Fact Check: Despite Baseless Claims, New PA Natural Gas Law Heightens Fracturing Disclosure

Fringe, Anti-Natural Gas Blog Concocts Fictional “Gag Order”

Canonsburg, PA – Transparency is at the core of the region’s natural gas industry. The Marcellus Shale Coalition’s (MSC) Guiding Principles, in fact, are underpinned by this fundamental commitment. Indeed, our Guiding Principles also emphasize the important role of maintaining a fact-based dialogue about the responsible development of clean-burning, job-creating American natural gas. This development, which continues to create tens of thousands of good-paying jobs while bolstering U.S. energy and economic security, must be done in a way that protects our environment for generations to come.

And in effort to further cement these shared commitments — effective, common sense regulations and heightened transparency — bipartisan legislation was recently enacted into law in that keeps Pennsylvania ahead of the regulatory and legislative curve nationally as it relates to natural gas development.

Yet some detractors of responsible American natural gas development have proven once again that they will stop at nothing to skew the facts by resuscitating tired, debunked scare tactics in a concerted effort to inflame negative public opinion. The latest example? A wildly out-of-the-mainstream blog recently lodged a host of bogus claims about Pennsylvania’s new natural gas law.

Specifically, the anti-natural gas blog – founded on behalf of a Socialist Party of America member – creates a tall tale that the new bipartisan law prevents medical professionals from accessing the make-up of hydraulic fracturing fluids. Before we analyze the blog’s claims, here are a few key contextual facts:

  • The entire universe of additives used in hydraulic fracturing fluids (99.5% water and sand; less than 0.5% additives) are listed publicly on PA DEP’s website along with this summary;
  • The MSC proactively, prior to the enactment of this new law, moved to participate organization-wide with FracFocus.org, an online national database administered by state environmental regulators that provides fracturing fluid make-ups on a well-by-well basis; and
  • Thankfully, the Republican & Herald, in a story under the headline “Doctors Allowed to Share Fracking Chemicals to Patients,” responsibly reports the facts today.

Mother Jones Claim: Under a new law, doctors in Pennsylvania can access information about chemicals used in natural gas extraction—but they won’t be able to share it with their patients.

FACT: In the event of an emergency and for purposes of diagnosing a patient, medical professionals have unfettered access to all information related to additives, chemicals or any other constituent at a natural gas site – and for the that matter, any industrial site in America. However, this information must be used for its intended use — patient care. The fringe blogger would have been well-served to have read the statute before posting these blatantly false claims. This from the law, available HERE:

  • (10)  A vendor, service company or operator shall identify the specific identity and amount of any chemicals claimed to be a trade secret or confidential proprietary information to any health professional who requests the information in writing if the health professional executes a confidentiality agreement and provides a written statement of need for the information indicating all of the following:
    (i)  The information is needed for the purpose of diagnosis or treatment of an individual.
    (ii)  The individual being diagnosed/treated may have been exposed to a hazardous chemical.
    (iii)  Knowledge of information will assist in the diagnosis or treatment of an individual.
  • (11)  If a health professional determines that a medical emergency exists and the specific identity and amount of any chemicals claimed to be a trade secret or confidential proprietary information are necessary for emergency treatment, the vendor, service provider or operator shall immediately disclose the information to the health professional upon a verbal acknowledgment by the health professional that the information may not be used for purposes other than the health needs asserted and that the health professional shall maintain the information as confidential. The vendor, service provider or operator may request, and the health professional shall provide upon request, a written statement of need and a confidentiality agreement from the health professional as soon as circumstances permit, in conformance with regulations promulgated under this chapter.

Catch the part about the “gag order”? We didn’t either. Further, this disclosure language is modeled off Colorado’s new natural gas regulations, which has been praised by the state’s Democratic governor, environmental organizations and industry. This from PA DEP:

FACT: By signing Act 13 into law, Governor Corbett enacted one of the most aggressive and transparent hydraulic fracturing disclosure laws in the country. The law is based in large part on the success of similar disclosure requirements enacted by the state of Colorado. Colorado’s requirements, upon which much of this Act’s disclosure requirements were based, were hailed by progressive industry representatives, environmental organizations and many other groups as a model for other states. … Act 13 provides for immediate, verbal communication of any proprietary information to emergency responders to ensure the necessary care or treatment is delivered to anyone who may have been affected. The Act states that nothing shall prevent the department, a public health official, an emergency manager or a responder to a spill, release or complaint from a person who may have been aggrieved by the spill or release from obtaining information needed upon written request.

FACT: Devastatingly to Mother Jones’ groundless claims, the Pennsylvania Environmental Council (PEC) — which played a key role in Act 13’s foundational work, particularly on the fracturing disclosure language — emphasizes the fact that some “mischaracterized the new law.” Key excerpts from PEC’s release:

  • Working with legislative leadership and the Governor’s office, PEC was able to help secure language that will now require disclosure of all chemicals, along with the concentrations at which the chemicals are used on a well-by-well basis. … PEC fought to make sure trade secret claims would be subject to Pennsylvania’s Right-to-Know law. Because we were successful, any citizen will have a right to challenge trade secret assertions – giving Pennsylvania one of the better systems of any state in the nation for policing trade secret claims.
  • Now, however, concerns have been raised about the chemical disclosure language some are calling a “gag order” on medical professionals. Our understanding of the language is this:
    • The language provides a mechanism to ensure that medical professionals can quickly get direct access to chemical information for which trade secret protections have been claimed in cases where it’s needed for diagnosis or treatment of a patient. As part of the process, companies can require a confidentiality agreement when circumstances permit, but the law ensures that medical professionals can get the information first. … This language replicates the same process that is in place for the same purpose in other states and that has existed for decades in the federal Occupational Health and Safety Act (OSHA) and the federal Emergency Planning and Community Right-to-Know Act (EPCRA). (*Yes, that’s right: This information is already required to be disclosed to medical professionals under federal law.)
    • Without such language, there’s nothing to guarantee that a doctor will be able to compel companies to turn over trade secret information quickly or even at all. (*This would be the opposite of a “gag order,” right?)
    • Prior to Act 13, health professionals would have had to submit a request to DEP for trade secret information, or pursue a Right to Know claim. And even after passage of Act 13, they still have that option available to them without any new limitations.

Mother Jones Claim: In 2005 the industry successfully lobbied for an exemption from EPA regulation under the Safe Drinking Water Act as well, in what is often referred to as the “Halliburton Loophole.”

FACT: The fact that this tired, thoroughly discredited claim was referenced by this fringe blogger is telling of her objective. Here are the facts, as stubborn as they may be for some natural gas cynics: Hydraulic fracturing has never been regulated by EPA under SDWA, or any other federal regime – the 60-year-old technology has always been, and continues to be, aggressively regulated by individual energy-producing states.

The2005 bipartisan legislation, which simply clarified the fact that hydraulic fracturing was never intended to be regulated under SDWA, soared through Congress with broad bipartisan support, garnering 74 Senate votes (including then-Sen. Obama) and 275 in the House. A Mother’s Day resolution may well fall short of that kind of broad support in today’s political climate.