Environmental/Property Damage

New York State’s Department of Health (DOH) Acting Commissioner, Dr. Howard Zucker, has recommended that hydraulic fracturing be banned.  According to a press release issued today, the DOH has determined that significant questions and risks to public health from fracking are unanswered making it “reckless” to allow fracking in New York State.

According to Dr. Zucker, “it would be reckless to proceed in New York until more authoritative research is done.”  One motivating factor in Zucker’s decision was that he would not let his family live in a community with fracking so he could not recommend that anyone else’s family live in such a community either.
Continue Reading New York to Ban Fracking

Researchers have developed a small organic molecule that assembles into a porous structure and absorbs hydrocarbons and their derivatives, many of which are potent greenhouse gases.  The material is lightweight, as well as thermally and hydrolytically stable.  For anyone involved in the emission and capture of greenhouse gases, recent developments in nanotechnology, or just simply interested in the climate change issue, this new research represents a potentially groundbreaking development in the battle to combat greenhouse gases.

A University of Houston-led team conducted the research and published it last month in Nature Communications.   Titled Thermally robust and porous noncovalent organic framework with high affinity for fluorocarbons and CFCs, the study reports that the nanoporous structure can capture as much as 75% of its weight in hydrocarbons and fluorocarbons.
Continue Reading Nanomaterials Fight Ozone-Depleting Greenhouse Gases

New York’s highest court has determined that towns could use local zoning ordinances to ban hydraulic fracturing (fracking).  The decision, issued June 30, 2014, is an important development in the debate about how fracking activities can be effectively “regulated” at the local level.   The New York Court of Appeals determined that the ordinances banning fracking were reasonable exercises of the towns zoning authority.  According to the Court of Appeals:  [the towns] engaged in a reasonable exercise of their zoning authority . . . when they adopted local laws clarifying that oil and gas extraction and production were not permissible uses in any zoning districts.”
Continue Reading New York Court Upholds Local Zoning Ordinances Banning Fracking

Black lung disease is not a relic of the past.  A study released last month in the American Thoracic Society Journal shows a resurgence of the disease.  Using data from the National Institute for Occupational Safety and Health (NIOSH), the researchers found an eightfold increase in the past 15 years and the highest recorded levels since the federal government began regulating coal dust more than 40 years ago.

The prevalence of progressive massive fibrosis in the lungs of the coal workers studied was at the highest level since the early 1970s.
Continue Reading Incidence of Black Lung Disease Reaches a 40-Year High

Conducted as part of the National Energy Technology Laboratory research for the Department of Energy, a new study has encouraging findings regarding the impact of hydraulic fracturing.  The study, conducted during hydraulic fracturing of wells in southwestern Pennsylvania, found no detectable migration of gas or aqueous fluids, and that the impact of hydraulic fracturing on the rock mass did not extend to the Upper Devonian/Lower Mississippian gas field during or after hydraulic fracturing.
Continue Reading Fracking Study Finds No Detectable Gas or Fluid Migration

Earlier this month, the Connecticut Supreme Court affirmed summary judgment in favor of an auto manufacturer holding that the plaintiff cannot save his claim by relying on an unspecified product defect under the “malfunction theory” of product liability.  In White v. Mazda Motor of America, Inc., et al., the plaintiff asserted a personal injury and property damage claim against the defendants after his Mazda3 caught fire one month after his purchase of the new vehicle.  The plaintiff alleged a specific defect in the design of the vehicle’s fuel system, but his only expert witness “declined to offer an opinion about whether the plaintiff’s vehicle was defective.” The trial court, therefore, granted defendants’ motion for summary judgment.

A malfunction claim must be pled and cannot be used as a fallback after a plaintiff’s claim of a specific defect fails. 

On appeal, plaintiff claimed he could prove his case by claiming the existence of some unspecified product defect under the malfunction theory of product liability.  The Appellate Court determined that the plaintiff had not raised the malfunction theory in trial court and thus did not preserve the issue for appellate review.  The Connecticut Supreme Court held that a malfunction claim must be pled and cannot be used as a fallback after a plaintiff’s claim of a specific defect fails.  Without pleading the facts necessary to support a malfunction claim, plaintiff did not put defendants on notice and as a result, “[n]either the defendants nor the court had any reason to believe that the plaintiff also was raising a malfunction theory claim.”
Continue Reading Alleged Unspecified Defect Not Sufficient to Prevent Summary Judgment in Fire Case

A Yale-led study suggests that natural gas drilling activities could be associated with increased reports of dermal and upper respiratory symptoms in nearby communities.  The study, “Proximity to Natural Gas Wells and Reported Health Status: Results of a Household Survey in Washington County, Pennsylvania,” was published in Environmental Health Perspectives.

Researchers affiliated with Yale University, University of Washington, and Colorado State University conducted a health symptom survey of 492 persons in 180 randomly selected households with ground-fed water wells in southwestern Pennsylvania’s Washington County.  The county was, at the time of the survey, home to 624 active natural gas wells.  The survey sought information regarding dermal, respiratory, gastrointestinal, cardiovascular, and neurological symptoms.  Respondents also answered questions about environmental hazards in the community, air quality, water quality, soil quality and environmental noise, odor, and traffic concerns.
Continue Reading Hydraulic Fracturing May Be Pathway to Future Mass Tort Liability

According to a new study, hydrocarbon gas contamination in drinking water close to hydraulic fracturing activity is likely caused by breaches of well integrity from casing or cementing issues, and not from upward migration of gas from deep formations.  A study by researchers from five different universities, and published in the Proceedings of the National Academy of Sciences of the United States, found that fugitive gas contamination is most likely associated with casing or cementing issues that compromise well integrity.  “[O]ur data do not suggest that horizontal drilling or hydraulic fracturing has provided a conduit to connect deep Marcellus or Barnett Formations directly to surface aquifers.”  The study, titled “Noble gases identify the mechanisms of fugitive gas contamination in drinking-wells overlying the Marcellus and Barnett Shales,” was conducted by researchers from Duke University, The Ohio State University, Stanford University, Dartmouth College, and University of Rochester.

The researchers used noble gas and hydrocarbon tracers to distinguish between natural and anthropogenic sources of methane contamination and aimed to study two issues: (a) are elevated levels of hydrocarbon gas in dinking water aquifers near gas wells the result of natural or anthropogenic sources, and (b) if fugitive gas contamination exists, what mechanisms cause it.  Analyzing 113 samples of drinking-water wells overlying the Marcellus Shale, and 20 samples overlying the Barnett Shale, the researchers identified eight discrete clusters of fugitive gas contamination (seven in Pennsylvania and one in Texas).
Continue Reading Hydraulic Fracturing And Drinking Water

The Illinois Department of Natural Resources (IDNR) has submitted revised rules that could significantly impact hydraulic fracturing operations, and liability resulting therefrom.  These revisions impact chemical disclosure requirements, trade secret protections, and presumptions of liability for pollution.  On August 29, 2014 the IDNR submitted its Second Notice of Revised Administrative Rules for High Volume Hydraulic Fracturing (fracking) to the Joint Committee on Administrative Rules (JCAR).  According to the IDNR, the revisions substantially strengthen and clarify several sections of the proposed rules based on “a record level of public participation.”
Continue Reading Illinois DNR Submits Revised Administrative Fracking Rules