Fracking liability bill heads to full Senate

A watered-down version of a bill that would have imposed strict liability standards on companies seeking to drill for natural gas in Western Maryland shale deposits will head to the full Senate for a vote.

Sen. Robert A. “Bobby” Zirkin, sponsor of the bill and chairman Senate Judicial Proceedings Committee, said the amended version of the bill approved late Wednesday night by his committee will be a first-of-its-kind law if it is ultimately passed.

“The goal here is not to make a statement. I can do that to the press any time I want,” Zirkin said. “The goal here is to pass a bill that could actually become a law.”

The amendments approved by the committee removed provisions creating strict liability standard.

In place of that language, the amended bill declares fracking an ultra-hazardous activity comparable to “oil drilling and dynamite blasting,” Zirkin said.

The removal of the strict liability standard means plaintiffs will be required to prove causality and a court will have greater leeway in determining actual liability. Zirkin said the use of the term “ultra-hazardous activity” will send a strong signal to the court about the seriousness of fracking.

“It is a strong indicator to our Court of Appeals that (the General Assembly) thinks this should be treated as other toxic chemical industries in our state are treated,” Zirkin said.

The bill still contains two key provisions originally proposed by Zirkin.

First, the bill would allow plaintiffs to seek information related to the chemicals used in the fracking process. Drilling companies could not challenge the discovery request by claiming the information is a trade secret, a commonly accepted defense in other states.

Zirkin said that provision would be the unique in the nation if it becomes law.

Second, the bill still requires drilling companies to carry $10 million of insurance per well per occurrence.

The bill could come before the full Senate for a preliminary vote as early as Friday and as late as the beginning part of next week and will likely be the subject of heated debate.

Some opponents of the bill, including some legislators, see the bill as an attempt to ban fracking in the state — something that has been rejected over the years in the Senate Education, Health and Environmental Affairs Committee.

That committee is considering bills again this year that would ban the practice in Maryland. None have ever passed.

Sen. Joan Carter Conway, chairwoman of that committee, told the Baltimore Sun recently that Zirkin’s bill was an attempt to do an end run around her committee, and she predicted doom for the legislation.

“It’s never going to pass,” Carter Conway told the paper. “It’s never going to pass. It’s never going to pass.”

Gov. Larry Hogan has been silent on the particulars of the various fracking-related measures that have been proposed this session, but he has he supports the drilling technique as long as it can be done in a safe manner.