Statement of PEC on Chemical Disclosure in Act 13

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March 29, 2012

The chemical disclosure provisions of Pennsylvania's new law relating to shale gas drilling are not perfect, but they are far ahead of what was required before. Since the passage of Act 13, there has been a lot of discussion on the disclosure for chemicals used in the hydraulic fracturing process. Some of this discussion has mischaracterized the new law as we understand it.

During deliberations of the Governor's Marcellus Shale Advisory Commission last year the Pennsylvania Environmental Council (PEC), recognizing there were no health representatives on the Commission, proactively reached out to the health community (Drexel School of Public Health and University of Pittsburgh School of Public Health) to solicit specific recommendations for consideration in the Commission's final report. PEC submitted those recommendations and all were included in the final report. Since that time PEC has consistently advocated for prompt action on those recommendations, which do not require new legislation for implementation. To date these recommendations await action.

PEC's primary focus on the legislation (House Bill 1950 and Senate Bill 1100) that ultimately led to Act 13 was improvements to the environmental protection provisions in the Oil & Gas Act, consistent with our landmark July 2010 Policy Report, our point-by-point May 2011 Legislative Proposal for amending the existing law, and our November 2011 response document to House Bill 1950 and Senate Bill 1100. The latter two proposals were developed in partnership with the Chesapeake Bay Foundation.

As the public legislative debate came to a close at the end of 2011, and worked shifted to resolving differences between the House and Senate bills, PEC saw an opportunity to improve the chemical disclosure provisions in the legislation. It was apparent that, without a strong push, the final bill would likely have done nothing more than codify the existing agency rules for disclosure. These rules were anemic to say the least.  They only required disclosure of a partial subset of the chemicals used in hydraulic fracturing treatment. And there was no meaningful public reporting of even that partial list.

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.  Further, in addition to reporting these chemicals to the Department of Environmental Protection (DEP), operators of unconventional wells will be required to post their chemical disclosures on FracFocus.org, a website that is rapidly becoming the main disclosure platform used by states and operators around the country.

Yes, just as has been the case in every single state that has adopted chemical disclosure requirements, operators will be allowed to assert trade secret claims to keep the identities of certain chemicals secret. Here, 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.

PEC did not write this language. 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).

Our understanding is that 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.

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.

If the professional health community believes the framework unduly restricts the ability of medical professionals to get access to chemical information and use that information to treat patients or address public health impacts, then Pennsylvania needs an open and immediate discussion on how the disclosure provisions of Act 13 need to be changed.

PEC fully supports this discussion. We maintain our long standing principle that public health is a fundamental element for proper management of shale gas development in Pennsylvania.