWS OR ORDINANCES OF GENERAL APPLICA-
BILITY, EXCEPT THAT SUCH LOCAL LAWS OR ORDINANCES SHALL NOT REGULATE
OIL, GAS AND SOLUTION MINING REGULATED BY STATE STATUTE, REGULATION OR
PERMIT; OR
B. ENACTING OR ENFORCING LOCAL ZONING ORDINANCES OR LAWS WHICH DETER-
MINE PERMISSIBLE USES IN ZONING DISTRICTS. WHERE OIL, GAS AND SOLUTION
MINING IS DESIGNATED A PERMISSIBLE USE IN A ZONING DISTRICT AND ALLOWED
BY SPECIAL USE PERMIT, CONDITIONS PLACED ON SUCH SPECIAL USE PERMITS
SHALL BE LIMITED TO THE FOLLOWING:
(I) INGRESS AND EGRESS TO PUBLIC THOROUGHFARES CONTROLLED BY THE LOCAL
GOVERNMENT;
(II) ROUTING OF DRILLING AND DRILLING-RELATED TRANSPORT VEHICLES ON
ROADS CONTROLLED BY THE LOCAL GOVERNMENT;
(III) REQUIREMENTS AND CONDITIONS AS SPECIFIED IN THE PERMIT ISSUED BY
THE DEPARTMENT CONCERNING SETBACK FROM PROPERTY BOUNDARIES AND PUBLIC
THOROUGHFARE RIGHTS-OF-WAY, NATURAL OR MAN-MADE BARRIERS TO RESTRICT
ACCESS, IF REQUIRED, DUST CONTROL AND HOURS OF OPERATION; AND
(IV) CONFORMANCE TO ROAD CONSTRUCTION STANDARDS AS MAY BE OTHERWISE
PROVIDED FOR BY LOCAL LAW; OR
C. ENACTING OR ENFORCING LOCAL LAWS OR ORDINANCES REGULATING OIL, GAS
AND SOLUTION MINING NOT REQUIRED TO BE PERMITTED BY THE STATE.
S 4. This act shall take effect on the first of June next succeeding
the date on which it shall have become a law; provided, that the
provisions of title 16 of article 23 of the environmental conservation
A. 8805--A 9
law, as added by section one of this act, shall apply to every lease,
license and grant of authority to conduct hydraulic fracturing which is
in effect on or after such effective date; and provided, further that,
effective immediately, any actions necessary to implement the provisions
of this act on its effective date are authorized and directed to be
completed on or before such date.