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Frac Sand Mining: Legal Strategies to Address Uncertain Health Impacts

posted on Wed, Apr 10 2013 10:15 am by Jill Krueger

By now, many people are aware of the rise in hydraulic fracturing, or fracking, a natural gas extraction method that involves pumping enormous quantities of water, chemicals and sand deep below the surface of the earth. But most people probably have not thought about where all of that silica sand used in fracking comes from.

According to the U.S. Geological Survey, the leading states for production of silica sand are Texas, Illinois, Wisconsin, Minnesota, Arkansas, Missouri, Michigan and Oklahoma. In recent years, over half of the sand and gravel produced in the U.S. were used for hydraulic fracturing sand, and well-packing and cementing sand. Put another way, the amount of sand mined in the United States has essentially doubled in recent years.

Prolonged or intense exposure to small particles of crystalline silica dust can lead to silicosis, a serious respiratory disease. In fact, the National Institute for Occupational Safety and Health (NIOSH) and the Occupational Safety and Health Administration (OSHA) have provided guidance to mitigate the occupational health hazards of hydraulic fracturing, including exposure to silica sand. Yet the rapid growth, scale and intensity of sand mining operations in Wisconsin and Minnesota, in particular, have raised new questions among environmentalists, those charged with maintenance and safety of rural roads and highways, and those in the tourism industry.  

Efforts to study the health impacts of fracking are gearing up. In December, The EPA released a report on the health impacts of fracking on drinking water. Geisinger Health System, based in Pennsylvania at an epicenter of fracking activity, has announced plans to study the effects of fracking upon patients within its service area. Some legislators in New York have urged that a moratorium be extended until the Geisinger Study is completed. Similarly, the Center for Excellence in Environmental Toxicology at the University of Pennsylvania has begun efforts to study the health effects of fracking.

Yet it does not appear that comparable major studies of the health effects of exposure to ambient silica sand dust for neighbors and community members of frac sand mining operations are underway. This leaves local and state health departments to gather data, attempt to educate the community and protect health on the basis of evidence that is less than complete. Of course, this kind of situation arises in many areas of public health. But discussions about fracking can often divide a community along lines of job creation and public health.

To date, many of the legal strategies to address the uncertain health impacts of fracking have been implemented at the local level. These have included moratoria on new and expanded sand mines, zoning to designate areas where sand mining is and is not allowed, licensing, reclamation licenses, conditional use permits, and environmental review. The Wisconsin Towns Association has convened experts, provided a forum to discuss strategies, and posted resources on its website.

In Minnesota, the state Pollution Control Agency enforces standards for air quality permits, yet acknowledges that there is no generally recognized ambient monitoring system for the smallest particles of crystalline sand dust, which may pose the greatest risks to health. In 2012, the Wisconsin Department of Natural Resources released a report analyzing environmental impacts of silica sand mining. 

In Minnesota, three bills to address frac sand mining have been introduced in the current legislative session. At least one of these bills calls for a generic environmental impact statement, though it remains to be seen whether Minnesota or Wisconsin will conduct a full health impact assessment of frac sand mining. We can be certain that as the demand for frac sand continues unabated, these debates will extend beyond Minnesota and Wisconsin and into other states with large sand deposits.

The Network plans to prepare materials to describe and assess legal strategies to mitigate the health impacts of frac sand mining at the local, state, and federal levels in the coming months. If you have questions you would like to have addressed, or model approaches you would like to share, please contact the Network.

This blog post was prepared by Jill Krueger, J.D., senior attorney at the Network for Public Health Law – National Coordinating Center at the Public Health Law Center at William Mitchell College of Law.

The Network for Public Health Law provides information and technical assistance on issues related to public health. The legal information and assistance provided in this document does not constitute legal advice or legal representation. For legal advice, readers should consult a lawyer in their state. The views expressed in this blog do not represent those of the Robert Wood Johnson Foundation.

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