On Monday, November 14, Councilman Doug Shields introduced a “Toxic Trespass Resulting from Unconventional Natural Gas Drilling” ordinance to City Council. “Although the media constantly reports on issues caused by shale gas extraction, our State Assembly’s lack of interest and action on the matter is most disconcerting and dismissive. Because of the State Assembly's head long efforts to enable the gas extraction industry to the detriment of the Commonwealth’s people and natural environment, I find it appropriate to introduce some level of protection for our citizens,” said Councilman Shields.
Rather than bounce back and forth between the opinions of activists and industry PR representatives to determine what this is all about, perhaps we should go straight to the source.
From the Findings and Intent of the ordinance we read, “The City Council of Pittsburgh possesses the authority to establish policies that protect the rights of the community. That authority includes the right to make laws that declare the involuntary intrusion of corporate-produced, mined, transported, processed and disposed-of chemicals, toxins, brines, radioactive and other harmful materials into the bodies of City residents and ecosystems of the community a form of trespass. The human and natural communities of Pittsburgh possess inalienable rights, including the right not to be trespassed upon, the right to a healthy environment, and other rights enumerated in the laws of this City, the Constitution of the Commonwealth of Pennsylvania, the Constitution of the United States of America (as well as rights not enumerated) and the people possess the power and authority to enforce the laws of their City that protect these rights.
The City Council of Pittsburgh recognizes that the unconventional process of natural gas extraction known as hydro-fracturing or “fracking” involves the injection of millions of gallons of water, mixed with hundreds of chemicals – some known carcinogens and toxins – into each gas well, and that up to forty percent of this “frackwater” returns to the surface mixed with heavy metals, highly saline water, and radioactive materials. No process exists for purifying this material, and its disposal sometimes entails direct deposition onto the ground and into waterways, either directly or through municipal waste water facilities. In no case is the frackwater (or “produced water”) purified or stripped of toxic chemicals, salts, metals or radioactive contents.
The City Council recognizes that sufficient data and experience exist for a reasonable person to conclude that a significant percentage of both currently used and newly manufactured chemicals are harmful to humans, animals, and ecosystems, and that it is an inviolate, fundamental, and inalienable right of each person residing within the City of Pittsburgh to be free from involuntary invasions of their bodies by corporate chemicals, and by harmful materials removed from natural deposits deep underground which are then introduced into our community. Since government is the People’s means of protecting rights and enforcing laws that have that effect, and since it is the City's responsibility to protect the health, safety, and welfare of the residents, it is inextricably the essence of that responsibility for the City to protect residents against bodily chemical trespass.
Therefore, the City Council of Pittsburgh declares that persons owning and managing corporations that manufacture, distribute, sell and deposit chemicals and chemical compounds found to be trespassing on the bodies of residents of the City, or into the ecosystems within Pittsburgh, must be held liable for those trespasses. The People of Pittsburgh also declare that the failure and refusal of the United States government and the government of the Commonwealth of Pennsylvania to ensure that corporate chemicals do not trespass on the residents of Pittsburgh makes them jointly and severally liable for those trespasses, and we further declare that neighboring states and municipalities that allow, license or permit the deposition of waste from hydro fracturing activities into the environment, which results in toxic trespass upon human and natural communities of the City of Pittsburgh, shall be held jointly and severally liable for those trespasses.”
Will Pittsburgh Codify the Precautionary Principle into Law?
After an incident with a condensate tank overflowing, A Colorado woman, forced to live next to gas development a half mile from her home, passed out in a field by her truck. After that day she dealt with constant sickness, uncontrollable vomiting, searing pain up her thigh, burning rashes, and lesions. Others nearby suffered similar symptoms. When she moved away from the gas development, her condition gradually improved and she went back to a normal life. Unfortunately Exxon moved in and began fracking operations 14 miles from her new home and her symptoms returned.
Another Colorado woman is diagnosed with a rare adrenal tumor two years after her water well was filled with methane and gray sediment as a nearby fracking operation commenced. Documents from the drilling company, Encana, revealed that the chemical found in her water supply was the same chemical used in fracking nearby wells.
Yet another Colorado woman died in 2010 after treatment for a pituitary tumor. She had experienced fatigue, headaches, numbness in her hands, bloody stools, rashes, welts on her skin, blisters covering her body, skin peeling, canker-type sores appearing in her mouth and down her throat. Her symptoms appeared after gas development began in her area.
After expected contamination of a pond down gradient from a gas site on his property (the company came on his land against his will using an 86-year old lease), a Washington County farmer lost many cattle that drank from the pond. He could see the fracking wastewater “flowing back into the field, into the pond the cows drink from. It was flowing brown and muddy looking into the snowy field.” Several cattle were born with cloudy white eyes and no pupil, some were still born, some bled from the nose, others finally collapsed and died a few years later. This pattern continued until he fenced off the pond. His drinking water also turned brown and tasted salty. Of the dead cattle the DEP said it must just be “a farmer's luck,” and they refused to test the pond, noting that it was not for human consumption.
All over Washington County, and anywhere unconventional gas development has been particularly intense, there are similar stories; people dealing with frequent headaches, nosebleeds, vertigo, sores, neuropathies, and other ailments. They are finding toxins like formaldehyde, benzene, phenol, arsenic, toluene, glycol ethers, acrylonitrile, styrene, tetrachlorine, acetone, and xylene, in their water, air, and in their blood. But what else do these people in Pennsylvania, in Colorado, and everywhere else have in common?
The burden of proving harm is almost always on them.
When the gas rigs, pipelines, condensate tanks, frack pumps, wastewater impoundments, gas flares, diesel trucks, compressor stations, frack sludge dumps, ethylene crackers, cryogenic plants, deep well injection sites, and frack sand mining quarries roll into town – it's the people with the nosebleeds and vertigo who are expected to “prove” to the world or to the courts that their concerns might be worth taking seriously.
The well known Precautionary Principle states, roughly, that when human activities may lead to morally unacceptable harm that is scientifically plausible, but uncertain, the burden of proof for lack of harm rests on those who would introduce this activity. Makes sense. It's even been made a statutory requirement in the European Union.
Instead, the scenario often goes like this: We just want to live our lives in peace, but then they roll into town, all smiles and promises, and start dumping toxins into our water and air, drastically transforming our lives and our environment. If we somehow make it past the 24-7 hum of reassuring television ads to actually make a complaint, they either point out that the state has allowed them to put this amount of toxins into our bodies, and point to a permit and regulations that makes this evident. Or if we get persistent they just tell us, “Prove it! Where is the incontrovertible scientific evidence that introducing all of these toxins into your bodies and air and water has caused harm?” Of course, that is if they even get past the whole intimidation and our-lawyers-are-bigger-than-yours-so-sign-this-gag-order-for-a-water-buffalo routine.
So if this law, introduced by Councilman Doug Shields, went into effect how would Pittsburgh be in any different a position that any other municipality in this regard?
Let's take a look at the ordinance; specifically section (f) under Statements of law. “Persons, corporations, and other entities engaged in the manufacture, generation, sale, mining, distribution, application, transportation, use or disposal of toxic or potentially toxic substances used in unconventional natural gas extraction and detected within the body of any resident of Pittsburgh or within any natural community or ecosystem within the City shall be strictly liable for the deposition of toxic substances and potentially toxic substances into the bodies of residents of the City and within natural communities and ecosystems within the City. Persons, corporations, and other entities covered by this section shall be deemed strictly liable if one of their toxic or potentially toxic substances is discovered within the body of a City resident or within any natural community or ecosystem within the City. The municipality’s showing of the existence of that substance within the body of a resident living in the City or within a natural community or ecosystems within the City, and the municipality’s showing that the Defendant(s) are responsible for the manufacture, generation, sale, mining, distribution, application, transportation, use or disposal of that substance within the City or migrating into the City, shall constitute a prime facie showing of causation under a strict liability standard. Current and future damages resulting from the these parties’ trespass shall be assumed, and the burden of proof shall shift to the culpable parties for a showing that the substance could not cause harm or contribute to causing harm, either alone or in combination with other factors, or that the parties are not responsible for the trespass of that particular substance into the body of residents of the City or within a natural community or ecosystem within the City.”
In other words, the ordinance, amongst other important things, codifies the Precautionary Principle into law. It further recognizes the authority of not just the City Council, but of any City resident to enforce the law in Court.
Moreover the ordinance holds governing bodies accountable as well. But why? Is the state, for instance, as a governing body really responsible for what a corporation does?
As reported in the Pittsburgh Tribune Review, earlier this month the Pittsburgh Water and Sewer Authority “accused four industrial wastewater treatment plants on the Allegheny River and its tributaries of increasing bromide levels in the river that supplies drinking water to nearly 500,000 people.” The article goes on further to state that “Stanley States, PWSA's water quality director, said he suspects the privately owned plants are processing wastewater from Marcellus shale gas drilling operations, which contains bromide, a naturally occurring salty compound that can form cancer-causing agents (trihalomethanes) when it combines with the chlorine in drinking water. "We can pretty much tell where the bromide is coming from and these (wastewater) plants are primary contributors," States said. "We've called them and given them our data. They have as much as told us that unless there's a real mandate, a legal requirement that they no longer dispose of this stuff, that they're going to do it. There's a lot of money involved."”
Earlier, on June 19th, the Tri-County Joint Municipal Authority alerted their water customers to high levels of trihalomethanes in their tap water.
While studies do “show a link between ingestion of and exposure to trihalomethanes and several types of cancer and birth defects,” it's important to also consider that there are quite a lot of other chemicals that can be present in these fracking fluids being dumped into our drinking water supply. Of 649 chemicals analyzed in fracking fluids by Dr. Theo Colborne, only 362 had CAS numbers to even identify them. Of these, “Over 78% of the chemicals are associated with skin, eye or sensory organ effects, respiratory effects and gastrointestinal or liver effects. The brain and nervous system can be harmed by 55% of the chemicals. These four health effect categories are likely to appear immediately or soon after exposure. They include symptoms such as burning eyes, rashes, coughs, sore throats, asthma-like effects, nausea, vomiting, headaches, dizziness, tremors, and convulsions. Other effects, including cancer, organ damage, and harm to the endocrine system, may not appear for months or years later. Between 22% and 47% of the chemicals were associated with these possibly longer-term health effects. Forty eight percent of the chemicals have health effects in the category labeled ‘Other’. The ‘Other’ category includes such effects as changes in weight, or effects on teeth or bones, for example, but the most often cited effect in this category is the ability of the chemical to cause death.”
Of course, it might be that the Pittsburgh residents would prefer that these things were not dumped in their water at all.
What does the state have to say about that? Well, the state says that Pittsburgh residents will just have to accept their “fair share” of the toxins.
When a state agency issues permits to dump fracking waste into Pittsburgh's drinking water, they are not an innocent party. The permits they issue do exactly that, they permit the harm to occur. The permits also serve as a protection from liability for the one doing the harm. And to anyone that has attended a municipal hearing over the last few years across Pennsylvania, it is clear that quite often the state is issuing these permits against the will of the people who, unlike the folks in Harrisburg, have to live with the consequences. That is, the state licenses a third party to come into your community and harm it, against the consent of the governed, and does it all in the name of and by the authority of the people of the Commonwealth of Pennsylvania. That is what the state has to say about that.
What do the people Pittsburgh have to say about it? If the language of the ordinance is any indication, I'm going to guess quite a lot. If the residents choose to make their voice and presence known on this issue over the next few weeks, I guess we'll find out.
City Council member Doug Shields to introduce "Toxic Trespass" legislation
The Endocrine Disruption Exchange
Bromide levels in Monongahela River rose in 2010, remain high
Bromide still high in Monongahela River, scientists say
Science Lags as Health Problems Emerge Near Gas Field
The Fracturing of Pennsylvania
Terry Greenwood speaking
Gas drilling impacts: PA farmer Terry Greenwood