DISPUTE RESOLUTION: Tort Litigation: FERC Denies Marcellus Shale Natural Gas Radon Lung Cancer Risk Claim by Ralph H. Johnson

by King & Spalding
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The Federal Energy Regulatory Commission (FERC) recently rejected claims that radon in Marcellus Shale natural gas would lead to thousands of lung cancer deaths. These claims arose from FERC’s May 21, 2012 grant of a certificate to Spectra Energy Corp subsidiaries Texas Eastern Transmission LP and Algonquin Gas Transmission LLC to construct approximately 20 miles of natural gas pipeline from New Jersey to New York with a capacity of 800 million cubic feet per day. The Sierra Club and other groups requested FERC to revoke Spectra’s certificate, complaining that the Commission had failed to consider several issues, including the “significant impacts of radon exposure to end users of the natural gas transmitted through the project pipeline.”

The Sierra Club’s radon assertions rested upon claims by Dr. Marvin Resnikoff that allowing natural gas from the Marcellus Shale geologic formation to be used by New York consumers in gas stoves would result in 1,182 to 30,448 potential lung cancer deaths.[1] Dr. Resnikoff first argued that the radon concentration in Marcellus Shale natural gas was “up to 70 times the average in natural gas wells throughout the U.S.” He based this claim – not on actual measurements of radon in Marcellus Shale natural gas – but upon his own interpretation of poor copies of gas well logs from which he could not determine specific measurements. Dr. Resnikoff also relied upon a “simple Fortran program,” but he failed to disclose the program.

The second part of Dr. Resnikoff’s claim pertained to the radioactive decay of radon as it is transported from the wellhead to the consumer. As radon has a short 3.8 day half-life and moves about 10 miles an hour inside natural gas pipelines, radon in natural gas from distant sources, such as Louisiana and Texas, substantially decays before it reaches a New York consumer. Dr. Resnikoff asserted that substantial radon in natural gas from the nearby Marcellus Shale formation in Pennsylvania and adjoining states would remain in the natural gas as it reached a consumer because of the shorter transport distance and time.

To respond to Sierra Club’s challenge, Spectra Energy retained Dr. Lynn R. Anspaugh, a leading authority on radiation dosimetry, and independent environmental engineers to assess natural gas samples along the transmission line from the Marcellus Shale gas fields to the point where the line would enter New York. Spectra took this step because no Marcellus Shale data were available: the States of Pennsylvania and New York had not analyzed natural gas supplies for radon. The U.S. Geological Survey had taken samples, but its results were still undergoing internal review, and it was unlikely that the results would be available before Spectra’s response was due. The independent testing results confirmed Spectra’s position: the radon concentration at the point where the gas line would enter New York was approximately 17 picocuries per liter – over 150 times lower than Dr. Resnikoff’s 2,576 picocuries per liter estimate upon which his 30,000 lung cancer deaths claim was based. The average radon concentration from the gas fields to the New York entry point was 28.46 picocuries per liter, with a range of 16.9 to 44.1 picocuries per liter. Moreover, although the Geological Survey results were not released until after Spectra Energy had submitted its response to Sierra Club’s objections, the USGS results averaged 37 picocuries per liter;[2] i.e., they were fully supportive of the Spectra Energy conclusions.

In a October 18, 2012 decision, FERC denied the Sierra Club challenge, finding that the pipeline “project’s potential transportation of Marcellus-sourced gas will not pose a health hazard to end users.”[3]
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[1] Motion to Supplement the Record of the Sierra Club, Food & Water Watch, and No Gas Pipeline, Attachment A (“Radon in Natural Gas From Marcellus Shale,” Marvin Resnikoff, Radioactive Waste Management Associates, Executive Summary, January 10, 2012),
p. 2
[2] “Radon-222 Content of Natural Gas Samples from Upper and Middle Devonian Sandstone and Shale Reservoirs in Pennsylvania: Preliminary Data,” E.L. Rowan and T.F. Kraemer, U.S. Geological Survey (July 26, 2012); available at: http://pubs.usgs.gov/of/2012/1159/.
[3] Order Denying Requests for Rehearing, Reconsideration, Stay, and Late Intervention, U.S. Federal Energy Regulatory Commission, Docket No. CP11-56-001, 141 FERC ¶ 661,043, p. 29.


Ralph H. Johnson
Washington, D.C.
+1 202 626 2943
rhjohnson@kslaw.com

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