Dirty Secrets in the WV Legislature

by Duane Nichols on March 26, 2013

www.marcellus-shale.us

DIRTY SECRETS in the WEST VIRGINIA LEGISLATURE

Do WV Senators work for WV citizens … or out-of-state gas companies?

The Senate Energy, Industry and Mining Committee amended the Marcellus Horizontal Well Drilling rule (now bundled into SB243) on March 12 to allow companies to keep toxic, carcinogenic hydraulic fracturing fluid chemicals a secret.

This “Dirty Secrets” amendment guts the disclosure provisions and leaves land owners in the dark, without any meaningful way to monitor their own water wells. It endangers first responders, doctors and hospital staff, not to mention injured workers.
Halliburton (yes, that Halliburton) has convinced the WV DEP that the recipe for frack fluids should be “trade secrets”.
    
The Halliburton loophole….oops, sorry….the committee amendment, says the driller may designate the identity or concentration, or both, of a chemical as a trade secret….not to be shared with the DEP except in the case of a DEP investigation…or a medical emergency. How might that emergency play out?

What if workers were chemically injured at 1AM…what would be the procedure to make the chemicals known to first responders, doctors, hospitals? Would they be endangered by a lack of immediate disclosure? How would the patient get needed attention?

And get this! Health professionals who obtain the trade (dirty) secret information would have to sign a confidentiality agreement and provide a written statement of need. Can you say GAG ORDER? What are they trying to hide?

Rural landowners who get drinking water from their well or spring are supposed to have baseline water tests, but under the rule, if contamination appears more than six months after drilling, the driller is off the hook. Meanwhile, the well owner will not know what chemicals they should test for. Would a doctor who knows of an exposure be allowed to tell other patients, fellow workers, or the neighbor next door?

We’re talking 250,000 gallons of chemical per well. These include benzene, sodium hydroxide, ethylene glycol, hydrochloric acid, glutaraldehyde, acetaldehyde, polyacrylamide, and hundreds more.

This monstrosity is now in the hands of the full Senate, soon to be in the House and then the House Judiciary Committee. Will they stop this travesty…or will the gas whisperers be there to do their black magic?

Ask The Legislature to guarantee the right of citizens to know about the chemicals to which they are exposed.

Repeal the Dirty Secrets Amendment!   Prepared by WV Chapter of the Sierra Club

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EDITORIAL: MORGANTOWN DOMINION POST Friday 15 March 2013

What don’t they want you to know? Senate panel mistaken to approve rule requiring fracking fluid be kept secret!

Ask anyone about the secret to success and they’ll tell you: Shhhh! It’s a trade secret. Not really. But you might have walked away from a recent session of the Senate Energy, Industry and Mining Committee at the state Capitol thinking that. Especially, if the members of that panel actually believed the line of nonsense the world’s largest provider of products and services to the energy industry was gushing. And apparently they did.

This week, that eminent committee advanced Senate Bill 245, which allows the state Department of Environmental Protection (DEP) to put its 46-page Gas Well Act’s rules into effect. But one of those rules was subject to amending by Halliburton, the Houston-based powerhouse. It objected earlier to the rule providing for divulging its fracking cocktail’s ingredients and concentrations.

Prior to Halliburton’s pressure, that rule gave operators the option of naming the chemical recipe as a trade secret, but it would still be known to the DEP or a health provider in an emergency. Now, the rule reads that such fracking formulas are not even available to the DEP, except for the purposes of investigations or medical emergencies. And if that data is turned over to a health provider, it requires a physician to ink a confidentiality agreement, and explain in writing why that information is needed.

So now, it’s possible, this rule could prevent a health professional from knowing what they are treating until after the fact. Like … after their patient’s beyond the point of no return, for example.

Furthermore, the idea that the agency that regulates this industry is not even privy to such information is ludicrous. Why require an investigation before the identity and concentrations of these chemicals is known? As the fracking fluid rule is stands now, what’s to stop someone from even using an illegal chemical? Far be it from us to pretend we are experts on fracking fluids. We are not.

Still, what we do know is many, if not most, drilling operators already post the ingredients on the Internet they use and the maximum concentrations in their recipes. Letting anyone opt out of divulging this information as a trade secret is, at best, wrong-headed. At worst, a betrayal of the public’s trust.

This is no trade secret. Someone just doesn’t want anyone to know what it is and how much of its being put in the ground. Unlike many secrets — secret societies, oaths and proceedings — the concept of trade secrets is not repugnant to us. However, this does not qualify as one. It’s simply an attempt to mislead the public. And it’s already even failed to do that.

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Where Law and Public Relations Collided in Hallowich Case

by S. Tom Bond on March 25, 2013

The Hallowich Case of Washington County, PA

Commentary by S. Tom Bond, Resident Farmer, Lewis County, WV

The curious story of Stephanie and Chris Hallowich of Washington County in Pennsylvania may have reached an end. A good start on this is the National Geographic article relating their experience with shale drilling. Chris, a young high school History teacher, and Stephanie, an accountant, bought ten acres about 30 miles South of Pittsburgh and built their dream home, completed in 2007.

As the article puts it, “But even as they were building, the bucolic view was being replaced by an industrial panorama. Four natural gas wells, a gas processing plant, a compressor station, buried pipelines, a three-acre plastic-lined holding pond, and a gravel road with heavy truck traffic surround them. Instead of the sounds of birds and the scent of new-mown grass, the Hallowiches listen to the wheeze of tractor-trailer brakes and breathed diesel fumes—and worse.”

The result was they had to have water delivered to their home for drinking, bathing and cooking, and were exposed to air contamination, too, as well as the sound of the compressor station and trucks. As readers of FrackCheckWV.net know, standards for proof of well contamination are set impossibly high, loss of water supply simultaneous to drilling is not considered proof, you must show the contamination is identical to something that was sent down the well.

There was a conflict between the PA-DEP assessment of their well water and the results of a private lab. They had to use a wind sock to tell which way the wind was blowing, to know when to keep their children indoors. Part of Hallowich’s problem was having so many installations around them, which are considered individually, but not the total effect, in present law. They had invested their future income on the place and no one would buy it and no bank would finance the buyer. The company said they offered what amounted to 40% of the value Hallowich’s thought it was worth, but Hallowich’s denied ever getting an offer. Mrs. Hallowich became a vocal critic of the industry.

Then the Hallowich’s decided to sue. In August, 2011 it was announced the family had settled the claim against the drilling company and the two companies that operated the compressor stations. No details were released, and the results were sealed by the court.

Now the story gets more peculiar. At this point the drilling company decided to increase the size of the impoundment from 5 million to 15 million gallons.

Next, two newspapers, the Observer-Reporter of Washington County, and the Pittsburg Post-Gazette, decided to ask for opening court records, based on the state Constitution relating to open court proceedings. The judge refused, saying the papers had waited too long, from August 23 to September 6, “And untimely filing of petitions are frowned upon.”

At this point an Observer-Reporter writer thought to examine the transfer tax record in the Court House. This showed a $545, 000 between the two parties.

November 15th, 2011, the Hallowich’s filed a second suit against the drilling company stating it had violated the confidential agreement by falsely stating it paid $500,000 for the property. The actual price was $100. The claim was that the drilling company intentionally and fraudulently filed a Reality Transfer Tax Statement of Value with the State Department of Revenue to publically embarrass them and inflate the family’s tax obligations on the sale of their home and “garner a public relations windfall,” because the company had paid more than the full market (appraised) value of the property.

By April the matter had grown so important as a news item that the casewas appealed to the PA Superior Court. Earthjustice, a public interest law firm specializing in cases protecting natural resources, safeguarding public health, and promoting clean energy, filed an amicus brief on behalf of doctors, scientists, researchers and advocates supporting the joint efforts of the Pennsylvania newspapers. “The sealed court records in this case are part of a widespread pattern of industry secrecy,” Mr. Gerhart said. “In the face of a nationwide gas drilling boom and the troubling reports of related health impacts, we cannot afford to let this pattern continue.”

The 39-page brief contained references to 27 other court cases in seven states involving confidential settlements or limited disclosure or nondisclosure of court proceedings alleging health or environmental problems caused by unconventional shale gas development involving hydraulic fracturing, or “fracking.” Six of the cases are in Pennsylvania.

In June the judge left the bench under a cloud of suspicion. “Amid reports he is the subject of a state investigation, Washington County Judge Paul Pozonsky said in a letter Friday he decided to retire after more than 15 years on the bench to focus on his family and pursue other interests.”

In December the state Supreme Court sent the case back to the county court.  In January the case was again in Washington County court before a new judge who said, “The whole thing is a little unusual. There wasn‘t at least complete transparency that occurred here. And if you have a presumption of openness in the court and all the activities that happen in it, this might raise some eyebrows.”

In a March a decision was made by the new Judge that the record should be opened. The settlement paid out $750,000,including more than $150,000 in legal fees. The comment from the driller at this point was, “Range does not have concerns with the judge’s decision, which we greatly respect, to make the court file public. This information combined with the vast public data accessible through the DEP’s extensive investigations should provide the public with even greater clarity that shale gas is being developed safely and responsibly.” To which the reader will no doubt ask, “So why were they against disclosure in the first place.”

The new judge’s statement was, “Corporations, companies and partnership have no spiritual nature, feelings, intellect, beliefs, thoughts, emotions or sensations because they do not exist in the manner that humankind exists … They cannot be ‘let alone’ by government because businesses are but grapes, ripe upon the vine of the law, that the people of this Commonwealth raise, tend and prune at their pleasure and need. Therefore, this court must grant those motions and reverse [the previous decision], unless a higher authority forestalls the common law’s application.”

An article appeared on March 21 titled “Washington County couple collects $750K settlement in fracking case with no medical evidence to support health claims,” allowing the spokesman from the drilling company to say, “We’ve long maintained there was never any environmental or safety impact on the family. The public can now very clearly see this is an industry that is being faithfully and responsibly developed without adverse impacts on health, safety or the environment.”

Whoa! What’s the lesson here? Do you suppose these people admitted they were lying all along? Do you suppose two college educated people didn’t understand the implications of the statement admitting no medical evidence existed to show that drilling harmed them when collecting a settlement? Or do you suppose it was a logical extension of the often used confidential settlements, mentioned above, so frequently forced on litigants to get them to settle? Is this last interpretation out of line with the attempt to “stick it to the Holloways” by falsely reporting property value as mentioned in the second suit filed?

What is the old saying, “When you swim with sharks….”

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