April 2, 2013
An earlier post talked about the N.C. Public Records Act and protection of trade secrets. Drilling companies and their suppliers sometimes want to withhold the identity of a chemical used in hydraulic fracturing as a “trade secret” to avoid sharing commercially valuable information with competitors. The N.C. Public Records Act generally gives the public a right to information gathered by a state agency in doing the public’s business, but makes an exception for certain types of personal data and for information that is legitimately a trade secret.
Last week, the Mining and Energy Commission’s (MEC) Environmental Standards Committee approved a draft rule requiring disclosure of chemicals used in hydraulic fracturing. The draft rule allows a drilling operator to withhold from the public the identity of a fracking chemical that the operator or supplier designates as a trade secret. In the required disclosure to the public, the drilling operator would identify a trade secret chemical by its chemical “family”. More specific information could be requested by a health professional or by emergency response personnel if necessary to diagnose and treat a health condition or to respond to an emergency.
The rule draft presented at the start of the meeting also allowed a drilling operator to withhold trade secret information from regulatory staff in the Department of Environment and Natural Resources (DENR). The trade secret information would only have been provided to DENR if requested by the department in response to a spill or health concern. Entirely relying on disclosure after an environmental emergency or health impact raises at least two concerns. In a real-time emergency — such as a major spill or fire — it may be difficult to get information from the drilling operator or supplier quickly enough. For longer term problems (such as groundwater contamination), the length of time between completion of the well and discovery of the problem may make it difficult to get accurate information at all.
The committee amended the trade secret protection language to require the operator to provide the trade secret information to DENR at roughly the same time the operator claims the trade secret protection and discloses other information to the public. (All disclosure — to DENR and to the public — would still happen after completion of the hydraulic fracturing operation.) The new language also requires the operator to provide the justification for trade secret designation.
The rule approved by the committee limits the ability of the public to challenge a decision to keep information about a fracking chemical confidential — directly conflicting with the N.C. Public Records Act. The Public Records Act allows “any person” to request records from a public agency and to take legal action challenging an agency decision to withhold the information. That includes the right to challenge the appropriateness of a decision to keep information confidential under the trade secret exception. Under the draft MEC rule, a decision to keep the identity of a fracking chemical confidential could only be challenged by a person who owns or rents land where a wellhead is located; the owner of land adjacent to a wellhead site; any other person who has “a legal interest in real property”; or a state agency having an interest that may be adversely affected by a chemical used in the fracturing fluid.
Under the draft rule, some people who have a right under the Public Records Act to challenge the withholding of requested information would not be allowed to challenge a decision to withhold information about a fracking chemical. Renters would be unable to challenge the withholding of information about chemicals used in nearby drilling operations. Depending on how the rule is interpreted, it may also affect the ability of nonprofit organizations, news media, and local governments to challenge the appropriateness of treating a fracking chemical as a trade secret.
An amendment to remove this language from the rule and simply follow the Public Records Act was voted down in committee. Some committee members acknowledged the inconsistency with the Public Records Act, but indicated an intent to ask the General Assembly to change the law. Two things to note about the committee action:
On several issues, members of the Mining and Energy Commission have discussed the possibility of adopting a rule that conflicts with existing state law on the assumption that the commission can persuade the General Assembly to conform the law to the rule. The chemical disclosure rule is the first MEC rule to receive committee approval and may be the test of how these conflicts will be resolved. This would not be the first controversy over consistency of a rule with state law, but usually the argument comes out of differing interpretations of the law. I can’t think of another example of an agency proposing a rule knowing that it is inconsistent with existing law.
To make the Public Records Act consistent with the proposed MEC rule, the General Assembly would need to change the Public Records Act to either: 1. limit challenges to all trade secret claims; or 2. give hydraulic fracturing special treatment, making it more difficult to challenge those particular trade secret claims . It isn’t clear how much interest legislators will have in a fight over public records law in order to provide special treatment for the oil and gas industry.
From here, the draft chemical disclosure rule goes to the Rules Committee of the Mining and Energy Commission and then to the full commission for discussion.
NOTE: The original post has been revised to make it clear that the draft rule as amended on March 25 requires that trade secret information be provided to DENR staff at the same time the operator discloses nonconfidential information to the public.