How Low Can You Go UPDATE

Or, They Want to be Close to You, Part Deux

Stream (ephemeral): A watercourse that flows during and shortly after periods of high precipitation. Ephemeral stream water quality is often a concern because the short-lived pools often are the site of reproduction for amphibious organisms and some air-breathing fish. For the purposes of this program, ephemeral streams are combined with intermittent streams.

Photo and definition from Watersheds: A Decision Support System for Nonpoint Source Pollution Control



From Ohio: http://www.dispatch.com/content/stories/local/2014/06/30/fish-kill-in-eastern-ohio-might-be-linked-to-fire-at-fracking-well.html

Fish kill in eastern Ohio might be linked to fire at fracking well

The state is investigating a fish kill in an eastern Ohio creek near where a fire occurred at a shale-well fracking site on Saturday.

The Ohio Department of Natural Resources learned yesterday of the fish kill in Possum Creek in Monroe County, said Jason Fallon, an agency spokesman. Fallon said he did not have details about the extent of the kill. “I can’t confirm if it’s related to the gas-well fire,” he said.

Phillip Keevert, director of the Monroe County Emergency Management Agency, said Division of Wildlife agents were inspecting the creek yesterday and confirmed that a kill occurred.

The Eisenbarth well pad caught fire on Saturday because of a malfunction in hydraulic tubing, authorities said. Fire spread to about 20 trucks lined up on the well pad, triggering explosions that spewed clouds of black smoke.

The trucks that caught fire are used in hydraulic fracturing, commonly known as fracking. Statoil North America operates eight wells on the pad.

At the height of the fire, 20 to 25 families that live within a mile of the site were evacuated. They were allowed to return home on Saturday evening.

A number of area residents reported the fish kill yesterday. Jack Shaner, deputy director of the Ohio Environmental Council, said he has been told that the kill stretched for a few miles.

Shaner said he suspects that chemicals used in fracking ran into the creek when firefighters extinguished the blaze.

“It sounds like it was not just smoke and not just fire, but a major fish kill,” he said. “Both the company and state agencies owe the public a full public accounting of what went wrong and how they are going to prevent future occurrences.”

Statoil North America officials could not be reached for comment.

All 17 of the company’s Ohio wells are in Monroe County, state records show.

Hmmmm, wonder how far away that creek is from the wellheads?

Friends, when the  Mining and Energy Commission (MEC) ( as currently constituted) started their second day of deliberation on the rule package poised to go to public comment and public hearing on June 16,  Chairman Jim Womack said "Welcome back everyone to the second day of  fun here with  the Mining and Energy Commission."  One must keep a sense of humor despite the seriousness of the matter at hand, and I am glad that the Chairman can do so.

On to the meat of the discussion.There has been significant quibbling amongst the family about setbacks (see an earlier blog post They Want to Be Close to You). The argument began in earnest during the May 2014 meetings, with reports that "somebody" was not happy with the proposed setbacks from water bodies. (Apparently a Lee County landowner). Commissioner Charles "Industry Won't Come Here" Holbrook wanted much shorter setbacks, with variance authority to zero on certain streams, citing the lack of "white space" on GIS maps available for the development of  natural gas in Lee County. There was a lot of back and forth;several Commissioners took issue with the idea and with Holbrook's stance-with Commissioner Amy Pickle reminding the other commissioners that setbacks are designed to protect safety, public health and welfare, and the environment and stated "[We are ] rulemaking by anecdote." This issue was tabled for further investigation until the June cycle of meetings.

 On June 15, another draft of the setback rule, a "compromise" if you will,  was presented by MEC Chairman Jim Womack,  again sparking vigorous debate. Commissioner Pickle went through a great deal of research overnight and these are some of the eloquent remarks she  made on the 16th:

"Two main points, we haven't done enough research, in looking at the ecology or hydrology of what we're proposing to mitigate a risk for. We're not going to be able to do it in the time frame that we have. I am resistant and...dislike making decisions about a number based on increasing percentage of "white space" in a single area of the state, when we are setting state-wide standards. I am resistant ...I will say in justification for my comments and general recalcitrance yesterday, that I am resistant to changing these numbers to try and achieve a policy objective that's not fully informed by the science. So, I appreciate folks wanting to reach a compromise and finding a middle ground. I am-based on the review, the very limited review, of the science am ok with going down to 100 feet of intermittent streams, with the understanding, and the call-out to the public that we need a lot more information, and that making this decision without that information is not the preferred policy process. But zero is not a viable scientifically based option, either. We pick a number for the setback, and we pick a minimum (the audio recording was unintelligible here) on which we know from a basic review of buffer science is about right."

You can listen to the audio from the June 5th and 6th meetings here: http://portal.ncdenr.org/web/mining-and-energy-commission/june-5-2014

Yet again, a standard was reduced, and an appointed Commission will have the power to weaken it even further. This is being done, to accommodate an industry using a highly intrusive process which is causing multiple problems in virtually every state it is operating in. When will it be the people's turn to be accommodated? From where I sit- protecting public health and the environment are not much of a priority for some decision makers.

An Inch is Good as a Mile...Or the disappearing presumptive liability and baseline well water testing

 A long time ago in a galaxy far, far away, during a meeting of the Compulsory Pooling Study Group Mining and Energy Commission chairman Jim Womack said this:

"Considering the increasing lengths of the lateral - when we said 5000 feet a minute ago, because 5000 feet was about the limit that the drilling could occur. As the horizontal drilling extends beyond 5000 feet, its now up to about 2 miles in some places, then obviously these rules will be extended out, so they can adjust over time, for the length of the horizontal drilling."


The 5000 foot baseline testing also included a presumptive liability provision for the same distance. Ummmmm not so much. It didn't take long for the MEC to start talking about

 "overreaching", "excessive", and Commissioner "Industry Won't Come Here" Holbrook saying, well, "Industry won't come here." 

This spring, MEC  chair Jim Womack went before a legislative committee explaining that despite whatever good intentions the 2012 legislation had about baseline and subsequent testing, it was too onerous on industry, and recommended the 5000 foot baseline testing requirement be reduced to 2500 feet. Lo and behold, S786 was introduced, and whizzed through the senate. Among other things S786 reduces  the baseline testing and presumptive liability to a half mile. I suppose the Senators  figured that they would be conservative and err on the side of caution by adding 140 feet to it, but there still seems to be some confusion on their part. 

Just like almost every other proposed rule that was meaningful, the MEC took one step forward and two steps back. What they haven't weakened, they've ignored. Like air toxics, and forced pooling , and getting serious about waste management. It makes one say -

Get ready to rumble! 

They Want to be...Close to You

Friends,

How close is too close to a home or school?  650 feet? Well that's how close our friends at the Mining and

Example of distance from gas wells in Weld County Colorado
http://fractivist.blogspot.com/p/fracking-images-ii.html

Energy Commission (MEC) think that a fracking site can be to either. During initial debate on setbacks,  Environmental Standards Committee Chairman George Howard admonished some on his committee that mentioned health and safety concerns. Howard said  that the Legislature "did not proscribe us to establish setbacks for the protection of health and safety."

This is not the first time that Howard has taken it upon himself to remind his committee and the whole MEC of this. Howard was joined in his duet by Commissioner "Industry Won't Come Here" Holbrook. The first draft of the setback rules stunned those in the audience. It was proposed at 150 feet. It was never made clear where the 150 feet came from, and it was quickly sent back to staff. The next time the draft rule appeared it had increased to...500 feet.

Fracking is a highly industrial activity; spewing toxic emissions and subjecting communities to constant noise, light, traffic and dust. What a fracking site looks like Recent studies show troubling measurements of toxic emissions up to 1/2 mile from well sites.

At the January 31, 2014 Mining and Energy Commission meeting, with some ceremony, Environmental Standards Committee Chairman George Howard recommended increasing the setbacks from occupied dwellings and places such as schools and hospitals to 650 feet. The 650 feet can be reduced to 400 feet for occupied dwellings under certain circumstances.This was in response to a letter sent by Frack Free NC www.frackfreenc.org allies the day before, which outlined the inadequacy of the 500 foot setback.

Here's some of the debate from that January 31 meeting (not in chronological order):

Commissioner Charles Holbrook: " I have a number of concerns about this, what is the motivating factor that precipitated the recommended changes?"

Commissioner George Howard: "Being attendant to the public anxiety." Howard also stated that the setback rules were, "Unquestionably the most comprehensive setback rule in the country." Ummmmmmm ------>

See the News and Observer article:
NC fracking panel sets safe drilling distances from homes, steams


Commissioner Amy Pickle, who was interrupted by Holbrook: "If you will let me finish please. For states that are reviewing their setback rules, those setbacks are consistently getting bigger. So [for] states that have experience with this industry who are dealing with the on the ground and community impacts, the setbacks are not staying at 100 feet, the setbacks are getting bigger."

When the vote was called for, Holbrook voted no stating that, "...I think the setback changes were unnecessary, [and]I think they're excessive..."



Mining and Energy Commission Chairman Jim Womack
Photo courtesy of Jimmie Olsen

In reality there is no safe distance from a fracking site, and as was eloquently stated by a Chatham County resident: " Your setback distances are small, and they're going to be smaller compared to what's happening across the country. Dallas has gone from 300 feet to 1500 feet." She went on to say, "...part of it [the opposition] is because fracking is so close to where we live...[speaking on Dallas' setbacks] but the individual out in Sanford, Lee County matters. In looking at your setback distances, I think you better take out on page 2, line 4, says to minimize or mitigate potential adverse impacts to public health, public safety, the environment, and wildlife. You all have no idea what it means to protect the public health, safety, the environment and wildlife, you've done no studies, its a totally squishy statement, and its meaningless."

Couldn't have said it better myself. To listen to the audio of the meeting go here: January 31 2014 Mining and Energy Commission Meeting

The shadow of things to come: US investigates NC environment agency after coal-ash spill

“Power, wrongly used, defeats the oppressor as well as the oppressed.” 

                                                                                          ~Wally Lamb

Friends,

As I was reviewing the last Mining and Energy Commission audios for a new post, this article landed in my inbox: 

RALEIGH, N.C. — Federal authorities have launched a criminal investigation into North Carolina's environmental agency following a massive coal ash spill on the Dan River. The U.S. Attorney's Office issued a grand jury subpoena requesting records from the North Carolina Department of Environment and Natural Resources. They include emails, memos and reports from 2010 through the Feb. 2 spill. The Associated Press obtained a copy of the subpoena on Thursday. The spill at a Duke Energy plant in Eden spewed enough toxic ash into the river to fill 72 Olympic-sized pools. It was the third-largest coal ash spill in U.S. history.The order commands the state environmental agency's chief lawyer to appear next month before the grand jury in Raleigh. Agency spokesman Drew Elliot says the state will cooperate with the federal investigators.

Feds launch investigation into NC agency after coal ash spill

This is only the tip of the iceberg. Attendees of the Mining and Energy Commission meetings (including myself)  have been raising the issue of the North Carolina Department of Environment and Natural Resources' (DENR) political will to enforce the law.This is not unique to this new incarnation, but the expanded exemption of hundreds of DENR employees last summer, the changes in public record policy and the incessant pressure on DENR staff to perform (behave), are disturbing, to say the least. 

Read more here:

McCrory exempts more state workers from civil service protections 

True costs of NC's charging the public for the information it owns

Former DENR employee leaves her job with a blazing "Dear John" email

The Oil and Gas industry has already been meddling with our regulatory and political process. With  complicit or at least compliant DENR leadership, problems in affected communities will be trivialized or downright ignored. How realistic is it to think that the most powerful industry in the world can be controlled? You have a better chance of finding Bigfoot.

Read more here: http://www.newsobserver.com/2014/02/13/3618713/apnewsbreak-us-investigates-nc.html#emlnl=Breaking_News#storylink=cpy

Hate to say I told you so, "Fracking Commission Seeks To Cut Water Contamination Liability For Drilling Companies"

Friends,

I apologize for my extended family's behavior. I truly do.You can dress 'em up, but you can't take them anywhere!  Please see WUNC report from Tuesday's meeting of the Joint Legislative Commission on Energy Policy here: Fracking Commission Seeks To Cut Water Contamination Liability For Driiling Companies.


I was not shocked, or surprised; after all I attend most, if not all Mining and Energy Commission meetings and reunions and knew this was coming. From a June 2013 blog post (you can find the entire post here: Things that make you go hmmmmm....: Part II )

"Keywords: Excessive. Red flag. Accelerating. Industry. Industry. Industry.Oh-and Industry.

In 2012, the North Carolina General Assembly passed legislation (S820) that legalized fracking in North Carolina. That legislation directs the operator to test all water supplies within 5000 feet of a wellhead.

Session Law 2012-143, SB820 reads:

"Pre-Drilling Testing of Water Supplies. – Any lease of oil or gas rights or any other conveyance of any kind separating rights to oil or gas from the freehold estate of surface property shall include a clause that requires the oil or gas developer or operator to conduct a test of all water supplies within 5,000 feet from a wellhead that is part of the oil or gas developer's or operator's activities at least 30 days prior to initial drilling activities and at least two follow-up tests within a 24-month period after production has commenced."

At the June 7 meeting of the North Carolina Mining and Energy meeting there was much discussion on what should be included in the required baseline water testing. Some Commissioners expressed care and concern that the comprehensive testing could be "onerous" for Industry (translate expensive). Some of the remarks:

George Howard (GH): "[We might have to] turn another knob, either a shorter reach, or reduce [the] constituents tested for." Howard then mentioned that testing requirements which were too comprehensive would be a "red flag to industry."

Charles Holbrook (CH): "Some of the rules we are developing are excessive compared to other states." Holbrook remarked that the MEC should be vetting the draft rules with industry, and that there should be more formal outreach.

Dr. Ken Taylor (KT): "The Legislature said 5000 feet, the Legislature said ALL [emphasis mine]. The legislation (S820) set it in stone."

CH: "Laws can be changed."

Chairman Jim Womack remarked later that the MEC may have to go to the General Assembly with recommendations, to get needed statutory authority, or other issues."

You know the old adage, "you can pick your friends but you can't pick your family." 

Another picnic ahead  on February 12, 2014....

“There is a thin line that separates laughter and pain, comedy and tragedy, humor and hurt.” Erma Bombeck

Friends,

After spending two days with my extended family this week, there is much to share. However, this blog post is not about that. Set the way back machine to December 2013, and the issue of chemical disclosure. During the meeting,  Blue Ridge Environmental Defense League and others raised concerns related to a "gag" order on medical professionals. Mining and Energy Commissioners Jim Womack, Dr. Ray Covington, and Dr. Marva Price dismissed these concerns, apparently functioning under the mistaken perception that the Health Insurance Portability and Accountability Act (HIPAA) would pre-empt any "Trade Secrets" claim. 

Thinking back on my Human Services training, I remembered something about this:  

HIPAA Link here: Health Information Privacy. 

" (e) PROTECTION OF TRADE SECRETS.--Except as otherwise required by law, a standard adopted under this part shall not require disclosure of trade secrets or confidential commercial information by a person required to comply with this part. 

Examples:

Caveon Test security

Tests typically are protected by copyright law, and test authors and publishers are reluctant to give permission to release test data. Of critical importance to these parties is the maintenance of the integrity of the test so that it will continue to be a valid and useful tool. Authors and publishers explain that the dissemination of record forms (which may disclose test questions and answers) may result in the “next” patient having knowledge of test content prior to testing.  This may lead to invalid recommendations. To explain further: when the client has knowledge of the content or the underlying constructs, and/or perhaps the responses, that person is no longer comparable to a naïve normative group. As a result, decisions, and diagnostic and treatment recommendations for this patient may no longer be valid when based on the normative distribution.

In past years, instances of exposure of test materials have been reported. The advent of the Internet has increased this risk through its ease of publishing and disseminating information to a broad audience. At times the exposed test content has been accompanied by coaching and hints so that clients could prepare their responses before being tested and thus have a better chance at winning a child custody case or qualifying for workman’s compensation or another program. After such exposure of the test, the practitioner is left not knowing whether or not his client is a naïve test taker, and thus, whether the comparisons to normative and research data are valid.

Protection of copyrighted material is addressed by The Standards for Educational and Psychological Testing and the Ethics Code."

In a letter to their customers, Psychological Assessment Resources, Inc. advised:

Link to statement here: PRA HIPAA Statement

"The wide spread dissemination of test materials (which may disclose test items and answers) 

would violate restrictions on health care providers’ use of PAR’s test materials, and would 

render test instruments invalid and therefore useless to the professional community and the 

general public. The U.S. Department of Health and Human Services (HHS), which is 

responsible for HIPAA, recently provided clarification related to this matter and stated in a letter 

that:  “Any requirement for disclosure of protected health information pursuant to the 

Privacy Rule is subject to section 1172(e) of HIPAA ‘protection of trade secrets’. 

As such, we confirm that it would not be a violation of the Privacy Rule for a 

covered entity to refrain from providing access to an individual’s protected health 

information, to the extent that doing so would result in a disclosure of trade secrets.” 

While interpretation of the trade secret clause under HIPAA is complex, on its face it appears that if a medical provider signs a confidentiality agreement-the yet to be revealed "Form X3"- with a manufacturer, vendor or service company, HIPAA itself may prevent that provider from disclosing business confidential information to their patient. What is crystal clear: when information is allowed to be withheld from the public we cannot take anything for granted, or laugh at concerns raised by communities who will be adversely affected by such subterfuge. We all know what assuming does.

Chemical Disclosure:Now you see it...now you don't.

"If a decision-making process is flawed and dysfunctional, decisions will go awry"

Carly Fiorina

"Treatment of injured children from school bus-tanker collision delayed 2 hours due to industry secrecy."

Friends,

Although the above photo from an early morning accident between a truck and a school bus did not involve fracking chemicals, Tuesday's decision by the Mining and Energy Commission on chemical disclosure elevates the likelihood of these kinds of headlines. 

Make no mistake about it- this is not a "disclosure" rule. Its not full disclosure when industry will still be allowed to hide behind the trade secret curtain. Tuesday's Mining and Energy Commission meeting was a now you see it-now you don't -ordeal with one clear objective-to move this rule. Most of the Commissioners had not seen the latest draft until Monday- some may not have even had a chance to review it before the meeting. There was new language, some of which was tabled when it became obvious that the train might be delayed getting to it's 3:15 destination, some of the good provisions added in December were removed, and some of the most troubling provisions were retained.

The rule as passed allows the industry to require that a medical provider agree to sign a gag order (the content of which has yet to be made public or discussed) before being allowed to receive information needed to treat their patients exposed to unknown chemicals. In contrast to current Department of Environment and Natural Resources policy, it allows the industry to be the holder of the records, with a two-hour window of time to get information to an emergency responder trying to take care of our families and our property in an emergency. They have to agree to sign a confidentiality agreement, too. This creates delay and unnecessary layers of bureaucracy.

"Fracking Industry Gets Government to Gag Doctors"
"Ohio Senate Wants to Gag Doctors to Protect Fracking Industry’s Bottom Line"

Standing to challenge a trade secret claim is limited, and it isn't clear from the current draft that an injured first responder or physician denied needed information would be able to bring a challenge. Current thinking by the Mining and Energy Commission is that challenges to a trade secret claim should be heard in the North Carolina Business Court. It costs 1000.00 to get into that venue, and is a complex and convoluted process that would almost certainly require the services of an attorney.

The unique property rights issues around fracking (forced pooling and severed estates) are also important here. In forced pooling, you can be forced to participate in a drilling unit, and to allow the retrieval of gas from under your property. But you have no right to know what is being pumped into the ground below your feet. If you live on a split estate, you are even more vulnerable, because someone else owns the mineral rights and the mineral rights trump the surface rights. There are currently no protections for landowners in place.

There are more problems with this rule. Regardless of how you feel about the issue, ask yourself, do you want to be the one waiting for treatment while first responders are wading through the bureaucracy trying to determine if its even safe to send their people in? Do you want your child to be waiting in the emergency room while their physician is trying to figure out how to treat them? The people of North Carolina deserve better.

NC fracking panel passes chemical disclosure rule