Biggest potential change to 'fracking' law not in bill

Posted July 19, 2013

— House and Senate lawmakers have worked out their differences over a bill that will make dozens of changes to the state laws governing natural gas drilling.

That bill abandons several provisions that had troubled environmental watchdogs, but it does not include the most controversial drilling law the legislature is likely to pass this session. 

Senate Bill 76, dubbed the Domestic Energy Jobs Act, makes dozens of tweaks to how the Mining and Energy Commission and Department of Environment and Natural Resources will regulate natural gas drilling. 

It no longer contains language that would have cleared the way for disposing of fluids used in the hydraulic fracturing and horizontal drilling processes – better known as "fracking" – by injecting them into the ground elsewhere. That had drawn objections from lawmakers representing the coastal plains of the state, where residents feared they would become a dumping ground for waste generated by drilling rigs in the Piedmont.

The bill also maintains the current timeline for issuing drilling permits. Current law requires that the Mining and Energy Commission finish drafting rules to govern the fracking process and that the legislature vote on the rules before permits are issued. Earlier drafts of the bill would have removed the requirement for a legislative vote and allowed for a pre-permitting process. 

Elizabeth Ouzts, state director for Environment North Carolina, said the bill still "focuses on dirty energy sources of the past – oil and gas – which will threaten our drinking water, our rivers and lakes."

But, she said, the new bill is better than it predecessors from an environmental advocate's perspective.

"Our biggest critique and concern about the previous version of the bill was that it lifted our moratorium on hydro-fracking," Ouzts said. "This version appears to leave the moratorium in place. That's a tremendous improvement, and I think we have the House leadership and (Rep. Mike Stone, R-Lee) to thank for that."

Other environmental groups sounded a similar note. 

"On balance, we're encouraged," said Molly Diggins, state director for the Sierra Club.

Still, there are a few specifics in the bill with which that she and other environmentalists are unhappy.

"It’s disappointing that the public’s right to know what the price tag of an oil and gas program is has been hampered," Diggins said, referring to a provision that exempts the bill from the normal cost analysis that measures requiring spending undergo. 

Disclosure provision is part of another bill

However, Diggins and others say the most important provision dealing with fracking is nowhere to be found in Senate Bill 76. 

Rather, a new law that would limit what the public can find out about the chemicals used in the fracking process has hopscotched through a series of "regulatory reform" bills, the latest version of which, House Bill 74 cleared the Senate on Friday. 

In a fracking operation, companies drill into shale rock where gas is lodged, and a mix of chemicals, water and sand are forced into the well to crack the rock and access the gas. The specifics of that chemical mixture, which companies consider to be a trade secret, is the focus of the disclosure provisions. 

House Bill 74, which now goes to the House for a potential final vote next week, says that drilling companies must at least temporarily disclose their specific chemical mixtures to DENR and the Mining and Energy Commission – but not to the public. Rather, the industry will be able to post the chemical "families" of some of the ingredients for their fracking recipe but won't have to post the specific chemicals if they are deemed a trade secret. 

That lack of public disclosure did not sit well with Sen. Ellie Kinnaird, D-Orange, during debate on the measure. 

"Certainly, we can craft something which would allow them to have those chemicals disclosed in a way that does not jeopardize the trade secrets but protects my constituents," Kinnaird said. "I’m not satisfied, nor are my constituents, that this is a safeguard."

Sen. Buck Newton, R-Wilson, advocated for the measure.

"We don’t really need to know the formula. We don’t know the secret formula for Coca-Cola, even though a lot of people drink it," Newton said. "It isn't important that we know what’s in it."

Diggins said that analogy doesn't hold.

"Using the Senate's Coca-Cola analogy, if the use of high fructose corn syrup is a trade secret, the public might only know that a sweetener is used," she said.

Newton told his colleagues that Jim Womack, the chairman of the Mining and Energy Commission, is comfortable that the bill as written would allow the commission to write effective rules.

"The fear-mongering and the 'sky is falling' mentality of the radical environmentalists on this point is simply not founded," Newton said.

Reviewing trade secrets

Womack said Newton was mostly right when he said that the commission did not have a problem with the language in the bill.

Prior versions of the disclosure language "really tied our hands," Womack said.

Those earlier bills would have prevented the commission or environmental regulators from demanding any disclosure of chemical mixtures drilling companies deemed to be trade secrets. 

The provision in House Bill 74, which allows the commission to continue writing rules for disclosure and review the chemicals being used, is better that prior versions of the bill, he said.

"We should have some general latitude for the commission to review what is being claimed as a trade secret," Womack said.

The language in House Bill 74 would say the commission could not "take possession" of the trade secret information but could review it. 

"What we cannot abide is that we cannot see what is a trade secret at all," he said.

That's because environmental regulators need to know what chemicals companies use in case a problem is discovered down the road or a chemical used in the process is later determined to be dangerous to human health.

"You don't know what you don't know about the environment," Womack said.

If the state doesn't "take possession" of the specific chemical mixes used in the fracking process, how will regulators track down those responsible for problems later? 

"We'll work that out," he said. "We will have a way to regenerate what was approved by the commission. ... This bill will give us enough discretion to write the rules so that we can ensure the public safety."

Diggins and others are not so sure. Those rules make it impossible for outside watchdog groups to track the industry, she said.

She pointed to a blog post by Robin Smith, an environmental lawyer and former DENR assistant secretary. Smith writes that having only the temporary ability to review chemicals does not allow regulators to act in case of some future problem. 

"While that approach may make the industry more comfortable, it will make it very difficult for DENR staff to have the information needed to provide adequate oversight for drilling operations – a problem that would be compounded over time by staff turnover," Smith wrote. "Allowing a DENR staff person to see the list of fracking chemicals when fracking begins does not ensure the availability of that information to staff five years later."


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  • goldenosprey Jul 22, 2013

    You libbies need to quit moaning and get with the program. A little benzene in your water will put some hair on your chest.

    And think how cool it will be to use water to start, and put out fires!

  • Rebelyell55 Jul 22, 2013

    While most on here continue about the possible danger to our drinking water (and rightfully so), there are soom bigger issues that don't seem to get attention. Rules being put into place where your land can be seized to benefit the gas companies. Lack of accountability to gas companies if there is damage done. Impact to our infrastructure, that tax dollars have to pay for. Possible cost of water to increase due to gas companies buying drinking water to use in their operations. These are but just a few concerns, even if your not in an area that will have wells, the rules that are driving this could one day apply to your area if a business come in.

  • wayneboyd Jul 22, 2013

    "I'm worried about our wells and future drinking water"
    Don't sweat it, you aren't going to have a well, the county where I live is determined that every citizen in the county is going to buy water from the city. They're running water lines as fast as they can. I've got two family members fighting them now.

  • rushbot Jul 22, 2013

    timex living, you are absolutely correct when you asserted on friday evening on this thread that the poisoning to the groundwaters around camp lejeune was not caused by fracking..i was pointing out that groundwater polution is terrible.. ..and oh by the way..republicon j helms squelched investigation..and oh by the way..i believe that is the republicon postition on all environomental damage..deny any all attempts to connect business activities to pollution and try to belittle any attempts to use science to do so..

  • almagayle50 Jul 21, 2013

    If you're opposed to fracking, buy or have your government buy the land that has been designated Triassic Basin. People in other energy producing states have tried to stop the owners from accessing the energy sources under their land. I believe the issue has gone to the Supreme Court several times, and the court has ruled that the owner's land goes to infinity below the surface and above. People are so passionate about stopping energy exploration, but never passionate enough to buy up the land.

  • tayled Jul 20, 2013

    The best thing the GA should have done with fracking is to scrap the entire deal. If it's safe, why did the powers that be eliminate the state geologist from any input into the process? That person should be the first person on the list on this matter. And I believe that the return on the investment will be negligible at best.. I am not a tree hugging environmentalist, but I believe this is an idea that we will regret years down the road.

  • yankee1 Jul 20, 2013

    Feds: Fracking chemicals didn't spread in Pennsylvania

    Liberals use hysterics, fables and straight out lies to scare people as a method for pushing their agenda. They count on the fact that many Americans are too lazy, too ideological or too ignorant to find out the truth.

  • JonahB Jul 20, 2013

    Democrat or Republican, whatever, I am worried about our wells and the future of fresh drinking water from wells. Nobody can tell me that fracking is safe and will not harm our water supply. The government and big gas companies don't give 2 cents, all they want are the billions it will bring.

  • JohnFLob Jul 19, 2013

    We really do need to carefully consider the effects of "fracking".
    I would hate to wake up tomorrow and find hydrogen hydroxide coming out of my faucets.

  • BGJ Jul 19, 2013

    So Ms Ouzts exactly WHAT energy sources do you know about that can completely replace oil and gas? Are you suggesting we should abandon motor vehicles, shut down most of the power plants, and go back to the horse and buggy? Gee, zero jobs in the automotive industry, a few jobs left in the power industry. But buggy building will make a comeback. farmers can generate the feed. Vets will have a booming business. Shoe and Bike sales will skyrocket. Guess it is not all bad. - whatelseisnew

    Wind, water, sun. It wouldn't kill us all to walk more. It also would be helpful to have more bike lanes. To think that "the jobs" are only and can only come from drilling is to destroy America's best asset - its ingenuity. It isn't hard to take the gas company up on it's offer. It's hard to fight them. Change is always hard and it's time North Carolina fought the hard fight rather than taking the easy way out.