Lynn Kerr McKay
King & Spalding, Washington, DC
Bruce R. Hurley
King & Spalding, Houston
Actual measurements and evaluation of potential exposure pathways demonstrate that claims of risk of harm due to radon in shale gas produced by hydraulic fracturing are unfounded.
An Oct. 14 edition of the "Compendium of Scientific, Medical, and Media Findings Demonstrating Risks and Harms of Fracking (Unconventional Gas and Oil Extraction)"1 offers another opportunity to emphasize the importance of using actual measurements to inform statements about risk.
The Compendium was published by the Concerned Health Professionals of New York and Physicians for Social Responsibility.
Pre- and post-drilling and production measurements and informed modeling are needed to address claims regarding risk in regulatory and litigation settings.
The Compendium's discussion of risks associated with "radioactive releases," includes reference to reports of high levels of radon in buildings in "heavily drilled areas of Pennsylvania," and of "[u]nsafe levels of radon and its decay products" in Marcellus shale natural gas that may "pose risks to end-users when allowed to travel into homes."
The Compendium cites supporting articles and studies for each scenario. These references rely on estimated data, instead of actual measurements, and lack evidence of an informed assessment of the risk associated with radon concentrations in Marcellus shale natural gas.
Radon measured in Marcellus
Measurements show that radon in Marcellus gas is not a hazard to end users in New York.
Claims that levels of radon in Marcellus gas pose a risk to end users have been shown to be grossly overstated based on actual measurements of radon in the gas.
A 2014 blog post and letter that the Compendium cited ignore relevant findings by the Federal Energy Regulatory Commission.2
In the FERC proceeding, opponents of a petition to extend a natural gas pipeline carrying Marcellus gas into New York submitted a report by a scientist who claimed that the radon in the natural gas used by customers in unvented stoves could result in as many as 30,000 excess lung cancer deaths in New York. This claim relied on reports that the radon concentration in Marcellus shale natural gas was up to 70 times the average in natural gas wells in the US. However, the scientist's findings were shown to be based not on actual measurements of radon in Marcellus gas, but upon his own interpretation of gas well logs from which he could not determine specific measurements.
The company requesting the pipeline extension obtained samples of the gas along the transmission line from Marcellus wells in Pennsylvania to the point where the line would enter New York. The testing confirmed the company's position: the radon concentration at the point where the gas line would enter New York was over 150 times lower than the estimated concentration upon which the claimed 30,000 excess lung cancer deaths was based.
Subsequent results of analysis of radon in Marcellus gas by the US Geological Survey also fully supported the findings of the pipeline company's health physics expert. Based on the information submitted, FERC's October 2012 opinion found that the pipeline "project's potential transportation of Marcellus-sourced gas will not pose a health hazard to end users."3
The 2015 Compendium does not include this reported FERC determination.
Measurements disprove suggestion that high levels of radon in Pennsylvania homes are related to drilling.
Researchers study drilled areas
The Compendium also references findings of an Apr. 9 Johns Hopkins Bloomberg School of Public Health study,4 reporting that the study found "high levels of radon in buildings specifically in heavily drilled areas of Pennsylvania."5 Actual measurements by the Pennsylvania Department of Environmental Protection6 demonstrate that radon from natural gas wells entering buildings via one of the two pathways that the Johns Hopkins study identified could not have contributed to the radon levels in the buildings that were studied.
The Johns Hopkins study's theoretical pathways were through 1) gas used for cooking and heating, or 2) radon released during drilling to the ambient air which would travel to nearby buildings. Regarding use of gas in homes, the Pennsylvania DEP found, "There is little potential for additional radon exposure to the public due to the use of natural gas extracted from geologic formations in Pennsylvania," and that any incremental increase in indoor radon concentration would not be detected by commercially available radon testing.
The Pennsylvania DEP also measured radon concentrations ranging from 6-40 ft within well heads during flowback operations, and found that radon concentrations "are within the range of typical ambient background Rn concentrations (0.2 to 0.7 pCi/L in outdoor ambient air in the US)."
If radon concentrations near the well sites were in the range of background, they could not significantly influence radon concentrations in buildings in the area. This conclusion is particularly true because the Johns Hopkins study's definition of proximity to "heavily drilled areas of Pennsylvania" excluded radon measurements from buildings that were less than 800 m away from drilling activity, and included radon measurements in buildings up to 20 km away from any well.
The Johns Hopkins study took no account of the effect of prevailing winds on the transmission of radon from wells to the buildings in which radon levels were measured. It also failed to control for factors that could have independently influenced radon concentrations in the buildings at issue - the degree of sealing for energy efficiency, wind speed and direction, the social economic status of the individuals in the homes, or soil type and moisture.
Role of measurement data in addressing claims that hydraulic fracturing of a gas well caused elevated radon in well water and in a nearby home.
Pre-operation testing critical
The need for critical review of studies by experts and use of measurements is also important in reaching a valid outcome in litigation. In one case in West Virginia, plaintiffs claimed that hydraulic fracturing of a nearby gas well caused, among other things, elevated levels of radon in their water well water and in their home. Although the water well had been tested before drilling, the samples were not analyzed for radon concentration. No pre-drilling radon gas tests had been performed in the home. Relying on radon test results from water sampling of other water wells in the county and in a nearby county, the defendants' experts noted that the radon concentrations in the plaintiffs' well after hydraulic fracturing occurred were, in some cases, lower than the pre-drilling radon concentrations in other water wells in the area. Radon gas test results included some measurements in the plaintiffs' home that were above the EPA's limit for implementing mitigation measures. Although results of radon gas tests in other homes in the same county indicated that the test results for the plaintiffs' home were not unusual, the absence of a valid pre-drilling test result presented a challenge to proving that radon levels in the home were not somehow influenced by drilling activities. The case was resolved before additional information regarding the reliability of the testing and a pathways or risk analysis was performed.
The importance of data regarding pre-drilling and post-drilling radon concentrations in natural gas and in the groundwater wells and homes in nearby areas cannot be overlooked. These measurements can inform reliable and reasonable responses to uninformed and exaggerated claims regarding the risk from radon associated with shale gas production and hydraulic fracturing.
References
1. Concerned Health Professionals of New York & Physicians for Social Responsibility, Compendium of Scientific, Medical, and Media Findings Demonstrating Risks and Harms of Fracking (Unconventional Gas and Oil Extraction) (3rd ed.) (Oct. 14, 2015).
2. Order Denying Requests for Rehearing, Reconsideration, Stay, and Late Intervention, US Federal Energy Regulatory Commission, Docket No. CP11-56-001, 141 FERC 661,043 (Oct. 18, 2012).
3. Id.
4. Casey, J.A., et al., Predictors of Indoor Radon Concentrations in Pennsylvania, 1989-2013, Environ Health Perspect (Apr. 9, 2015).
5. Compendium p. 57.
6. Pennsylvania Department of Environmental Protection, Technologically Enhanced Naturally Occurring Radioactive Materials (TENORM) Study Report, Rev. 0 (January 2015)
The authors
Lynn McKay is counsel with King & Spalding and a member of the Litigation Practice Group in Washington, DC. McKay represents clients in cases involving oil and gas NORM, groundwater contamination, nuclear power plant operations, and other matters involving radiation and radioactive materials. She counsels clients regarding requirements of and compliance with federal and state environmental statutes and regulations, federal and state statutes and regulations addressing radioactive materials in the workplace and the environment, including the Atomic Energy Act, and international laws and conventions controlling nuclear liability. McKay is experienced in developing and presenting complex scientific information in support of legal theories and arguments, and communicating technical evidence in an understandable manner to judges, juries and clients.
Bruce Hurley is a partner with King & Spalding, a member of its Tort & Environmental Litigation Practice Group and leader of the Pharmaceutical Working Group in Houston.
He has 25 years of courtroom experience as a trial attorney and has handled hundreds of personal injury cases, including cases arising from catastrophic events, wrongful death and survival actions, as well as numerous commercial litigation matters. Hurley has practiced in most of the federal and state courts in Texas. He also has significant experience practicing before the Texas Courts of Appeals. He specializes in the defense of construction and maintenance companies and product manufacturers in tort litigation, including toxic tort, environmental, pharmaceutical, and medical device cases.
Hurley's clients include multi-national construction and maintenance contractors, integrated service companies, numerous other contractors and premises owners in the Gulf Coast petrochemical industry, and some of the world's largest manufacturers of pharmaceutical and medical devices.