DISPUTE RESOLUTION: Oil & Gas Litigation: New Rule Proposed By OSHA Regarding Silica Exposure Likely To Impact Fracking And Increase Risk Of Litigation

by King & Spalding
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On August 23, 2013, OSHA issued a News Release stating it is proposing a new rule reducing exposure limits for silica aimed at curbing lung cancer, silicosis, and other diseases. The permissible exposure levels under the new rule would be cut 50 percent, from 100 micrograms a cubic meter of air to 50 micrograms. According to OSHA, it currently enforces 40-year-old permissible exposure limits for silica that are outdated and do not adequately protect worker health. OSHA estimates that the proposed rule would result in saving nearly 700 lives per year and prevent 1,600 new cases of silicosis annually.

Some industry representatives such as Marc Freedman, executive director at the United States Chamber of Commerce, have questioned the need for the new rule, arguing that rigorous enforcement of the current standards would be sufficient. According to a recent New York Times article, Mr. Freedman noted that this "could have a big impact on fracking," which "has been doing a lot of good things for the economy."

Even before the new rule, the National Institute for Occupational Safety and Health (NIOSH) issued a "Hazard Alert," stating that it identified exposure to airborne silica as a health hazard to workers conducting hydraulic fracturing operations during recent field studies. In 2012, NIOSH examined concentrations of silica dust in the air at 11 sites around the country where oil and gas are produced by hydraulic fracturing, and found that silica concentrations exceeded the current, more lax OSHA standard in 47 percent of the 116 samples taken at the 11 sites. More than three-quarters of the samples, or 79 percent, were greater than the more stringent 50-microgram standard now proposed by OSHA. The Hazard Alert states that engineering controls, work practice, protective equipment, and product substitution, along with worker training, is needed to protect workers and identifies safety procedures that should be implemented.

An August 23 Los Angeles Times article reports that Dr. David Michaels, Assistant Secretary of Labor, stated: "When we got the NIOSH presentation and saw those numbers, we immediately reached out to the oil and gas industry." "Many of them agreed that these data raise very serious concerns, and we're working with industry to reduce exposure to silica." Michaels said he thought the oil and gas industry would meet the tougher silica limits even before they are implemented.

Reducing exposure levels to silica by 100 percent for all workers involved in fracking may prove difficult and is certain to significantly increase operational costs. As shown by the NIOSH study, compliance with the old standard has been difficult.

After publication of the proposal, the public will have 90 days to submit written comments, followed by public hearings. It is clear that OSHA expects that its new rule will soon be adopted. Thus, energy companies should soon provide any comments to the EPA and begin the process of planning and budgeting for compliance with the new rule.

If adopted, the new rule would also increase the risk of litigation of companies engaged in fracking for claims by employees of the company and of contractors alleging injury from exposure to silica. In some jurisdictions, the violation of an OSHA rule regarding limits of exposure constitutes "negligence per se," meaning that the jury would be instructed that any violation of the rule is negligence. In many other jurisdictions, although an OSHA violation is not "negligence per se," it is admissible as evidence of negligence. Thus, under the new rule, claimants might only need to prove exposure of more than 50 micrograms to establish negligence, as opposed to the previous limit of 100 micrograms. The proposal is also significant because some jurisdictions do not bar a claim for punitive damages against an employer for gross negligence in employee death cases. An often effective jury argument made by plaintiffs' attorneys is that an employer's deliberate violation of an OSHA safety rule constitutes a conscious indifference to the safety of its employees that deserves severe punishment. Thus, energy companies should be prepared to prove that reasonable measures were taken to ensure compliance with the new rule, and that any violation of the rule was accidental, not intentional.

Finally, not all of the safety measures recommended by OSHA in its Hazard Alert may be necessary for compliance with the new rule. In such cases, company employees should be careful about issuing any misleading statements and communications regarding the new safety measures that plaintiff's attorneys could misconstrue in arguing that a company values profits over worker safety.


 

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