Saturday, September 28, 2013

NY’s fracking future hinges on opaque health review Process clouded by secrecy, group sues to open records.

It was one year ago that state officials added a twist to the protracted controversy over whether and where to allow fracking in New York. National news reports in August and September of 2012 suggested that a decision to permit fracking in certain areas was imminent by or shortly after Labor Day. Labor day came and went, and instead of a decision on fracking, we got an announcement from DEC Commissioner Joe Martens that he would ask the health commissioner to assess whether the administration’s four year environmental assessment on which permitting would be based had sufficiently covered the potential for health problems. To do this, the Department of Health hired three outside specialists to critique the state’s draft review – a 1,500-page document called the Supplemental Generic Environmental Impact Statement - -and make recommendations about where to go from there.

The dilemma in New York, which sits over the Marcellus and Utica shales, is emblematic of a global controversy involving future energy sources, the economy, and public health: Is fracking safe and how do we know?

Now, a year after Martens announced the health review, things are no clearer, and in fact the health department’s involvement and ensuing events have made the outlook for shale gas development in New York foggier than ever. The Cuomo administration has released no time-frame, protocol, or scope for the health review, nor has it been willing to release records detailing the mechanics of the administrative directive. The three outside experts hired to make key assessments -- Lynn Goldman of George Washington University, John Adgate of the Colorado School of Public Health, and Richard Jackson of UCLA — are bound by contracts that include a clause prohibiting them from disclosing or discussing the proceedings or records involved.  (Their contracts expired in May, which means their work finished five months ago.)

In short, the public has been shut out of this process. The reasons for this are easily understood if not easily defensible. Over the last five years, the DEC has submitted for public review two drafts of the SGEIS, and one draft of proposed regulations. Those documents became lightening rods for criticism from anti-fracking activists, who used the formal public comment process for each to marshal an impressive display of opposition. The effort yielded protests, rallies, petitions, and (collectively) hundreds of thousands of written comments that gave the governor a taste of the anti-fracking movement’s considerable grass roots organization and effectiveness in New York, and posed a consuming work load for agency staff. Given this past result, it’s a fair guess that the administration intended the health review as a way to shore up the SGEIS’s viability, but not as a vehicle for more paralyzing public criticism. Regardless of intentions, the administration can’t keep it under wraps forever, and perhaps is already beyond the limits of its legal rights.

A process unanchored to any time line, visible policy protocol, or public framework has supported critics’ claim that the so called health review is little more than political cover for Cuomo to avoid a decision on fracking. Although complaints along these lines from both industry supporters and anti-frackers have been loud and clear, no parties have legally challenged Cuomo’s approach…  Until now.

Last week, the Seneca Lake Pure Waters Association, represented by attorney Rachel Treichler, filed a complaint with the state Supreme Court seeking a hearing on the matter in October. SLPWA is seeking state records to assess “what factual information was being collected and reviewed by DOH and the instructions given to DOH staff regarding the DOH health impact study.” The action follows the organization’s unsuccessful attempts to view records related to the study under the Freedom of Information Law.  The DOH denied the agency’s initial request on April 4 and also its appeal May 16. The grounds for the denial: the information comes under the category of “exempt intra-agency or inter-agency records,” according to the DOH response.

It’s a response that advocates find ridiculous, and the SLPWA appeal spells out why:

Frankly, it is simply not credible that the on-going DOH study of health impacts for the SGEIS does not include any statistical or factual tabulations or data, instructions to staff that affect the public, or final DOH policy or determinations. Quite simply, scientists deal with factual information. If DOH is in actuality conducting a scientific review, the factual information they are considering and the instructions to staff regarding that consideration should be released to the public.

We will soon know whether the SLPWA succeeds in prying loose information and if so, whether that will force the hand of the governor in either moving ahead with a decision or formalizing the review process. The demand to open records is supported by hundreds of members of the medical community, organizations, elected officials, and individuals. They signed a letter to the governor to open the process for public comment and to disclose “the charge that Dr. Shah gave the three outside reviewers who are assisting him and to view the documents that they have been given.” But I have also heard off the record from some fracking opponents who fear efforts to press Cuomo could backfire by changing a dynamic – the governor’s indecision - that has so far worked in their favor by preserving the status quo.

Some fracking supporters feel a more transparent health review will also work in their favor, and for this reason they are encouraging their adversaries’ efforts. A blog, Flare Alert, posted by the firm of industry attorney Tom West, anticipated this result of the SLPWA complaint:  “If this suit is successful, it may provide the pressure needed to put an end to this otherwise unnecessarily protracted process. The alternative appears to be a further delay of the determination by the administration until after the 2014 gubernatorial election.”  Karen Moreau, executive director of the New York State Petroleum Council, said in a forum at Albany Law School this week that a lack of transparency disserves the public, and that she “applauds the group from Seneca Lake” suing to open the health department’s review.

Although the health review remains vague, the Cuomo administration has selectively released documents that suggest where the administration stands. Their tone has been vague and cautious, but they generally support the notion that Cuomo has no intention of permitting shale gas wells without a faithful attempt to gauge health impacts, and that the decision by other states to proceed without this assessment is folly.

This was the theme of a two-page memo released to the press on Feb. 12 from DOH Commissioner Nirav Shah to DEC Commissioner Joe Martens.  Shah advised that he expected to make a formal recommendation “within a few weeks.” In the meantime, the DOH staff was reviewing three studies evaluating the impact of fracking on public health elsewhere. They include a federal EPA evaluation of risks to groundwater, and two studies evaluating public health indicators in Pennsylvania gas fields, including one by Geisinger Health Systems that will evaluate hundreds of thousands of records of patients. It will be years before the studies are complete, and Shah did not explain how DOH staff might be able to glean useful information from them “within a few weeks.” Although most of us take that phrase to mean 14 days or less, in the place that produces New York policy, it can mean something other than that, and the tone of Shah’s memo to Martens in fact suggested a much longer delay:

The time to ensure the impacts on public health are properly considered is before a state permits drilling. Other states began serious health reviews only after proceeding with widespread HVHF.
In my view, that is not the right approach for New York to take if we are serious that public health is the paramount question in making the HVHF decision. And as Health Commissioner, protecting the public health is my primary job.

He concludes the letter:

From the inception of this process, the Governor's instruction has been to let the science determine the outcome. As a physician and scientist, I could not agree more. Whatever the ultimate decision on HVHF going ahead, New Yorkers can be assured that it will be pursuant to a rigorous review that takes the time to examine the relevant health issues.

A noteworthy figure in this is Richard Jackson, the UCLA health specialist hired to review the state’s work. He has pointed out in his lectures that it's virtually impossible to produce energy without affecting health, pro and con, and trade offs must be known, documented and considered. Although Jackson's contract with the state has expired, Jackson is said to be continuing on a pro bono basis, according to a report from Gannett’s Jon Campbell. And while Jackson is forbidden to talk specifically about the state study, during a webcast earlier this year he generally urged health impact assessments – lengthy formal reviews that include public participation, time-lines and scopes -- for states considering fracking operations: “We need to step up and be much more visible and present and we need to assure that there is a health impact assessment on any proposed hydraulic fracturing or drilling process just as there would be an environmental impact assessment.” (Some of Jackon's specific comments about fracking on his webcast and his overall involvement with the NY's health review was harshly criticized by a group of health professionals for other reasons. More on that here.)

There are many complicating factors, not the least of which is independent funding. At Geisinger, several pilot studies have begun looking into incidences of trauma, perinatal outcomes, asthma and pulmonary disease, according to a report by Ashley Wislock of the Daily Item. But as of this summer, Geisinger had raised only $1.3 million for the first phase of the multi-year study, which is estimated to cost $25 million.

A preliminary report by a team of toxicologists from the University of Pennsylvania found that health concerns were prevalent among drilling communities: 22 percent of the participants in a small pilot study surmise that hydrofracking may be the cause of sinus problems, sleeping difficulties, and gastrointestinal problems. (Another study by the Southwest Pennsylvania Environmental Health Project, found air pollution from gas processing operations to be more of a concern than water pollution for people who felt sick from shale gas development.) But understanding the relationship between drilling and health with any degree of clarity and precision will take years. It will also take funding not rooted in special interests or at least which comes with full disclosure, and that kind of funding is getting scarce.

In short, a year after Martens announced he would shore up the DEC’s work with a health review, the scientific landscape has gotten more complicated, details of that review remain under wraps, and New York’s fracking future looks more capricious than ever. It remains to be seen whether the SLPWA demand to open records will provide a catalyst for movement, and if so in what direction.


  1. There's one issue about natural gas exploitation that got me thinking. It has to do with the justification of replacing coal with natural gas. Natural gas is a cleaner burning fuel. One of the big issues about burning coal is mercury - among other things. Mercury is in the coal solid matrix at very low levels. It gets burned and goes out with the flue gas. Therefore, it should be addressed - and is.

    Mercury is also a concern with natural gas processors. It can poison catalyst and impair units of operation. So it must get separated out. Mercury in natural gas is apparently a concern of note when liquefying natural gas for LNG.

    Do you know if there is public data on shale gas produced from Marcellus wells? Or any shale play throughout the US for that matter. I can't find this information. This would be the raw gas sampled directly at the wellhead.

    If natural gas gets collected before processing and mercury is removed - then this shouldn't be an issue. If the mercury concentrations in shale gas is non existent or below negligible, then it's also probably not an issue.

    The EDF emissions study seemed to have focused on methane. If the study team collected trace inorganics than that would be helpful on a site specific basis. Trace elements in natural gas range from none to more than none depending on the source rock.

    An issue with mercury is that it's volatile. Most metals of concern stay in the solid and liquids matrices. Mercury tends to go with the vapor.

    The second question is whether mercury emissions from flaring or fugitive emissions is being looked at in the health review? It would simply take several raw gas samples within an region or locality to demonstrate that this is not an issue.

    This may not be a concern so much for dry wells in the Marcellus, but maybe wetter wells in the Utica (and other wet shale formation throughout the country). Wet wells and oil producers seem to be flared for a longer period of time. Again, this isn't an issue in the short term, but more over the life of the well.

    1. Sounds like a reasonable concern to me--at least something that should be looked at. But we can't even get clear answers on issues like how much radon gas is being transported to end users along with the methane or what the levels of radium-226 are at individual well sites. At one point a few years ago (and I don't think this has changed) I saw workers in PA entering a restaurant wearing the same filthy boots and coveralls they wore at the well site. I later learned that some of the workers were laundering their filthy coveralls at public laundromats--the same places where people had to launder their kids' clothing. This, despite the fact that the EPA web site advises oil and gas workers to change their clothes before they even get in their cars to avoid taking radium and other contaminants home with them. In the gas and oil industry there is a very cavalier attitude about potential contamination. If there were just one or two well sites per county, maybe this wouldn't be so bad, but when you have hundreds or thousands I think you have the makings of a very serious, long-term problem.

      Sampling takes place--if it takes place at all--at a limited number of sites and then sweeping extrapolations (warranted or not) are made from a very limited amount of data. Lack of data (in many areas) was a big problem in the NY DEC's SGEIS, as many people pointed out (not that NY is necessarily going to pay any attention to our concerns). Basically what's happening is that a huge, national experiment is going on: let's do shale gas extraction and then see what happens. This even applies in the case of public health studies--frack first, and then monitor people in the fracking areas to see if they get sick. It's a really stomach-turning approach, if you ask me.

      And of course we don't know what, exactly, is included in the health review because there is zero transparency.

      Meanwhile, as always, certain special places get protected and the residents of those areas don't have to worry (or don't have to worry nearly as much).

    2. Nicely put Mary. Mercury probably isn't an issue at the well pad as much as it may be an issue for regions downwind of shale plays. New York City and surroundings are downwind of Marcellus and Utica shales. It's probably not an issue unless the raw natural gas (at the wellhead or before processing for sales) gets vented and/or flared.

      Here's a bunch of sources on the subject. The UNEP paper was prepared by NRDC. The author's email is included. The paper was published before or maybe during the initial push for shale gas.

    3. the technology for collecting real emissions data, cradle to grave, is available but not being utilized. How can we make any assessment without that information? Another great post from Tom and replies from Mike and Mary!

    4. Yoko,
      I'm getting the feeling that the answer for Marcellus wells is no: mercury is being monitored at wells. Health risk is cumulative. Meaning you add up exposure pathways from each step starting at well drilling, through operations and well abandonment. This would be exposure from air, water and soil pathways. This would be exposure from all chemicals of concern. Health risk assessment without data is useless. Keeping the public health risk assessment away from public review seems orchestrated. Btw, chemical risk is straightforward. The pathways chemicals take to reach the receptor (humans) is open for debate. Not allowing the public to review (debate) the development of the health risk assessment is uncool.

  2. Well done - thank you for helping to explain a complex issue. We need & deserve a more transparent process.