The Pennsylvania gas law fails to protect public health
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Gov. Tom Corbett recently signed a bill that goes beyond just ignoring concerns about the potential human health effects of Marcellus Shale drilling, it retains some of the worst aspects of industry secrecy about proprietary hydrofracking chemicals while making unethical demands on physicians.
Imagine a physician caring for a child whose illness might have been caused by long-term exposure to a proprietary fracking chemical while playing near a drill site. Assume that after signing a legally binding nondisclosure agreement, the physician is given the identity of the chemical and comes to believe it caused the illness. What can the physician tell the families of other neighborhood children who play in the same field?
Under the newly enacted law, copied almost verbatim from a controversial Colorado law, a physician may receive information about a proprietary chemical used in the fracking process, but the physician must agree to not reveal this information to the public. The law also allows the company to keep secret from physicians information about agents that come up from the ground during drilling, such as natural gas constituents -- which themselves can be toxic -- and naturally occurring toxic agents such as arsenic, barium, brine components and radioactive compounds dissolved in flowback water. Nor can public health authorities begin with knowledge of a secret chemical and ask whether there is an increase in an illness that the chemical is known to cause.
Drillers should have an affirmative duty to know what dangerous chemicals they are introducing into the environment. Instead, the bill is laced with excuses: "the vendor didn't tell us" or "it was unintentional" or "it must be due to a chemical reaction." But chemicals inherently react with each other -- that is their nature. By making ignorance an excuse, the law absolves drillers from doing their homework.
This legislation was under consideration when drilling in the commonwealth began in earnest, and it was intensely studied by the governor's Marcellus Shale Advisory Commission -- a commission charged with protecting the environment and citizens' health and welfare. Moreover, citizens testified at public hearings time and time again that they are concerned about possible health impacts on themselves and their families, neighbors and friends.
Yet the governor's 32-member commission included no health professionals, and the seven state agencies involved did not include the state Department of Health.
Not surprisingly, the commission's few health-related recommendations failed to make their way into the final legislation. Neither did the governor's recommendation to provide Marcellus Shale impact funding for the Department of Health; 19 other state agencies, subagencies and commissions received funding, including the Pennsylvania Boat and Fish Commission. It appears that our state politicians are concerned about the impact of shale gas drilling on boats and fish, but not on humans.
Rather than providing health personnel with direction on how to prepare for potential exposures to toxic chemicals in the air, water or soil, or to accidents similar to those that already have occurred, the law sets up an obstacle course that health care providers must navigate to secure information about proprietary chemicals -- information needed to diagnose and treat patients. This obstacle course also presents an ethical dilemma for a doctor who treats a child exposed by playing too close to a Marcellus Shale drilling site. It is a breach of a physician's responsibilities not to report a public health threat, as well as a contradiction of established public health practice and law.
This law would have looked different had public health officials been consulted. Legislators and industry lobbyists seeking streamlined and stable regulations to aid their companies' planning and pursuit of profits should recognize that it's in everyone's best interests to research and prepare for the public health risks that come with drilling. The statistically significant disease clusters that will inevitably arise in communities with Marcellus Shale drilling, whether caused by the drilling or not, will generate fear, media attention, declines in property values and lawsuits.
Industry is liable for any adverse effects caused by the millions of gallons of chemical-laden water that flows back to the surface after each frack. Perhaps individual companies are hoping that their particular mixtures will not cause noticeable harm or that they will make their money before tort liabilities catch up with them. But hydrofracking will likely go on in Pennsylvania for decades, and depending on toxic tort suits to protect the public presupposes that we must wait until people get sick.
The usual engineer's response to just about every technology problem that has resulted in environmental or human health problems is to say that had they only known there was a potential problem, they could have designed the technology to avoid the problem. For this discussion to take place in the case of the unconventional development of Marcellus Shale gas, we need health professionals at the table to prevent adverse health effects, and we need to put them there now.
First Published March 11, 2012 12:00 am