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Thursday, January 16, 2014

Chemical Disclosure:Now you see you don't.

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

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


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

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