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318 Michigan Telecommunications and Technology Law Review [Vol. 19:279required to build its own searchable database. 270 Finally, and perhaps mostimportantly, FracFocus has been criticized for diverting attention from theenvironmental and health hazards to disclosure. “Just focusing on disclosureallows the real issue of requiring prevention of contamination or harm to slipthrough the cracks and be ignored.” 271 In short, whatever else it might accomplish,FracFocus is unlikely to adequately address the numerous informationlimitations detailed above.E. Access to Fluid Information Is Not Enough; Use Is RequiredIn view of the need for more information on fracturing materials, partiesunrelated to the extraction process will likely play a greater role. Universityscientists will need to generate data from independent experiments. Publicinterest groups may contract with universities or private labs to learn moreabout the impact of fracturing. And government agencies will be called uponto engage in more extensive reviews. Each of these activities will requiremore than knowledge about the chemical composition of compounds andbasic fracturing techniques; effective experimentation and review will requireuse.The need to use hydraulic fracturing products in order to assess theirproperties and performance is well established in the oil and gas industry. 272For instance, laboratory tests are used to measure parameters considered criticalto treatment outcomes. 273 Along the way, service company research laboratorieshave spent millions of dollars researching and developingfracturing fluids. 274 At the same time, what works in the laboratory has to beconstantly adjusted to conditions in the field, and what works in one fieldneeds to be adjusted to conditions in another, as Mitchell Energy foundwhen it translated slickwater hydraulic fracturing techniques from the CottonValley to the Barnett Shale, and as Range Resources found as it translatedthese same techniques to the Marcellus Shale. 275 In the same way, it is onlythrough using hydraulic fracturing products that their direct environmentaland health effects can be assessed.In addition to assessing the potential for hydraulic fracturing to causedirect environmental and health hazards, it is important to consider how the270. Hydraulic Fracturing Chemical Disclosure, 2 COLO. CODE REGS. § 404-1-205A(2012).271. Jeremy Fugleberg, National “Fracking” Fluid Database Unveiled, BILLINGS GA-ZETTE, (Apr. 11, 2011), http://billingsgazette.com/news/state-and-regional/wyoming/nationalfracking-fluid-database-unveiled/article_6088c631-669b-537e-bb39-c0a0b48799eb.html.272. HOWARD & FAST, supra note 12.273. Alfred R. Jennings, Jr., When Fracturing Doesn’t Work 2 (Soc’y of PetroleumEng’rs, SPE 71657, 2001), available at http://www.onepetro.org/mslib/servlet/onepetropreview?id=00071657.274. Alfred R. Jennings, Jr., Fracturing Fluids—Then and Now, 48 J. PETROLEUM TECH.604 (1996).275. YERGIN, supra note 23; Silver, supra note 34; Waters et al., supra note 23.
Spring 2013] Fracking Patents 319practice might interact with host materials. 276 There are numerous “chemicaland physical reactions that can occur in the open wellbore, induced fractures,natural fractures, and the surrounding matrix . . . as a result of interactionsbetween fracture fluids and the geologic target formations during the hydraulicfracturing process.” 277 For instance, formation waters are variablewithin and between formations, including concentration levels of the mostcommon VOCs and semi-VOCs. 278 Likewise, drilling and hydraulic fracturing“causes fluid-rock interactions that have the potential to mobilize heavymetals,” such as barium, uranium, chromium, and zinc, that are naturallyenriched in the shale formation. 279 However, the only way to determine theextent to which these heavy metals are mobilized during fluid-rock reactionsis to perform extraction studies “using a measured mass of ground andsieved shale and a known volume of chemical extractant.” 280Although many reactions in wells are subject to normal catalytic andrestriction influences, others are subject to “a set of specific limiters that arefound in few other places in [the] chemical industry.” 281 For instance, theinfluences of temperature and pressure are reasonably predictable, but “otherreaction controls such as reaction rate are strongly influenced by the areaand mixing constraints described by the location of the reaction, the area-tovolumeratio and the behavior and stability of the byproducts,” all of whichcan only be assessed by putting the products in question to use in real-worldsettings. 282 Similarly, “degradation reactions” related to well constructionand pipe and cement stability cannot be easily assessed, even with formationaccess. 283 “Re-precipitation compounds” must also be considered. 284 Again,given the many complexities and uncertainties involved, such interactionhazards can only be assessed in the field during actual hydraulic fracturing276. U.S. ENVTL. PROT. AGENCY, EPA/600/R-11/122, PLAN TO STUDY THE POTENTIALIMPACTS OF HYDRAULIC FRACTURING ON DRINKING WATER RESOURCES 40 (Nov. 2011).277. U.S. ENVTL. PROT. AGENCY, EPA/600/R-11/066, PROCEEDINGS OF THE TECHNICALWORKSHOPS FOR THE HYDRAULIC FRACTURING STUDY: CHEMICAL & ANALYTICAL METHODS10 (May 2011).278. Nancy Pes Coleman, Produced Formation Water Sample Results from Shale Plays,U.S. ENVTL. PROT. AGENCY, http://water.epa.gov/type/groundwater/uic/class2/hydraulicfracturing/upload/producedformationwatersampleresultsfromshaleplays.pdf (last visited Mar. 1,2013).279. Tracy L. Bank, Trace Metal Geochemistry and Mobility in the MarcellusShale, U.S.ENVTL. PROT. AGENCY, http://www.epa.gov/hfstudy/tracemetalgeochemistryandmobilityinthemarcellusformation1.pdf (last visited Mar. 1, 2013).280. Id.281. George E. King, Fracture Fluid Additive and Formation Degredations, U.S. ENVTL.PROT. AGENCY, http://www.epa.gov/hfstudy/fracturefluidadditivesandformationdegradations.pdf (last visited Mar. 1, 2013).282. Id.283. Id.284. Id.
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