The rule could delay access to chemical information during a spill.
By Gabe Rivin
State officials may be limited when responding to chemical accidents involving hydraulic fracturing, or fracking, after the North Carolina Mining and Energy Commission, the primary group tasked to develop fracking regulations, tentatively approved a rule this week that would limit the state’s access to information about certain chemicals used in fracking.
The so-called chemical disclosure rule, which the MEC reviewed at its Tuesday meeting, does force drillers to reveal many of the details about their fracking operations. That includes the chemicals used, the concentration of chemicals and the amounts of surface water used.
However, under the rule, developers can petition to keep secret some of their chemicals and chemical mixes. This exemption is allowed for so-called trade secrets – those techniques that give drillers advantages over their competitors.
The commission’s decision comes as the group is pushing to complete a suite of regulations required before the state issues its first fracking permits.
Fracking is a drilling technique used to extract gas and oil from hard-to-drill shale rock formations. It involves the high-pressured injection of water, sand and chemicals into the shale, which create fissures that allow oil and natural gas to flow.
The current rule prevents the N.C. Department of Environment and Natural Resources (DENR) from storing those trade secrets.
Trade secrets protected
Under the rule, fracking permit holders will retain the trade secrets. They will be required, in the case of an emergency, to provide chemical information to emergency responders and other state and local officials. The rule also requires that permit holders provide contact information for individuals who have access to the trade secrets; those individuals must be available at all times. Drillers will have a two-hour window to respond to officials’ requests for information.
Emergency responders and others will have to sign an agreement to keep that information confidential.
Landowners and environmentalists say that they’re troubled by this provision of the rule.
“The disastrous spill of the chemical MCHM into the Elk River in West Virginia this past week is an enormous red flag about the need for chemical disclosure rules that protect the public first, not industry,” said Elaine Chiosso, the Haw Riverkeeper and executive director of the Haw River Assembly, an environmental conservation group.
Chiosso’s admonishment, in front of the MEC commission, was in reference to the ongoing crisis in West Virginia, where thousands of gallons of an industrial chemical, 4-methylcyclohexane methanol, contaminated the region’s drinking water.
The spill forced hundreds of thousands of residents to forgo drinking, bathing or cooking with the water from their faucets, and has raised questions about the risks of keeping relatively unmonitored – and untested – chemicals near drinking-water sources.
Martha Girolami, a resident of Chatham County, questioned the two-hour window for companies to respond to emergencies.
“Do you really think that two hours is going to be fair to someone who’s coated with chemicals?” she said.
Despite these and other critical comments, the MEC voted to advance the chemical disclosure rule.
More votes to come
This is not the commission’s final vote on the rule. The rule now returns to state government staff, who will address technical issues in the rule. The rule will then return to the commission, which will continue its debate, hold a public hearing and eventually approve a final version of the rule.
Under the 2012 fracking law, fracking permits will remain under a moratorium until the General Assembly approves the MEC’s final suite of rules, which are set to be complete in early November.
According to MEC Commissioner Amy Pickle, the chemical disclosure rule is unlikely to change dramatically by the time it reaches its final form.
In Tuesday’s vote, she said, “We agreed on the basic framework, on the basic tenets, that there should be as much disclosure as possible.”
Pickle, who also directs the State Policy Program at Duke University’s Nicholas Institute for Environmental Policy Solutions, said she has always believed that DENR should take initial possession of the trade secrets. But, she explained, the department lacks the legal authority to have possession of that information.
“That policy option is off the table,” she said. “So within the constraints of what we’ve been given, I think we’ve drafted the best possible rule.”
But, she added, the current rule “creates a very convoluted process” to deal with trade secrets.
Anti-fracking activists have been rankled by the development of the chemical disclosure rule. MEC’s Environmental Standards Committee first developed a draft of the rule, which would have directed DENR to be privy to chemical trade secrets.
That draft of the rule was supposed to receive a full-commission vote last May. But, according to media reports, MEC Chairman James Womack prevented a vote on the rule after lobbyists for Halliburton, the energy giant, worked with DENR staff to oppose the trade-secrets provision.
When the rule reemerged in the commission in November, it stipulated that DENR would no longer be privy to those secrets.