Box 12. Focus on U.S. Water Law and Regulation
There are several different water law regimes in the U.S. The two dominant regimes are the riparian doctrine, applied in most Eastern states (with some permutations on the West coast), and the prior appropriation doctrine, which applies in most states west of the 100th meridian. Under the riparian doctrine, landowners along waterways have “riparian rights” to the natural quantity and quality of flow in the waterway, except as diminished by the “reasonable use” of the water by other riparian landowners. Under riparian doctrine, the right to use the water may be obtained by purchasing land along the waterway.
Under the prior appropriation doctrine, water is allocated in specific amounts for “beneficial use.” Each water right has a priority date that determines its place in the hierarchy of withdrawals, and it maintains the same date even if it is sold to another user. Older water rights have priority over more recently created ones—“first in time, first in right”—and are therefore more valuable. In times of water shortage, holders of “younger” water rights are required to stop withdrawing water from the waterway to ensure that senior rights holders can withdraw the full amount they were allocated. Under prior appropriation, rights to specific amounts of water may be bought and sold by users without the requirement of riparian land ownership. Prior appropriation rights are generally considered stronger property rights than rights established under the riparian doctrine, and have been subjected to buying and selling in a marketplace. In some states, therefore, holders of water rights may benefit from shale development by selling a portion of their right to an operator.
Water rights are also governed by the federal reserved right doctrine, under which American Indian tribes retain rights to water even if those rights were not specifically allocated to them in treaties with the U.S. government; reclamation law, which is a specialized area of federal contract law for federal reclamation projects such as California’s Central Valley Project; and federal regulatory water rights, which are regulatory constraints (such as Endangered Species Act requirements) that often trump other water laws.
What health considerations are there?
What health considerations are there?
What is NORM?
Radiation is a particular kind of energy given off by unstable atoms. Our natural surroundings — including air, water, and mineral resources — contain various amounts of radioactive material. Since these radiation-emitting elements have always been a normal part of our environment, they are called naturally occurring radioactive material, or NORM.
What is the impact of radiation on humans?
Human beings are exposed to radiation from several sources, including NORM, the sun’s rays, and medical procedures. Low-level exposure is constant and can alter molecules in the human body, but the body generally protects itself from long-term damage with routine repair mechanisms. In contrast, higher levels of exposure can lead to permanent damage and can contribute to the development of cancer and other diseases. 1
What are the recommended threshold levels for radiation exposure?
The EPA has determined that any exposure to radiation carries some risk, and, as exposure doubles, risk doubles. Routes of exposure include inhalation, ingestion, and direct (external) exposure. 2, 3 One threshold for exposure set by the EPA applies to community drinking water systems. 4, 5, 6 Household radon levels and management have also been addressed by the EPA. 7
Why is it relevant to shale development?
Shale and soil particulates at the earth’s surface contain some level of NORM, but generally not in damaging amounts. NORM can be higher, however, in buried shale deposits, especially in the Marcellus Shale of northeast Pennsylvania, with emissions of up to 20 times the amount of radioactivity found in normal background emissions at the earth’s surface. Radioactive materials can also become unusually concentrated in fluids and solids from human activity such as road building, mining, and energy development, forming what is called technologically enhanced radioactive material (TENORM). The processes of drilling and hydraulic fracturing in underground shale basins can thus introduce TENORM into the liquid and solid wastes from the site. Additionally, in the presence of high salt content, radioactive materials can form solids, which accumulate on the inside of pipes and equipment, posing a particular risk for oil and gas workers. 8
Does NORM from shale development pose a risk to nearby communities?
Several recent studies have looked into the question of how much radiation communities may be exposed to during shale exploration and development. A 2012 Wilkes University study of Pennsylvania’s Marcellus Shale basin suggested that improper management of liquid and solid wastes from well sites could potentially compromise drinking water supplies, especially those downstream from water treatment plants that receive shale development wastewater. The researchers concluded that radiation risks from both liquid and solid wastes and from radon may vary by region – and even across drilling sites within a region. 9 Another report from the University of Maryland School of Public Health reached a similar conclusion - that more information is needed, not just about radiation levels in wastewater and solid waste from shale development sites, but also at water treatment plants and landfills that receive this waste. Ultimately, it is important to examine potentially impacted drinking water for radiation levels. 10
In early 2015, the Pennsylvania Department of Environmental Protection (DEP) released a report that assessed potential worker and public radiation exposure from shale development in the state. 11 The report concluded that there is little potential risk of radiation exposure to workers and the public from the development and production of natural gas or from the disposal and treatment of wastes, provided that the fluids are not spilled. The report therefore recommended that the state should add radium to its spill protocols; it also noted that long-term disposal protocols for TENORM waste should be reviewed.
What can be done to address health concerns? What have others done?
Landowners: The EPA recommends that individuals with private water wells test annually for constituents of concern, in this case radionuclides and radon. If standards are exceeded, the agency suggests retesting immediately and contacting local health officials. Some local health departments may provide free water testing. The EPA also suggests being aware of nearby activities that could potentially compromise well water. 12 Some states recommend that all private wells and community drinking water supplies be tested within a five-mile radius of a well pad. 13 Routine indoor radon testing is also recommended by the EPA, and in fact is required by some states as part of real estate transactions. 14
Local officials: One example of a community solution to protect against potentially radioactive solid waste has been to test dump trucks as they enter a landfill. Using an outdoor radiation monitor will detect any radioactivity that exceeds a set threshold above background levels.
State officials: In 2011, the Pennsylvania DEP set a statewide model for management of wastewater from shale development, requesting that operators not send this byproduct to water treatment facilities that discharge into waterways. As a result, almost 97% of wastewater from Pennsylvania energy operations is now recycled, injected into underground receiving wells, or treated at facilities that do not discharge into waterways. 15
Operators: Both the Wilkes University and the University of Maryland studies recommend that energy development companies and municipal road maintenance crews refrain from applying wastewater fluids to roads as a de-icing and dust control technique until further investigation can determine the safety of this practice. While the Pennsylvania DEP study found little potential for exposure from wastewater-treated roads, it still recommended further study of the issue.
- United States Environmental Protection Agency, “Radiation and Health,” updated June 29, 2015, http://www.epa.gov/radiation/understand/health_effects.html. ↩
- U.S. Environmental Protection Agency, “Radiation and Radioactivity,” last updated January 23, 2013,http://www.epa.gov/radiation/understand/radiation_radioactivity.html. ↩
- U.S. Environmental Protection Agency, “Radiation Doses in Perspective,” last updated 9/24/2013,http://www.epa.gov/radiation/understand/perspective.html. ↩
- U.S. Environmental Protection Agency, “Radionuclides in Drinking Water,” updated March 6, 2012,http://water.epa.gov/lawsregs/rulesregs/sdwa/radionuclides/index.cfm. ↩
- U.S. Environmental Protection Agency, The Radionuclides Rule, June 2001,http://www.epa.gov/ogwdw/radionuclides/pdfs/qrg_radionuclides.pdf. ↩
- U.S. Environmental Protection Agency, “A Regulator’s Guide to the Management of Radioactive Residuals from Drinking Water Treatment Technologies,” July 2005,http://www.epa.gov/rpdweb00/docs/tenorm/816-r-05-004.pdf. ↩
- U.S. Environmental Protection Agency, “A Citizen’s Guide to Radon,” updated August 4, 2015,http://www.epa.gov/radon/pubs/citguide.html. ↩
- Courtney Sperger, Kristin Cook, Kenneth Klemow, “Does Marcellus Shale Pose a Radioactivity Risk?” Institute for Energy and Environmental Research of Northeastern Pennsylvania Clearinghouse, August 1, 2012,http://energy.wilkes.edu/pages/184.asp. ↩
- Sperger et al., “Does Marcellus Shale Pose a Radioactivity Risk?” ↩
- Maryland Institute for Applied Environmental Health (School of Public Health: University of Maryland), “Potential Public Health Impacts of Natural Gas Development and Production in the Marcellus Shale in Western Maryland,” July 2014,http://www.marcellushealth.org/uploads/2/4/0/8/24086586/final_report_08.15.2014.pdf ↩
- Perma-Fix Environmental Services, Inc.,”Technologically Enhanced Naturally Occurring Radioactive Materials (TENORM) Study Report,” prepared for the Pennsylvania Department of Environmental Protection (January 2015), http://www.elibrary.dep.state.pa.us/dsweb/Get/Document-105822/PA-DEP-TENORM-Study_Report_Rev._0_01-15-2015.pdf. ↩
- U.S. Environmental Protection Agency, “Water: Private Wells,” updated March 6, 2012,http://water.epa.gov/drink/info/well/faq.cfm. ↩
- Pennsylvania State University Extension Agency, “Drinking Water,” accessed November 21, 2014,http://extension.psu.edu/natural-resources/water/marcellus-shale/drinking-water. ↩
- U.S. EPA, “A Citizen’s Guide to Radon,” updated August 4, 2015,http://www.epa.gov/radon/pubs/citguide.html. ↩
- The Associated Press, “Marcellus Shale Gas Drillers Recycling More Waste,” The Times-Tribune (Scranton, PA),February 17, 2012, http://thetimes-tribune.com/news/marcellus-shale-gas-drillers-recycling-more-waste-1.1273083. ↩
What health considerations are there?
BOX 6. FOCUS ON SILICA DUST AND SHALE DEVELOPMENT OPERATIONS
As silica sand is commonly used as a proppant during the hydraulic fracturing of shale deposits – requiring up to 10,000 tons of sand for the fracturing and re-fracturing of a single well 1 – the mining of silica sand for shale development operations has increased dramatically in recent years. Much of this silica is mined and processed in western Wisconsin, where the number of active silica sand facilities increased from 7 in 2010 to 85 in 2015. Illinois, Texas, and Minnesota also have significant silica sand facilities. 2, 3 This boom in the production of silica sand has led to concerns about increased exposures for workers and residents near sand mining and shale development operations.
What are the health concerns with silica dust?
Silica dust, officially known as respirable crystalline silica, is composed of microscopic particles about 100 times smaller than ordinary beach or playground sand. It has long been known that silica dust creates health risks for employees working in certain industries, including during the mining of this naturally occurring mineral. Health risks from exposure include respiratory problems like bronchitis and asthma; chronic obstructive pulmonary disease (COPD); silicosis, which is a permanent scarring and chronic inflammation of lung tissue; lung cancer; and kidney disease. Exposure has also been associated with some autoimmune disorders like rheumatoid arthritis and lupus, as well as with heart disease. 4
What is workers’ exposure to silica?
In June 2012, the Occupational Safety and Health Administration (OSHA) disseminated a hazard alert for workers in the oil and gas industry, based on air samples taken at shale development sites. 5, 6 Many samples showed potential exposure levels above those considered safe, and some sites had levels ten times or more above the current permissible exposure limit (PEL). In September 2013, based on new research and analysis, the OSHA proposed more stringent standards for silica exposure. 7 If adopted, the new regulations would limit worker exposure to a PEL of 50 micrograms of respirable crystalline silica per cubic meter of air, averaged over an 8-hour workday. In addition, OSHA suggested provisions for measuring exposures and for reducing or mitigating risk. The National Industrial Sand Association (NISA), an industry group, has also developed a program for eliminating the adverse health effects of inhaled respirable silica through a program of careful monitoring and management of exposures. 8
What is the community’s exposure to silica?
The risks to communities in proximity to sand mining and shale development operations are currently not well understood. Community members near sand mining sites have voiced concerns about the local air quality and potential water contamination due to both the silica dust around the sites and the chemicals used in processing the sand. Silica dust could also affect residents living near rail lines transporting silica sand. In addition, some have pointed out that agricultural soils around mining sites may be compromised as the dust blows across farmland. 9
To better understand the risks to communities near silica sand mines, in September 2013 the National Institutes of Health (NIH) approved a grant to the University of Iowa to study the impact of mines on respirable crystalline silica levels in nearby communities. 10 The researchers plan to take air samples from nearby homes, as well as to assess silica sand migration during rail transport.
What can be done to address health concerns?
Operators: The OSHA-NIOSH hazard alert and the NISA program contain the following recommendations that companies should undertake to protect workers:
Groups concerned about the effects on communities have also made suggestions for improving public safety, such as installing air monitors every 1,000 feet around the perimeter of sand mining facilities and using closed-car rail transport when possible. 12
- Zahra Hirji, “’Frac Sand’ Mining Boom: Health Hazard Feared,” Inside Climate News, November 5, 2013. ↩
- Zahra Hirji, “‘Frac Sand’ Mining Boom.” ↩
- Wisconsin Department of Natural Resources, “Locations of Industrial Sand Mines and Processing Plants in Wisconsin,” last revised September 8, 2015 ↩
- Centers for Disease Control and Prevention, “Workplace Safety and Health Tips: Silica” (July 2013). ↩
- Occupational Safety & Health Administration (OSHA), “OSHA-NIOSH Hazard Alert: Worker Exposure to Silica during Hydraulic Fracturing,” accessed December 6, 2014. ↩
- Eric Esswein, Max Kiefer, John Snawder, and Michael Breitenstein, “Worker Exposure to Crystalline Silica During Hydraulic Fracturing,” NIOSH Science Blog (May 23, 2012). ↩
- OSHA, “OSHA’s Proposed Crystalline Silica Rule: Overview” (September 2013). ↩
- National Industrial Sand Association, “Occupational Health Program for Exposure to Crystalline Silica in the Industrial Sand Industry” (2011). ↩
- Wisconsin League of Conservation Voters, “Frac Sand Mining,” accessed December 6, 2014. ↩
- University of Iowa, Environmental Health Sciences Research Center, “Exposure Assessment and Outreach to Engage the Public on Health Issues from Frac Sand Mining,” accessed December 6, 2014 ↩
- OSHA, “OSHA-NIOSH Hazard Alert: Worker Exposure to Silica.” ↩
- Wayne Feyereisn, “Potential-Public-Health-Risks-of-Silica-Sand-Mining-and-Processing,” slide show, available as a PowerPoint presentation through The Sand Point Times, accessed December 7, 2014. ↩
What resources can provide further information?
Box 5. Who to Contact about What
With many state, federal, and local agencies playing roles in different aspects of shale development, it can be difficult to know who to contact. We have provided links to resources below on some of the main issues that may arise for local stakeholders.
Oil and Gas Drilling Regulations
Information on Oil and Gas Leases
Oil and Gas Lease Contract Provisions
Groundwater Protection Council, list of resources
Environmental Conservation Law
Land Resource and Conservation Management
Mitigation Planning for Pipeline Crossing or Well Site Regulation Affecting Agriculture
What might my community experience?
BOX 2 – SPLIT ESTATE
A split estate is a property whose subsurface minerals do not belong to the surface owner, but have been previously separated, sold, or allotted to another owner (sometimes the federal government). In this case, the oil and gas operator is not required to obtain the consent of the surface owner in order to explore or to develop the minerals. In some states, however, companies must attempt to negotiate access and impact compensation with surface owners. Compensation provisions include damages; any losses suffered due to the interruption of crops or the grazing of cattle; and the costs of replanting native grasses.