Legal Protection of Toxic Secrets?
Dear RDA members and friends,
There are a myriad of concerns in the language of the 174-pages of Pennsylvania's new gas development law, HB 1950. Some of the most disconcerting have to do with chemical spills and protection offered to citizens regarding information about those accidents and the toxic substances involved.
Basically, if an emergency room physician needs information about the chemicals a patient was exposed to, a doctor must prove it necessary for diagnosis and treatment when requesting the information. Further, that information is strictly confidential and may not be shared with the public or other health professionals. The bill allows the gas company to withhold information on chemicals and toxins that were "not intentionally added" or "occur incidentally".
According to Jerome A. Paulson, MD, FAAP, Professor of Pediatrics & Public Health at George Washington University, the new law: "...is detrimental to the delivery of personal health care services and contradictory to the ethical principles of medicine and public health, [and] blocks health care professionals and public health professionals from collecting information is a timely fashion to treat workers or others who may have been exposed to hazardous chemicals and from gathering information about public health hazards. There is no medical or public health rational for imposing these cumbersome and time consuming restrictions; and, conversely, there is every medical and public health reason for making this information available to medical personnel and the general public."
Decide for yourself. The exact verbiage of this portion of the bill appears below:
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 or treated may have been exposed to a hazardous chemical.
(iii) Knowledge of information will assist in the diagnosis or treatment of an individual.
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.
Disclosures not required.--Notwithstanding any other provision of this chapter, a vendor, service provider or operator shall not be required to do any of the following:
(1) Disclose chemicals that are not disclosed to it by the manufacturer, vendor or service provider.
(2) Disclose chemicals that were not intentionally added to the stimulation fluid.
(3) Disclose chemicals that occur incidentally or are otherwise unintentionally present in trace amounts, may be the incidental result of a chemical reaction or chemical process or may be constituents of naturally occurring materials that become part of a stimulation fluid.
Trade secrets and confidential proprietary information
(1) Notwithstanding any other provision of this chapter, a vendor, service company or operator shall not be required to disclose trade secrets or confidential proprietary information to the chemical disclosure registry.
(2) The following shall apply:
(i) If the specific identity of a chemical, the concentration of a chemical or both the specific identity and concentration of a chemical are claimed to be a trade secret or confidential proprietary information, the vendor, service provider or operator may withhold the specific identity, the concentration, or both the specific identity and concentration, of the chemical from the information provided to the chemical disclosure registry.
(ii) Nothing under this paragraph shall prohibit any of the following from obtaining from a vendor, service provider or operator information that may be needed to respond to a spill or release:
(A) The department.
(B) A public health official.
(C) An emergency manager.
(D) A responder to a spill, release or a complaint from a person who may have been directly and adversely affected or aggrieved by the spill or release.
(iii) Upon receipt of a written statement of need for the information under subparagraph (ii), the information shall be disclosed by the vendor, service provider or operator to the requesting official or entity authorized under subparagraph (ii) and shall not be a public record.
Disclosure prevented.
The department shall prevent disclosure of trade secrets or confidential proprietary information under this section pursuant to the requirements of the Right-to-Know Law or other applicable State law.
Why an industry that constantly tells the public how benign their fracking formula's are would insist on writing into law such cumbersome and heavy-handed provisions begs the question of just why they are so paranoid about disclosure.
Industry secrecy now has the PA legislature's seal of approval to such an extent that lives could potentially be threatened or lost by delaying emergency treatment while hospital staff wrangle over legal language with gas company lawyers in Oklahoma and Texas.
In a recent press release entitled, What Happens When the Doctor Doesn't Know?, Marily J. Heine, MD, President of the Pennsylvania Medical Society writes, "The basic question for physicians is not which side to pick, for or against fracking, but rather to ask, are we doing a good enough job being watchdogs for public health? ... Nothing frustrates me more than having my medical expertise hand-cuffed by lack of research."
No one can research something they don't know exists. What, exactly, are Pennsylvania's wonderful, responsible, "corporate partners" and "good neighbors" afraid of when it comes to fracking chemical and formula disclosure?
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