Should Revealing Fracking's Chemicals Be A Crime?

from the something-to-hide? dept

Fri, May 23rd 2014 9:00am — Glyn Moody

The use of hydraulic fracturing -- aka fracking -- to extract gas is a controversial practice, with opinions divided on its risks and benefits. But irrespective of those differences, you might have expected people to be united on the need for health and safety to be a priority. But in North Carolina it seems that they see things differently, as this story in Newsweek explains:

A bill introduced in the North Carolina Senate would charge individuals with a felony if they disclose trade secret-protected information about fracking chemicals, EnergyWire reported Thursday. The bill includes a provision that would allow emergency first responders like fire chiefs and doctors to obtain the chemical information in an emergency. But information disclosed outside of emergency settings could land an offender in prison for several months.

It's not clear why the chemicals used for fracking should be secret in the first place, since that makes it hard for public health authorities to monitor the environmental and health impacts of fracking on local communities -- although a cynic might suspect that's a feature, not a bug, as far as the industry is concerned. The latter's justification for secrecy certainly doesn't stand up to scrutiny: Large amounts of chemical fluid, water and sand must be injected into a fracking well to fracture underground rock and let gas flow from otherwise hard to reach deposits. That fluid can be made from a number of different chemicals. In many cases, fracking companies claim that disclosing their ingredient list, in whole or in part, would damage their ability to compete in the market.
Whatever those mysterious chemicals might be, there's no doubt that they can be lethal for the people working with them: Much is still unknown about the health effects of fracking. Water samples taken near fracking sites have found elevated levels of endocrine-disrupting chemicals, and this week, the Centers for Disease Control and Prevention's National Institute for Occupational Safety and Health wrote that at least four well workers have died since 2010 due to "acute chemical exposure" from flow-back fluid at fracking sites.
What's particularly worrying about North Carolina's proposal is that it seeks to establish that "trade secrets" trump things like health and safety. Nor is it unique in this respect: as we've reported, the pharma industry is fighting efforts to make key clinical trials data available for independent analysis on the grounds that such test data is confidential -- again, asserting that this would outweigh public health concerns.

All these are part of a larger move to create yet another class of powerful corporate rights alongside patents, copyright and trademarks. That's clear from the proposal to include greater protection for trade secrets in agreements like TAFTA/TTIP and TPP. Indeed, for the latter, we know from the leaked intellectual property chapter that there are proposals for the disclosure of every kind of trade secret to be criminalized, not just ones about fracking's toxic cocktails.

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Filed Under: chemicals, fracking, free speech, north carolina, transparency

58 Comments

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Anonymous Coward, 23 May 2014 @ 9:10am

Would that make looking at this website a crime, or only if you tell anyone what you saw?

http://fracfocus.org/

(This of course is only one site where information can be found)

Would the site owners be committing a crime (seems the answer must be yes) and if so NC must be cut off from the internet (sounds reasonable, how else to stop dastardly scofflaws from corrupting the eyeballs of NC residents?)

Is this the same NC that attempted to mandate that sea level rise must be linear based on some readings from 18-something? Sounds like the very same.
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Anonymous Coward, 23 May 2014 @ 9:10am

Yet another case of the Government offering to work for big business groups by criminalizing civil issues.
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Anonymous Coward, 23 May 2014 @ 9:17am

Competition?
In many cases, fracking companies claim that disclosing their ingredient list, in whole or in part, would damage their ability to compete in the market.

This is what I hate about the pro-permissions culture argument. Isn't the entire point of exclusive rights the fact that you no longer have to compete in your market?
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Anonymous Coward, 23 May 2014 @ 9:24am

Re: Competition?
(Addendum)

Especially when it comes to people arguing that their children should directly benefit from their copyrights, as opposed to their prior success. They imply that if their children had to compete with others because their works would be in the public domain, they wouldn't make any money.
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Pixelation, 23 May 2014 @ 9:25am

The real reason
The real reason they don't want it disclosed is because the public would be outraged by the nasty shit they pump in the ground. It would also allow people to monitor their well water for specific chemicals...
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Michael, 23 May 2014 @ 9:27am

This proposal is fracking ridiculous.
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Anonymous Coward, 23 May 2014 @ 9:27am

They're seriously pushing it as a trade secret issue? What in the fuck, how is that even being bandied about as anything other than the propaganda that it is?!

News flash - Joe Citizen wants to know what chemicals you're using because he wants to know what kinds of fun and exotic cancer it's going to cause him, not because he wants to open a competing well down the street!

Fuck this ridiculous nation and it's unwavering fellatio of the dumbest parts of capitalism.
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ChrisB (profile), 23 May 2014 @ 9:29am

Disclosure
Many companies already disclose ingredients. All hazardous products must have an MSDS, so fracking fluid already had safety instructions. Just search "fracking fluid msds".

Here's one of the "benefits" of fracking no one talks about. The US greenhouse gas emissions are at their 1994 level. This is because natural gas replaces coal in power generation.

You'd think all the greens would be jumping for joy, given the US got a rough ride for not ratifying Kyoto. But no, just silence. It actually makes me relieved, because now maybe these greens will pull their head out of the sand and realize that prevention is impossible, and mitigation is the only solution.
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Baron von Robber, 23 May 2014 @ 9:30am

I pledge allegiance to the flag of the United Corporations of America, and to the Board, for which it demands, one cost center, under God(c)(tm)(pt)(m-o-u-s-e), undissolvable, with deliberty and justice for the 1%.
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Anonymous Coward, 23 May 2014 @ 9:35am

Re: Disclosure
MSDSes are not required to be released publicly and are often lambasted by regulatory agencies for being woefully inadequate, failing to disclose known risk factors. But even if the MSDS was perfect, it really doesn't help random people getting serious chronic illnesses from exposure that the employees working at the fracking sites know exactly what dangerous chemicals they're pumping into the groundwater.

Keep getting ridden by those chemical companies, they've never lied to the public before! Y'know, except about radioactive substances, lead-based paint, lead fuel additives, the effect of greenhouse gases on global climate change...all minor issues, clearly.

Long story short: you're either working for a chemical company or you're not very forward-thinking.
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Anonymous Coward, 23 May 2014 @ 9:37am

Re: Competition?
In this case, the competition is the public. Because once the public finds out what they're using, they're going to be put out of business.
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Michael, 23 May 2014 @ 9:41am

I cannot read the original newsweek article for some reason (boy their website stinks), but I am unsure if the bill would prosecute first responders revealing the information after they received it in an emergency situation, or if they intend to criminally prosecute employees that reveal corporate secrets.

Both seem pretty crazy - the second one seems like an NDA violation to be handled in civil court, but the first just sounds like it would lead to first responders refusing to assist in an emergency situation to avoid liability in the event of an information leak. I'm pretty sure they don't want to have the fire chief pull up to an accident site and tell his men to go back home because they don't know what is in the water.
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TheResidentSkeptic (profile), 23 May 2014 @ 9:42am

Or Matt was right...
... and we now know the source of the futurama mutant underground people.
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Anonymous Coward, 23 May 2014 @ 9:44am

Re: Disclosure
Ever see Penn & Teller's Bullshit episode on environmentalists? The fact that they got so many people to sign off and agree to banning dihydrogen monoxide (a.k.a WATER), purely by labeling it as such speaks pretty broadly to the public's ignorance in general of chemicals. Hell, the work chemical is almost a pejorative now.

I would also like to point that hydraulic fracturing has been in use for decades (commercially used since 1949).

I can't say I blame the companies from wanting to protect themselves from it, because people by and large are stupid. They're uninformed, unwilling to admit they understand diddly shit, and heavily biased. They tend to form opinions (and lawsuits) based purely on emotion and ignorance.

That does not mean that the first amendment needs to be gutted, but still, I do UNDERSTAND why they would want to do it from that perspective.
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Deimal, 23 May 2014 @ 9:48am

Re:
You do realize that corporations are just groups of people working together toward a commercial purpose right? Corporations can be as small as 1 person, and in fact the vast majority of corporations in this country have less than 10 employees.

If you have a problem with specific companies and regulatory capture in this country at any level, maybe you should look to the revolving door of politics and couple that with the heavy over-regulation of every industry. Then take a look at how much power unelected bureaucrats have been given over the last 100 years to essentially form laws.
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Anonymous Coward, 23 May 2014 @ 9:49am

Re: Re: Disclosure
people by and large are stupid. They're uninformed, unwilling to admit they understand diddly shit, and heavily biased.

And who, exactly, do you blame for that? The people trying to pry information from the people producing these chemical compounds so they can study them and inform themselves of potential side-effects that the creators didn't or were unwilling to look into, or the producers themselves trying to keep them as completely uninformed as possible?
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Personanongrata, 23 May 2014 @ 9:59am

Should Revealing Fracking's Chemicals Be A Crime?

Absolutely not.

Rather, on the converse, pumping trillions of gallons of a toxic effluent stew into the ground across the US is an environmental disaster of epic proportions because pliably supine regulators, captive to the very industries they claim to oversee, refuse to enforce the law.

From the EPA:

Section B. Clean Water Act Requirements

Law: Federal Water Pollution Control Act (Clean Water Act)

B.3 UNDERGROUND INJECTION CONTROL PROGRAM

UIC programs apply to owners and operators of deep wells, into which trillions of gallons of hazardous and nonhazardous fluids associated with manufacturing processes and municipal wastewater disposal (Class I), oil and gas production (Class II), and solution mining (Class III) are injected annually. UIC programs also apply to owners and operators of shallow wells, which are designed to release fluids either directly into USDW or into the shallow subsurface that overlies USDW (Class V). Class V injection wells are generally shallow wastewater disposal wells, stormwater and agricultural drainage systems, or other devices that are used to release fluids either directly into USDW or into the shallow subsurface that overlies USDW.

http://www.epa.gov/dfe/pubs/pwb/tech_rep/fedregs/regsectb.htm
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btr1701 (profile), 23 May 2014 @ 9:59am

Disclosure
Seems like anyone who wants to get the info out just needs to either leave North Carolina and disclose it from another state or country, or find someone else outside NC jurisdiction and have them publish the info for them.

North Carolina's criminal laws only apply in North Carolina, after all. They can't have someone in California or Canada arrested for disclosing this frakking info.
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Baron von Robber, 23 May 2014 @ 9:59am

Re: Re:
It sounds like the fracking isn't heavily over-regulated at all.

And it was deregulation that gave us the The Great Recession (repeal of the Glass�Steagall Act).

It's lobbyists that love deregulation and many in the lobby industry end up being appointed into gov positions (FCC for example).
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Chronno S. Trigger (profile), 23 May 2014 @ 10:15am

I can kinda see where this debate is coming from. Right now it seems like an open and shut case. Are these chemicals dangerous to us? Tell us what the chemicals are and we'll find out.

But this could be used for other things. E.G. Is there anything in the 12 herbs and spices of the Kernels secret recipe that can harm us? People could use that to go after other trade secrets in the name of public safety.

However, KFC is required by law to list the ingredients of it's chicken. This way people don't have to worry about falling over dead due to food allergies. They don't have to list the ratio or cooking times, so the recipe is safe.

I don't see how this is any different.
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Anonymous Coward, 23 May 2014 @ 10:21am

Re: Disclosure
That seems like the US laws only apply in the US and you cannot be arrested by the US in New Zealand. It would never happen would it ....
If it suites a large corporation that funds congress members it will probably happen, even if it is only a state law.
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Sheogorath (profile), 23 May 2014 @ 10:26am

I suppose NC must be doing something really, really bad if it wants all this legisation to protect their secrets. After all, aren't ordinary Netizens accused of being criminals if all they want is mere online privacy?
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Mason Wheeler (profile), 23 May 2014 @ 10:27am

Why are trade secrets even still a thing?
The entire point of patent law is the recognition that trade secrets are inherently harmful to the progress of society. Why do we still protect them, especially when they are so frequently abused to hide harm to people?
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John Fenderson (profile), 23 May 2014 @ 10:38am

Nope
Failing to reveal chemicals that are being pumped into the environment is what should be a crime.
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observer, 23 May 2014 @ 10:43am

In many cases, fracking companies claim that disclosing their ingredient list, in whole or in part, would damage their ability to compete in the market.

If they can't compete in the market with this information public, they don't deserve to.
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Anonymous Anonymous Coward, 23 May 2014 @ 10:44am

Re: Why are trade secrets even still a thing?
I see some value in the concept of trade secrets, but they should not have the force of law. Illegal activities in procuring trade secrets are of course still illegal.

Proper securing of trade secrets, prior to release of a new product is extremely important. Once the product is released, reverse engineering will expose those secrets. The nature of the marketplace.

Economic success thereafter is all about listening to the market, continuing development (in secret of course), excellent customer care, and good management. No patent needed.
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Andrew D. Todd, 23 May 2014 @ 10:55am

Local Sources.
Here are reports in the local newspapers, which are not paywalled. It's just mental laziness when you cite a newspaper or magazine in New York, which is paywalled and which is unlikely to be the original source of the information.
==============================================================
John Murawski, NC Senate again votes to lift fracking moratorium after removing some provisions, The Charlotte News and Observer, Thursday, May. 22, 2014

http://www.charlotteobserver.com/2014/05/22/4926245/nc-senate-again-votes-to-lift.html
---------- ---------------------------------------------------------------------------------
John Murawski, NC Senate votes to lift fracking moratorium, removes some provisions, The News & Observer (Raleigh, N.C., May 22, 2014

http://www.newsobserver.com/2014/05/22/3880386/nc-senate-again-votes-to-lift.html?sp=/99/104/
--- ----------------------------------------------------------------------------------------
JOHN MURAWSKI [The News & Observer (Raleigh, N.C.)],N. Carolina Senate committees pass bill that would lift fracking moratorium, Miami Herald, Tuesday, 05.20.14

http://www.miamiherald.com/2014/05/20/4127780/n-carolina-senate-committees-pass.html
-------- -------------------------------------------------------------------------------------
And further afield:

Reuters:
http://www.reuters.com/article/2014/05/22/us-usa-fracking-secrets-idUSBREA4L0YC201405 22

Russia Today:
http://rt.com/usa/160052-nc-outlaw-disclosing-fracking-chemicals/
----------------------------- -----------
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Anonymous Coward, 23 May 2014 @ 10:55am

Re: The real reason
--It would also allow people to monitor their well water for specific chemicals...

I think that is the primary reason they do not want to disclose anything.
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Anonymous Coward, 23 May 2014 @ 11:02am

Re: Re: Disclosure
So, you're saying that uninformed people are dangerous, and this is a reason we need to prevent corporations from informing them?

I agree with the sentiment that a large number of "environmentalists" are uninformed sheep just towing the line, but that doesn't mean we need to keep information a secret.

It means we need to stop empowering and listening to the idiots.
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limbodog (profile), 23 May 2014 @ 11:03am

North Carolina lost its democratic governor, and replaced him with a rubber stamp, no?
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Andrew D. Todd, 23 May 2014 @ 11:19am

The Previous Incident.
Back in January, there was an incident in Charleston, West Virginia, involving a company called Freedom Industries, which spilled some poisonous chemicals in the river, just upstream of the city water intake. Freedom Industries was still withholding information, even after the spill had taken place. The local water system had been privatized, and is owned by a company known as West Virginia American Water. Their reaction was in effect to hope that the chemicals were not really poisonous, and do nothing. About 300,000 people were affected, and the National Guard was distributing drinking water. Freedom Industries got its share of telephoned death threats, but no one actually turned up to carry them out-- this time.
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JEDIDIAH, 23 May 2014 @ 11:35am

It's rampaging mob, not the Borg.
> You do realize that corporations are just groups of people working together toward a commercial purpose right?

Yes. And they are incorporated for the express purpose of avoiding any moral responsibility for their actions. Also, those groups of people do not form some sort of highly sentient hive mind. They are more like a rampaging mob. The corporation has no moral awareness.

All of this sounds like an entity that should at BEST be treated like a child.

No moral awareness. No moral responsibility.
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John Fenderson (profile), 23 May 2014 @ 12:03pm

Re: Re:
"You do realize that corporations are just groups of people working together toward a commercial purpose right?"

No, they are not just that at all. Corporations are legal entities designed and intended to maximize profit and shield the individuals involved from responsibility.
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That One Guy (profile), 23 May 2014 @ 1:08pm

Re: Disclosure
My memory might be off, but I see to recall a site, 'Wiki'-something or other, that would probably love to get their hands on the recipe list and would have no compunction about making it public afterwards, ridiculous 'trade secrets' laws or not.
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That One Guy (profile), 23 May 2014 @ 1:11pm

Re: The Previous Incident.
Death threats? That's a little excessive, just force them to drink the very water they were piping out to everyone else. If they're not going to do anything about it, obviously it's because they believed it to be safe, so they should have no problem drinking nothing but it for say, a couple of weeks.
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Mason Wheeler (profile), 23 May 2014 @ 2:15pm

Re: Re: The Previous Incident.
I really like this. Make the punishment fit the crime. Either they clean it up, or they have to drink it, cook with it, bathe in it, etc like the perfectly safe water they claim it is.
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ChrisB (profile), 23 May 2014 @ 3:26pm

Re: Re: Re:
John, I dare you to start a company and not incorporate. It is not responsibility people are trying to avoid, but liability. Liability so when someone burns their lips at the small corner coffee shop, you don't lose your house and your kids college tuition.
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ChrisB (profile), 23 May 2014 @ 3:29pm

Re: Re: Re:
Deregulation did spur people to take Liar loans. Deregulation didn't require SELLERS of derivatives to get ratings, rather than BUYERS. Deregulation didn't bail out all those large companies, who should have been allowed to crash and burn. Those 1% who took all the risks? Yeah, the US government bailed them out. Focus your anger on the people who really caused this.

Regulations protect businesses from competitors, not you from businesses.
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ChrisB (profile), 23 May 2014 @ 3:31pm

Re:
There right here. Go search the internet. Most companies list their ingredients:
http://www.halliburton.com/public/projects/pubsdata/Hydraulic_Fracturing/fluids_disclosu re.html
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Aaron (profile), 23 May 2014 @ 3:40pm

"What's particularly worrying about North Carolina's proposal is that it seeks to establish that "trade secrets" trump things like health and safety."

Surely something so ridiculously dangerous and life threatening couldn't be passed just because these jerk offs want to make an extra buck.
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Anonymous Coward, 23 May 2014 @ 4:27pm

Re: Re: Disclosure
"That seems like the US laws only apply in the US and you cannot be arrested by the US in New Zealand. It would never happen would it ...."

Let's ask Kim Dotcom about that....
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Anonymous Coward, 23 May 2014 @ 5:13pm

Re: The real reason
good call, pix
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Anonymous Coward, 23 May 2014 @ 5:28pm

China says more than half of its groundwater is polluted

http://www.theguardian.com/environment/2014/apr/23/china-half-groundwater-polluted

Welcome to the future of the USA! Plenty of fuel to burn, but very little water to drink. Drill baby drill!
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Andrew D. Todd, 23 May 2014 @ 10:01pm

Re: Re: Re: The Previous Incident.
I would like to throw out a suggestion. It would be a good thing if someone were to arrange a system of some kind which enables ordinary residents of Charleston, West Virginia, to talk to ordinary people in North Carolina, and tell them, as nearly as possible, on a one-to-one basis, what it was like to have their water poisoned, and to go without bathing or dishwashing, and to get their drinking water from the Army.

If you want to follow up on the issue, here are some information sources. I haven't checked these links recently, and some of them may be duds.

http://www.wvgazette.com/News/201401100028

http://www.wvgazette.com/News/201401100119

I believe there are considerably more articles on the Charleston Daily News site, so if you want to set up a search...

http://www.businessweek.com/articles/2014-05-07/theyre-back-freedom-industries-execs-return -to-action-in-west-virginia#r=hpt-fs

http://news.nationalgeographic.com/news/2014/01/140116-chemical- valley-west-virginia-chemical-spill-coal/?google_editors_picks=true

http://www.youtube.com/watch?v=Jy kxZxps5Jk

http://www.wired.com/wiredscience/2014/01/chemical-guesswork-in-west-virginia/
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Richard (profile), 24 May 2014 @ 7:03am

Re: Re: Re: Re:
It is not responsibility people are trying to avoid, but liability.

Responsibility is only meaningful if it implies liability.

Trying to avoid liability thus amounts to trying to avoid responsibility.
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John Fenderson (profile), 24 May 2014 @ 10:34am

Re: Re: Re: Re:
I have run a few unincorporated businesses, and a few incorporated. The reason I've incorporated has not been liability, but taxes. Liability risk of the sort your talking about is handled by insurance, not incorporation. What I'm talking about is that corporations make sure that individuals don't take responsibility for the illegal or unethical actions of the corporation. Therefore to say it's just a bunch of people working together is a large misrepresentation. It's a different thing than that.
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Richard (profile), 24 May 2014 @ 1:31pm

Re: Re: Re: Re: Re:
What I'm talking about is that corporations make sure that individuals don't take responsibility for the illegal or unethical actions of the corporation.

What I'm talking about is that corporations make sure that senior individuals don't take responsibility for the illegal or unethical actions of the corporation.

FTFY
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Anonymous Coward, 24 May 2014 @ 6:18pm

Re: Re: Re: Re: Re: Re:
It wasn't broken. kthx
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Joe, 25 May 2014 @ 12:31am

Re: The real reason
Kind of like the cops not wanting you to record them committing felonies. OK, surrrrre... *Records it anyways*
Seriously, if you think that impudence doesn't deserve a sharp response, you're a bigger fool than the people who let you get away with that sh*t. Imagine if there was a law against breathing air without permission and conveniently you can buy a license at any convenient registration office. You'd be morally wrong to try to comply with it as you're harming other people by making it acceptable.
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Joe, 25 May 2014 @ 12:33am

Re: Re: The real reason
See also: GMO labeling laws, saying "BGH-free" on milk, etc.
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Joe, 25 May 2014 @ 12:42am

Re: Re: Disclosure
Also, lately I've noticed a total lack of details or guaranteed analysis on chemical labels. Really nice when it's something like pesticide or (always been this way) cigarettes.
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Joe, 25 May 2014 @ 12:57am

Re: Re: Disclosure
So _less_ education is better? Meh...
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anonymous, 25 May 2014 @ 1:11am

Re: The Previous Incident.
THIS TIME
(LOL, like anyone actually ever carries them out - why do you think this kind of abuse happens so often?)
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Cat, 26 May 2014 @ 11:22am

disclosure
It should be opposite! There must be a mandatory disclosure of all chemicals and there must be regular inspections to the plants. I think also that the states that could get a pollution from Northern Carolina (from common rivers or underground flows) should be able to sue the NC in case they find any dangerous elements in the water that could potentially come from NC. Because of the law that keeps the chemicals in secret and nobody can investigate if the chemicals really came from NC, so NC should be paying compensation to any contaminated areas at it's border by default. If all the chemicals would be blamed on the state maybe the people there finally decide to reconsider. Look, if they don't care about their health why people in other states at the border should suffer?
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Cat, 26 May 2014 @ 11:30am

disclosure
This type of laws also is the reason why people so much against fracking in general. If there would be a disclosure of chemicals and if there would be a procedure to ensure the public safety I am sure that there could be a way to make fracking safe and acceptable. It could be more expensive but I believe that public health and safety worth it. Nothing is more important than health after all. But because of the laws like that people are scared and they have reasons to be scared. Nobody can ensure them that the company took care about the safety.
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Anonymous Coward, 27 May 2014 @ 2:16am

Can't the EPA spin the toxic dumping angle?

For all we know they could dump hydrofluoric acid, radiation enriched water or whatever down there?
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Pragmatic, 28 May 2014 @ 9:27am

Re:
You... you... COMMUNIST!! ;P
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Pragmatic, 28 May 2014 @ 9:33am

Re: Re: Re: Disclosure
Bashing environmentalists by pulling out examples of stupid ones... where have I seen that before...?

In every Dem or Rep-shilling comment on social media, that's where. In every comment about anything. It's easy to bash groups by pulling out examples of stupid members and mocking them into oblivion, but that's the Generic logical fallacy. Some people who self-identify as environmentalists because Yay!Team! are as dumb as rocks, but that doesn't mean they all are. By that logic, if I can find some examples of dumb Anarcho-Capitalists...

Heh!
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