Shale Oil & Gas Development

The past dozen years have borne witness to astonishing growth in the frac sand industry. Production of the industrial, silica-based sand required for hydraulic fracturing quadrupled between 2000 and 2009.¹ In the year that closed that decade, "U.S. frac sand producers sold or used more than 6.5 million metric tons of sand."² Then the demand for high-quality pure white quartz sand truly skyrocketed: in 2010, production for use in oil and natural gas extraction doubled to 13 million tons; in 2011, it reached approximately 22 million tons.³ "Currently, 30 companies run 1,055 sand mines, with the largest growth in Wisconsin, Arkansas and Michigan."⁴

Nonetheless, those engaged in hydraulic fracturing in the oil and gas industry today confront a frac sand shortage.⁵ Even with the new sand mines and processing plants that have opened in the recent past, the supply remains unable to meet the demand. (In the hydraulic fracturing process, sand serves as a proppant, holding fissures open so that oil or gas can flow from the shale into the well.) And given that "[f]racking an average well in the Marcellus Shale region alone uses about 7 million pounds of sand,"⁶ the demand is considerable.

The explosive growth in the frac sand industry hasn't been without contention. Environmental groups, as well as certain members of communities facing mine-related activities for the first time or a dramatic increase in those activities, have identified health and environmental concerns, and questioned the activities' impacts on landscape, ecology, property values, air quality, and water quality and quantity.⁷ Additionally, issues have been raised regarding: the impact of the blasting; the lights illuminating industrial areas at night; and the noise from, and impact of, the rail cars and/or trucks transporting the sand.⁸ In response, a number of communities, including five counties and five cities in Minnesota, imposed moratoria on frac sand mining and processing operations.⁹ In March 2012, the city of Winona, Minnesota, for example, imposed a one-year moratorium to study the impact that particular industrial activity has on health, infrastructure and the environment.¹⁰

Concern arising from the industrial activity relating to frac sand production initially focused, in large measure, on that activity's water consumption, its impact on water quality, foliage and wildlife, and its effect on the landscape. But today, the spotlight has narrowed its focus to one issue in particular: silica dust emissions.

The specific question brought to the fore in the past few weeks is whether exposure to crystalline silica presents a health hazard for workers at oil or gas well sites where hydraulic fracturing is performed. Scrutiny with respect to this issue arises as the result of the recent release of information by the National Institute for Occupational Safety and Health (NIOSH). In January 2010, NIOSH undertook a study of occupational health hazards during hydraulic fracturing operations in its Field Effort to Assess Chemical Exposure Risks to Gas and Oil Workers.¹¹ On April 30, 2012, Eric Esswein, an industrial hygienist at NIOSH, presented certain of the initial results of that field study to a panel at the Institute of Medicine (a branch of the National Academy of Sciences that advises the U.S. government on health topics) studying health issues related to fracking.¹²Additionally, that field study's preliminary findings were posted to the NIOSH Science Blog on May 23, 2012.¹³ There, NIOSH advised that "[i]nitial hazard assessments identified exposure to crystalline silica during hydraulic fracturing as the most significant known health hazard to workers[, which] . . . has been the focus of the NIOSH study to date."¹⁴

Excessive exposure to respirable crystalline silica in the workplace is of concern because, if such exposure is prolonged or very intense, it can lead to silicosis, an incurable lung disease.¹⁵ But this disease can be prevented by, among other things, the utilization of personal protective equipment and engineering controls. Indeed, overexposure to airborne crystalline silica has been known to be a health hazard for many decades.¹⁶ As a result, the exposure of workers to respirable silica dust in mining industries is regulated and monitored, and safety measures are customary.¹⁷

To evaluate worker exposure to crystalline silica in the context of hydraulic fracturing operations, NIOSH conducted its field study by collecting 116 air samples at 11 different hydraulic fracturing sites in Pennsylvania, Texas, Arkansas, Colorado, and North Dakota.¹⁸ Esswein and his team took air samples from workers and near wellheads, but did not take measurements at the edges of well sites.¹⁹ At each of the 11 sites tested, exposures to respirable crystalline silica consistently exceeded relevant exposure limits, Esswein reported.²⁰ Seventy-nine percent of those 116 air samples exceeded NIOSH's recommended exposure limit (REL).²¹ "The magnitude of the exposures is particularly important; 36 of the 116 (31%) samples exceeded the NIOSH REL by a factor of 10 or more."²²

Given its initial hazard assessments, NIOSH recommended that "all hydraulic fracturing sites evaluate their operations to determine the potential for worker exposure to crystalline silica and implement controls as necessary to protect workers."²³ In light of its study's preliminary findings, NIOSH advised further that it had determined that workers' proper usage of half-mask air-purifying respirators did not suffice as a means of protection: "Given the magnitude of silica-containing, respirable dust exposures measured by NIOSH, personal respiratory protection alone is not sufficient to adequately protect against workplace exposures."²⁴

Additionally, at its science blog, NIOSH set forth suggestions for controlling workers' silica dust exposure at sites where fracking is conducted.²⁵ Further, NIOSH noted that it "is designing conceptual engineering controls to minimize exposure during hydraulic fracturing," a working prototype for which it expects to release shortly.²⁶

Esswein intends to publish the data collected in NIOSH's field study in trade and scientific journals this year.²⁷ In advance of that, Esswein's presentation to the Institute of Medicine concerning NIOSH's initial hazard assessments, and the entry he and his team made to the NIOSH Science Blog, nonetheless attracted notice.

The AFL-CIO, for example, was immediately prompted to issue, on behalf of workers involved in hydraulic fracturing activity, an alert to certain federal agencies.²⁸ On May 22, 2012, the AFL-CIO wrote to NIOSH, the Occupational Safety and Health Administration, and the Mine Safety and Health Administration to urge that these federal bureaus begin working with the oil and gas extraction industry to implement policies and procedures to protect workers from excess exposure to silica dusts and the attendant risk of silicosis.²⁹

No doubt others have also taken note. Indeed, Esswein's report that the preliminary findings included determinations that nearly 4 out of 5 air samples exceeded NIOSH's REL for respirable crystalline silica, and that approximately one-third of the air samples exceeded that REL by a factor of 10 or more, likely caught the attention of the plaintiffs' bar, environmental organizations, or both.

The potential for excessive inhalation of respirable crystalline silica dust by those engaged in hydraulic fracturing is an issue NIOSH has now identified, at least preliminarily, as one warranting serious consideration by industry participants. Businesses conducting hydraulic fracturing operations, as well as those conducting frac sand mining and operations, should not ignore the initial hazard assessments of NIOSH's field study but should instead follow the developments relating to NIOSH's efforts closely. It remains to be seen whether, upon release of the additional details and information concerning that study, the data, methodology and preliminary findings will survive scrutiny by peer groups and other experts. Nonetheless, at present, the potential for silica dust overexposure is an issue to which those performing hydraulic fracturing activity and those engaging in frac sand production must direct their attention. Moreover, up until this point, proppant manufacturers had not found themselves at the center, or even at the edges, of the ongoing discourse - and litigation - concerning hydraulic fracturing. But, as a result of the preliminary findings in NIOSH's field study, that dynamic is likely to change. A shift in focus has occurred, and the role of sand in hydraulic fracturing operations has been moved to the foreground and into the spotlight. From this point forward, in discussion of the implications of hydraulic fracturing, and in litigation arising from those operations, the crystalline silica industry should no longer expect to remain on the sidelines.

Footnotes

1. "US Silica: The First IPO in the 'Fracking Sand' Industry," Oil and Gas Investments Bulletin (Feb. 17, 2012) at http://oilandgas-investments.com/2012/stock-market/us-silica-ipo-fracking-sand/.
2. S. Karnowski, "Fracking for oil, gas spurs sand mining in Midwest," USA Today (Jan. 5, 2012) at http://www.usatoday.com/money/industries/energy/story/2012-01-08/fracking-boom-sand-mining/52398528/1.
3. "US Silica: The First IPO in the 'Fracking Sand' Industry," Oil and Gas Investments Bulletin (Feb. 17, 2012) at http://oilandgas-investments.com/2012/stock-market/us-silica-ipo-fracking-sand/.
4. L. Barker, "Precise Measurement Crucial for Fracturing Sand Storage," Upstream Pumping Solutions (Winter 2012) at http://www.upstreampumping.com/article/well-completion-stimulation/precise-measurement-crucial-fracturing-sand-storage.
5. "US Silica: The First IPO in the 'Fracking Sand' Industry," Oil and Gas Investments Bulletin (Feb. 17, 2012) at http://oilandgas-investments.com/2012/stock-market/us-silica-ipo-fracking-sand/.
6. Id.
7. E. Cantarow, "How Rural America Got Fracked," TomDispatch.com (May 20, 2012) at http://www.tomdispatch.com/archive/175544/.
8. Id.
9. E. Baier, "Winona passes one-year moratorium on frac sand mining," MPR News (Mar. 15, 2012) at http://minnesota.publicradio.org/display/web/2012/03/15/winona-passes-moratorium-on-frac-sand-mining/.
10. Id.
11. "NIOSH Field Effort to Assess Chemical Exposure Risks to Gas and Oil Workers," NIOSH Publications and Products, Centers for Disease Control and Prevention (Jan. 2012) at http://www.cdc.gov/niosh/docs/2010-130/.
12. A. Wayne, "Fracking Sand Threatens Gas Well Workers Researcher Says," Bloomberg News (Apr. 30, 2012) at http://www.bloomberg.com/news/2012-04-30/fracking-sand-threatens-gas-well-workers-researcher-says.html.
13. E. Esswein, M. Kiefer, J. Snawder & M. Breitenstein, "Worker Exposure to Crystalline Silica During Hydraulic Fracturing," NIOSH Science Blog, Centers for Disease Control and Prevention (May 23, 2012) at http://blogs.cdc.gov/niosh-science-blog/2012/05/silica-fracking/.
14. Id.
15. J. Elliot, "US body delays '$5bn' decision on silica sand exposure," Industrial Minerals (Feb. 27, 2012) at http://indmin.com/Article/2985927/US-body-delays-5bn-decision-on-silica-sand-exposure.html.
16. J. Colinet, A. Cecala, G. Chekan & J. Orgaiscak, "Best Practices for Metal/Nonmetal Mining," NIOSH, Centers for Disease Control and Prevention, Office of Mine Safety and Health Research, Information Circular 9521 (May 2010).
17. Id.
18. E. Esswein, M. Kiefer, J. Snawder & M. Breitenstein, "Worker Exposure to Crystalline Silica During Hydraulic Fracturing," NIOSH Science Blog, Centers for Disease Control and Prevention (May 23, 2012) at http://blogs.cdc.gov/niosh-science-blog/2012/05/silica-fracking/.
19. A. Wayne, "Fracking Sand Threatens Gas Well Workers Researcher Says," Bloomberg News (Apr. 30, 2012) at http://www.bloomberg.com/news/2012-04-30/fracking-sand-threatens-gas-well-workers-researcher-says.html.
20. E. Esswein, M. Kiefer, J. Snawder & M. Breitenstein, "Worker Exposure to Crystalline Silica During Hydraulic Fracturing," NIOSH Science Blog, Centers for Disease Control and Prevention (May 23, 2012) at http://blogs.cdc.gov/niosh-science-blog/2012/05/silica-fracking/.
21. Id.
22. Id.
23. Id.
24. Id.
25. Id.
26. Id.
27. A. Wayne, "Fracking Sand Threatens Gas Well Workers Researcher Says," Bloomberg News (Apr. 30, 2012) at http://www.bloomberg.com/news/2012-04-30/fracking-sand-threatens-gas-well-workers-researcher-says.html.
28. M. Tremoglie, "AFL-CIO alerts worker safety bureaus to silica exposure at fracking sites," LegalNewsline.com (May 25, 2012) at http://www.legalnewsline.com/spotlight/236290-afl-cio-alerts-worker-safety-bureaus-to-silica-exposure-at-fracking-sites.
29. Id.

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