Workers Compensation Law

Fracking and Occupational Diseases: Gasland or FrackNation?

By Richard B. Rubenstein, Esq., Rothenberg, Rubenstein, Berliner & Shinrod, LLC, New Jersey

The 2010 documentary Gasland, nominated for an Academy Award for Best Documentary Film, introduced many of us to fracking, or hydraulic fracturing, for the first time. Gasland spawned a counter-narrative, the industry film, FrackNation, which sought to rebut the allegations put forth in Gasland of grave health hazards from fracking. Gasland was centered on life in Pennsylvania, where fracking was employed to extract natural gas. Few viewers can forget the scene in Gasland where a resident of a fracking area sets fire to the water coming out of his faucet with a match. The petroleum industry-employed viewer will remember calling the scene “impossible.”  But bombast aside, what do we really know about the health of workers in areas where fracking is being employed? In seventy years, what have we learned about the true human costs of fracking, if any?

Fracking is not new technology, but its frequency and effectiveness have been increased by more recent technological advances. The technique was first developed in the 1940’s, but became commercially useful with the advent of horizontal drilling in the early 2000’s. The extraction employs the high-pressure injection of water, chemicals, and sand through either vertically drilled wells or vertical combined with horizontally-drilled wells into rock formations thousands of feet below the land surface to release oil and natural gas. The recent drop in oil and gas prices, world-wide, reduced the incidence of fracking due to the costs of the technique. As prices rise again, one would expect the incidence to increase once again. Fracking was first used in Texas, Colorado, North Dakota, and Pennsylvania on the sites of large shale formations. More recently, it has been used in nearly half of the United States. Millions of gallons of fracturing fluids are injected under tremendous pressure, into wells, as part of the procedure. Fracturing fluids consist primarily of water. They also include chemicals whose function is to help clean out debris, inhibit growth of bacteria that impede the drilling process, reduce corrosion of drill pipes, and other engineering purposes. In addition, sand or ceramic materials called proppants are also introduced through the fracturing fluid to prop open the cracks created by the high-pressure fracturing process. Aside from the introduction of these foreign materials into the ground, fracking displaces deposits of all manner of materials from underground, some of which are quite toxic: Arsenic, mercury, and naturally-occurring radioactive materials. Fracturing fluids are then flushed out with fresh water, and drained into injection wells, underground. At times they are released or recycled.

The Journal of Occupational and Environmental Medicine has released an article, ahead of formal publication, entitled HIGH-VOLUME HYDRAULIC FRACTURING AND HUMAN HEALTH OUTCOMES: A SCOPING REVIEW. The author, Rosemary Wright, Ph D, assesses the peer-reviewed studies of the health effects of fracking. In the seventeen years encompassed by the review, from 2000- 2017, only eighteen studies meeting the criteria of the writer were published. The actual practice of hydraulic fracturing generally occurs in zones where population is sparse, older, and beset by other health conditions, making causality difficult to establish. A systematic and thorough survey of health issues and fracking is made even more difficult by the incomplete, inconsistent publication of substances used in fracking. This is because of reporting requirements, which differ from state to state. The known chemicals are identified with diseases of the skin, respiratory system, gastrointestinal system, and about half of those are associated with the nervous system, cardiovascular system, and immune system. Among the substances lifted and exposed during the fracking process are benzene, uranium, radium, arsenic and lead. These are either carcinogenic or neurotoxic.

Aside from the direct extraction of these substances, derivative, consequential concerns have been raised about potential human health threats including introduction of human carcinogens and neurotoxins through groundwater pollution and ozone depletion, human pulmonary impacts through air pollution, and recently, stress and anxiety related to earthquakes. The author of the JOEM article is somewhat hamstrung by the paucity of peer reviewed studies on what should be a hot-button issue (if the bitterly opposed documentary films are any indication). Her methodology only considered peer-reviewed studies, published in academic journals, examining fracking in the United States, and only studies published after 2000. That left the writer with 18 empirical studies. Curiously, 2/3 of those used data gathered in Pennsylvania. Ten of the studies found statistically significant support for an association between fracking and human health issues, six found partial support, and two found no “significant” support. Most of the studies centered on maternal, neonatal, or childhood health outcomes. While humane concerns mandate that these studies be conducted and heeded, they have limited application for conventional workers’ compensation considerations. Thus, while findings of a greater prevalence of infant congenital heart defects, leukemia, neural tube defects, preterm birth and fetal death are of tremendous human consequences, the ambit of this article is the effect on workers as potential claimants within the workers’ compensation system.

The studies of adult workers and residents in fracking areas are less dramatic than the infant studies, but are nonetheless disquieting. At the production level of fracking, chronic rhinosinusitis, migraine headache symptoms, and fatigue were found and correlated. Bladder cancer incidence was higher than expected for both men and women in counties with shale gas activity, but no increase was found in counties with the fewest producing wells. Thyroid cancer was more prevalent in both men and women regardless of the level of fracking, and leukemia incidence was mixed, regardless of fracking activity. Curiously, there was a 20% increase in gonorrhea associated with areas of fracking. Correlation, as always, does not equal causality. Certainly, transient populations of fracking crews might contribute to the latter finding, a surmise notably absent from the JOEM article.

Three studies using small “convenience samples” found an association between fracking and respiratory issues, skin, eye, nose and throat irritation, related to proximity to hydraulic fracturing wells. A Pennsylvania study focused on inpatient hospitalization using discharge data sets found that increases in active wells were associated with increases in prevalence of cardiac inpatient admissions, and significant increases in cardiac and neurology admissions were associated with well density. A small study conducted in 2014 in Colorado and Wyoming tested oilfield workers. Benzene was the primary hazard, based on proximity and length of exposure. Another study, conducted in 2016, compared pulmonary function among 100 workers in a proppant plant, as against a national control group, and found no evidence of any effect from manufacturing proppants.

Admittedly, there is a pattern of significant challenges in gathering and analyzing these studies. Time frame of the studies is short. Both length of exposure and latency periods are refractory to analysis of a practice only in widespread use for the last 15-18 years. There is a degree of cross-over between exposures secondary to fracking, and similar exposures from other sources in the general population and their habitat.

More troubling, as the author points out, is the unavailability of details about the actual fracking process, which is proprietary and protected as confidential business information. It can be generally agreed that radon concentrations, hydrocarbons such as benzene, and heavy metals including arsenic are characteristic exposures for people who live and work around fracking sites. Unfortunately, none of the studies to date connect these exposures directly to fracking and human health outcomes. Despite a commonality of symptoms in the fracking-exposed, like burning eyes, headaches, vomiting, diarrhea, rashes, nasal irritation and fatigue, no causal relationship has yet been convincingly established by large-scale studies spanning a long period of exposure.

So what is the stakeholder in a workers’ compensation system to do with this study? Certainly, it would be dangerous to bury one’s head in the oil sands, so to speak. In practice, only a few recent litigated cases even mentioning hydraulic fracturing have emerged from a general search. One, a negligence case, alleged exposure to fracking fluids by a contractor. Bombardiere v. Schlumberger Tech. Corp., 934 F. Supp. 2d 843 (N.D. W. Va. 2013) held that there was sufficient evidence for a jury to determine whether a single component chemical in fracking caused injuries to the employee of a sub-contractor. In James Dershem, Petitioner v. Workers' Compensation Appeal Board (Dean Puderbaugh Trucking), Respondent, 2015 Pa. Commw. Unpub. LEXIS 105, an unreported workers’ compensation case, a Petitioner alleged that he suffered eye damage as a result of being splashed with “fracking chemicals,” and the record does not disclose what analysis, if any, was offered to identify the chemicals. Essentially, the case was dismissed because there was no external damage to the worker’s eyes, and the Court accepted medical testimony that there could be no internal damage without concomitant external damage. Neither of these cases presage easy proof of occupational injury from fracking exposure, nor do they call into question any existing epidemiological studies.

Past experience with petrochemical and radiation exposure too often places the workers’ compensation system in the category of late-arriving witnesses to preventable tragedy. Since half of U. S. States are parties to a fracking industry, it would make sense to legislate the disclosure of every chemical component either employed in fracking, or emerging into the ecosphere because of fracking, as soon as possible. Armed with that information, more comprehensive and reliable studies can be conducted, encompassing broader and longer terms of health records, to either establish causal relationship as per Gasland, or reliably label the process as safe, as in FrackNation.

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