September 1, 2014

Does a Provision in PA Act 13 Force Doctors to Remain Silent on Potential Public Health Risks Associated with Fracking?

Provision in Marcellus Shale Bill Prompts Controversy
By Deanna Garcia, Essential Public Radio, March 30, 2012

Public health advocates and some environmental groups are crying foul over a provision in Act 13. The groups claim the wording in the law, which regulates shale drilling, amounts to a gag order for doctors when it comes to chemicals that may make people sick, but industry advocates say that’s not the case.

Non-disclosure

The rule in question governs disclosure of fracking chemicals and formulas. It requires health care workers to sign a non-disclosure agreement if they’re treating a patient who may have been sickened by trade-secret chemicals. Groups, including Communities United for Rights and Environment, or CURE, recently released an ad, claiming there’s more to the law.

Part of the ad states, “If you get sick, your doctor must ask the driller to list the trade secret chemicals making you sick, and then your doctor must keep their secrets a secret.”

It’s true doctors have to sign a non-disclosure agreement under Act 13, but Patrick Creighton with the Marcellus Shale Coalition said the ad is inaccurate.

“It’s categorically not true to state that a doctor who has access to all MSDS sheets, that if they are treating a patient, they can share it with a patient for its intended use. It’s simply not true that there is a gag order,” he said.

An MSDS, or Material Safety Data Sheet, is a disclosure of chemicals used in an industrial activity.

Critics Not Satisfied

That’s not good enough for CURE member Loretta Weir, who pointed to the language in the bill.

“It clearly states there is a proprietary mix that they keep exclusive and there’s a gag order put on the doctors, so when they tell people, ‘Oh, we released all the chemicals, we did!’ then why do you need this gag order? Why are our physicians going to be silenced in the event of a public health hazard?” Weir said.

In essence, Act 13 allows doctors to see the chemicals and the amounts of each one used in hydraulic fracturing. The names of the chemicals are already public knowledge through sites such as fracfocus.org, but the specific recipe of the chemicals is not public, and those trade secret recipes are what the Act aims to protect.

“If a healthcare professional requests information to treat a patient, they have complete and unfettered access to all information, all chemicals, all additives used in the hydraulic fracturing process. That information has always been made available to health professionals through OSHA, and through Act 13 that information would be available to doctors that are treating patients, and they can share that information with patients for their intended use,” said Creighton.

Effects of Rule Unclear

Still, the provision makes some physicians uncomfortable. Ralph Schmeltz of the Pennsylvania Medical Society said he’s never had to sign a non-disclosure agreement when treating a patient.

“It presents a little bit of an ethical issue for most physicians because we have an obligation not only to our patients and to do what’s best for them, but we also have an obligation to public health,” he said.

It’s not clear exactly what this provision will mean in practice. The state Environmental Quality Board still has to write the regulations that will tell doctors exactly how to follow the law, but Patrick Henderson, Energy Executive for Pennsylvania Governor Tom Corbett, said it won’t adversely affect medical care since health care providers will have access to all needed information.

When asked flat out if Act 13 includes a gag order for doctors he said, “Absolutely not. There’s nothing that remotely refers to or, I think, can be fairly interpreted as a gag order.”

Origins of the Provision

Henderson points out the provision is part of a compromise negotiated, in part, by the Pennsylvania Environmental Council. Previous versions of the legislation had no disclosure of proprietary information to health professionals; the final version was modeled after a law in Colorado which took into account federal requirements.

“We think this is something in Act 13 that should be celebrated. We think it’s one of the most progressive hydraulic fracturing disclosure laws in the nation,” said Henderson.

That’s unlikely to sway critics like Loretta Weir, who say the disclosures available to the public don’t go far enough. “The industry has packed the public full of propaganda and lies. As far as releasing the chemicals, people need to read the bill. It clearly states there is a proprietary mix that they keep exclusive,” Weir said.

But Patrick Henderson likens it to Coca-Cola or Pepsi. All of the ingredients are known to the public, but the specific recipe is kept secret. He says that will remain the case for the chemical mixes used for hydraulic fracturing, but not because of industry pressure. He says officials realize that there is a need and right to know about chemicals on the part of the public but, “You must balance that with what any business is entitled to under both state and federal law. This is an obligation the state has. It’s not simply a choice, it’s an obligation to protect proprietary, confidential information.”

Henderson emphasizes that health care workers will have access to even the proprietary information, and will be able to communicate it to colleagues and patients. The main goal of the confidentiality clause is to prevent health care workers from giving out information on trade secrets to competitors.

The provision and larger Act 13 was supported by some environmental groups, including the Pennsylvania Environmental Council, which issued a statement about it on their website. The process of finalizing regulations under the Act is expected to take several months.