Some would argue that it is because of the upcoming restrictions being forced
on sufferers of asbestos-related diseases. Others would argue that the resulting
dust from the collapse of the World Trade Centers reopened the issue. Still
others are taking a simpler or cynical position—now that we somewhat have our
arms around the "toxic" mold thing, we need some new environmental issue to
abuse.
Silica, the Mineral
Keep in mind, the intent of this article is
to provide the reader with some basic knowledge on the subject matter for those
in the insurance industry and not to create any kind of "technical" or scientific
article on the subject.
When we refer to "silica," we are usually referring mostly to the crystalline
form otherwise known as silicon dioxide (SiO2). There are other, noncrystalline
forms of silica but since most of the issues are centered on the inhalation
of the crystalline form, we'll focus on that form.
There are three major forms of crystalline silica that are most common in
the workplace. They are quartz, tridymite, and crystobailite. The most common
we can probably all relate to is quartz. Quartz can be found in virtually all
soil in nearly every part of the country. The "rock" sandstone is composed of
quartz and can be found in many areas throughout the country except for southern
coastal areas where most beaches are made up of limestone.
Tridymite and crystobalite are simply polymorphs of quartz. In other words,
they are composed of the same elements but have different chemical structures.
An easy example to help understand what is meant by polymorph would be tridymite.
Tridymite, while somewhat rare, can be found in many volcanic rocks. In this
example, the heat associated with volcanoes acts as the catalyst that "morphs"
or changes the chemical structure of the quartz into rocks containing tridymite.
Crystobalite is not too different than tridymite.
To put this into some type of context and to bring some vision to this issue,
consider the eruption of Mount St. Helens back in the 1980s. Those people that
may have been exposed to silica and contracted silica-related respiratory injuries
would most likely have been inhaling tridymite or crystobalite in the dust after
the explosions. Those people in and around the collapse of the World Trade Centers
in 2001 would mostly be inhaling quartz coming from the concrete dust. The point
is simple. Although all are different in chemical structure, all forms of crystalline
silica can eventually be deadly.
Silica, the Killer
Silica is a known carcinogen. The most common disease resulting from overexposure
to silica is silicosis. Silicosis is a disease that scars the tissue of the
lung, making breathing a burden because the lung's ability to extract oxygen
from the air is impeded. The scarring occurs as a result of the body's continual
and unsuccessful fight to rid the silica particles. This can eventually lead
to other diseases and death. As a matter of fact, the U.S. Department of Labor
(DOL) estimates that 300 people die each year from silica-related disease.
Symptoms are fairly well known. The most common is shortness of breath, even
with simple activities, and related coughing or wheezing. Others include fever,
fatigue, loss of appetite, and occasional bluish coloring of the skin at the
ear lobes or lips. Subsequently, silicosis makes the sufferer more susceptible
to other diseases and infections such as tuberculosis and lung cancer. There
are three different types of silicosis. All have similar symptoms but different
"latency" periods, as described in the following exhibit.
| Chronic Silicosis. The most common of all types of silicosis. Symptoms usually occur after
10 years of mild exposure. It is not uncommon for symptoms to arise
up to 45 years after exposure. A common chest X-ray can reveal symptoms
in the lungs. |
| Accelerated
Silicosis. Also known as progressive massive fibrosis, accelerated
silicosis is most likely the rarest form of silicosis. Symptoms develop
quicker than Chronic Silicosis—5 to 10 years—and typically result from
moderate overexposure. Usually results in death after only a few years
of its development. |
| Acute Silicosis. Acute silicosis is the most rapidly developing of the three—causing
massive lung damage in a very short period of time. Symptoms typically
develop within weeks up to 5 years of inhaling very large amounts of
silica. Acute silicosis does not progress to the chronic stages. There
is limited hope for patients with acute silicosis—typically including
a lung transplant. |
Silica, the Workplace Hazard
Silica related products/materials can be found in many workplace environments
throughout various industries. Some of the materials that contain silica include
bricks, concrete, blasting abrasives, mortar, sandstone, topsoil, and asphalt.
The more prominent industries would include manufacturing, mining, farming,
and construction, to name just a few. In general, according to the National
Institute of Occupational Safety and Health (NIOSH), over 1.7 million U.S. workers
are exposed to respirable crystalline silica on a daily basis. Additionally,
an undetermined portion of the 3.7 million agricultural workers may be exposed
to silica containing dust. The tough part about these numbers is they are based
on information provided back in the early 1990s. It is expected that these numbers
would be a bit higher today.
Taking a closer look at the exposure potential for specific industries, the
U.S. Department of Labor's Silica Adviser has actually statistically labeled
some industries with varying risk of death. In the table below, they have labeled
each industry with the associated potential mortality rate (PMR), which is the
observed number of deaths from silicosis divided by the expected number of deaths.
According to the U.S. DOL, a value of 1 indicates no additional risk. A value
of 10 would indicate a risk 10 times greater than normal risk of silicosis.
If you are curious about the potential levels of silica in a specific workplace,
the DOL has created a site—"Comparing
Your Exposure to OSHA's Limit"—to measure those levels against the permissible
exposure limit (PEL) for silica.
Silica, the Insurance Problem?
Over the past 6 or 7 years, silica had popped up every so often as another
environmental issue with catastrophic potential. The issue would be debated,
but no action was taken. That was the good news. However, last year the industry
saw some insurers start attaching silica exclusions to standard liability policies
to ensure they did not cover third-party liability associated with exposure
to the mineral. Although the number of insurers attaching exclusions are few,
the question still is, why now? We've known this to be an issue for many years,
so why now is there concern enough to start attaching exclusions where coverage
was once provided? Most likely, it's the culmination of the three major and
individual events: "toxic" mold, the World Trade Center collapse, and the proposed
restrictions on asbestos-related lawsuits.
Unless you were hiding under a rock on the bottom of the ocean, we all witnessed
the "toxic" mold craze of the past 3 to 4 years. The explosion of claims related
to mold is still on the minds of many insurers. So much so that we'll probably
never see those exclusions come off either property or liability policies. However,
in terms of actual medical causation, silica has a much deeper bite. Being a
known carcinogen (no species of mold is a verified or documented carcinogen),
silica has a much greater potential to inflict irreversible respiratory injury
than mold ever will (at least based on the knowledge we have of mold today).
Based on this alone, there is justification.
Couple this with the increase in silica-related lawsuits, and it appears
to strengthen the case. However, this concern is drastically mitigated since
the population exposed to silica is nowhere near the population exposed to the
entire "toxic" mold thing, and those lawsuits may have ulterior motives.
Another issue that comes to mind is the collapse of the World Trade Center
(WTC). In addition to other airborne contaminants, silica dust was a major concern
created by the actual collapse of the buildings in that section of the city.
The population exposed to those contaminants could easily reach into the millions
when you think of the people that directly inhaled the dust during emergency
response and evacuation, during the post-collapse demolition, and through contaminated
ventilation systems of buildings in the area. While tragic, the mitigating factor
here is the concentration of exposure—primarily limited to lower Manhattan.
The last but most current happening is the restrictions being proposed under
the Fairness in Asbestos Injury Resolution Act (FAIR). One of the proposals
under the FAIR is the establishment of the Asbestos Injury Resolution Fund.
To keep it simple, the fund proposes a cap on compensation to sufferers of asbestos-related
disease, and attorney fees. Industry experts are now concerned that silica will
become a litigation strategy for plaintiff attorneys in the event the FAIR is
enacted and asbestos is literally capped. Attorneys may attempt to link asbestos
with silica and circumvent FAIR.
This is not fact, however. According to Kirk Kolbo with the law firm of Maslon
Edelman Borman & Brand, LLP, in Minneapolis, the number of silica-related lawsuits
increased from about an average of 1,000 per year to almost 20,000 in 2003 nationwide.
No documentation was provided for 2004 but expectations are the same. Those
kinds of jumps make you think. It's even more amazing when you consider that
there have been no major changes or occurrences in the industry to allow these
numbers to make sense.
Since we are on the topic of insurance and third-party liability, keep in
mind that the environmental insurance marketplace does not limit coverage for
silica under basic contractors pollution liability (CPL) and pollution legal
liability (PLL). Silica, as with other contaminants, is considered a pollutant
by definition. The following discussion sheds a little more light on the basic
CPL and PLL products.
Contractors Pollution Liability The contractors pollution liability or CPL policy is available to all types
of contractors—environmental and non-environmental. It is a third-party policy
that provides coverage for bodily injury, property damage, defense, and cleanup
that results from covered operations performed by or on behalf of the insured.
The CPL policy can be provided with either an occurrence or claims-made insuring
agreement. Coverage can be offered with coverage for mold or microbial matter.
The capacity available for CPL in the current marketplace well exceeds $300
million, with the most any one insurer can offer to be $150 million. Forms can
be written with either deductibles or self-insured retentions. The amount of
such is determined by the financial strength of the insured.
The CPL can be structured for all operations on an annual basis or "blanket"
coverage, part of a wrap-up, or just straight project insurance. The policy
term for blanket coverage is limited to 1 year, while the term for projects
or wrap-ups is 10, with longer terms being negotiated on a case-by-case basis.
Lastly, it would be prudent for any contractor entertaining CPL coverage
to pursue the cost of adding pollution coverage for the following:
Pollution Legal Liability The pollution legal liability (PLL) policy is offered to virtually any organization
that owns, leases, rents, acquires, or divests real estate or property. It is
a third-party policy that provides coverage for bodily injury, property damage,
defense, and cleanup that results from pollution conditions (both sudden/accidental
and gradual) or events at, on, under, or emanating from a covered location.
The PLL can be offered for one or multiple locations under one policy. The PLL
is provided with a claims-made insuring agreement. Coverage can be offered with
coverage for mold or microbial matter and can include bodily injury, property
damage, and/or mold cleanup cost. Under a typical PLL policy, there should be
no retroactive date. However, many insurers will attach one to control their
exposure. The retroactive date greatly limits the gradual coverage afforded
under the policy, so it is imperative that it be removed or taken back to a
more defined period (associated with an environmental assessment or other occurrence).
The capacity available for PLL in the current marketplace well exceeds $300
million, with the most any one insurer can offer to be $150 million. Forms can
be written with either deductibles or self-insured retentions. The amount of
such is determined by the financial strength of the insured.
The policy term is determined by the type of risk, client need, and insurer
comfort, and can be offered up to 10 years. Longer terms may be negotiated on
an individual basis.
Lastly, it would be prudent for any organization pursuing PLL to investigate
the cost of adding the following coverage enhancements (if applicable):
The Silica "Risk Profile"
There is no cure for silica-related disease but it can easily be prevented.
The first step in any process is identifying the exposure. An easy way to identify
if an organization is exposed to either first- or third-party liability from
silica is to create a risk profile, specifically, an environmental risk profile
(ERP). This can easily be completed with a basic understanding of an organization's
operations. The ERP can simply consist of the process or activity in which silica
is used. But if you want to complete a comprehensive ERP, create a simple matrix
with additional information such as potential impact to the worker and organization,
personnel responsible, selected management techniques, historic information
(if any), and response protocol.
Managing worker exposure can be fairly easy with some basic techniques:
-
Educate employees. All personnel involved
or around those activities, operations, or processes that use silica and
silica-related products should be trained, at minimum, on proper usage,
personal protective equipment (PPE), preventative measures, and emergency
response protocol.
-
Use a substitute for silica. Where
possible, substitute the silica for a product that does not have silica.
Organizations can look to eliminate the use of abrasive blasting materials
that contain more than 1 percent crystalline silica. By applying this technique,
you actually eliminate the hazard all together. From walnut shells to steel
shot, there may be alternatives that can be substituted.
-
Suppress dust. For manufacturing processes,
use dust control methods such as blast cabinets and wet drilling or sawing.
For construction, similar methods may be used for operations such as dry
cutting concrete, demolition, sand blasting, and excavation.
-
Use personal protective equipment. It is amazing after all we have learned on the issue that concrete cutters
still blow dust all over the place with absolutely no PPE whatsoever. Wearing
disposable or washable protective clothing and utilizing proper respirators
that will capture and prevent inhalation of the crystalline silica can help
protect workers.
-
Conduct regular air monitoring to ensure that
control systems are working. This can provide early indications and
prevent further damage.
-
Post warning signs around areas contaminated
with silica dust.
-
Avoid any type of eating or drinking in areas
where silica containing material or dust exists.
Managing third-party exposure may be a bit more difficult:
-
Educate employees. Similar to the above,
employees should be trained on preventative measures and emergency response
in the event silica containing material is released from a project site
via sand blasting a bridge or some other structure.
-
Use a substitute for silica. As discussed
above, this eliminates the exposure all together.
-
Suppress dust. This may be a bit more
difficult but dusty conditions may be prevented during demolition, dry cutting
concrete, excavation, and so forth by applying water mists or wet cutting,
and creating a protective property "buffer" around project sites to reduce
the number of third parties in the area during those activities.
-
Monitoring air quality. On project
sites, air monitoring in the area during the activity of concern can (1)
act as an earlier response indicator and (2) act as viable documentation
in the event third parties sue for frivolous damages.
-
Post warning notices. Depending on
your philosophy toward liability, this may or may not be a good idea. One
school of thought would argue that warning signs are a sound preventative
measure; the other school of thought may conclude that while warning signs
may prevent third parties from entering an area where there is a hazard,
it may also attract unnecessary attention and resulting liability.
-
Use medical monitoring. Entrance physicals
can also be used as a baseline to determine if employees had preexisting
issues prior to working for the organization. Exit physicals may be used
to document the employee's health during the course of employment. This
documentation can be crucial in the event a former employee sues claiming
the silica exposure occurred during their tenure with the organization.
Conclusion
Silica—much ado about nothing? In the grand scheme of things, I don't think
so. As you can see, disease resulting from silica exposure can be extremely
debilitating not to mention deadly. However, I think there is a lot of unnecessary
"new" talk in the insurance industry about an issue that (1) has been around
for years, (2) regulatory agencies acknowledge as a carcinogen, (3) society
acknowledges as a deadly concern, and (4) many industries have addressed by
instilling preventative measures to reduce or eliminate a worker's exposure
to silica. The one remaining question is this: are these industries addressing
third-party exposure? Many organizations in the construction, agricultural and
mining industries still face third-party liability associated with day-to-day
operations, even if the worker exposure is minimal. From dust generated during
mining operations or demolition to simple excavation activities, organizations
must assess this risk. This exposure cannot be overlooked and must be addressed
on an organization-specific basis.
Lastly, spring is upon us and we all want to get outside. So when you go
for that walk downtown to get some of that "fresh air," watch what you are breathing.
When you see those guys cutting up the concrete to replace the sidewalk with
dust flying everywhere, and those workers have absolutely no protection on,
that doesn't mean a hazard doesn't exist. Think about holding your breath as
you walk past. And move fast!