"Are You Controlling Your Workers' Exposures to Silica?"
Brendan OConnor
http://www.energypulse.net/centers/article/article_display.cfm?a_id=2582 Are You Controlling Your Workers' Exposures to Silica? 10.30.12 Sharon Caffrey, Partner (Philadelphia), Duane Morris LLP  Julie Greenberg, Special Counsel, Duane Morris LLPKenneth Argentieri, Partner (Pittsburgh), Duane Morris LLPI. Introduction The natural gas industry in Pennsylvania, Ohio and New York is rapidly expanding with the development of the Marcellus and Utica shale formations. However, these developments have not been immune to health and safety concerns, which have focused primarily on groundwater contamination arising from the hydraulic fracturing process. Earlier this year, the Occupational Safety and Health Administration (OSHA) warned of another safety concern -- field workers' exposure to toxic substances at hazardous concentrations. On June 22, 2012, OSHA issued a Hazard Alert for crystalline silica exposures to workers in the hydraulic fracturing industry.1 Members of the hydraulic fracturing industry should not ignore the risks posed by these exposures, and indeed, can manage those risks by employing several simple strategies.
II. OSHA's Hazard Alert
OSHA's Hazard Alert warns of the risk of silicosis among workers in the shale gas industry based on field studies at 11 drilling sites in five states performed by the National Institute for Occupational Safety and Health (NIOSH).2 The NIOSH data indicated that 47% of dust samples collected showed silica exposures greater than the OSHA Permissible Exposure Limit (PEL), and 79% of dust samples showed exposures greater than the OSHA Recommended Exposure Limit (REL).3 More concerning is the fact that 31% of all samples showed silica exposures in excess of 10 times the REL, with one sample more than 100 times the REL. NIOSH's release of the data in late April 2012, followed by the June 2012 OSHA Hazard Alert specifically warning of the risks associated with overexposure to respirable crystalline silica, is a wake-up call for the gas industry. Mass numbers of silica claims in other industries virtually disappeared overnight in 2005 following the discovery by Judge Janis Graham Jack in the federal silica MDL of potentially fraudulent diagnoses by plaintiffs' medical experts.4 However, the evidence collected by OSHA, if left unheeded by the industry, could spur the plaintiffs' bar to a new round of mass silicosis filings.
III. Silicosis Exposures in Shale Gas Drilling
In shale gas drilling operations, large amounts of water, sand and other chemicals are pumped into the well to create hydraulic fractures in the shale formation. The fractures allow the natural gas to escape and be extracted from the well. Although much attention has been focused on the hazards associated with the wastewater stream from these "fracking" operations, the recent NIOSH study has shown the potential for significant hazardous airborne silica exposures as well. The process of fracking employs millions of gallons of water pumped into the shale formation. The single largest additive to fracking water is silica or sand that helps open tiny fissures in otherwise tight shale formations to release trapped natural gas. As much as three to four million pounds of sand may be used at a single drilling site. The primary sources of silica dust exposures for workers arise from the process of transferring, refilling and blending sand at the drilling site before it is added to the fracking fluid. These sand handling operations can result in significant and visible clouds of dust, from which NIOSH measured high silica exposures.
The NIOSH data may be subject to some criticism due to the relatively limited number of samples collected, but the sampling results themselves cannot be ignored. Of particular concern is OSHA's warning that traditional half-face respirators may not be sufficiently protective of workers in high exposure environments. In addition to worker exposure concerns, visible dust clouds of potentially respirable silica open the door to claims from already disgruntled community members. Silicosis has a variable latency period that can be dependent on the nature and extent of the overexposure. According to OSHA, the latency period can range from as little as a few months in acute overexposure circumstances to 10 to 20 years in low to moderate overexposures.5 If overexposure in fracking operations is as extreme as the initial data suggest, claims against the shale gas drilling industry could begin to surface within the next few years.
IV. Heightened Scrutiny for New Silicosis Claims
Overexposure to respirable crystalline silica has been long known to cause silicosis and also has been linked to various forms of cancer. Silicosis and other silica-related injury claims are nothing new to the judicial system. Silicosis litigation is well-developed. The steel and other industries that use vast quantities of sand were defending mass numbers of silicosis claims even before the huge wave of asbestos claims in the early 1980s. More recently, courts experienced an exponential growth in claims between 2002 -- 2004 nationwide. With a substantial growth in the number of claims in the early 2000s, a federal silica MDL was established in 2003 and assigned to Judge Janis Graham Jack in Texas. In 2005, following Daubert proceedings, mass silicosis litigation largely came to a halt across the United States when Judge Jack issued an opinion in the silica MDL that was highly critical of plaintiffs' counsel and their medical experts. In particular, Judge Jack found that plaintiffs' counsel and their experts were generating litigation and a mass tort through fraudulent diagnoses of silicosis.6 What followed were mass dismissals of silica suits in the MDL and state courts across the country, as well as a grand jury investigations of plaintiffs' counsel and two of their medical experts in New York and Texas. Seemingly overnight, silicosis went from a mass tort to a bad word spoken only in a whisper.
In the seven years since Judge Jack's opinion was issued, silicosis litigation has diminished to a trickle of a few hundred cases nationwide. If OSHA's report and data are representative of silica exposures at fracking operations nationwide, a new wave of silicosis claims may once again be knocking on the courthouse doors. The legacy of Judge Jack's opinion is likely to result in heightened scrutiny of any medical experts proffering a silicosis diagnosis. Moreover, the nature of mass medical screenings and the continued difficulty of diagnosing silicosis is likely to result in Daubert challenges and protracted discovery and motions practice. In short, litigating any silicosis claims arising from fracking operations could present challenges to both plaintiffs and defendants.
V. Recommendations
As recommended by OSHA, employers and contractors in shale gas drilling operations should conduct air monitoring for respirable dust to ascertain their workers' exposures to silica. Engineering controls and work practices also should be reviewed and updated, as needed, to control silica exposures. Furthermore, employers should ensure that appropriate personal protective equipment, including respiratory protection, is available to all on-site workers and that necessary training is up to date.
In addition, experienced legal counsel can work with certified industrial hygienists to establish and review health and safety practices and programs to ensure compliance with OSHA and other relevant health and safety and environmental statutes and regulations governing the shale gas industry. Well-established and documented health and safety programs that encompass monitoring, training and compliance reporting are often the best way for employers to keep their workers safe and defend against any future silica claims.
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