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Monday, December 2, 2013

“A secret's worth depends on the people from whom it must be kept.” ― Carlos Ruiz Zaf√≥n, The Shadow of the Wind


On November 22, I returned from a tour of the North Carolina shale basin to attend the Mining and Energy Commission meeting dreading another long day.

 Never let it be said that I can't be surprised, especially at a family reunion. Although there are still  problems with the draft chemical disclosure rule being considered by the North Carolina Mining and Energy Commission (MEC),  it was sent back to the drawing board, again, and is not likely to come up for consideration until January 2014. You can listen to the audio here: November 22 Mining and Energy Committee Meeting

Some of the fundamental problems with the disclosure rule include:

  • Limiting those who have standing to challenge a confidentiality claim.
  • Making emergency responders and medical providers wait up to two hours for urgently needed information.
  • Requiring a trade secret challenge to be brought to the North Carolina business court, which costs $1000.00 just to get it considered, and is very difficult to navigate without an attorney.This  adds to costs
  • It is not clear how signing a confidentiality agreement will constrain a medical provider. For instance, can they even tell the patient what they have been exposed to?
  • Industry holding the information which could cause unnecessary delays during an emergency. 
  • With industry holding all the cards- who is accountable to the people of North Carolina?
There was spirited debate, with MEC Chairman Jim Womack pointing out that the industry would take advantage of and abuse trade secret exemptions unless it was clear that there would be penalties for doing so, and a way for trade secret claims to be reviewed. Commissioner Rao strongly felt that industries that claim trade secret exemptions should be able to explain how they protect them in house, and should be prepared to sign a document stating (under threat of some yet to be decided penalty for fibbing) that the substance, process, etc, is truly a trade secret. The only dissenters were Commissioners George Howard and Charles Holbrook, which is not new, or surprising.

Commissioner Howard, who has repeatedly reminded other MEC members that "they were not proscribed to protect health and safety" by the General Assembly, made an about- face when discussing the trade secret/chemical disclosure rule stating, "What bad outcome are we seeking to avoid? If there's not public safety of health implications to that, why are we here?" 

Commissioner "Industry might not come here" Holbrook expressed his concern that well, industry might not come here. Commissioner Rao explained, again, that companies have in-house practices to protect business sensitive information and should have no problem explaining them to whatever state agency is inquiring. Rao went on to say, "By golly, of that means they don't come here, I'm sorry."

We must all remember, that no matter what is disclosed, or when, it will not keep our groundwater, our air, our land, and our politics from being contaminated.

Stay tuned kids- the next round starts this week- committees meet December 5, and the full Commission meets December 6, 2013.