The final version of the bill that would green light hydraulic fracturing in North Carolina is poised for a final vote on Thursday.
By Rose Hoban
In less than 24 hours, House lawmakers rushed approval of a bill that would put hydraulic fracturing on the fast track in North Carolina. Lawmakers accelerated the Energy Modernization Act through the legislative process, starting with an evening meeting Tuesday to review the bill sent over from the Senate, to an early-afternoon committee Wednesday with no amendments and to the House floor.
And as they did that, environmental-health experts scrambled to keep up with the bill that would remove the barriers to fracking in North Carolina.
“If this industry is going to come here, North Carolinians deserve the assurance that it’s not going to come at the cost to their health and environment,” said David Kelly, a senior analyst from the North Carolina chapter of the Environmental Defense Fund.
For almost two years, the Mining and Energy Commission has been writing rules governing how fracking will be undertaken in North Carolina. In the original bill that created the MEC, the commissioners had until October 2014 to complete their rule-making process and then legislators would have to vote to approve the rules in order for a moratorium on granting drilling permits to be lifted.
Kelly and other advocates say they’ve been working with lawmakers and the MEC for several years to craft a bill that will allow fracking to be done safely in the state.
But Kelly and others say that recent changes to the bill weaken the public-health protections they’d worked to get added to the MEC’s regulatory regimen. And they also say the speed at which the bill has moved first through the Senate and then the House has not given them the time to educate lawmakers about some of the issues or help them craft amendments to protect public health.
“It’s hard to have enough time to educate legislators about some of these issues when things are moving so fast,” Kelly said.
Air and water
Environmentalists have had concerns about the air- and water-pollution potential that will come with fracking.
In other states, one practical concern has been the number of trucks carrying water and fracking fluid to drilling sites to do the actual fracking. One well could require as much as three to five million gallons of water. But tanker trucks carrying the water can hold only about 10,000 to 12,000 gallons of water.
“There can be up to several dozen 18-wheelers idling at a time as they’re bringing water to a site.,” said Kelly, who noted that in other states diesel exhaust has taken a sharp uptick in areas where fracking has been practiced.
In addition to diesel trucks, gas companies often run diesel generators at the fracking sites, creating industrial air pollution into rural areas where it hadn’t been before.
“The increase can be intense and rapid,” Kelly said.
James Robinson from Rural Advancement Foundation International is concerned about rules created by the MEC this winter that allow for wells to be sited as close as 650 feet from hospitals, schools and homes.
“The problem with the setbacks issue in North Carolina is that North Carolina is more densely populated than a lot more areas where fracking has taken place,” he said.
Research in Colorado has found that in areas where fracking has been taking place, women who live close to large numbers of natural-gas wells gave birth to newborns who were more likely to develop congenital heart defects or neural tube defects.
“There are ways to make this better and there are ways that we have proposed to make it better. One that RAFI has proposed has been to increase setbacks from occupied dwellings and high-occupancy dwellings,” Robinson said. “That’s what we’ve seen other states do who have experience with this industry.”
He also expressed concern that the rules allow for contaminated fracking brine to be stored in ground-level pits.
“Pits overflow, and that’s where the water-contamination concern is greater, from surface spills from fracking fluid,” he said, “In North Carolina, people understand hog lagoons; they look remarkably like fracking pits. And in the event of extreme rainfall or tropical-weather event, you run the risk of the same kind of overflow.”
Disclosure for docs
One issue that’s been debated hotly this week is the provisions in SB786 that make it a crime to disclose what’s in the fracking brine.
Under the bill, the state geologist would have access to the formulas used by oil and gas companies in their fracking fluid and those components would be disclosed to firefighters, first responders and doctors who might respond in the case of an accident.
An amendment inserted last week in the bill changed disclosure from a felony to a misdemeanor.
Kelly said that the MEC had originally wanted the Department of Environment and Natural Resources to hold the formulas for the brine. But after DENR officials objected, MEC came up with a way that trade-secret information could be provided to EMS and physicians.
“This new law changes the fundamentals and says that DENR will take possession and will make it available to a doctor or EMS or a fire chief as necessary,” Kelly said. “That’s good.”
But it’s still a misdemeanor to reveal what’s in fracking fluid, and that worries physicians.
“Medical communities have said, ‘Hang on; if you’re going to give me that information and restrict how I can use it, I’ll be put in a place where I can’t discuss with patients how I’m treating them and why,” Kelly said.
In other states, doctors and medical societies have sued over the issue.
“In Ohio, lawmakers listened to [Environmental Defense Fund]’s concerns and came up with a provision that gave certainty to doctors, so that nothing in the confidentially agreement could be construed to violate medical ethics,” Kelly said. “But this bill fails to provide that protection.”
Lawmakers said that in North Carolina, doctors would be provided with the constituents in the brine even if they don’t know the recipe.
But Kelly said there’s still a problem, in that companies will seek to protect the formulas, and any pre-mixed additives they believe give them a competitive advantage will not be detailed to first responders.
He said a website called Frack Focus will give communities some information about what’s in the fracking fluid used nearby. But Kelly critiqued how the law provides broad authority for companies to claim any manner of information as a trade secret.
“And the stuff they want to protect, they’ll be required to identify the chemical generic class, but that could be quite vague,” he said.
Help or hindrance?
“EDFs strategy has been that we’ve engaged in the process in good faith and we have a long history of working on these issues in states where hydraulic fracturing is already there,” Kelly said. “We’ve worked to reduce impacts on communities in other states and we’ve encouraged regulators there to come up with management practices that protect public health.
“We want to build the strongest regulatory program we can,” he said.
But Rep. Mike Stone (R-Sanford) told reporters on Tuesday that environmentalists have obstructed the process, not helped it. He said that he’s encouraged environmentalists to tell him how things can be done better.
“Let’s look at the rules process and how we can make the rules, and pass a bill that will make North Carolina premier in drilling,” he said. “And what I’ve constantly received is info on how to shut the process down.”
“We think they could have been more part of it had they would have taken the approach of let’s make it better versus lets shut it down and not do it at all,” Stone said.
But that’s not how Kelly and Mary MacLean Asbill from the Southern Environmental Law Center remember it. Asbill said she’s never even met with Stone.
“We’ve tried to set up some meetings with him to talk about some polling we have about forced pooling” she said. “We had a meeting set up and he canceled it.”
“We have tried to engage in a constructive way with the rule-making process,” Kelly said. “We attempted to engage in good faith with the Mining and Energy Commission to put good ideas on the table, and in some areas the MEC has done good work.”
“We want to strengthen other areas,” he said.