Ohio: Frontier for Fracking Medical Emergency Right-to-Know
Much has been made of recent state laws requiring physicians’ silence about fracking chemical trade secrets they may encounter in the course of treating patients. With good reason. According to a 2011 Congressional report, of the 750 fracking chemicals studied, 29 of the most common are dangerous enough to be regulated under the Clean Air Act, the Safe Drinking Water Act or are known or suspectd human carcinogens. This is to say nothing of the fact that the interference of legislators in the doctor-patient relationship should be tolerated only in the narrowest of circumstances. A battle over one such “gag order” in Ohio may shed some light on how other states might neutralize similar provisions and how physicians, nurses and first responders can secure their right-to-know.
Like many states, Ohio began reforming its laws several years ago to facilitate an anticipated fracking boom. However, the introduction last year of Governor John Kasich's energy plan, as embodied in Senate Bill 315, finally and firmly registered the issue on the public's radar. SB 315 contained many provisions to insulate the oil and gas industry from liability. Chief among these are generous trade secret rules which allow the industry to “designate without disclosing” any chemical as proprietary, and the requirement that doctors who discover this proprietary information keep it confidential, except when required to make a report by law or due to professional ethical standards. This ambiguous exception failed to actually negate the gag rule and furthermore, failed to account for the vague and incomplete nature of any chemical information reported or the method by which a physician might acquire it.
Environmentalists and public health advocates attacked these problems head-on by opposing SB 315 and, after its passage, by working on new legislation to fix them. Since a previous bill had awarded the Ohio Department of Natural Resources “sole and exclusive authority” to regulate nearly every aspect of the industry, the focus was on improving the flow of information from the oil and gas industry to the Department and from the Department to physicians and others who needed it to respond to emergencies. However, a recent discovery by Ohio activist and state coordinator for the Center for Health Environment and Justice Teresa Mills took the response on a new trajectory.
Using the Right-to-Know Act
Late last year, Mills learned of a 2011 U.S. EPA enforcement case against a Washington County, PA driller called Atlas, for failing to report to the local fire department chemicals stored on-site, a requirement under the federal Emergency Planning and Community Right-to-Know Act (EPCRA). A subsequent fire at the facility also brought an $84,500 fine and further stressed the need for compliance with the law. A long-time community organizer, Mills knew the value of these reports, called hazardous chemical inventory reports, and thought she might be onto something that would improve fracking chemical disclosure, not only for doctors, nurses and emergency responders but for all Ohioans.
Her attempts to acquire hazardous chemical inventory reports for fracking operations from Ohio EPA were frustrated, leading to a further discovery that the oil and gas industry had been exempted from filing these reports, which should go to state and local emergency planners and local fire departments, in favor of less detailed forms required by the Ohio Department of Natural Resources. “That just didn’t sound right,” she said. “How could a state government exempt an industry from a federal law?” With help from Ohio Citizen Action, the Buckeye Forest Council and other groups, Mills filed a petition with U.S. EPA in March, asking for a formal determination on this question. In May she received a reply, confirming her suspicion that Ohio lacks the authority to stop the flow of information from drillers to state and local emergency planning agencies and local fire departments. Furthermore, Mills learned that the exceptionally loose trade secret designation process Ohio favored did not override the stricter, more citizen-friendly trade secret rules under EPCRA.
Doctors, nurses and first responders are much better off when oil and gas drillers comply with federal emergency planning law than with current Ohio law, as evidenced by this simple chart. Ohio Citizen Action has prepared a bill to bring Ohio back into compliance with EPCRA and plans to introduce it in September.
It is the organization’s goal to resolve the issue legislatively, instead of through court action. To do that, it must marshal the support of a Republican-dominated legislature and a Republican governor which have both been very vocal in their hope that a fracking boom will revitalize Ohio’s economy. Contributions from the oil and gas industry have already revitalized many Columbus lobbying firms and many legislators’ campaigns. The only forces vital enough to counter them are the will and the voice of Ohio voters, particularly doctors, nurses and first responders. In the past eight months, 10,480 Ohioans have sent messages to their legislators, asking them to ensure physicians, nurses and first responders get the information they need to do their jobs and protect themselves on duty.
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