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

“A secret's worth depends on the people from whom it must be kept.” ― Carlos Ruiz Zafón, 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.

An Early Christmas Gift...

BREDL No Toxic Trespass-No Fracking Way! Tour Featuring Lois Gibbs, Executive Director of the Center for Health, Environment and Justice

Friends,

While I am working on what may be three new blog posts I wanted to make you aware of an exciting upcoming event. BREDL is bringing Lois Gibbs to North Carolina November 18-21, 2013! Lois is known as the mother of grassroots activism and is well-known for her part in the struggle to clean up her community at Love Canal. Recent Newsweek article here:  Love Hurts

NO Toxic Trespass! NO Fracking Way! Tour

Sponsored by Blue Ridge Environmental Defense League, Cumnock Preservation Association, No Fracking in Stokes and Pee Dee WALL

---

Featuring Lois Gibbs, Founder and Executive Director of the

Center for Health, Environment and Justice

November 18-21, 2013

o   November 18: Winston-Salem- Tour kick-off Press conference at 11:00 am, City Hall, 101 N Main St, Winston-Salem, NC, 27101.

Germanton, Stokes County- Community meeting at 7:00 pm, Germanton United Methodist Church, 3615 NC 8 & 65 Hwy, Germanton NC, 27019.

o   November 19:  Sanford, Lee County- Press conference at 11:00 am, Lee County Courthouse (Tentative), 1408 S Horner Blvd, Sanford, NC, 27330.

Candlelight vigil and community meeting at 7:00 pm, Cumnock Union United Methodist Church, 851 Cumnock Rd, Sanford, NC ,27330.

o   November 20:  Raleigh- NC State University (Tentative)

Pittsboro, Chatham County- Public Forum at Central Carolina Community College

Multi-Purpose Room 7:00-9:00 pm, 764 West St, Pittsboro, NC, 27312.

 November 21: Wadesboro, Anson County- Press conference at 1:00 pm,  followed by meet and greet at  Hampton B. Allen Library, 120 South Greene Street, Wadesboro, NC 28170.

Luncheon (Location TBA)

For Tour Information Contact:

Lou Zeller: (336) 982-2691 mailto:bredl@skybest.com

Beverly Kerr: (336) 376-9060 mailto:beverlykerr@triad.rr.com

Kate Dunnagan: (919) 417-4939 mailto:katedunnagan@gmail.com

Therese Vick: (919) 345-3673 mailto:therese.vick@gmail.com

Lois Marie Gibbs,
CHEJ Executive Director
In 1978, Lois founded the Love Canal Homeowners’ Association, and CHEJ in 1981. Her vision has guided our efforts to provide critical organizing and technical assistance to communities engaged in their own environmental struggles. Lois sits on numerous Boards and Advisory Committees. She is the recipient of an honorary Doctorate from SUNY at Cortland, Haverford College in May 2006, Green Mountain College 2009 and Medaille College in 2010. Received the 1990 Goldman Environmental Prize, the 1998 Heinz Award, and the 1999 John Gardner Leadership Award from Independent Sector.

www.chej.org

Water, Water Everywhere, and Not a Drop to Drink : Part One

Tom Reeder, Director of the Division of Water Resources

Who is this man and why is he so angry?

Good Morning Dear Readers,

Its been a while since my last post and a lot has happened. This will be the first of several posts updating you on family activities and some actions of our distant cousins at the Department of Environment and Natural Resources. For your reading and listening pleasure, I include a recent development around DENR turning down start-up funds to evaluate pre- drilling monitoring of surface waters in the shale basin.

DENR turns down grant for water monitoring in gas drilling areas

RALEIGH, N.C. — North Carolina has turned down a pair of federal grants, one of which would have helped monitor water quality in areas where drilling for natural gas is likely to take place, provoking criticism from advocates who say the cash-strapped agency needs the money.

Water Regulator Defends Return of Grants

RALEIGH, N.C. — Speaking before the state Mining and Energy Commission Friday morning, state water quality chief Tom Reeder offered a passionate, sometimes caustic, defense of his recent decision to return $580,000 in federal grants. 

Some insight on the Division of Water Resources Director can be found here: A Message from Tom Reeder

After listening to this, it seems as if "helping and serving the citizens of this state" means helping and serving permittees, not people. Not one single word about the communities that polluting facilities affect. He drops the L-word- saying that the North Carolina Legislature has a bulls-eye on the Department of Environment and Natural Resources, can you say intimidation?

The Aftermath:

I was at the Mining and Energy Commission (MEC) on Friday when Director Reeder presented his rationale for the Division of Water Resources' (DWR) refusal of the grant money. Not having had an opportunity to review the grant (and neither had MEC members!), I listened carefully. Mr. Reeder said again and again that there had been no coordination with the MEC by the grant writers, that it didn't even include groundwater, and that "studies have a shelf life."

These are my thoughts:

1. Part of DENR's reasoning for refusing the grant was the lack of the Division of Water Quality's coordination with the Mining and Energy Commission. Ummmm, MEC members had not been informed or consulted by DENR when they refused the grant, nor had they been provided with a copy prior to the Friday meeting.

2. Mr. Reeder said that DWR would do a study for the MEC as they needed it for less than the $200,000+ listed in the grant proposal- and even include groundwater. And that the Division had "plenty of money." Really? Over the past 12 months, on issues BREDL is working on  DENR agencies have refused public hearings requested by affected communities, and recently held a public hearing on a major issue affecting many North Carolina backyards in Raleigh, at 3pm, on a weekday, citing "costs."

"DENR spokesman Tom Mather says department finances are limited and don’t always allow for multiple public hearings." - Groups protest proposed air toxics changes

4. Staff responsible for applying for the grant were not allowed to explain their rationale for seeking it, was EPA consulted?

5. Will this refusal have repercussions for future EPA grant funding?

6. Until the whole truth is exposed- we can only guess at the real reasons for North Carolina being the first state in the Southeast to refuse an EPA grant, ever.

Follow the breadcrumbs...or maybe the water droplets...