The twisting tale of how the state legislature sold out our mountains for private gain, why it matters, and what you can do about it

Above: a map of potential fracking areas in N.C., map courtesy of WNC Frack Free

“We promised the people of North Carolina we were not going to move forward with fracking until we have rules in place to protect the public health and the environment. This bill violates that promise.” – North Carolina state Rep. Pricey Harrison, speaking on SB786.

This is a complex topic, so let’s start with some background information. In 2012, North Carolina started to pave a legal way to open the state up to the natural gas industry’s hydraulic fracturing (“fracking”) and horizontal drilling methods. The people of the state were promised that a moratorium would last until the North Carolina Mining and Energy Commission (“MEC”) created a set of rules to regulate the industry, ensuring adequate protection of public and environmental health.

In 2014, the North Carolina legislature fast-tracked — or more precisely rammed through in 48 hours — legislation that removed the moratorium, set aside over $500,000 in public funds to explore sites for their natural gas development potential (something usually done by private industry), set aside funds to help fund a program at a local community college to train people for the natural gas industry, mentioned the possibility of setting up an export terminal for anticipated pipelines on the North Carolina coast.

As if that wasn’t enough, they decided that it should be a misdemeanor to disclose the chemicals used in the hydraulic fracturing process, and robbed local municipalities of their power to ban hydraulic fracturing in their area, among other things.

This MEC is composed of individuals appointed by the Governor, the Senate President Pro-Tem, and the Speaker of the House. They are heavily stacked toward the mining and energy industries, with almost no individuals with any experience in public health, a fact that is extremely concerning.

Due to the “Halliburton Loophole”, compliments of former Vice President Dick Cheney, hydraulic fracturing is exempt from multiple federal laws that would have provided some protection for the public. The Clean Water Act, the Clean Air Act, the Safe Drinking Water Act, the Emergency Planning and Community Right-to-Know Act, the National Environmental Policy Act, and the Superfund Act do not apply to unconventional natural gas extraction.

So it is left to the states to provide any means of protection to the public. North Carolina officials, despite promising to provide the most stringent rules and regulations in the country, have utterly failed in this regard. The North Carolina legislature pushed all protection for public and environmental health onto the MEC, and the MEC has crafted a set of pathetic draft rules that people have spoken out against across the state.

People have signed petitions; people have mobilized. Citizens of North Carolina are, rightly, pissed off.

The dose makes the poison

When it comes to human health, hydraulic fracturing is a gamble. It involves the unpredictable release of known carcinogens, teratogens, and endocrine-disrupting compounds (among their known characteristics – not even getting into the unknown synergistic effects).

Benzene, Ethylbenzene, Xylene, Nitrogen Oxides (NOx), Methylene chloride, Hydrogen sulfide, Barium, Strontium, Bromide, Radon, Acetaldehyde, Formaldehyde, Silica dust, and of course Methane are just some of the ingredients involved in — or things unearthed from — the hydraulic fracturing process. These all pose hazards to human health, particularly in the quantities they’re being released from natural gas sites all around the world.

Although much of the focus has been on the poisoning of water, and the use of various chemical concoctions injected into the ground during the hydraulic fracturing process, the greater risks to public health are to be found in the poisoning of the air, and the substances that arrive back to the surface in the form of “flowback” water.

Some wells emit incredibly unhealthy amounts of compounds dangerous to human health; others emit very little. The wells also vary in what they emit depending on the time of day, and how the winds are blowing. Although people are rightly horrified by tap water they can light on fire, the greater danger is the benzene and related chemicals they may be breathing from the nearby wells and open storage pits.

David Brown is a public health toxicologist who has been conducting research with health care providers at the Marcellus shale basin in Pennsylvania via the nonprofit Southwest Pennsylvania Environmental Health Project. They’ve been finding the most vulnerable populations taking the brunt of the damage: infants born with low birth rates and APGAR scores; children developing mysterious skin lesions; children with high blood pressure; asthma and COPD patients find their conditions exacerbated; complaints of unending headaches and coughing; high blood pressure; dizziness; rashes covering the skin; irritated eyes, nose, throat; and never ending stress.

The endless parade of trucks tearing up local roads in a storm of sound and light; an earth that never stops rumbling. Depression and anxiety rank first and foremost of all health complaints in the heavily “fracked” Marcellus Shale Basin.

Health professionals in affected areas are at a loss for what to test their patients for. In these areas with historic mistrust between rural poverty-stricken patients and public health care providers, they can get urine samples but don’t even know what to do with them. There are no specific tests for benzene exposure, or for the hundreds of other chemicals that people are being exposed to. If you’re unlucky enough to live in a state that protects the “trade secrets” of the hydraulic fracturing industry, figuring out what you’ve been exposed to is even harder. Doctors and researchers are describing a growing public health crisis in their words and the ever-increasing body of scientific evidence they’re generating.

Medicine always involves a mystery; it is the process of discovering what is ailing the patient, and then how best to alleviate it. People are getting sick, but their health care providers are working in the dark, with few tools to effectively measure what is happening to the human body, and too little research to guide treatment suggestions. They have stated the need for a national disease registry to help track what is occurring to their patients

As the air emission exposures fluctuate, so do the symptoms, many of which disappear by the time the patients can see their health care providers. In light of this, health professionals are also recommending hourly air particulate monitoring on natural gas wells.

The EPA monitoring systems currently in place around the country are not designed to protect individual health, rather the National Ambient Air Quality Standards (NAAQS) are meant to measure regional air quality over varying periods of time — some as long as annual measurements. These EPA systems are also very limited in what they monitor – Carbon Monoxide, Lead, Nitrogen Dioxide, Ozone, Particle Pollution (PM2.5 and PM10), and Sulfur Dioxide. Yet the hydraulic fracturing process involves hundreds of ingredients not covered here.

Notably, the current draft rules for North Carolina do not address air quality monitoring at all. The 2012 legislation required the MEC to bring recommendations to the Environmental Management Commission (EMC) regarding this issue, but they have chosen to remain silent.

Other peer-reviewed studies on the impacts of fracking paint a disturbing picture.

McKenzie, Guo, et al. in their study “Birth Outcomes and Maternal Residential Proximity to Natural Gas Development in Rural Colorado” found an increase in the number of congenital heart defects for infants born to mothers who lived within 10 miles of a natural gas well.

Fontenot, Hunt, et al. in their study “An Evaluation of Water Quality in Private Drinking Water Wells Near Natural Gas Extraction Sites in the Barnett Shale Formation” found that private water wells within 3 km of natural gas wells had elevated levels beyond the EPAs limit of arsenic, selenium, and strontium.

McKenzie, Witter, et al. in their study “Human health risk assessment of air emissions from development of unconventional natural gas resources” found those living within a 0.5 mile (2640 ft) of natural gas wells were at significantly greater risk for cancer than those further away. They cited the presence of benzene as the major human health risk.

The current draft rules call for well heads, edges of waste pits, production equipment, and tanks to be a mere 650 feet from an occupied dwelling.

Brown has said his medical professionals warn pregnant women that the only thing they can do to ensure the health of their fetus is to move far away from areas where hydraulic fracturing is practiced. No treatment, no pill, no filters on the water or for the air, just get the hell out of there. Citizens of the United States of America are turned into environmental refugees, because they were unfortunate enough to live in a particular area when an industry offering a few temporary jobs came to town.

This is an industry nigh-unregulated, where rules for the public were crafted without any idea or body of scientific evidence. Now the scientific evidence is starting to pour in. It remains to be seen whether the MEC will heed this new avalanche of information. So far the one of the main public voices for the MEC, commissioner Jim Womack, who has ties to the industry, has been absolutely dismissive of the peer-reviewed science.

You call this regulation?

Below is a partial list of problems with the current MEC draft rules:

• Call for open storage pits for wastewater, instead of containers. We’ve seen from Duke Energy how well those lined pits work out. The containers aren’t perfect, they can and do leak as well, but they’re better than an open pond with a large surface area with toxic chemicals volatilizing into the air.

• Make no mention of how to manage the increase in traffic, the increase in traffic accidents, and the increase in damage to local roads. Currently the burden is entirely on the taxpayers.

• Call for laughably low bonds ($5000 plus $1.00 per linear foot) – below even what the industry itself expects to pay (more along the lines of $27 per linear foot).

• Don’t cover liability for leaking cement casings at wells 5, 10, 15 years down the line. The older the well, the more likely this cement will fail.

• Do not sufficiently cover testing the water from nearby private water wells. Natural gas companies are only required to test some of the water wells within 0.5 mile of the proposed wellhead, and only if it isn’t a significant financial burden to them. The rules require a total of 5 tests, the last of which is 30 days after the finished production of a well, which is wholly inadequate. Underground water can take years, even decades to move through the soil and rock. When the companies are long gone, the public will be the ones left dealing with the toxic mess left behind.

• Allow the use of nearly unlimited quantities of freshwater (note that the amount of water used by a well is measured in the MILLIONS of gallons). There is no requirement for a record of the total water withdrawn from all sources.

• Call for pre-announced site inspections from the state, which negates the point of having inspections.

• Requires for all records to be kept by the State regarding this entire process to only be kept for 5 years, when 50 years would be far more appropriate.

• Do not require the Mining Commission to actually punish a natural gas company for various major infractions, it just states that they may revoke their permit.

• State that 200 ft is a sufficient setback for streams or bodies of water; 100 ft if the stream is only intermittent; 650 ft for private or public water wells; 100 ft from floodplains; 100 ft from roads. Recall the study above that mentioned a distance of 10 miles as the boundary between an abnormally high amount of infants born with congenital birth defects and healthy infants.

These would all be laughably short distances if there weren’t actual human lives and environmental health at stake. If all that weren’t enough, the rules:

• Do not include any information regarding how to handle steep mountain slopes, landslides, or the uniquely porous underground geologic formations of the western North Carolina region. It doesn’t cover the unusually shallow Deep River shale basin or the Lee County dikes and faults of the Piedmont. If the Piedmont sees hydraulic fracturing, it will be the most densely populated region yet in the United States to deal with this issue.

• Don’t cover the fact that no municipal water plant in the state is able to handle the kinds and quantities of toxic chemicals found in the leftover wastewater.

• Don’t cover enforcement of payment. Some individuals in Pennsylvania who have leased out their land for hydraulic fracturing are having trouble actually getting paid, and as written there’s no penalties to the companies on this matter.

• Give the MEC the ability to exempt any operator from any of the measly rules they do bother to put into place.

This is just a partial list, but perhaps you still aren’t convinced. Perhaps the public health concerns, the water concerns, the damage to the roads, the secret chemicals, or the fact that the voters were never asked if they wanted to allow this industry into the state just aren’t compelling enough reasons to grab your pitchfork.

This brings us to forced, or compulsory, pooling. Forced pooling is when, if your neighbors agree to allow hydraulic fracturing on their land, your land can be forcibly used for that purpose as well. It’s a form of eminent domain, but instead of it ostensibly serving the public good, it goes entirely to benefit a private corporation. Noise and light and pollution, day and night, near your home, your family, your land, your water, all without your permission.

Current legislation around forced pooling is incredibly vague, and can be interpreted as allowing it – or not. The citizens of this state deserve clearly written rules and regulations that protect them from forced pooling.

Be it incompetence or negligence or self-interested greed, these rules are an insult to anyone who lives here, and the people who wrote and voted on all related legislation need to be held accountable for the dangerous position they’ve put us all in.

Why North Carolina?

It’s interesting that we’re even having this conversation. North Carolina is NOT the next hot thing for the natural gas industry. It is thought that there is a small amount in the Piedmont region, and possibly in seven counties in WNC – Cherokee, Clay, Graham, Haywood, Jackson, Macon, and Swain. Buncombe County isn’t thought to contain any resources of note; there is no concern that hydraulic fracturing wells will be springing up next to Riverside Cemetery or the River Arts District. However the effects of a sicker and less productive workforce, increased area water usage, unmonitored air pollution, and dramatic increase in area traffic would negatively impact the entire region.

It still leaves open the issue of the water itself, of what happens when our aquifers are polluted from failed cement casings on the wells, when the “toxic soup” of hydraulic fracturing chemicals are left in those failed wells, and when the liners in the open ponds inevitably rip and leak.

During the hydraulic fracturing process, between 40 percent and 60 percent of the water, chemicals, and sand are removed from the well, but the rest remain in the ground. This is a particular problem for our area. WNC has very complex and highly porous geological features, to the point that 30 to 40 percent of the material beneath our feet is actually water.

How the groundwater moves here is not well understood by scientists and is currently being researched at Western Carolina University. If the drilling comes to the seven western counties, we could all find our water supply permanently damaged. This damage would be invisible at first, particularly with the lack of requirements for the natural gas companies to regularly test nearby water after 30 days of well completion. Through the years it would insidiously seep and spread, damaging the mountains and the people who live here. Approximately 50 percent of the population of WNC relies on private well water.

We’re in our current predicament because a couple of Piedmont politicians caught wind of their possible natural gas deposits and sprang into industry-wooing action. The deposits are so small that it leaves North Carolina at particular risk — no large company would bother coming here — so it is the small fly-by-night operations, the “wildcatters”, that are most likely to be interested in trying to make a quick buck.

They are not known for their quality concrete casings.

The citizens speak

The MEC originally scheduled three public hearings, all in the Piedmont region. Citizens here were furious, and started a letter writing campaign. People who were previously apolitical spontaneously formed groups; established organizations reached out to start connecting everyone together. Facebook became a hive of grassroots activity.

When the letters from local business leaders started showing up, the MEC agreed to hold an additional hearing for WNC in Cullowhee. The commission was not easy to work with, they changed dates and times for the various meetings, but they were held. A few commissioners dutifully showed up to hear the people speak.

I attended the Cullowhee hearing. It was intended to be specifically about the draft rules, but people all across the region were upset that they were never part of the conversation between government and industry. They were upset that Raleigh would be telling companies that they could come in and use precious mountain waters to pull out a nonrenewable resource for private gain. They shouted for solar, green energy and green jobs. They demanded that the moratorium be reinstated as the rules were so hopelessly inadequate. They waxed poetic on the beauty of the mountains that they held so dear. Teenagers declared that they didn’t want to be stuck with a legacy of environmental pollution that no one knows how to clean up, the elderly were adamant that the mountains have already had their share of problems and didn’t need anymore.

A haggard veteran sick with Leukemia from exposure to toxic chemicals at Camp Lejeune warned the audience to fight, this lest we face his fate. Some Cherokee members gave hellraising speeches that brought standing ovations. Of the 80 people who spoke, every single individual was against allowing the natural gas industry into the state.

There was a group of people bussed in wearing identical pro-fracking shirts, and rumors quickly swirled about who they were and why they were there. Word was that they were bussed in from a shelter from Winston Salem, told they got a free meal, a day out of the shelter, a free shirt and hat. As the anti-fracking individuals talked with them about what their shirts stood for, they started to turn their shirts inside out. Not one of them came inside for the hearing.

Inside, the people made certain to call out commissioner Jim Womack, who had previously stated that the chemicals used in hydraulic fracturing were the same chemicals as could be found under kitchen sinks. When people had previously mentioned being concerned about radiation from the flowback water they were told that bananas were also radioactive. Multiple individuals interpreted these and many other previous remarks from the commissioner as mocking their concerns.

The scent of rebellion was in the air.

It was recently reported that due to budget concerns, the seven counties in western North Carolina mentioned previously would not be studied for natural gas exploration potential using taxpayer money for this fiscal year. The general mood of the crowd was that this was an election ploy to quiet down the cantankerous populace.

Uncertain future

So where do we go from here? Citizens of North Carolina can submit their critiques of the MEC draft rules until Sept. 30 here.

The draft rules may or may not be amended. Regardless of what the public thinks in 2015 the MEC can start permitting natural gas wells. Although local municipalities were robbed of their power by the state to ban hydraulic fracturing, they have been passing protest resolutions and ordinances all across the state. Sylva took the lead here in WNC by passing theirs first, and Asheville City Council is considering one. There was even the suggestion that city of Asheville pensions could be divested from the natural gas industry, but it was met with little enthusiasm.

The speakers in Cullowhee were articulate and passionate about their love for these mountains, from those who had only been here a month to those who’ve been here for countless generations. A relentless message from the audience — don’t mess with our water, our air, our mountains.

People invited the Commissioners to come to their houses, to hike the land, to explore the streams, to experience the natural beauty here for themselves. They implored the Commissioners to do their job – protect the public, protect the land, stand up and actually regulate the industry instead of selling us out to it. Only time will tell if these words will be heeded.

Under hushed breath, there were murmurings that if words weren’t heard, actions would be.

—

Joy Chin is an Ashevillian and pro bono researcher with WNC Frack Free

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