The Pennsylvania State University

The Graduate School

College of Earth and Mineral Sciences

RESPONSIBILITY FOR EXPOSURE: HEALTH GOVERNANCE OF

RESPIRABLE CRYSTALLINE SILICA IN THE HYDRAULIC FRACTURING

INDUSTRY

A Dissertation in

Geography

by

Arielle Leah Hesse

2018 Arielle Leah Hesse

Submitted in Partial Fulfillment

of the Requirements

for the Degree of

Doctor of Philosophy

May 2018

ii

The dissertation of Arielle L. Hesse was reviewed and approved* by the following:

Melissa Wright

Professor Geography and Women’s, Gender and Sexuality Studies

Dissertation Co-Advisor

Chair of Committee

Brian King

Associate Professor of Geography

Dissertation Co-Advisor

Lorraine Dowler

Associate Professor Geography and Women’s, Gender and Sexuality Studies

Kai Schafft

Associate Professor of Education and Rural Sociology

Cynthia Brewer

Professor of Geography

Head of the Department of Geography

*Signatures are on file in the Graduate School

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Abstract

Since the late 2000s, the controversial application of hydraulic fracturing has been used to

extract unconventional oil and gas from shale rock in the U.S. During the fracturing

process, workers can be exposed to concerning levels of respirable crystalline silica, a

human carcinogen. These developments occur within an existing and evolving regulatory

framework in the U.S. for dealing with occupational safety and health.

This dissertation examines the state’s governance mechanisms to address workers’

exposures to respirable crystalline silica, a human carcinogen, during hydraulic fracturing

for oil and gas extraction in the US. I show how the state’s regulatory mechanisms embody

dueling responsibilities to workers and industry and undermine workers’ rights to a

healthful workplace through the ways that regulations are confounded by discursive and

material expressions of the spatial and temporal properties of the industry. By drawing on

analytical tools provided by feminist theories of responsibility, the dissertation rethinks the

ways health geographers have engaged with the concept to offer new ways of thinking

about how the state constitutes and responds to health risk. By examining the rulemaking

process, inspection procedures and workers’ compensation, the dissertation offers

empirical and theoretical interventions to unpack the state’s interests in human health,

illustrating how the rationalities and techniques used to govern human health are

representative of multiple conflicting commitments and encode problematic assumptions

about responsibility, space, and time, that belie efforts to protect workers.

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Table of Contents

List of Figures ................................................................................................................... vi

List of Tables ................................................................................................................... vii

List of Abbreviations ..................................................................................................... viii

Acknowledgements ........................................................................................................... x

1. Chapter 1: Introduction ........................................................................................... 1 The Case Examples .................................................................................................................... 4 Why responsibility?.................................................................................................................... 6 OSH Governance in the US ....................................................................................................... 8 OSH and Oil and Gas............................................................................................................... 13 Hydraulic Fracturing ............................................................................................................... 14 Health Geography and Responsibility: Theoretical Framework ........................................ 18

Health Governance................................................................................................................. 20 Health Justice ......................................................................................................................... 22 Responsibility, Care, and the Neoliberal State ...................................................................... 23

Methods ..................................................................................................................................... 40 Participant Observation and Interviews ................................................................................. 41 Textual Sources and Analysis ................................................................................................ 46

Dissertation Outline ................................................................................................................. 48

2. Chapter 2: Rulemaking: Is OSHA’s Principal Responsibility to Protect

Industry or the Workers? .............................................................................................. 51 Rethinking the State’s Interest in Health: Responsibility as Negotiated ............................ 53 Permissible Exposure Limits: Regulating Risk, Silica, Industry and Workers ................. 56 Silica Hazards in Hydraulic Fracturing ................................................................................. 61

The dose makes the poison? RCS as an unknown risk in hydraulic fracturing ..................... 65 Negotiating Health Risks: for whom? .................................................................................... 68

Is Silicosis Even a Problem? Absolution from Responsibility .............................................. 70 The Health of Industry: The Cost of Movement and Materials ............................................. 81 Infeasible Engineering Controls ............................................................................................ 90 Workers’ Responsibility: Respirators are the Only Option ................................................... 93

OSH Act and Rulemaking: Regulating Risk, Negotiating Responsibilities ...................... 100 Negotiating Risks: OSHA Responds ................................................................................... 103

Conclusions ............................................................................................................................. 106

3. Chapter 3: Enforcement: Spatial and Temporal Practices Absolve

Responsibility as Liability ............................................................................................ 109 Responsibility as Liability, the Subcontracted Workplace, and Health Exposures......... 111 Fragmented Oversight: Institutional Context of OSHA Enforcement ............................. 116 Responsibility-as-liability: Inspections ................................................................................. 120

Subcontracting and Flexible Work in the Oilfield ............................................................... 122 Avoiding Blame: Barriers to Inspections ............................................................................. 129 “Geography Detectives”: Finding Well Sites in a Landscape of Fixed Resources ............. 134 Avoiding Categorization: Fissuring, Subcontracting and NAICS Codes ............................ 137

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Hierarchy of Controls: Engineering Controls and Respiratory Protection .......................... 141 Institutional capacities ........................................................................................................... 151

Fines and Blameworthiness ................................................................................................. 153 Authority to Inspect: Emphasis Programs ........................................................................... 155

Conclusions ............................................................................................................................. 156

4. Chapter 4: Workers’ Compensation: Finding Fault in ‘Fault-less’

Responsibility ................................................................................................................ 159 Practices of Responsibility, Liability, and Blame: .............................................................. 161 From Common Law to Employer Liability to Workmen’s Compensation ...................... 164 Who is liable? .......................................................................................................................... 167 What is compensable? Occupational Disease ...................................................................... 172 Rating the Impact of Workplaces on Bodies ....................................................................... 178 Spatiality of Temporal Limits ............................................................................................... 179

Defining “Dusty Diseases”: “The Hitch,” and Silicosis Compensation .............................. 185 Workers’ Compensation in the Oilfield: Texas and Pennsylvania ...................................... 192

Workers’ Responsibility through Other Parts of the State ................................................ 195 Conclusion ............................................................................................................................... 199

5. Chapter 5: Conclusion: Mapping New Geographies of Responsibility in

Occupational Health ..................................................................................................... 203 New Directions: Health Geographies of Occupational Health and Responsibility .......... 207

An Interest in Health?: Rethinking the State’s Responsibility for Occupational Health ..... 208 Health for whom or for what?: Rethinking Health Responsibility as Multiple through

Rulemaking, Inspections, and Workers’ Compensation ...................................................... 210 Future Theoretical Engagements: Mapping Responsibility in OSH ................................. 217 Future Policy Considerations for OSH: Shifting approaches to responsibility ............... 223 Conclusion ............................................................................................................................... 228

Works Cited ................................................................................................................... 231

Workers’ Compensation Statutes ................................................................................ 251

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List of Figures

Figure 1.1: Marcellus Shale Coalition Promotion (Marcellus Shale Coalition, 2017a). .................. 1 Figure 1.2: Marcellus Shale Coalition Promotion (Marcellus Shale Coalition, 2017b). .................. 2 Figure 1.3: Shale Basins, (U.S. Energy Information Administration, 2015) ................................. 14 Figure 1.4: Diagram of Hydraulic Fracturing Operations, (OSHA 802188, 2011, p. 165) ............ 14 Figure 2.1: Silica Regulations Timeline ......................................................................................... 61 Figure 2.2: Mountain Mover, Points of filling (OSHA 802188, 2011, p. 308) .............................. 62 Figure 2.3: Mountain Mover and Plume of Dust (OSHA 802188, 2011, p. 184) .......................... 63 Figure 2.4: Crow’s Nest (OSHA & NIOSH, 2012) ........................................................................ 63 Figure 2.5: Dr. Borak's Presentation, March 19, 2014 ................................................................... 71 Figure 2.6: CDC Mortality Data (Johnson, Freedman, & Chajet, 2014, p. 7) ............................... 72 Figure 2.7: API testimony at the RCS Informal Hearings, April 4, 2014 (A. Hesse). ................... 83 Figure 2.8: Energy Nation Poster ................................................................................................... 84 Figure 2.9: PA Jobs Rally (A. Hesse) ............................................................................................. 84 Figure 2.10: Universal Well Services Presentation (Ross, 2010) ................................................... 88 Figure 2.11: PowerPoint Slide from API’s presentation (Exhibit 148) .......................................... 92 Figure 3.1: Hierarchy of Controls (CDC, 2016) ........................................................................... 141 Figure 3.2: Ted inspecting Joe’s Face (Lawhorn-Cryden, 2015) ................................................. 149 Figure 3.3: Joe noting his beard growth (Lawhorn-Cryden, 2015) .............................................. 149 Figure 4.1: Time Limitations for Occupational Illnesses, Notices ............................................... 181 Figure 4.2: Occupational Disease Claims, Since Knowledge of Disease or Disability ............... 183 Figure 4.3: Occupational Disease Claims: Time Limitations Since Last Hazardous Exposure ... 184 Figure 4.5: Joe Breathing through a coffee stirrer (Lawhorn-Cryden, 2015) ............................... 188 Figure 4.6: Silicosis and Pneumoconiosis Claims: Time Limitations Since Last Hazardous

Exposure ............................................................................................................................... 189 Figure 4.7: Silicosis and Pneumoconiosis Claims: Time Limitations Since Knowledge of

Disease/Disability ................................................................................................................. 190 Figure 5.1: Previous OSHA Website ............................................................................................ 204 Figure 5.2: OSHA logo for silica hazards .................................................................................... 205

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List of Tables

Table 2.1: Statutes, Court Cases, and Executive Orders in OSHA Rulemaking .......................... 102 Table 4.1: Examples of occupational disease definitions. ............................................................ 177 Table 4.2: Top Oil and Gas States, Sept. 2017 (U.S. EIA, 2017) ................................................ 182 Table 4.3: Definitions of Silicosis for Silicosis Claims ................................................................ 190

viii

List of Abbreviations

ACC American Chemistry Council

ACGIH American Conference of Governmental Industrial Hygienists

ADA Americans with Disabilities Act

AFL-CIO American Federation of Labor and Congress of Industrial Organization

API American Petroleum Institute

AXPC American Exploration and Production Council

CDC Center for Disease Control

Chamber The U.S. Chamber of Commerce

COBRA Consolidated Omnibus Reconciliation Act

CSHO Compliance Safety and Health Officer

DPM Diesel Particulate Matter

E&P Exploration and Production

EPA Environmental Protection Agency

ERG Eastern Research Group

FMLA Family Medical Leave Act

FOIA Freedom of Information Act

HoC Hierarchy of Controls

IARC International Agency for Research on Cancer

ILO International Labor Organization

IPAA Independent Petroleum Association of America

IRB Institutional Review Board

NAICS North American Industry Classification System

NETL National Energy Technology Laboratory

NIOSH National Institutes of Occupational Safety and Health

NPRM Notice of Proposed Rulemaking

OEL Occupational Exposure Limit

OSH Occupational Safety and Health

OSHA Occupational Safety and Health Administration

PATHS Pennsylvania Training for Health and Safety

PEL Permissible Exposure Limit

PPE Personal Protective Equipment

RCS Respirable Crystalline Silica

REL Recommended Exposure Limit

SIMOPS Simultaneous Operations

SSDI Social Security Disability Insurance

STEPS Service, Transmission, Exploration, and Production Safety Network

SVEP Severe Violator Enforcement Program

TLV Threshold Limit Value

TWA Time Weighted Average

ix

USDOL United States Department of Labor

WHD Wage and Hour Division

WHO World Health Organization

x

Acknowledgements

This research received support from a National Science Foundation (NSF) Doctoral

Dissertation Improvement Grant (DDRI #1434222). The conclusions in this dissertation

do not necessarily reflect the views of the NSF. This research also received Enrichment

Funds and PLACE Lab funds from the Department of Geography at Penn State. The

conclusions in this dissertation do not necessarily reflect the views of the department.

This dissertation would not have been possible without the help and support of many

colleagues within the Departments of Geography, Women, Gender and Sexuality Studies,

and Agricultural Economics, Sociology, and Education at Penn State, and great friends in

State College and elsewhere. Special thanks to the members of Team Accountable, the

Nature Society Working Group, and the Energy Reading Group, who read drafts of

proposals and discussed this project with me over many years. Jase Bernhardt, Jenna

Christian, Dana Cuomo, Carolyn Fish, Russ Hedberg, Nicole Laliberté, Vanessa Massaro,

Aparna Parikh, Nari Senanayake, and Jamie Shinn, all deserve mention for the help and

support they have provided over the years in the ways of conversations, long runs, editorial

guidance, and continued motivation. Jennifer Titanski-Hooper deserves special mention

for the continued help, support, and guidance that she and her family, Mike and Gwen,

have provided me over many years of friendship.

My work with Jennifer Baka, Kathy Brasier, Kirby Calvert, Tim Kelsey, Leland Glenna,

Shannon Monnat, and Kai Schafft have shaped how I have come to understand the

changing landscapes surrounding unconventional and gas development. Working with

these individuals has been greatly influential. Thanks to my committee including Lorraine

Dowler and Kai Schafft for their helpful comments and feedback, and of course to my

advisors, Brian King and Melissa Wright, who have offered comments and guiding

direction through many drafts of proposals and dissertation chapters over the years.

Thanks to my family, Paula Hesse and Dena Bunis for their unwavering support, Libby,

whose sat by my side through every revision, and Brian Hesse, whose memory will always

inspire me with his curiosity and love of learning. Finally, I owe the most thanks to Sam

Stehle, who has been the greatest support system throughout this project.

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1. Chapter 1: Introduction

Since the late 2000s, regions of the U.S. with significant growth in unconventional

oil and gas have undergone what some call an “energy renaissance.” Unconventional fuels

have been advertised as the path to “Renewal. Prosperity.” reviving the figure of the U.S.’s

industrial past, the hard-working, white American man from post-industrial decline (Figure

1.1). Assertions buttressed by inflated job estimates and optimistic forecasts about the

longevity of the industry, unconventional extraction purports to offer “Good Jobs. Good

Pay. An investment in your family’s future and the future of America” (Figure 1.2). Most

investments, however, have risks. With so much attention paid to the number of jobs that

industry creates, far less has been spoken of their quality, even as this oilfield1 work entails

the potential for significant bodily harm (Witter et al. 2014). In this investment, risk lies in

potential short and long-term consequences to one’s health despite assurances by the state

that workers have the right to a safe and healthful workplace in the US. A central concern

of this dissertation is how governance mechanisms that regulate workplace responsibilities

for health risk simultaneously reifying this dichotomous narrative.

Figure 1.1: Marcellus Shale Coalition Promotion (Marcellus Shale Coalition, 2017a).

This dissertation examines how existing governance mechanisms for occupational

health distribute responsibility for health risk to particular actors and how they intersect

with the spatio-temporal characteristics of the hydraulic fracturing industry’s operations to

shape responsibility for health risk. Shale fuel extraction and the process of hydraulic

1 Oilfield or oil patch are catch-all terms for upstream oil and gas development. This spatial terminology

(“field,” “patch”) is often not particular to any one region of extractive activity.

2

fracturing has spatial and temporal features that materially challenge existing mechanisms

to regulate the industry and manifest in narratives that contrast worker responsibility for

health risk with industry’s vitality. Efforts to regulate airborne exposures such as silica, a

well-known occupational hazard, illustrate these processes. This is due to the challenges of

measuring silica exposures within the extractive process, the long latency of many of

silica’s human health impacts, the flexibility of extractive activities, and the assumptions

that underlie the regulatory mechanisms themselves.

Figure 1.2: Marcellus Shale Coalition Promotion (Marcellus Shale Coalition, 2017b).

The existing regulatory frameworks for occupational safety and health (OSH) in

the U.S. diffuse responsibility for OSH among the state, industry, and workers in ways that

call for examination by geographers. Federal OSH regulations stipulate that the state ensure

that employers are responsible for providing workers with access to a “safe and healthful”

working environment in which workers make decisions about working ‘safely.’ After

workers get sick, state workers’ compensation laws promise workers faultless access to

funds and medical care. In both instances, workers are seen to be ‘distanced’ from

responsibility, while state and industry are allocated duties to protect them. While

progressive by some measures, this shift does not displace the state’s commitments to

liberal values, and in the state’s failures, problematically reinforces them. Moreover, in the

3

context of hydraulic fracturing and similar industries, the flexibility of the industry’s spatial

and temporal patterns challenges how the state distributes responsibility. In so far as the

state’s efforts are insufficient, workers are ultimately left to protect themselves. This

dissertation examines this regulatory environment in the context of the occupational health

risks in the oil and gas industry by focusing on the state’s mechanisms that respond to the

human health risk from occupational exposures to silica during hydraulic fracturing.

By probing how regulatory mechanisms define who is responsible for OSH

exposure, this study calls on health geographers to reexamine relationships among

institutions and individuals that influence human health. I argue that health geographers

have much to contribute to the study of human health in relation to resource extraction and

its risks by connecting feminist political philosophy on responsibility (i.e. Young, 2008)

with critical geographies of health governance. This entails not only studying ways

individuals are made responsible for risk but also questioning how institutions

conceptualize and operationalize responsibility such that regulatory mechanisms can be

rethought to address structural processes. Such a framework provides tools for

understanding how the state’s interest in protecting worker health, is both confounded by,

but also acquiescent to the spatialities and temporalities of extractive practices. The state’s

interest in worker health capitulates concern and consideration for industry health and

focuses on responsibility as liability such that the state decontextualizes the broader

structural processes that produce unsafe health exposures, limiting the utility of its own

regulatory and enforcement efforts. The complexity of the state’s governance mechanisms

ultimately leaves workers individually responsible for health risk from work. Three case

examples illustrate these processes.

4

The Case Examples

State and federal frameworks that ostensibly ‘distance’ workers from responsibility

for OSH partially stem from a long-standing recognition within public health that many

workers lack control over working conditions, that workplace cultures and employer

demands lead employees to make ‘unsafe’ decisions even when faced with ‘safer’

alternatives, and that employers should be responsible for providing a workplace with

minimal risk based on state-sanctioned standards. Before substantial federal involvement

in OSH in 1970, for a century state-level factory legislation and workers’ compensation

interceded in the relationship between workers and employers to diminish OSH

responsibilities historically placed onto workers (Noble, 1986; Asher 1991; Rogers, 2009).

The frameworks that have sought to alter the structural context of workplace risk

warrant skepticism. While by some measures workplaces have become safer and more

healthful, workers continue to be knowingly exposed to risks and bear the long-term bodily

consequences. Issues of capture, lack of institutional capacity, and lagging regulations

provide some answers as to why governance mechanisms have been insufficient, yet they

do not go far enough to critique the ideals behind the frameworks themselves, namely how

efforts to shift responsibility through regulation continue to rely on problematic notions of

the concept that do not fundamentally alter social relations. Feminist critiques of theories

of responsibility (Walker, 2008; Young, 2008) offer the concept newly theorized as

practiced, negotiated, and political, and provides the dissertation a lens to examine how

governance mechanisms reproduce structures of health responsibility.

Rulemaking and Responsibility as a Negotiated Duty to Protect: In this chapter, I

examine the state’s negotiations of its multiple responsibilities in the context of

occupational health. Workers’ rights to a safe and healthful workplace embody not only

5

the state’s responsibilities to protect workers but also employers. Drawing on

conceptualizations of responsibility as negotiated and practiced (Walker, 2008), I examine

participatory venues that the state produces when it writes new regulations (rulemaking),

spaces where it openly negotiates its conflicting responsibilities. I show how public

comment processes perpetuate discourses about responsibility for health risk through the

context of the oilfield. No organized representation of workers within upstream oil and gas

means that the dominant narrative perpetuated is that of trade lobbyists and industry

members who employ arguments to absolve themselves of responsibility and reify a

paradigm in which workers are responsible for health risk.

Inspections and Responsibility as Liability: I examine the state’s efforts to enforce

regulations through a conceptualization of responsibility as liability, whereby employers

are found responsible for health hazards in the workplace. Using Young’s critique of

responsibility as liability (2008), I show how inspections encode a conceptualization of

responsibility that constrains OSHA’s ability to react dynamically and structurally to OSH

concerns, including occupational exposures to silica and the Occupational Safety and

Health (OSHA)’s capacity to enforce its own regulations. Moreover, the rationalities and

techniques of inspections reinforce premises that workplaces are private spaces that require

special justification for state interference. Thus, spatial and temporal dynamics of this

flexible industry can impinge on OSHA’s efforts to inspect oil and gas workplaces and

illustrate reasons why conceptualizations of responsibility need to address structural

patterns of work and geographic contexts, rather than only discrete exposures.

Workers’ Compensation and No-Fault Responsibility: This chapter examines

workers’ compensation’s way of regulating responsibility ‘without fault.’ Drawing again

6

on Young’s critique of liability, I show how this attempt to redefine responsibility for

workplace injury and disease nonetheless continues to rely upon fault-finding frameworks.

By concentrating on spatial and temporal requirements for occupational disease, I illustrate

how the state’s ways of ‘finding occupational’ belie common patterns of hydraulic

fracturing work and common disease progression, making workers responsible for seeking

recompense through other social insurances. These laws foster uneven and inequitable

health relationships through exclusionary applications of time and space.

Why responsibility?

As it is used today, ‘responsibility’ is an interestingly ambiguous or multi-

layered term. In one sense, someone who is responsible for an event can be

said to be the author of that event. This is the original sense of ‘responsible’,

which links it with causality or agency. Another meaning of responsibility

is where we speak of someone being responsible if he or she acts in an

ethical or accountable manner. Responsibility also however means

obligation, or liability, and this is the most interesting sense to counterpose

with risk (Giddens, 1999, p. 8, my emphasis).

Responsibility is a multifaceted idea. Sometimes it is used as a synonym for

obligation or duty… Understood as an ethical concept, responsibility is

often used in the sense of something that is accountable or attributable, and

hence worthy of praise or blame (Eshleman 2009). Yet the term is also a

political term. Its meaning derives from the notions of “response” and

“responsible,” made into a more abstract noun by adding the suffix “-ity.”

In making something that is relational into something more abstract, the

etymological origin of responsibility already points to some of its key

elements: it is by nature relational, existing in the relationships among

people rather than in individuals themselves. Further, by being a response,

responsibility is dynamic rather than fixed, an abstraction about something

concrete. (Tronto, 2013, p. 50, my emphasis).

Responsibility is about relationships. It defines who should be accountable to

another and under what circumstances. Yet, questions abound: Is responsibility blame

(backward-looking), guilt (backward-looking), or obligation (forward-looking)? Is it moral

or political? Is it a concept unique to individuals or can it be collective or shared? What is

the role of agency in responsibility and can someone or something be responsible absent a

7

causal relationship? While responsibility can be a backward-looking relationship (Julia is

responsible for the harm she caused Dustin), it can also have a forward-looking meaning

(Julia is responsible for helping Dustin because of their familial relationship). Face-to-face

interactions often define relationships of responsibility, yet as feminist scholars have

shown, these connections can extend over distances and need not have direct causal

connections (Massey, 2004; Lawson, 2007; Young, 2008).

Young conceptualizes responsibility at two inter-related levels (2008): the

interactional (Julia is responsible to Dustin because of their familial relationship) and the

structural (Julia is responsible to the systems of environmental injustice in Appalachia

through her carbon-based lifestyle). Identifying the moral responsibility of individuals has

traditionally entailed causation, knowledge, and choice (Noorman, 2012, in Zwitter, 2014)

requirements further embedded and given power by liability within the U.S. legal system.

While most theories of responsibility focus on individuals, the extent to which they

manifest for groups or collectives engenders questions of intent, culpability, and agency.

Thus, the nature of shared and collective responsibility, and if either or both can apply to

corporations (for example, in the work of Peter French) or states, and to what effect, is

debated. Occupational health regulation provides an example from which to explore these

questions, not only because of the kinds of actors it enrolls, the state, workers, and industry,

but also because it aims at least in principle to be ‘humanitarian’ in some of its effects.

Occupational health is fundamentally a concept about the responsibility for risk and

uncertainty of what happens to individuals at work. It is not a state of the body; rather it is

a combination of institutional structures, socio-economic processes, and individual actions

that respond to the potential for poor health outcomes resulting from bodies laboring in

8

workplaces. The way institutions respond to this ‘problem’ reflect specific ways of thinking

about the body, risk, and the role of the state in social and economic life. OSH frameworks

stress that workers be given a context in which to make OSH decisions, acting as

autonomous, rational individuals. Thus, the right to occupational health, as prescribed in

U.S. law, is actually the right to a healthy workplace, the right to a space with limited health

risk where it is possible to make ‘healthy’ choices.

Occupational health captures debates about individualism, freedom, and agency.

Do workers take on risk knowingly and thus bear its health consequences? Alternatively,

are employers responsible for the health impediments that arise from activities from which

they profit? What if employers do not know the risks? What, if any, is the state’s

responsibility to diminish the bodily impacts of economic activities or to intercede in the

relationship between workers and employers? For more than a century, the state has

weighed in on these questions, requiring employers to abide by regulations and laws that

make employers responsible for providing a safe and healthful workplace and liable for

some ill-health outcomes. However, as this dissertation discusses, such a distribution of

responsibility has not been fully realized. As is common under a neoliberal state,

responsibility for risk is shifted to the individual. This shift is further justified by workers’

relationships to care including actions and feelings to protect and insulate their coworkers,

the nation, and their employers from harm. In some cases, this works to valorize and reward

risky work, and normalize workers’ risk and vulnerability to long term disease. Thus, what

would seem like a relatively straightforward distribution of responsibility is not.

OSH Governance in the US

Responsibilities within OSH frameworks have origins in 17th and 18th century

9

western moral and political philosophy2, and incorporate notions about the role of the state,

free will, and agency of the Second Industrial Revolution and Progressive Era. In the late-

19th and early-20th centuries, laws, programs, and social norms reflected shifting ideas

about the state’s responsibilities for its social body, which increasingly included forms of

social insurance and state assistance (O’Malley, 2004; Dean, 2009). Workplace hazards

arose as a problem to be managed at a moment when increasingly the state took

responsibility for its working citizenry and the health of its population, efforts seen as “part

of a broader project to ‘preserve the race’ in the face of urbanization and mass production”

(Markowitz & Rosner, 2002, p. 13; see also Sellers, 1997; Rogers, 2009)3.

New scientific groups, industry organizations, and unions established roles and

responsibilities for the state, industry, scientists, and workers to resolve problems of illness

and injury that resulted from work (Rosner & Markowitz, 1987; Rogers 2009). Emergent

scientific fields, such as industrial hygiene and toxicology, sought to shape the

identification, measurement, and elimination of hazardous workplace exposures (Sellers,

1997; Markowitz & Rosner, 2002; Murphy, 2006)4. Such research contributed to what

would become OSH: new organizations, rules, regulations, and norms to guide employers

and individuals to perform work in ‘safe’ ways under the auspices of being good for the

2 John Locke’s enduring ideas about the limited role of the state and the exercise of a rational actor’s

natural rights underpin contemporary economic theories that frame OSH debates about appropriate

governance mechanisms (Nobel, 1986; Dorman, 1996; Holmes, 2013; Horton, 2016). These ideas now

function under neoliberal processes where the neoliberal subject is an autonomous actor who takes on

responsibilities for risk once considered an issue of collective responsibility (England, 2010, p. 137). 3 This was contemporaneous to a shift in thinking about disease as having roots in social causes rather

than bacterial ones (Nash, 2006). While many public health practitioners focused on controlling

infection under germ theory or the bacteriological consensus, social reformers began identifying social

determinants of health. Markowitz and Rosner (2002) show how insurance agents embraced this social

reform analysis, and rather than public health officials helped recognize silicosis’s relationship to

workplace exposure rather than diseases like tuberculosis. 4 The depoliticized and clinical practice of industrial hygiene and toxicology gave these new sciences

increased influence throughout the 20th century (Sellers, 1997; Murphy, 2006).

10

population and the economy. OSH simultaneously encapsulates the state’s commitment to

its human population and private enterprise. Accordingly, the state has governed OSH

through coordination with non-state institutions to various ends, be that the protection and

management of society, the reduction of costs and minimization of liability, or individuals’

bodily integrity, well-being, and self-actualization (O’Malley, 2004; Dean, 2009).

Strategies to govern OSH in the U.S. developed predominantly at the state-level5.

The shift from common-law doctrines to employer liability and the establishment of

workers’ compensation and factory legislation specified state interference in the

relationship between employees and employers (McCaffrey, 1986), most notably by

changing the responsibility for risk (Bale, 1987; Sellers, 1997; O’Malley, 2004).

Throughout the 20th century, labor and public health movements successfully garnered

regulatory attention for certain OSH issues. However, industry science and industry’s

technological capacities strongly shaped these regulations efforts (Markowitz & Rosner,

1995). Many regulatory mechanisms in place today stem from industry’s influence in the

interwar period and immediately following WWII, including efforts to establish and

enforce exposure limits and the inclusion of occupational disease within workers’

compensation. I return to these later in the dissertation to analyze how these mechanisms

express visions of responsibility that frustrate the state’s own goals.

The states managed OSH until a decade of political pressure and activism in the

1960s from labor and lobbying from some industry groups resulted in federal regulation

5 However, some developments on the federal level regarding the definition of risk would shape the

context for later federal regulation of risk (Vogel, 2008). A shift from a more protective per se standard

to de minimus risk standard in 1958 that reflected the commonly accepted dose-response relationship,

“inscribed into law the notion that chemical risks were a function not of the hazard itself, but dependent

upon the exposure” (Vogel, 2008, p. 669).

11

(Donnelly, 1982; Asher 1991; Vike, 2007)6. The 1970 OSH Act that created OSHA

declared that workers had the federal right to a safe and healthful workplace. This was one

of the final programs implemented in this period and reflected ideas about the state’s role

in providing specific populations with protections (Harmon, 1995; Young, 2008). OSHA,

under the U.S. Department of Labor (USDOL), was given authority to set and enforce

workplace standards. Both industry and labor received concessions in the final law: labor

was allowed to participate in workplace inspections and standard setting, and industry

maintained the fragmentation of OSH oversight in ‘state-plan’ systems and the continued

delivery of workers’ compensation through the states.

The degree to which the state should adopt a paternalistic role through its laws or

enable workers to act as rational actors and choose risky work has been long-debated and

has influenced regulatory efforts (see Viscusi, 1983; Noble, 1986; Dorman, 1996; Sellers,

1997). Yet, these develops that drew directly from activism in the 1960s reflected a tact

towards social problems whereby certain social groups were afforded federal protections,

rights, and direct aid, including workers (Harmon, 1995; Young, 2008). For some, this

expressed a welcome benevolence of the state (Harmon, 1995). However, notions of

personal responsibility that denied structural determinants swiftly rebuked it (Young,

2008), emboldened by neoliberal risk narratives. These ideas shape dominant framings of

public health in the U.S. today, including OSH. They have further justified the approaches

taken by OSHA over the last four decades in the ways that it conceives of and addresses

6 There is some disagreement over the OSH Act’s origins. In the 1950s and 1960s, OSH reforms were

not the primary concern of many labor groups (Noble, 1986; Vike, 2007). Donnelly (1982) finds that

the activism by workers targeted at their union leaders shifted organized labor’s focus towards

advocating for what would become the OSH Act. While Donnelly (1982) is skeptical that activism on

the part of environmentalists influenced OSH Act debates, others give more credit to the broader activist

communities of the period in advancing OSH issues at the federal level (Nobel, 1986; Asher, 1991).

12

workplace risk, particularly as pertains to its regulations, enforcement, and expansion of

voluntary programs.

Since its inception, OSHA’s role has been subject to prevailing political ideologies

about the role of government in regulating health and environmental risk. The 1970’s

skepticism of big government stirred deregulatory and government accountability

movements that influenced the funding dedicated in federal budgets for the establishment

and enforcement of occupational health rules (Noble, 1986). OSHA, under the Reagan

administration, deepened these trends through deregulation and the implementation of

significant barriers to regulatory efforts (Noble, 1986; Wahl & Gunkel, 1999; Markowitz

& Rosner, 2002; Vike, 2007) which have had a lasting legacy on ways that OSHA

negotiates its responsibilities (Vogel, 2012). Many neoliberal policies and programs have

persisted and even expanded under Presidents H. Bush, Clinton, W. Bush, Obama, and

Trump, although their contours have varied across political affiliations7. Still, as discussed

in Chapters 2 and 3, important consistencies over the last four decades in OSHA’s activities

include increasingly burdensome requirements for rulemaking, which simultaneously

magnify the state’s responsibilities to prove health risk and weaken the state’s regulatory

authority, and the persistence and expansion of voluntary compliance programs.

The OSH Act also created the National Institutes of Occupational Safety and Health

(NIOSH). NIOSH operates under the Center for Disease Control (CDC) and has no

7 Democratic administrations tend to focus on enforcement more than Republican ones, which often

expand partnerships with industry. The Trump administration is expected to review several Obama-era

enforcement policies, like the use of the Severe Violator Program, and has expanded alliances with

industry lobbies, including the American Chemistry Council. Tone and inflection can change too.

OSHA under Trump republished its website on silica, switching from a more embodied description of

silicosis of the Obama-era to a disembodied, clinical account of the disease; see chapter 5. Trump’s

OSHA has also stopped reporting worker deaths on its website and has reduced the number of press

releases on egregious health and safety violations by employers.

13

enforcement authority but provides research, guidance, and recommendations on

workplace hazards. One area of research has been upstream oil and gas, with a focus on

hydraulic fracturing. Given the industry’s proprietary nature, NIOSH’s work is some of the

only published original research on OSH and hydraulic fracturing, enabled by

collaborations with industry partners. I discuss its contributions to this knowledge in

Chapter 2.

OSH and Oil and Gas

In the early 2000s, testing of combined technologies, horizontal and hydraulic

fracturing, into shale rock to extract unconventional oil and gas, proved successful (Rabe

& Borick, 2013) widening the extent of and opening new regions for oilfield activities

across the U.S. (McGraw, 2012; Wilber, 2012; Gold, 2014). Until these technologies were

combined, the industry had been unable to commercially extract oil and gas from shale

sources8. Unlike conventional oil and gas that pool within reservoirs, unconventional shale

fuels are trapped within source rock. Freeing the hydrocarbons requires the creation of

small fissures, or cracks, in the rock (NETL, 2013; U.S. EIA, 2016).

8 If it is successful or economical is debatable given investigations by the Securities and Exchange

Commission and others over the industry’s financing (Hargreaves, 2011; U.S. Securities and Exchange

Commission, 2014; Cusick, 2013; Resnick-Ault and Schneyer, 2016).

14

Figure 1.3: Shale Basins, (U.S. Energy Information Administration, 2015)

These deposits of decayed organic material date to the Devonian and Mississippian

geologic ages and contain varying quantities of oil, gas, and other light hydrocarbons

(Ground Water Protection Council and ALL Consulting, 2009). Shale plays9 in the U.S.

have opened in many US states (U.S. EIA, 2016) (Figure 1.3), although the development

and production of these plays have fluctuated with energy prices and estimated reserves.

Hydraulic Fracturing

Figure 1.4: Diagram of Hydraulic Fracturing Operations, (OSHA 802188, 2011, p. 165)

Hydraulic fracturing (Figure 1.4) is just one component of the multi-stage industrial

process used in upstream development of unconventional shale fuels. To first drill the well,

workers guide the drill bit vertically several thousand feet and then horizontally for several

9 A ‘play’ is an area of extraction, often named for the oil and gas bearing geologic formation.

15

thousand feet along the rock formation (NETL, 2013; Schlumberger Oilfield Glossary,

2016b), and then case the well with layers of steel and cement (API, 2009). The well drilled,

a new crew conducts the completion, when hydraulic fracturing occurs.

Well servicing companies, including firms such as Halliburton, Baker Hughes, or

Trican, employ specialized teams to pump a combination of millions of gallons of water,

thousands of tons of sand, and a mixture of chemicals into the well at high pressures to

further open the perforations made in the shale by small explosives (NETL, 2013). Sand

seeps into the fissures, holding them open to allow hydrocarbons to flow. Perforation and

injection of drilling fluids occurs in short stages over several days or weeks. A proportion

of the water, sand, and chemicals pumped into the well typically returns to the surface,

known as flowback (NETL, 2013; Esswein et al., 2014); then the well moves into the

production phase (Schlumberger Oilfield Glossary, 2016a). Shale wells typically

experience high initial production rates that taper off; companies may re-fracture wells later

to increase flow rates (Jacobs, 2014). One well pad can host multiple wells due to the

vertical and horizontal orientations of wellbores. Different stages of the production process

can be ongoing at a well site, requiring the coordination of available labor and

infrastructure and completions teams may use ‘zipperfracs’ (Halliburton, 2012b) or

‘simufracs’ to frack more than one well at a time.

This dissertation examines who is responsible for risk with a focus on workers’

exposure to a carcinogen, silica, that comprises 99% of the sand used in hydraulic

fracturing (OSHA & NIOSH, 2012) and is often higher mesh10. Silica causes several

10 Sand size selection depends on its application and can vary based on mesh size roundedness and

resistance; this contributes to the dust produced. There are alternatives to sand, including ceramic

proppants and resin coated sand but are often costlier.

16

debilitating and fatal diseases, including silicosis. The geography of the hydraulic

fracturing worksite, its work practices, and the spatialities and temporalities of the industry,

influence how silica becomes an occupational health hazard. Chapter 2 discuss these issues.

Pennsylvania and Texas

I conducted much of my research in Pennsylvania, with additional activities and

events in Texas. The different regional histories of these states with the oil and gas industry

and experiences with long-term respiratory diseases are instructive. While Pennsylvania

lays claim to the first oil well drilled in 1859, regions of Texas extensively developed oil

throughout the 19th and 20th centuries. Markers of its long relationship with oil fill the

Texan landscape, pump jacks and derricks, often rusted, litter parts of west and south

Texas. Huge refineries along the coast solidify the centrality of the full production chain to

the state. Indeed, in downtown Houston, many major energy companies have international

headquarters. Similarly, health concerns from the industry have flowed through Texas.

Incidents linking sandblasting for cleaning oil tanks in Texas resulted in silicosis crises in

the 1970s, 1980s, and 1990s (Rosner & Markowitz, 2000). Following World War II, the

oilfields in the Gulf Coast increased operations, leading workers to be exposed while

cleaning oil storage tanks using silica as an abrasive. Silica exposures during oil tank

cleaning would resurface in the 1970s during the OPEC crisis and its intensification of

industrial activities (Rosner & Markowitz, 2000). Explosions and chemical leaks from

refineries have engendered decades-long environmental justice struggles between local

communities and the adjacent refineries on which some communities also rely (Lerner,

2010). Texas has experienced an expansion of its oil and gas industry due to development

in the Barnett, Eagle Ford, and Haynesville Shales, but this growth has been within a well-

established oil industry with well-documented health issues.

17

Pennsylvania’s gas industry is largely the product of the recent shift towards large-

scale industrialization that facilitates unconventional shale gas extraction in the Marcellus

Shale. However, its history with industrial disease is significant. Instances of “coal miners’

consumption,” identified by physicians in the mid-nineteenth century in Pennsylvania,

swelled in the latter half of the century as new industrial tools increased the rate of dust

production and exposures. Industrial insurance agents, who clustered these diseases to

specific industries, would help identify these exposures as silicosis (Sellers, 1997; Rosner

& Markowitz, 2006). In northeastern and southwestern Pennsylvania, anthracite and

bituminous coal’s history, and black lung, a deadly lung disease caused by exposures to

coal dust, are part of the regional identity11. Changing political economies of coal led

workers to be exposed to silica through the late 20th century. As miners in the east dug

deeper and through silica-rich layers of rock to access new sources of coal, they were also

exposed to silica and later developed respiratory diseases (Rosner & Markowitz, 2000).

Despite regulations to control the disease and the industry’s shift away from underground

mining and towards mechanization and strip mining, black lung continues to be prevalent

among older miners but young Appalachian surface miners (Laney, et al., 2012; Blackley,

et al., 2016). Hydraulic fracturing in Pennsylvania has developed with its own regional

characteristics in the northeast and southwest parts of the state. Industrial lung diseases

have been endemic to these areas and provide a poignant setting as exposures to respiratory

11 Several oilfield workers that I spoke with talked about their experiences with the coal industry, as

miners themselves or as the sons of miners. One had recently lost his father to the disease. Another

worker had acquired a lung disease from a previous job and had moved to safety work in the oilfield

because it was less strenuous. For both, lung disease was considered a part of the jobs men like

themselves do, interweaving a sense of self with health risk.

18

hazards resurface through unconventional oil and gas extraction12.

Health Geography and Responsibility: Theoretical Framework

Although the workforce is central to arguments that justify the industry, scholars

have insufficiently examined the frameworks that regulate the health risks from those jobs.

Social science scholarship on unconventional fuels and health has largely excluded workers

(for exceptions see Filteau, 2014, 2015a, 2015b; Brundage, 2011; Brundage et al., 2011;

Jacquet, 2011; Witter et al., 2014). Instead, public and academic attention in the U.S. has

primarily focused on environmental and public health risks of extractive activities,

surveying, for example, the often-underdeveloped state-led regulatory framework to

protect air and water resources and limited federal oversight of oil and gas activities

(McKenzie et al., 2012; Adgate, Goldstein, & McKenzie, 2014; Warner & Shapiro, 2013;

Andrews & McCarthy, 2014; Jacquet, 2014; Rabe, 2014; Casey et al., 2016; Rasmussen et

al., 2016; Wiseman, 2016; Zirogiannis et al., 2016). Theories of environmental justice draw

attention to distributive and procedural injustice wrought through unconventional fuels

(Willow, 2014; Kennedy, Schafft, & Howard, 2017), yet more analysis is needed to

translate these concerns to occupational health. OSH frameworks afford opportunities to

examine the emergence of the hydraulic fracturing industry within existing social and

political contexts and its relationships to human health.

Health geography has been largely silent on the relationships between health and

unconventional fuel development and has been slow to examine health and OSH

regulation. However, cognate literatures that many health geographers utilize have long

12 Silicosis was also identified in this period in the nail cutting industry in Wheeling, West Virginia,

over the southwest border with Pennsylvania, and southeastern border with Ohio (Sellers, 1997).

Wheeling has become a hub of shale oil and gas activity as a crossroads of major interstates.

19

illustrated how workers bear the embodied consequences of industrial labor. The historical

roots and gendered and racialized dynamics of this burden have been well-documented

within public health (Messing, 1998), labor history (Derickson, 1998, 2013a, 2013b;

Rosner & Markowitz, 2003, 2006), medical anthropology (Holmes, 2013; Horton, 2016;

Little, P., 2017), feminist geography (Wright, 2006), and history of science (Sellers, 1997;

Murphy, 2006; Nash, 2006). Health geography centers on ways that space and time operate

as material and discursive processes to shape health risk, and thus should more significantly

engage in occupational settings wherein particularly the modes of production use time and

space to shape productivity in ways that impact (and often disregard) human health. This

study illustrates this opportunity through occupational health regulation and responsibility.

Specifically, it shows how spatial and temporal patterns of industry and occupational

exposures intersect with responsibility defined and enacted by the state, and how at this

intersection, the state’s governance mechanisms function to shift responsibility onto

individual workers through its insufficiencies, ignorances, and failures.

Thus, here I focus on the dissertation’s scholarly setting within health geography.

Health geographers have long considered that health is a social construction and material

state of the body (Kearns & Moon, 2002; Jackson & Neely, 2015), that relationships

between places and health exist, and that their study can reveal significant trends and

patterns (Kearns & Moon, 2002). For many, health is a conceptual tool to examine how

political, economic, social, cultural, and environmental processes transpire across space

and time, and reproduce imaginaries about people and places (Craddock, 1995, 2000;

Biehler, 2009; Brown, 2009; Carter, 2012). Others engaged more closely with spatial

analysis and spatial epidemiology illustrate how patterns of exposure, poverty, and access

20

to care influence health outcomes, often to understand if health is about the place itself or

the people living there (Guthman & Mansfield 2013; Rosenberg, 2013; Foley & Kavanagh,

2014). I explore two dimensions of this subfield, health governance and health justice,

before arguing that health geography re-conceive responsibility in its approach to the

relationship between institutions and individuals when considering human health.

Health Governance

Governance, the processes that produce, maintain, and order socio-spatial

relationships between individuals and institutions, provides language useful to consider the

vast apparatuses that direct conduct in space and time. Geographers have illustrated the

power relations encoded in spatial practices of laws, regulations, and policies surrounding

the promotion of healthy places and healthy bodies (Brown, 2009; Evans & Colls, 2009;

Guthman, 2011; Mansfield, 2012b). Foucauldian analyses of power have been instructive

here, as they illustrate how norms of behavior, self-regulation, techniques of measurement

and observation, and direct intervention coalesce to govern individuals and populations;

Foucault’s notion of biopolitics – or the politics of life – and biopower – the effect of

disciplinary power on the body – has driven much of this scholarship (Parr, 2004; Brown

& Bell, 2008; Brown, 2009; Brown & Knopp, 2010; Mansfield 2012b, 2012c). Health

governance literature often centers on the production of health subjects through

authoritative ways of ‘seeing,’ often starting from, but also exceeding, the state.

Conceptually, governmentality and/or biopower are part of systems of power in which

health discourses, health metrics, government analyses, and public health programs encode

forms of self-discipline including self-monitoring, pertaining to public health (Brown,

2009; Rose, 2009; Brown & Knopp, 2010; Mansfield, 2012a, 2012b; Carter, 2015). Some

use these insights to critique neoliberal configurations of power, thereby showing the

21

relationship between capitalism and personal understandings of health. Guthman (2011)

argues that obesity has been presented as an ‘epidemic,’ thus creating a public health

imaginary ameliorated through prescribed ways of being and eating. For Guthman, the

body becomes a spatial fix for capitalism.

Morality as a means of health-subject formation also frames this scholarship.

‘Moral panic’ that accompanies certain sexual practices, cleanliness, body size, etc. works

to justify state action, shape individual bodily practices, and reifies existing power relations

that deem some bodies ‘ill,’ ‘in need of correction,’ or ‘deviant’ (Brown 2009; Guthman

2011). Exploring the production of health knowledge has revealed mechanisms underlying

the making of ‘ill’ bodies regarding chronic illness, lifestyle, and risk (Brown & Duncan,

2002; Parr, 2002; Keil and Ali, 2007; Guthman, 2011). Others have turned to

‘responsibilitization’ and individual responsibility, focusing on the responsibility of

individuals, how they are made to be responsible and internalize messages of responsibility

and risk, and how this relates to neoliberal forms of power (Kearns & Collins, 2010;

Mansfield, 2012a; 2012b; Little, 2017).

These studies illustrate how the state identifies and seeks to manage a health

‘problem,’ often framing solutions through prevailing narratives of science, public health,

and morality. OSH illustrates how these narratives are constrained further within the OSH

context through the ways the state regulates responsibility, through liability, and enacts its

multiple responsibilities that fall under the ‘problem’ of occupational health. These

governance mechanisms buttress personal responsibility narratives for OSH of the

industry, but moreover, reinforce liberal values surrounding the rational subject and the

extent of the authority of the state particularly when intervening in private industry. Under

22

the rubric of OSH, the state has sought multiple ends, be that the management and

protection of populations, the reduction of costs and minimization of liability, or concern

for future bodily integrity, well-being, and self-actualization. Here, I understand the state

as an entity produced through the enactment of its authority through laws, policies and

regulations, and its role in the coordination of conduct through multiple forms of power. I

draw upon Foucauldian analyses of power, and strategies and modes of power employed

by the state (Rose & Miller, 2008; Dean, 2009), and thus remain consistent with ways that

health geographers have theorized the state and governance.

Health Justice

A related approach to examining health has been described as ‘health justice’

although what is meant by ‘justice’ is often only loosely articulated (Rosenberg, 2013).

Although methodologically split, much of this scholarship reveals patterns and

relationships that result in unequal distributions of health risk and exposure and is often

closely aligned with environmental justice scholarship (Pearce et al., 2010; Rosenberg,

2013). It gives attention to who bears health burdens, and where, and prompts a focus on

the body and place. This literature has shown how socio-economic issues such as income

inequality, proximity to industrial activities and transportation, access to care and

medicine, and food availability influence health outcomes (Pearce et al., 2010; Saha et al.,

2011; Foley & Kavanagh, 2014; Collins et al., 2015). Research crossing environmental and

health justice has utilized these findings to show how structural processes influence

discrete instances of environmental injustice (Tschakert & Singha, 2007; Hanchette, 2008),

shifting away from causal narratives required in law and public health (Pulido, 2000;

Masuda & Crabtree, 2010). It explores health policy questions about who has access to and

who benefits from given health regimes (Brown & Baker, 2012; Sparke & Anguelov,

23

2012). It often tackles neoliberalism in two related senses: by examining deregulatory

efforts that began in the 1970s and 1980s whereby the state was weakened in line with

neoliberal ideologies, and by exploring how the state has become characterized by

economizing logics whereby neoliberal values and governance have been reoriented

around risk, uncertainty, and biopolitical power (Rose, 1996; O’Malley, 2004; Rabinow &

Rose, 2006). Geographers have sought to consider health by ‘unpacking’ the environment

and its relationship to health and justice (King, 2009; Jackson & Neely, 2015) and has paid

attention to the body as a dynamic socio-nature itself (Guthman & Mansfield, 2013). This

addressed frameworks wherein the environment has been theorized statically.

Many health justice studies continue to focus on issues of proximity and

distribution; a critique also leveled at environmental justice literature (Walker, 2009;

Holifield, 2012). More analysis at the intersection of health and justice needs to examine

how health is structural, relational, and forged through process and participation. Indeed,

some have recently illustrated how the language of capabilities has been influential in

environmental justice literature (Edwards, Reid, & Hunter, 2015). There are parallels here

to Ruger’s (2010) and Venkatapuram’s work on health justice (2011). Both draw upon

Amartya Sen to offer a context for thinking about this “capability to be healthy,” health as

not merely a bodily state, or in Ruger’s terms, the “health capability paradigm.” The case

examples in this dissertation help illustrate how the right to a space in which one can make

healthy decisions may not be sufficient to address the justice questions that the capabilities

approach seeks to mend. Focusing on how the state enacts its authority in OSH articulates

the procedures and processes that these emphases miss.

Responsibility, Care, and the Neoliberal State

Critical approaches to responsibility and care have shaped scholarship in geography

24

over more than two decades (Smith, 1997; Proctor, 1998; Massey, 2004; Popke, 2006;

Lawson, 2007; Popke, 2007; Sparke, 2007; Carmalt & Faubion, 2010; McEwan &

Goodman, 2010; Milligan & Power, 2010; Barnett et al., 2011; Noxolo, Raghuram, &

Madge, 2012; Olson, 2017). Feminist contributions have rebuked notions that relationships

of care or responsibility emerge solely through proximity but rather have re-theorized

responsibility and care as extending to ‘distant others’ (Noxolo, Raghuram, & Madge,

2012; Massey, 2004; Lawson, 2007). I argue that this focus on the individual needs to be

considered within patterns of responsibility at the institutional level, focusing on

institutional mechanisms which purport to shift responsibility onto larger entities to

diminish ‘individual responsibility.’

This feminist scholarship on responsibility has helped geographers to explore

neoliberal processes and the contraction of the welfare state through aforementioned

“responsibilization” whereby the state increasingly encodes individuals with responsibility

for services formerly the purview of the state (Brown & Baker, 2012; Staeheli, 2013; Bell,

Hollows, & Jones, 2015; Glasgow & Schrecker, 2016), including the management of risk

(Bickerstaff, Simmons & Pidgeon, 2008; Mansfield, 2012a, 2012b).

Feminist care ethics has had a different impact particularly in health geography,

opening new empirical examinations of practices of care and self-care, and spaces of care

and care-scapes (Brown, 2003; Parr 2003; Greenhough, 2010; Milligan & Wiles, 2010;

Milligan, 2014). Care has also offered normative values from which to approach health-

related research (Parr 2003; Carmault & Faubion, 2010). Still, care and responsibility have

often had a synergistic history within their applications, particularly when care has been

used to examine the distribution of labor and social reproduction, and the kinds of caring

25

responsibilities left to women in the ‘private’ space of the home (Domosh, 1998).

Feminist theories of responsibility and care critique ‘traditional’ understandings of

morality and justice by attending to lived experience and relationality in the shaping of

moral and social life and knowledge (Gilligan, 1982; Noddings, 1984; Tronto, 1993;

Grasswick, 2003; Noddings, 2002; Held, 2006; Walker, 2008; Young, 2008; Tronto, 2013).

While definitions of care and responsibility are multiple, most theorists illustrate how both

are not only moral feelings but also political practice (Walker, 2008; Young, 2008; Tronto,

2013) that transcend place, space, and time (Massey, 2004; Held 2006; Lawson, 2006;

Young 2008), and thus have utility for geographic analyses of power.

Early feminist care ethics challenged models of morality and justice that were built

around particularly masculinist ideals (Gilligan, 1982; Noddings, 1984). Care offers a

distinct ethical value that highlights the relationality of moral life, illustrating uneven

relationships and inequalities through care (Kittay, 1999; Held, 2006), and the

interdependency of individuals (Kittay, 1999). This has increasingly shown care to be a

relationship of dependency that is more complex and multi-directional than ‘care-er’ and

‘cared for’ (Held, 2006; Milligan & Wiles, 2010). Indeed, care is both a lens on social

processes and an ethical standpoint. For geographers,

care is more than simply a social relation with moral or ethical dimensions;

it can also be the basis for an alternative ethical standpoint, with

implications for how we view traditional notions of citizenship and politics

(Popke, 2006, p. 506).

Still, what this means has been rethought through theoretical debates that have questioned

if care is complimentary, additive, or replacement for ‘traditional’ values of morality and

justice, if care and justice can co-exist, and the primacy of care (Held, 2006; Tronto, 2013).

Theories of responsibility have sought to understand how it is both a process of

26

‘taking’ and ‘assigning,’ (Fiore, 2003). ‘Taking’ indicates its relationship to agency, while

‘assigning’ denotes responsibility’s top-down qualities. As such, it can be traced and

mapped in the ways it is taken up and refused to understand the contours of social and

political practice (Fiore, 2003; Grasswick 2003; Walker 2008; Noxolo, Raghuram, &

Madge, 2012). Like feminist ethics of care, its use within feminist scholarship has

reoriented commitments of moral philosophy to values that are more relational, specific,

and adaptive to diverse social processes (Fiore 2003). Rooted in critiques of idealized

versions of morality (Walker, 2008), responsibility has also offered a new commitment and

analytic for the production of knowledge (Grasswick 2003; Code, 2006; Walker, 2008). As

will shortly be discussed, feminist theorizations of responsibility have further offered

challenges to virtue theory and luck egalitarianism (Hughes, 2003; Young, 2008),

discourses of personal responsibility (Fiore, 2003; Young, 2008) often underpinning

neoliberal policy (Jaggar, 2003; Tronto 2013) and utilitarian and distributive approaches

to justice (Young, 1990; 2008).

While many offer these concepts to advance ways of evaluating social life, their

use has not been without criticism, caution, and complication (Held, 2006; Noxolo,

Raghuram, & Madge, 2012; Hankivsky, 2014; Murphy 2015). In its early iterations, critics

of care ethics suggested its focus renormalized women as being the ones who ‘naturally’

do care work (Held, 2006). Post-colonial scholars have cautioned that state-led calls for

responsibility can be acts of absolution that obscure the ways its espousers are imbricated

within unjust processes of global inequality (Noxolo, Raghuram, & Madge, 2012).

Responsible relations create and are created by problematic and contradictory power

relations, where actions coded as ‘responsible’ are often violent, transcend boundaries, and

27

justify states of exception (Noxolo, Raghuram, & Madge, 2012; see also Sparke, 2007).

These critiques often use the concepts more analytically to examine power, for example,

in the health and scientific discourses (Faria, 2008; Mansfield, 2012a; 2012b), feminist

health activism (Murphy, 2015), shifts from the welfare state and neoliberal state (England,

2010),, and the sequestration of care to the private realm and work and justice to the public

realm (Boyer, 2003; Held, 2006; Popke, 2006). For Murphy, critical evaluations of ‘care’

for example, do not deny a ‘politics of care’ but rather illustrate how care itself is not inured

from the social structures to which it responds.

This vexation of care is important because there is an ongoing temptation

within feminist scholarship to view positive affect and care as a route to

emancipated science and alternative knowledge-making without critically

examining the ways positive feelings, sympathy, and other forms of

attachment can work with and through the grain of hegemonic structures,

rather than against them. (Murphy, 2015, p. 719).

Care has remained a significant dimension of feminist ethics (although feminist ethics

should not be equated with care ethics) and has become a way to shift thinking about the

actions and feelings of individuals and institutions. These two dimensions that have been

significant for geographers’ work, particularly in its theorization of a relational subject that

challenges the rational individual that underpins so much of moral philosophy (Popke,

2006, p. 506). Across both concerns of care and responsibility, the extent to which

institutions can and should adopt these concepts or be theorized as ‘taking’ or ‘being

assigned’ them are significant. As Held (2006) rightly points out, the social risks for not

thinking about care beyond the space of the interpersonal (or the family, as it is often

assumed) are high, and thus the reasons for seeing care in social institutions are great.

To the extent that we are economically interdependent, we need and want

public policies and arrangements that will enable us to provide care to those

we care about (who need not be limited to our immediate ‘‘loved ones’’)

and that will enable us to receive care when we need it… If a contractual

28

model is applied directly to situations of economic interdependence, it treats

the economically powerless and the economically powerful as if they were

equally autonomous, obscuring the conditions conducive to exploitation

and deprivation (Held, 2006, p. 81).

Indeed, thinking through the lens care is transformative (Popke, 2006, p. 506, citing Brown,

2003; Staeheli, 2003). Claims that the institutions should incorporate ‘care’ into its policies

or broaden its ‘responsibilities’ can extend to the ways we see institutions as caring and

responsible. Such ascriptions, however, raise two related issues.

First, we can trace the role of the state through its position on care and responsibility

and understand how its internal logics perpetually facilitate exploitation, domination, and

paradoxically a shifting of responsibility and a lack of care, even when its ‘assigning’ to

the state is meant to do the opposite. Second, in theorizing institutions or collectives as

being caring and responsible, we risk imparting them with moral agency, or moral standing.

The results of this concern can be seen through Peter French’s work on corporate

responsibility, where he argues for seeing corporations as ‘moral persons’ (1979) or seeing

the “actions of corporations” as “redescriptions of the actions of humans”(1992, p. 100,

see also French, 1984). While French makes compelling arguments about seeing

corporations, responsible for, particularly given the long-term challenges posed by

ascribing responsibilities for environmental damage in both a legal and moral sense (see

Chapter 9, Responsibility Matters (1992), for a brief discussion of the Exxon Valdez Spill),

seeing corporations as moral agents with moral and legal standing is not without

consequences. The relationship of French’s argument to corporate personhood is

concerning. Brown (2015) extensively discusses the dangers of this move by examining

Citizen’s United, wherein corporations take on liberal rights through processes she relates

29

to the insipid extension of neoliberalism into all aspects of democratic life13.

Responsibility in this dissertation plays a larger role than care, the reasons for which

I elaborate on below. Theories of responsibility provide a lens to engage with whom and

what is valued in society by examining the underlying power relationships embedded in

who is ‘ideally’ responsible and who ultimately is responsible. Health geographers can use

the concept as an organizing framework to consider the relationships that flow from

governance mechanisms that are multi-scalar, forward- and backward-looking, and

negotiated in everyday practice. To that end, I reconsider how the state negotiates is own

responsibilities and distributes responsibilities amongst actors when it comes to issues of

health risk and particularly occupational health risk.

I ground my analysis most strongly in Iris Marion Young’s notion of responsibility,

extensively detailed in Responsibility for Justice (2008), but also discussed in other works

(1990, p. 151; 2003; 2006). However, it would be incorrect to suggest that Young is the

only one who makes the critiques I discuss or that responsibility provides a replacement

for care. Indeed, Held’s thinking on the relationship of care and justice and discussion of

personal responsibility and virtue ethics (2006) offer some similar analyses. Tronto’s

“caring responsibilities” (2013) also offers useful ways of considering the analysis in this

dissertation, a contribution that itself draws upon components of Young and Walker’s

theories of responsibility.

However, Young’s analysis is compelling for this project in three ways. First, her

critique of liability offers a useful tool to see the limits of causation and intentionality

13 While we have seen within health geography and geography more generally, an effort to expand

agency and ethical consideration to non-human actors, the normative dimensions of these extensions

need to be carefully considered.

30

within structurally produced injustice under a diminished welfare and/or neoliberal state,

as is pertinent to the context of OSH in the US. Second, Young’s critique of ‘personal

responsibility narratives’ and a move away from ‘intent,’ ‘actions,’ or ‘character’ of the

agent, such as those found in virtue theory, are useful for considering OSH policy. This is

because questions of ‘assumed risk’ and ‘adequate compensation’ often diminish, explain,

and justify workers’ exposures to hazardous substances, and issues of ‘distance’ and ‘lack

of knowledge’ produced through subcontracting and other flexible mechanisms work to

absolve companies of responsibility. Third, by thinking through responsibility as forward-

looking through structural processes, Young directs more attention to contributions and

positions within social structures, an effort to move away from debates about the moral

character of individuals that helps my own interests in distancing from debates concerning

if workers are well enough compensated or ‘know’ the risks, as both discourses operate to

absolve others of their complacency within the structural processes that expose workers to

risk. Further, such an argument is compelling given my interest in thinking about

institutions as ‘responsible’ for injustice, but also my hesitancy in offering institutions

moral and political standing and, moreover, feeling, even as this concern is not fully

satisfied by this theorization.

Responsibility for Justice

Iris Marion Young’s posthumously published work, Responsibility for Justice,

develops the social connection model as a framework for forward-looking responsibility

that addresses structural injustice and critiques of models of responsibility rooted in

liability. Young theorizes responsibility in the context of structural injustice, explaining

structure in a way that can be used to consider the processes, institutions, and individuals

that produce OSH. Drawing on Rawls’ declaration, Young herself asserts that the “subject

31

of justice is structure” (2008, p. 44). Structures are a means of looking at society through a

series of processes and flows (2008, p. 70) involving the “accumulated outcomes of the

actions of the masses of individuals enacting their projects, often uncoordinated with many

others” (2008, p. 63). For Young, these results may themselves be anathema to the original

intent of the actors, a key consideration given the ostensible goal of OSH, to protect

workers’ health14.

Young articulates her theory of structural injustices through the Social Connection

Model by identifying injustices as processes through which groups or categories of

individuals are led to systematic risk of disadvantage and dispossession. For Young, the

challenge is to draw together moral and political philosophy such that responsibility can be

rethought in forward-looking ways to address structural problems. “To [Young]

responsibility is political, because it is collective, involves public discourse, and aims at

changing the social structure” (Neuhaüser, 2014, p. 242). Young’s model stems from a

concern that most theories of responsibility focus on individual instances of blame or fault,

do not address structural injustices, and obfuscate how normalized behaviors reproduce

them (Young, 2008); blameworthiness encoded in many of our existing frameworks for

responsibility insufficiently addresses structural roots of injustice. As she explains, “the

purposes of social practices of finding guilty, blaming, finding fault, holding strictly liable

are to focus on particular agents in order to sanction or demand compliance from them

alone” (2008, p. 105).15 She critiques responsibilities that focus narrowly on fault or blame,

14 The modest successes or outright failures of OSH structures to adequately protect workers over the

last century suggest that the concept may be more a euphemism that insulates employers and the state

from actually protecting workers. Still, many involved in OSH believe their actions make workplaces

safer, even if working within a flawed system. 15 While blame, fault, guilt and liability have different meanings and implications, Young often uses

these terms in combination when critiquing about responsibility as a causal relationship.

32

revealing how individual units of disparate parts of a system are responsible for

remediating injustice even if they are not directly culpable. For Young, “when injustice is

structural, there is no clear culprit to blame and therefore no agent clearly liable for

rectification” (Young 2008, 95). Young seeks to distance the social connection model from

questions of guilt and liability. However, as will be discussed shortly, liability has some

utility within an OSH context.

Other elements of Young’s analysis entail critique and re-readings of theories of

responsibility in public policy, virtue theory and luck egalitarianism, and Arendt’s writings

on responsibility. Virtue theory’s focus on moral character as a source of ill-standing, harm,

or, in her examples, poverty, offers nearly no contextualization of individuals within social

structures, and moreover centers on the moral character of individuals rather than the

broader systems and peoples that contribute to and reproduce injustice (Young, 2008). For

Young, virtue ethics strips people of their context, absolves others in their relationship to

injustice and fixates on consideration of morality, choices, and behaviors of individuals.

Even as Dworkin’s theory of luck endorses the idea of a welfare state as it tries to make

sense of ill-circumstances that result from arbitrary conditions and personal choice, for

Young, it “focuses largely on attributes of persons and ignores or rejects a theoretical place

for bringing social structures into view” (2008, p. 30). These critiques are useful in thinking

about OSH rules and regulations that seek to regulate behavior of actors to minimize risk,

and where behavior and ‘assumed risk’ underpin ideas that ‘workers know’ the risks they

assume and hence take responsibility for them. Focusing on behaviors and knowledge miss

the broader processes that place workers in exposure’s way in the first place. Thus, I take

Young’s critiques of responsibility as an entry point to understanding how OSH operates,

33

what it reproduces, and how it can be rethought through a more expansive

conceptualization of responsibility.

Young’s model is useful to examine OSH because of its treatment of time and

structure. It approaches issues of justice through a temporal framework; it is mostly

forward-looking, and thus forces us to engage with who bears responsibility for the

outcome of a hazard, but moreover, who should be responsible for changing the structure

that produces OSH risk. She finds that all those who contribute to unjust systems, even

those most unjustly impacted, have relationships of responsibility to change them, although

these responsibilities are not equal (Young, 2008, p. 97). This is helpful as many OSH

discourses focus on workers who ‘choose’ risky work or structures that make ‘safe choices’

impossible. In denying these binaries, she theorizes responsibility as collective and

forward-looking for structural change. While skeptical of liability as a means to influence

structural change, Young does not deny the utility of liability as a form of responsibility,

particularly when considering discrete harms done by corporations. Her proposal to rethink

responsibility provides alternative and active ways of thinking about health and health risk.

Geographers have embraced elements of this approach to rethink global

connections and the responsibilities to others they engender. As Barnett et al. (2011) write,

“taking responsibility…is theorized in terms of how distributed actions join actors together,

feeding into wider networks of cooperation that reach out and influence events elsewhere”

(p. 9). Young differentiates responsibility through power, privilege, and the ability to act

and has aligns with feminist geographers’ efforts to conceptualize global-local connections

through responsibility (Massey, 2004; Lawson, 2007). Further, her model conceptualizes

actors as unevenly imbricated in unjust structures and processes.

34

Neuhaüser (2014) extends the Social Connection Model by addressing what he sees

as its insufficient specification of the role of corporate actors, and hasty dismissal of fault

and blame. For Neuhaüser, Young does not answer if corporate actors are enrolled in the

social connection model as passive background agents, or, if “... corporate actors are

actually responsible agents themselves who can take over a part of the forward-looking

responsibility to overcome structural injustice” (Neuhaüser, 2014, p. 241). In considering

the implications of corporations or industries as being moral units or political actors,

Neuhaüser integrates more extensively both forward- and backward-looking responsibility

where these agents are held accountable for the acts they cause, but where they also have

a responsibility to change structures from which they profit that are unjust.

Neuhaüser links moral, legal and political responsibility through his efforts to

rectify ‘backward-looking’ responsibility with Young’s approach, adopting the stance of

Peter French and others that imbues corporations with agency, and allows their status as a

“moral agent.” As Pasternak describes, this means,

As moral agents, groups are morally responsible for their actions (in the

sense of backward-looking attributions of blame and praise). And as moral

agents groups can be task-responsible (in the sense of forward-looking

duties and obligations) (Pasternak, 2014, p.222).16

Neuhaüser aims to rectify inconsistencies within Young’s approach, namely surrounding a

normative theory of justice, its dealings with collective and shared responsibility, and her

16 Pasternak shows how theories of corporate responsibility, or the ‘corporate agency thesis,’ fail to

distinguish between moral and task responsibility. Pasternak is concerned by slippage as philosophers

deal with the heterogeneity of groups; this particularly occurs when blame is ascribed to a group but not

its individual members. She uses the example of corporate task responsibility to illustrate these

concerns, as it is often those members who end up enacting the forward-looking obligations and provoke

questions surrounding “industry” is framed in opposition to “workers.” Young’s approach to

responsibility for justice, such that it inclusive everyone, while maintaining an emphasis on the

distributed and necessarily unequal ways that responsibility is allocated, provide a useful counterpoint

to issues Pasternak raises. This is further supplemented by Neuhaüser’s emphasis on using guilt and

liability as mechanisms through which to address the “fair distribution of responsibility.”

35

dismissal for blameworthiness within her theory of responsibility. Notably, rather than

dismiss the utility of blame, it is “sufficient to prove that profit was made from the injustice

to further inquire whether there is a culpable involvement associated with this profit”

(Neuhaüser, 2014, p. 245). Thus, Neuhaüser uses the idea of culpability for an injustice,

broadly understood, as a mechanism by which to distribute forward-looking responsibility.

How the state views its own responsibilities and ascribes responsibilities reflects

and reproduces liberal and neoliberal notions of rational actors, personal responsibility, and

the state’s authority to intervene in private industry, that have underpinned the state’s

approaches to responsibility for OSH risk. While the dissertation draws on these insights

to understand responsibility as political, it acknowledges that practically, utilizing the idea

of industry or corporate actors as being political or moral units has additional conceptual

implications and raises theoretical tensions. Seeing industry as a political and responsible

actor has complex ramifications when considering ‘whose health’ matters when the state’s

responsibilities to workers and employers are not clear, as considered in Chapter 2. Many

of these concerns about viewing corporations as having individuals’ rights are well

articulated in raised by Brown (2015), as previously mentioned. However, seeing industry

as a unit with responsibility and agency has utility when considering its responsibility

towards structural dynamics that produce exposures to health risk, as discussed in Chapter

3, when considering a more expansive notion of responsibility for structural processes.

Mapping Responsibilities and Caring Responsibilities

Walker’s Moral Understandings draws attention to practices of responsibility.

Finding ideal constructions of responsibility insufficient, she emphasizes how

responsibility is practiced in the everyday, how responsibilities are multiple, and thus how

they are negotiated through systems of power and privilege. Responsibility reflects power

36

relations in that it is defined, assigned, and assumed through political processes, which do

not work in isolation. This work underscores that responsibilities are not singular, but

multiple, and illustrates the significance of considering not only how responsibility is

distributed in a theoretical sense, but how it is enacted. Her ideas emphasize what can be

learned from charting how responsibility unfolds through occupational health governance,

particularly about who and what is valued in society. This mirrors with Young’s concern

for responsibility’s definition, and responsibility’s relationship to the perpetuation of social

exclusions and injustices. Like care theorists, for Walker many everyday responsibilities

emerge out of relationships of dependency, opening up questions of vulnerability and

responsibility through differing forms of connection.

…social arrangements create of exacerbate vulnerabilities, which

vulnerabilities (some of them unnecessary) then entail responsibilities. But

as I have argued, delineating and delegating responsibilities is itself a large

in fundamental part of anything we might call a social arrangement,

practice, or system. The scheme of distributing responsibilities itself is a

determinant not only of particular responsibilities but of particular

vulnerabilities as well. Responsibility assignments render some people

vulnerable to particular others in particular ways for certain

things…(Walker 2008, p. 96, my emphasis).

Discourses surrounding work, working relationships, and OSH in the oilfield rely upon and

exchange between responsibility and vulnerability. Workers are responsible for their

coworkers, producing energy for the nation; workers sometimes must choose between

doing work quickly or doing work safely. Sometimes being responsible also means being

vulnerable, thus in some contexts, this comes as a form of personal sacrifice.

Walker’s ideas about “mapping responsibility” (2008, p. 86) have been widely

influential, shaping how scholars consider tracing social relationships to understand

systems of power, and more specifically in showing relationships between morality and

politics, even if she herself does not make that claim (Tronto, 2013). It is particularly useful

37

here, for thinking also about the relationship between responsibilities towards and social

vulnerabilities produced through social practices.

While the dissertation largely focuses on responsibility, Tronto’s work on ‘caring

responsibilities’ (2013) provides ways of thinking about multiple relations of care that are

significant for OSH. Drawing on Young’s analysis of structural injustice and Walker’s

account of an ethics of responsibility most strongly, Tronto explains how thinking about

‘caring responsibilities’ offers a different lens into democratic life. Privileging caring (for

Tronto, responsibility is a kind of care) offers a way to think about the decisions and

distributions of care.

Some forms of responsibility can appear to be contractual, but for an ethic

of care, one needs always to go beyond simple agreements to look more

closely at the power allocation in exchanges about responsibility. One needs

to focus also upon relationships among people, and not simply upon isolated

individuals, in making decisions about care (Tronto, 2013, p. 55).

This relational approach to viewing responsibilities requires thinking beyond distributions

of responsibility determined by rules and regulations, and considering the relationships

produced through caring relations, be that care for one’s fellow workers, one’s employer,

or one’s nation. These relationships of care underpin many of the discourses of OSH that

valorize certain kinds of risk, vulnerability, and ultimately sacrifice, examples of which are

discussed in the dissertation. Moreover, care-at-work can function to reinforce narratives

of personal responsibility.

Tronto (2013) also draws attention to irresponsibility, focusing on “epistemological

ignorance” (pp. 58-59) as a means to shift responsibility through ignorance of broader

structural conditions. Importantly, she draws attention to Pettit’s (2007) work on the Exxon

Valdez Spill, and the ways the multinational energy company utilized an “institutional

structure that deliberately diffuses and obscures lines of authority” (Tronto, 2013, p.60).

38

This is a key way that the neoliberal state has operated with respect to risk.

Risk, responsibility, and the Neoliberal State

The state has taken multiple approaches to civil society and the economy; through

liberal, welfare, and neoliberal processes the state has employed different rationalities and

techniques to govern risk, responsibility, and care (Rose, 1996; O’Malley, 2012; Tronto,

2013). The interference of the state in economic activities in the early 20th century, relied

upon core liberal ideas of a rational actor, but also incorporated new ideas about the role

of the state in mediating risks from economic activities. At various points in mid-century,

these ideas coalesced around policies and regulations to offer the populations and specific

groups protections from the state. These welfare programs, however, were strongly

rebuked, reformed, and replaced by neoliberal logics and programs. Particularly in the

latter half of the 20th century, responsibilities and caring activities that had been adopted

by the state were increasingly (re)placed on individuals under neoliberal processes and a

focus on self-governance (Jaggar, 2003; Silvey, 2009; England, 2010; Laliberté, 2015).

“The ideal neoliberal subject is the self-governing, autonomous market player” (England,

2010, p. 137). Further, the neoliberal subject bears the responsibility for social problems.

Discourses of citizenship, formerly configured around collective

responsibility, ameliorating social risk and social entitlements, have shifted

towards the neoliberal values of possessive individualism, consumerism,

and individual responsibility. In this neoliberalized frame, social problems

are recast as failures of the individual rather than the result of structural

inequalities, and the ‘good citizen’ is an atomized. (England, 2010, 136-

137).

For feminist scholars, examining the relationship between state powers, neoliberal

policies, and everyday life, has significant political contours. State power is not rooted only

at the institutional scale but can be seen in and through differently scaled social practices

(England, 2010, p. 134). This reveals ways that the state’s distribution of care and

39

responsibility are gendered, not only in divisions of public/private, but in the ways that

work/care are valued (Tronto, 2013).

In the 1990s, shifts surrounding welfare reform and welfare to work, continued to

reify distinctions of work and social reproduction relying on gendered stereotypes (Boyer,

2003), by tethering state support to ‘work’ that the state sanctioned. While much of these

discussions have focused on the ways that ‘care’ and ‘work ethic’ represent the

normalization of economic life, and public and private (Tronto, 2013), significantly

particular forms of care underpin the structures and discourses on which OSH relies, and

moreover, OSH discourses of personal responsibility depend.

These shifts in thinking about responsibility, care, and risk, paralleled a shift in how

to approach risk in the US. This is particularly evident when tracing the relationships

between the state, society, and the economy under OSH, and particularly when focusing

on the institution of OSHA. OSHA was one of the last enacted social protection programs

that emerged from social movements of the 1960s; while many neoliberal responses had

been to diminish the state’s role through deregulation, this has not been the only tool, nor

the most significant one to OSHA, Rather, through the implementation of extensive

regulation, paperwork, and requirements, OSHA’s ability to regulate has been diminished

through practical concerns (see Chapter 2). These changes have paralleled developments

in who is responsible for proving risk (Vogel, 2012) and the state’s relationship to the

precautionary principle, wherein as the state increasingly has been burdened with proving

economic activities cause harm (Vogel, 2012). The diminished capacity of the state is an

additional important dimension. Not only is OSHA underfunded and understaffed (see

Chapter 3), it is uniquely less powerful than other regulatory agencies in the strength of its

40

regulations and its ability to leverage fines (see Chapter 3). Thus, under neoliberalism, risk

and responsibility for risk, shifts onto individuals through diverse practices, of which many

are on display through this dissertation’s discussion of OSHA policy and workers’

compensation statutes. Thus here, the dissertation uses the lens of the neoliberal state to

contribute to diverse theorizations the “use of individualisation of responsibility for risk as

a management strategy by the state and other institutions” (Bickerstaff, Pigeon, &

Simmons, 2008, p.1315).

I return to these frameworks for thinking about health and its relationships to risk,

responsibility, care, and governance throughout the dissertation. Notably from this

discussion, these theorists provide ways of thinking about responsibility as a practiced,

negotiated, multiple, and inherently political concept that defines relationships between

differently scaled actors, and is tethered to neoliberal processes of the state. A focus on

responsibility for occupational health offers health geographers an opportunity to consider

not only distributional concerns of health and risk (who is exposed/unhealthy and where)

but requires examining the contexts, processes, and procedures that shape structures of

occupational health at multiple scales.

Methods

I conducted this research between October 2013 and August 2017, with the most

intense periods of data collection occurring between October 2013 and May 2015, and

employed participant observation, interviews and textual analysis. Drawing inspiration

from feminist sociologists and anthropologists (Marcus, 1995; Smith, 2005, 2006), I sought

to track the processes responsible for defining, enforcing, and perpetuating responsibility

for OSH in the oilfield. A reflexive approach further recognizes the power relationships

embedded in research but also draws attention to how the researcher is integral to the

41

knowledge produced. Positionality changes through different spaces and interactions, and

shapes the questions asked, the information gathered, and how the research impacts others.

My methods allowed me to trace social relations that shape occupational health as

it materializes through regulatory interventions situated in historical and material contexts.

My research took place in a variety of sites and changed as I engaged it, particularly as I

had not foreseen how difficult it would be to access the industry. Mulvaney (2014)

describes using multi-sited methods to overcome barriers of secretive industries that thwart

attempts to study them and was useful in tracing OSH in the oil and gas industry17. As

forms of access which I was counting on—to workers, regulators, industry members, and

well sites––infrequently materialized, I reshaped my research strategies around data that

was available. OSH is not a particular place but unfolds across space and through multiple

domains. Thus, the data presented here reflect different physical and digital sites.

Participant Observation and Interviews

To understand the dynamics of the industry, and specifically OSH, I engaged in

participant observation at industry events and conferences, in communities experiencing

development, and at government hearings. This occurred in two phases, while I was based

out of Williamsport, Pennsylvania, for ten months in 2013 and 2014, and while based in

State College, Pennsylvania, from summer 2014 until August 2017. In both periods, I made

frequent trips to other parts of the region and neighboring states, and to Washington, D.C.,

17 The industry, at times secretive and wary of researchers, is hard to access, thus despite nearly eight

dozen emails and telephone calls to various companies and trade organizations, I did not gain formal

access to it. I received few responses from direct outreach. Two companies referred me the Marcellus

Shale Coalition, which I repeatedly contacted with no response. Another directed me to a local branch

of a national safety organization that would not allow me to attend its meetings. A few OSH equipment

companies responded but ignored interview requests. Even gatekeepers at Penn State’s Marcellus Shale

Center for Outreach and Research unsuccessfully connected me with regional companies.

42

and Texas. I also conducted preliminary research in 2012 and the summer of 2013, taking

health and safety courses and visiting well sites in August 2013.

In October 2013, I moved to Williamsport, a hub of shale development in north-

central Pennsylvania. The industry was posited as a boon for both the region and the nation

because of its potential to secure energy supplies and jobs for the U.S. in a declining area.

I was in Williamsport during a ‘boom’ period, however, the landscape has changed in

recent years. The pace and scale of shale gas introduced a form of industrialization that is

spatially mobile and temporary, subject to quick changes in markets and investor

confidence. From Williamsport, I traveled to family-friendly18 employment and trade fairs

for the industry including Pennsylvania Energy Days at Lycoming County Fair Grounds

near Williamsport and the Energy Jobs Rally in Harrisburg, the state capitol, I took classes

at a local training center, and involved myself in parts of the community, including running

in a 5K race sponsored by Inflection Energy. I hung out at local bars, striking up

conversations with workers and industry executives and surveyed development in

northcentral and northeastern Pennsylvania. I also noted differences in the northeastern

part of the state to the southwestern, spending hours driving around rural parts of the state,

stopping in at local restaurants and stores that catered to the industry.

When I began the project, a near-finished Ph.D. student had warned me of the

difficulties of studying oilfield workers, on which his own research centered. I learned that

I also had limited access to this population because of who I am and what people assumed

18 These events often showcased themes stereotypical of white, working class, and rural Pennsylvania.

Events drew upon iconography of American nationalism in posters and logos; camo print adorned

giveaways, and connections often were made to farming. These differed from events I heard about which

hired groups such as “Off-site Entertainment,” a company formerly based in Williamsport that provided

scantily clad, white young women to barbeques, fairs, and restaurant events.

43

about me. I quickly discovered at trade shows, industry events, and even within my

institution, that individuals were concerned with what side I was on with regards to

hydraulic fracturing; conversations often were mediated by the extent to which I could

demonstrate ‘sympathetic neutrality’ towards shale oil and gas extraction. At times, I was

asked pointedly if I was a fracktivist and in one instance, someone who knew me outside

of research asked if I had “switched sides.” The organizers of the regional oil and gas safety

organization STEPS PA, which holds meetings every few months in State College, would

not tell me where meetings were held given their concerns about potential fractivism.

Due to the hours most workers keep, bars where one of the few places I could access

workers to interview them about their perception of silica risks but meant many of

interactions were fueled by alcohol and limited my ability to obtain consent. As I engaged

in these conversations, some nights finding people to talk to, others less successful, I found

this method of data gathering unable to achieve what I intended. Still, these conversations

added to my understanding of how some workers viewed OSH issues (as one worker

explained, OSHA was impinging on this “last man’s man- man’s” job). In other spaces, I

met individuals who knew of those who had entered into the industry, but in all but one

instance, was not able to obtain an interview. Workers often sign non-disclosure

agreements with their employers, and in these encounters, I was not able to garner the

requisite trust. Still, these experiences shape my understandings of OSH and the industry.

From State College, I redoubled my efforts to focus on OSH events. This took me

to several conferences focused on shale fuels and OSH. These conferences paralleled ways

that OSH, the responsibilities of employers, workers, and the state were being discussed in

training material and industry conferences. I engaged in conversations with individuals

44

from NIOSH, OSHA, and USDOL, which helped facilitate interviews. I draw on these

participatory experiences of OSH that enabled conversations with diverse groups involved

in OSH and the oilfield in my empirical chapters.

I also researched in eastern and southern Texas during three trips (Dec. 2014, May

2015, and Dec. 2016). One trip was dedicated to driving around the Eagleford Shale and

interviewing OSHA officials at local offices. I drove to well pads around towns such as

College Station, Beeville, Victoria, Karnes, Bryan, and Edna, by way of mostly back roads

as I searched for well-pads I could see from permit data or on the iPhone app RigData (a

source discussed in Chapter 3). I stayed San Antonio and Austin where OSHA offices were

located and conducted interviews19. In 2014 and 2016, I also attended the University of

Texas Arlington’s OSHA Oil and Gas Conference in Houston, Texas. These conferences

brought together health and safety professionals, human resource representatives, and

OSHA and NIOSH officials for two-days. Boasting large exhibitions and plenary speeches,

the conferences attracted hundreds of attendees and offered a unique opportunity to listen

to and participate in conversations about OSH in the oilfield, with a focus on OSHA

programs and NIOSH research. Both conferences had sessions, discussions, and vendors

devoted to silica, sources of information that I draw on in the empirical chapters.

A key component of my participant observation was the interviews I was able to

have with over 175 individuals at conferences and trade expos. Expos provided a unique

way to access OSH, as they provided access to individuals with the express purpose of

19 Although the industry is highly mobile, there are differences in the ways that workers are viewed, the

makeup of the workforce, and the relationship between seeing workers as insider and outsider,

something I did not experience to the same extent during my trips to Texas as I did in Pennsylvania. Oil

was in the fabric of the environment, even if new extractive activities had increased the number of

people and pace of development in the landscape. On several occasions, members of the industry

expressed to me how it was easier to work in Texas because the resistance to the industry was far less

45

talking to people interested in their work. I spoke to representatives from large operators,

safety associations, completions companies, safety equipment providers, government

agencies including OSHA, NIOSH, and the Bureau of Labor Statistics, and academic

institutions and their extension services. Individuals would speak at length about their

company’s product, and I became conversant in drug testing, behavior-based safety

programs, mini-bag house dust collection systems, respirator types and filters, and drone

technology. Through these experiences, I developed a more complex understanding of

OSH narratives as these interviews forced me to both learn and apply the language of OSH

to have meaningful discussions that went beyond silica exposure.

My fieldwork also coincided with the publication of a proposed new rule for silica

in September 2013, the first in 40 years, and the public hearings that OSHA held to discuss

its proposal in March and April 2014. I attended these hearings in Washington, D.C., at the

Department of Labor in the Frances Perkins Building, which afforded me a unique

opportunity to observe how OSHA negotiated responsibility in a public context and focus

on the days in which testimony focused on the hydraulic fracturing industry. Many of the

issues discussed at these hearings overlapped with what I was observing in my other

research activities and thus directly drew together the relationship between industry’s

approach to OSH and the regulatory environment, described in Chapter 2.

Finally, I draw on semi-structured interviews with eighteen government

representatives, including OSHA and NIOSH, and open-ended interviews with four health

and safety instructors. These occurred in government offices, academic contexts, and over

the phone. Particularly in instances where issues or inspections were being litigated,

government officials were guarded and/or only spoke on background. I asked questions

46

regarding the key occupation health concerns on wellsites, including silica concerns,

challenges to inspecting oil and gas well sites, tools and techniques used to inspect and

regulate oil and gas industry members, challenges of inspecting silica, developing silica

regulations for the oil and gas industry, and efforts to create a research portfolio

surrounding oil and gas health and safety concerns20. As per my IRB, my interviews were

conducted on the premise of confidentiality, and therefore I did not collect identifying

information from my participants. This was primarily due to the nature of the industry, the

high level of secrecy and anxiety that shrouds it, as well as the threat of litigation for

government officials. I also engaged in informational requests where I asked direct

questions regarding technical interpretations of law or research over email with state

workers’ compensation offices, state departments of labor, OSHA, and NIOSH.

Textual Sources and Analysis

In addition to these interviews and participant observation, I turned to multiple

textual sources for data. I classify these into three subtypes: laws and regulations,

government records, and OSH materials. Discourse and textual analysis enable the

researcher to analyze not only what is said, the knowledge that is conveyed between author

and audience through visual and textual media, but also the power relationships that are

being produced and maintained through that relationship (Rose, 2007) and can be a useful

tool for analysis of policy and government documents given the rules that govern their

20 The industry’s contentiousness was reflected in how some OSHA offices viewed my requests for

information. As I saw in an inspection record, OSHA is aware of fracktism and fractivists, discussing

one woman in internal email. Many OSHA offices never returned my requests for interviews, either in

2014, 2015, or 2017, by phone or letters, which I describe in Chapter 3. Some offices were skeptical of

me, unsure as to why a geographer would care about multi-employer policies and exposure monitoring.

One OSHA officer berated me on the phone for using the term ‘hydraulic fracturing’ in a letter, a sign

that I was potentially a ‘fracktivist;’ the office never returned requests to be interviewed.

47

production through the state’s authority (Hewitt, 2009). Axial coding helped make sense

of the complexity of documents I examined. It is an iterative process in which the

researcher produces categories of data which allow for the aggregation and disaggregation

of data around key themes (Wicks, 2010), and is useful for working with diverse data types.

I acquired textual data through OSH courses I attended at job fairs, information sent

to me by research participants, Internet searches, and my participation in Webinars. Course

information covers my participation in the courses21 at several training centers, and

includes materials from the class I help co-teach on confined space and rescue, where I

acted not only as an ‘expert,’ but also in charge of implementing discourses of safety. On

more than one occasion, workers in these courses sought me out to talk further or because

they wanted to provide me additional health and safety resources via email. Per IRB

requirements, I was not to use these courses as recruitment sites but my observations during

these classes were informative in understanding competing discourses of workplace safety.

Additional textual material included industry publications, advertisements, and best

practice guides; health and safety materials developed by OSHA, including “Hazard

Alerts” for the oil and gas industry, the minutes and notes from meetings from the STEPS

Network, and NIOSH and STEPS safety videos available online. Finally, I attended

webinars from safety organizations that focused on the oil and gas industry or silica and

analyzed the slides from those presentations, and other materials made available. I also

acquired from government websites, including regulations.gov that stores public comments

and evidence submitted on rulemaking and copies of public hearings’ transcripts,

21 These include: PEC SafeLand, Fall Protection, Confined Space, Confined Space Rescue, Oil and Gas

for Health and Safety Professionals, Shell Blue Book, Oil and Gas Industry: General Course; Worker

Right-to-Know; Safety is a Personal Decision, OSHA Record Keeping, PATHS: Workplace Violence

Safety, New OSHA Regulations on Record Keeping; Respirable Crystalline Silica.

48

USDOL’s Data Reporting Website that provides metadata on inspections, and Freedom of

Information Act Requests that provided detailed records of inspections. I reviewed

documents from the Government Accountability Office (GAO) that have evaluated

OSHA’s activities since its inception, but which has its own administrative history and

viewpoint on federal activities (McCaffrey, 1982)22. I watched live streams of a

Congressional hearing and speeches about the silica rulemaking and virtually attended

several webinars on the final silica rule. I examined laws, regulations, and proposed

rulemakings, including drafts and the final version of the silica rule and workers’

compensation statutes for each of the 50 states, accessed through LexisNexis Legal and

directly from state administrative codes on official state government websites.

As with any data source, the information these provide is partial and limited. These

data come from diverse organizations and authors; thus, in my analysis, I have made efforts

to critically engage with the texts, not merely as a source of information, but as a

representation of relationships between actors involved in OSH. Not only is the information

mediated by the epistemology and goals of the authors and curators and their intended

audiences, but my reading of these texts is also infused by my own perspective.

Dissertation Outline

These data, my analysis of secondary sources on the history of OSH in the U.S. and

the oil and gas industry, and my theoretical interests suffuse the empirical chapters of the

dissertation. These chapters explore how different notions of responsibility shape the

governance of occupational health risk in the U.S. oilfield. Chapter 2 examines how OSHA

negotiates its responsibilities to protect workers and the economy. Administrative

22 For McCaffrey (1982), the GAO is the “Institutionalized Critic of Lagging Regulatory Action.”

49

rulemaking, how OSHA develops standards to ensure the right to a safe and healthful

workplace, requires the state balance responsibilities to mitigate risk to workers and to

industry. Administrative rulemaking places workers’ bodies in opposition to the vitality of

the hydraulic fracturing industry. This enables the industry to utilize its flexibility as a

discourse to posit that it is unknowable and ungovernable in order to challenge existing

scientific evidence and analysis as uncertain, and to insist that workers are best at

protecting themselves from RCS. Thus, the industry shifts responsibility away from itself

and onto workers and offers arguments that position the state’s interest in industry health,

as paramount in the consideration of how to best protect human worker health. Rulemaking

requirements provide industry opportunities to recycle narratives that distance themselves

from accountability for unsafe work practices and obligations to mitigate risk. I draw

parallels between the hydraulic fracturing industry’s discourses during rulemaking and its

discourse of worker responsibility for OSH.

Chapter 3 examines how the state enacts its ideal distribution of responsibility

through a responsibility-as-blame paradigm. Enforcement mechanisms are techniques

OSHA uses to regulate employers who regulate employees. I argue that workers’

responsibility to manage health risk emerges from an institutional structure that focuses on

employers’ responsibilities. In essence, OSHA lacks sufficient tools to regulate industrial

structure. The chapter shows how the flexibility of the industry has material consequences

for the techniques OSHA uses to gather knowledge about hydraulic fracturing and regulate

silica at well sites. OSHA’s inability to capture the flexibility of hydraulic fracturing allows

the industry to avoid oversight, but also it supports its argument, as seen in Chapter 2, that

due to its spatial and temporal flexibilities, hydraulic fracturing is unknowable and thus

50

ungovernable. These oversights are material expressions of the discourse industry utilizes

to dissolve OSH responsibility to workers, as examined in Chapter 2, that emphatically

argues workers’ use of respirators is protective for workers.

Chapter 4 examines how the state determines who is responsible for mitigating the

effects of silicosis after a worker gets ill, in a context in which responsibility is declared to

be no-fault. The chapter argues that the State fails to ‘see’ many ill workers because they

have not been exposed to RCS or gotten ill from RCS in the right way, leading workers to

be responsible for managing an occupationally-acquired disease on their own. In

negotiating the conflicts between ill workers’ and exposing employers, the State struck the

compensation bargain where workers gave up their rights to sue employers in exchange for

no-fault insurance for the harms faced at work. Yet, these laws foster uneven and

inequitable health-relationships as they use exclusionary applications of time and space to

define ‘compensability’ that belie silicosis disease progression and common patterns of

work in hydraulic fracturing, and other flexible industries.

The concluding chapter provides a summary of these chapters and identifies areas

for future theoretical and empirical work. I now turn to the first empirical chapter on

rulemaking.

51

2. Chapter 2: Rulemaking: Is OSHA’s Principal Responsibility to

Protect Industry or the Workers?

[T]he process by which TLVs and, ultimately, standards have been set,

whether for asbestos, silica, or other dangerous substances, has been part of

a compromise between the health of workers and the economic health of

industry (Rosner & Markowitz, 2006, p. 253).

Around 9:30 a.m., on March 17, 2014, Administrative Law Judge Purcell convened

informal public hearings23 in Washington D.C., on OSHA’s proposed permissible exposure

limit (PEL)24 for respirable crystalline silica (RCS). I arrived at the USDOL’s Francis

Perkins Building early, having taken the Red Line to Judiciary Square, jostling on the D.C.

Metro with others going to work in the heart of the federal government. Once inside, I

presented identification and passed through a metal detector into an atrium where signs

pointed me to the Caesar Chavez Auditorium. I settled into a cushioned seat in the back,

observing clusters forming in the aisles. In a room occupied predominantly by white,

middle-aged men, to my eye, groups were differentiated by the details of their clothing: the

fit of their suits, the material on their shoes, the gel in their hair, and the size of their watches

and cufflinks25. Superficial differences, however, signified ones of great substance. Over

three weeks, these lawyers, lobbyists, scientists, and labor advocates engaged in debates

over the state’s responsibility for protecting industries vis-à-vis its responsibility to protect

23 This is a technical term. However, a judge presided over the proceedings and participants were

required to submit a Notice of Intent to Appear in order to speak and ask questions. 24 Other terms for limits include Threshold Limit Values (TLVs), Occupational Exposure Limits

(OELs), and Recommended Exposure Limits (RELs). These terms are political and social artifacts

(Murphy, 2006), and vary in what they represent. Associated with different organizations, some have

the force of law while others are recommendations. 25 I was not the only one note of how clothes reflect power dynamics. A former solicitor for OSHA

speaking to OSHA’s attorneys, women: “I have one piece of advice. I don’t know Ms. Robinson from

the Solicitor’s Office, but one advice to solicitors. Always wear a better suit than the industry attorneys,

and make sure it’s American made/unionmade. I’m wearing a suit that’s American made/union

made….Now, I don’t know whether women – there are any women’s suits that are available that are

American made/union made, but there are men’s –Hickey Freeman, and this is Tallia Uomo” (OSHA,

2014, April 3, 3784-5).

52

the workers employed in them. Notably limited were voices from workers exposed to silica.

Workers’ testimonies were concentrated to a few days and experiences from a few

industries, and not hydraulic fracturing. Instead, participants debated mortality statistics,

exposure thresholds, and the costs of engineering controls.

These hearings would distill decades-old debates over occupational exposure limits

to RCS. As part of administrative rulemaking, specifically the procedures agencies follow

in gathering evidence when exercising regulatory authority, the hearings exposed

negotiations pertaining to how the state realizes workers’ “right to a safe and healthful

workplace” as promised in the OSH Act. OSHA rulemaking starts from the premise that

the state is responsible for ensuring this right by regulating employers’ practices to reduce

workplace risks. However, there is a disconnect between this premise and its practice.

In this chapter, I argue that the governance of health risk is shaped by unresolved

questions about toward whom OSHA has the greater responsibility, to industry or to

workers. Rulemaking, or the process of writing regulations, places these tensions on full

display. The tensions produced are complicated not only by the opposing interests of

industry and workers but also by OSHA’s complicity in failing to definitively support one

or the other, despite its mandate. In negotiating the question of whether it is most

responsible to workers or to industry, the state offers regulated parties opportunities to

comment on the rulemaking and to present evidence through public hearings and written

public comment periods. However, one of the effects of offering these participatory

opportunities is that industry representatives utilize the rules of rulemaking to perpetuate

discourses that place industry’s health and vitality above that of workers, and where

workers are primarily responsible for mitigating the health risks to which they are subject

53

within the industry. Such an analysis allows us to consider how negotiations of

responsibility fit into broader narratives of health risk. These narratives of health risk

illustrate how entangled within the state’s interest in ‘worker health’ is a concern for

‘industry health.’ These processes develop from a long history in which the state has

responded industrial capitalism’s impacts on human bodies. Occupational health, then, is

a microcosm of the state’s tenacious responsibilities to its public citizenry and its private

industries. I use the hydraulic fracturing industry’s participation in rulemaking for silica to

illustrate this.

During the hearing, industry groups, such as the U.S. Chamber of Commerce (the

Chamber), the American Chemistry Council Respirable Crystalline Silica Panel (ACC),

and the American Petroleum Institute (API), downplayed industry’s accountability for

unsafe work practices and minimized industry’s obligations to mitigate risk. Employing

the requirements that OSHA uses to weigh its own responsibilities, industry challenged

scientific evidence, deployed its spatial and temporal flexibility as a strategic discourse to

posit the industry as unknowable and ungovernable, and insisted that workers are best at

protecting themselves from RCS. In denying industry’s responsibility for the health of its

workers, industry representatives shift this responsibility to individual workers. Examining

the discourses that surrounded efforts to update the state’s RCS standard reveals the

tensions that underlie state’s interest and definition of worker health. Namely, the state has

not resolved if it is more responsible to workers health or to private industry. The chapter

shows how the state’s requirements insufficiently resolve its responsibilities to workers

and to industry and give industry’s discourses a public venue through rulemaking.

Rethinking the State’s Interest in Health: Responsibility as Negotiated

This chapter builds upon health geography’s engagement with health governance

54

by offering responsibility as an organizing analytic to consider the negotiations that shape

health risk. This reframes how health geography has engaged with state and institutional

processes by focusing on the state’s negotiation of its multiple commitments when

governing health risk. As discussed in Chapter 1, health geographers have shown how

health emerges through the state’s rationalities and techniques of power that encode and

reproduce ideas about space and bodies, including how bodies internalize self-disciplining

logics surrounding health that facilitate the governance of populations. This focus on the

production of individual health behaviors pairs with scholarship that emphasizes the

problematic ways that health is reified at the site of the individual body, and that instead

contributes readings of disease and illness which center on structural processes and their

historical and spatial contexts (Holmes, 2013; Horton, 2016; King, 2017).

However, the complexity of how the state views ‘occupational health,’ which has

unique rationalities that separate it from public health, has been relatively understudied in

health geography. While critical of how the state and its public health agencies incorporate

problematic notions about bodies or are swayed by external influences, I illustrate how the

state’s interest in human health is constituted by its conflicting commitments to private

industry and the population. Worker health sits at the intersection of these two concerns,

and thus is constituted by a consideration of both. This analysis shows how the way the

state regulates health risk reflects its competing commitments. The state has many interests,

with which one is rarely imbued with absolute significance. For occupational health risk in

the U.S., these responsibilities are openly written into the ways the state defines and

55

regulates human health risk26. This chapter provides an example of how the state’s

competing commitments to workers and industry unfold through the rulemaking process.

OSHA’s rulemaking process uniquely requires public hearings27 as it adjudicates what

constitutes significant health risks for workers and for industry, fostering spaces where

health knowledge—namely whose health matters most—is contested. This offers industry

an opportunity to infuse elements of the ways that it sees OSH concerns into regulatory

spaces, and posits itself as unknowable and ungovernable, leveraging the uncertainty

regarding its spatial configurations as a discursive tool to shape narratives of responsibility

for health risks from silica. Here, I focus on how the state’s requirements for defining

human health risk enable narratives in which industry is imbued with human qualities, its

own ‘health,’ which needs to be protected, and which is contrasted with human health.

These requirements, discussed at the end of the chapter have magnified over several

decades, requiring more analysis and consideration of risk’ to human health and industry’s

health. These requirements diminish the state’s ability to write new regulations for

occupational health risk by drawing out the regulatory process, while at the same time

reifying long standing discourses and tensions of OSH.

As introduced in Chapter 1, I draw insights from theorists skeptical of the ways

responsibility operates within neoliberal democracies, showing how responsibilities are

produced through the discourses and practices of governance, and how they reproduce a

false dichotomy between freedom and personal responsibility, and structural determinism

26 While I focus on occupational health, regulations encode similar concerns and requirements for

environmental health. There are differences, however. While EPA frequently uses cost-benefit analysis,

OSHA evaluates “costs and benefits,” with slightly different evaluative requirements. 27 The OSH Act stipulates public hearings as a requirement of rulemaking, a requirement unique to the

agency although other agencies may use them under certain circumstances.

56

(Young, 2008) and draw attention to “rationalist” conceptions of responsible government

action that surface under market capitalism and the bureaucratic state (Harmon, 1995).

Such theories illustrate how the organization and distribution of responsibility among

actors, and the resolution of conflicts between them, reveal something about who and what

is valued in society (Walker, 2007, p. 11; Young, 2008). Thus, I trace the implications of

responsibilities to protect that emerge through administrative rulemaking at OSHA.

Permissible Exposure Limits: Regulating Risk, Silica, Industry and Workers

The state makes employers accountable for the health risks that workers face when

they have been exposed to silica above the level permitted by federal regulations. To this

end, OSHA establishes Permissible Exposure Limits (PELs) to define what constitutes a

“safe workplace.” An exposure limit constitutes an assessment of risk (Ziem & Castleman,

2000), and it operates as a state-sanctioned level of acceptable risk. Such limits are

commonly understood to be objective assessments that ensure a very low risk to workers’

health and function as a key “solution” to the hazardous respiratory conditions that

characterize many industrial workplaces. Through workplace inspections, the state

enforces exposure limits by levying fines and remediation requirements when workplaces

are found to be exposing workers above this state-sanctioned level of healthfulness.

In the first half of the 20th century, exposure limits gained legitimacy through the

state, industry, and public health institutions that endorsed them (Rosner & Markowitz,

2006). Yet, instead of reflecting the scientific evidence and ensuring the highest possible

protection for the workers, limits and thresholds have often reflected the financial interests

and technological capabilities of industry rather than the health of the workers. Once a limit

is established, the question as to who is responsible for ensuring that workers are not

exposed to a substance above a given level, employers or workers, has been a subject of

57

continuous debate.

Finding a solution to problems caused by silica and silicosis became a regulatory

concern of several U.S. states in the 1920s and 1930s (Rosner & Markowitz, 2006).

Sickened mine and foundry workers drew attention to silica through litigation, and states

began to legislate occupational disease, sometimes at the behest of employers who sought

to limit their mounting liability (Bale, 1987; Rosner & Markowitz, 2006).

Tragedy drew further scrutiny. In the 1931, during the construction of a tunnel for

a hydroelectric dam in Gauley Bridge, West Virginia, employers knowingly exposed

workers to high levels of silica without providing any protective equipment. In this

instance, which became known as the Hawks Nest Disaster hundreds and perhaps

thousands of workers, many of whom were African American men, developed acute

silicosis. Hundreds died within a matter of months or a few years of exposure (Cherniack,

1986). By the mid-1930s, silicosis had become “the king of occupational diseases” (Rosner

& Markowitz, 2006, p. 75).

In response, industry engaged in a concerted effort to pivot the public’s attention

away from silicosis. Rather than aiming to eradicate the disease, industry groups aimed for

“the virtual elimination of silicosis from popular discourse” (Markowitz & Rosner, 1995,

p. 254). This ‘solution’ to silicosis would absolve industry from further collective

responsibility for changing industrial practices in favor of workers. Towards this goal, the

Air Hygiene Association, an industry-academia collaboration with the Mellon Institute in

Pittsburgh, Pennsylvania, steered silicosis studies and debate. In 1936, it participated in the

USDOL’s National Silicosis Conference, which endorsed an industry standard for silica

without acknowledging the health risks associated with it (Markowitz & Rosner, 1995, p.

58

255)28. The standard limit was not binding, and debates continued in industry organizations

such as the American Council of Government Industrial Hygienists (ACGIH), unions, and

state legislatures about appropriate, often voluntary, exposure limits to silica (Rosner &

Markowitz, 2000). In the ensuing decades, the public increasingly accepted the limit

established at the National Silicosis Conference as a measure of safety that “successfully”

addressed silicosis despite persistent concerns from public health scientists and officials

(Markowitz & Rosner, 1995)29. A 1955 U.S. Bureau of Mines report, for example,

expressed concern that although many believed workers were adequately protected from

silicosis, uncertainties remained; these warnings would not change the conclusion by many

that silicosis was a disease of the past (Markowitz & Rosner, 1995, p. 258).

The federal government became responsible for setting PELs in the 1970s

following the OSH Act. The Act charged OSHA with responsibility for identifying

hazardous substances and regulating them on a hazard-by-hazard basis, with one exception:

Congress allowed OSHA to utilize ACGIH and trade organization standards from the

1950s and 1960s in setting its initial PELs (Kerwin & Furlong, 2010), which had been

strongly shaped by industry (Markowitz & Rosner, 1995; Rappaport, 1993; Ziem &

28 Rosner and Markowitz (1995) bluntly describe its influence here: “These committees were dominated

by Air Hygiene Foundation members and other experts who developed a consensus that would define

the silicosis issue in the coming years and even decades. The agenda being developed was ostensibly a

product of objective scientific and technical discussions. But the discussions were framed by the very

real social crisis facing industry and the solutions were constrained by the economic decisions of

individual firms. Workers were to be protected through engineering methods that did not disrupt

existing technologies or the continued use of sand in blasting. A consensus developed that

technologically feasible engineering and medical standards could be developed to prevent silicosis from

shortening a person’s work” (pp. 40-41, my emphasis). 29 Who these regulations were meant to protect was of some debate (Rosner & Markowitz, 2006). Like

debates on exposure limits, concern was over if regulations should protect ‘average’ workers, able-

bodied white men, or other categories of workers. In the case of lead exposure, this led to the removal

of ‘abnormal’ or fragile women’s bodies from particular environments and was emblematic of the

“sexism of industrial hygiene” (Markowitz & Rosner, 2002, p. 125, see also Murphy, 2006). Similarly,

the science used to define OSH problems and solutions has myopically focused on men (Messing, 1998).

59

Castleman, 2000). Based on these “‘start-up’ standards,” OSHA avoided what would have

been a time-consuming process of rulemaking for each of the 425 air contaminant standards

it implemented (OSHA, 2016, p. 16294)30. In 1971, OSHA established a PEL for RCS of

approximately 100 μg/m3—a level that was taken from the ACGIH 1968 recommendations

(OSHA, 2016, p. 16294)31. Already problematic, these PELs were then enforced by an

agency that would see its authority diminished throughout the as increasing regulatory

burdens, institutional pressures, and the influence on scientific knowledge from industry

diminished OSHA’s authority described in the OSH Act.

Three years later, in 1974, NIOSH determined that OSHA’s PEL for silica was

insufficiently protective. Cases of silicosis from Gulf Coast states had prompted NIOSH to

investigate silica exposure in the oil and gas and maritime industries (Rosner & Markowitz,

2000). In 1974, NIOSH issued a report that endorsed a recommended exposure limit (REL)

of 50 μg/m3 for a 10-hour time-weighted average and proposed that silica be banned as an

abrasive blasting agent (Rosner & Markowitz, 2000). Strong industry opposition coalesced

around the Silica Safety Association’s resistance to the implementation of a lower PEL.

The Association argued that respirators provided sufficient protection and that the NIOSH

REL would put the industry in jeopardy by imposing intolerably high costs (Markowitz &

Rosner, 1995). The association’s efforts were successful: several decades passed before

OSHA acted on NIOSH’s 1974 recommendations, during which these arguments

30 To circumvent this process, in 1989, the agency attempted to revise 376 PELs. However, the 11th

Circuit found that OSHA had not demonstrated either the need for the new PELs or their feasibility

(OSHA, 2016, p. 16294). Subsequently, OSHA has not tried to revise PELs en-masse. 31 In 1971, OSHA set a PEL for quartz allowing general industry to follow one of two formulas: particle

count or mass (OSHA, 2016, p. 16294). This PEL did not mandate training or medical surveillance.

Under the new 2016 rule, PELs are not established by a formula: all industries have the same limit, and

requirements now include medical evaluations and monitoring for workers regularly exposed to the

“action level” of 25 μg/m3 (OSHA, 2016).

60

resurfaced. Issues such as the insufficiency of data to warrant a lower PEL and the necessity

of respirators dominated the regulatory debates surrounding RCS in 2013 and 2014.

In the 1990s, sandblasting exposure in oilfields in the Gulf Coast led to a tort

liability crisis for silicosis: barred from suing employers by workers’ compensation

statutes, workers whose health had been harmed sued material manufacturers of silica

(Rosner & Markowitz, 2000) drawing attention to the persistence of the disease32.

International attention grew as well. Following its 1987 listing of RCS as a probable

carcinogen, in 1996 the International Agency for Research on Cancer (IARC) revised this

classification, determining that RCS is a carcinogen (OSHA, 2016, p. 16294). The

International Labor Organization (ILO) and the World Health Organization (WHO) called

for the end to silicosis in 1995 given their conclusion that “the knowledge and means

required for its elimination were within our reach” (Ehrlich, 2015, S1, citing Fedotov and

Eijkemans, 2007). In 1997, OSHA began the rulemaking process that would result in a new

standard for RCS, although a new standard did not come into effect for nineteen years when

OSHA finalized the RCS rule in March 2016. The final stages of this process unfolded

over the course of my fieldwork.

In the years between NIOSH’s 1974 recommendation and the final rule in 2016,

the ACGIH recommended an even lower limit of 25 μg/m3 in 2006 (OSHA, 2016, p. 16294).

However, in its 2016 final rule, OSHA determined that a PEL of 50 μg/m3 per was

appropriate because it was the lowest level feasible for the affected industries using

engineering controls (OSHA, 2016, p. 16287)33. Many believe, however, that there is no

32 Industry members have questioned the validity of these lawsuits. At the 2014 OSHA Conference, one

session on RCS spent significant time establishing that many of these cases are fraudulent. 33 This rulemaking applied to quartz, cristobalite, and tridymite, three polymorphs of silica of which

quartz is the most common (OSHA, 2016, p. 16298).

61

safe exposure level to carcinogens, and OSHA admits that significant risk/residual risk

remains at the new standard (OSHA, 2016, p. 16287).

By tracing responsibility encoded within rulemaking, and by examining hydraulic

fracturing in the context of RCS rulemaking, in particular, it becomes clear how the public

comment process can be dominated by, and manipulated to reproduce, industry narratives

and objectives that seek to absolve industry of responsibility. This followed from decades

of knowledge, debate, and regulation of the RCS hazard (Figure 2.1).

Figure 2.1: Silica Regulations Timeline

Silica Hazards in Hydraulic Fracturing

Since the hydraulic fracturing industry’s expansion in the 2000s, safety concerns

were given significant attention, particularly due to high fatality rates among workers. One

of the first health concerns to be addressed was silica. Although the extractive process for

unconventional oil and gas can expose workers to silica at several points, NIOSH has

1930s-1940s

•Hawk's Nest Diaster

•Silicosis "King of Occupational Disease"

•DOL Silica Conference (1936)

•Air Hygiene Association

1950s-1960s

•Silicosis "fait accompli"

•Efforts towards federal OSH oversight

•ACGIH Standard (1968)

1970s-1980s

•OSH Act (1970)

•OSHA sets RCS PEL (1971)

•NIOSH Report recommends lower limit (1974)

•Benzene decision (1980)

•Silica Safety Association (1980s)

1990s-2000s

•Silicosis tort 'crisis'

•Silica a definitely classified a carcinogen (1996)

•DOL Silica Conference (1997)

•New RCS Rulemaking Begins (1997)

2010s

•Draft Rule Circulated (2011)

•NPRM (Sep.2013)

• Informal Public Hearings (Mar./Apr. 2014)

•Final Rule (Mar. 2016)

•Opening arguments in legal challenges to rule (Sep. 2017)

Silica classified a carcinogen (1996)

62

recorded dangerous exposures during hydraulic fracturing, including levels that exceed

exposure limits and protective values of commonly used respirators (Esswein et al.,

2013)34. Significant exposures occur during the material handling of sand as it is mixed

into the hydraulic fracturing fluid when a stage is being pumped. Sand trucks deliver sand

onsite and pneumatically transfer sand to the sand mover, also known as a mountain mover

(Halliburton, 2012a) or sand chief (Franklin Well Services, Inc., 2016) (Figure 2.2).

Figure 2.2: Mountain Mover, Points of filling (OSHA 802188, 2011, p. 308)

In this process of off-loading, compressed air moves sand through fill ports that are on the

sides of the sand mover (Esswein et al., 2013) and can generate a visible ‘dust cloud’ that

enshrouds well sites (Figure 2.3). OSHA describes this process:

Sand is forced in from the trailer and into the Mountain Mover bin. At the

top of the bin, air escapes through a filter the shape of a large pillow. A

particulate plume is visible during bin filling. The plume rises into the air

high above the entire fracing operation. (OSHA Inspection 802188, 2011,

p. 163).

34 A variety of sampling equipment can measure airborne dust. Esswein et al. (2013) used personal

sampling pumps with sampling cassettess to capture Personal Breathing Zones (PBZ). The accuracy of

different equipment were debated at length during the informal hearings for the new rule. In general,

these samplers draw in air to collect a sample, which, when analyzed in a lab, can indicate what

proportion of the airbone dust is silica.

63

Sand movers transfer the sand via ‘the dragon tail’ to a transfer belt, or t-belt. This carries

the sand into the blender hopper where it mixes with water and chemicals (Esswein et al.,

2013). Workers may sit inside of the crows’ nest on top of the sand mover to monitor the

transfer of sand onto the t-belt and gauge sand levels (Figure 2.4). Others tend the t-belt

area and shovel spilled sand back onto the belt and blender operators observe water and

sand mixing. When sand movers are simultaneously refilled while still operating, or “hot

loading,” is also associated with high dust generation (Esswein et al., 2013).

Figure 2.3: Mountain Mover and Plume of Dust

(OSHA 802188, 2011, p. 184)

Figure 2.4: Crow’s Nest (OSHA & NIOSH,

2012)

Although the vocabulary of titles, activities, and equipment used during these

processes may differ from company to company, NIOSH and OSHA have identified key

points of exposure for workers and common job activities of highly exposed workers.

These points of exposure include dust from fill points, during transfers to sand movers and

the t-belt, on site traffic, and workers’ clothing. Highly exposed roles include t-belt

operator, sand mover operator, and hydration unit operator where exposures were more

than ten times the NIOSH Recommended Exposure Limit (REL) for silica (Esswein et al.,

2013). NIOSH estimates that crews involved directly with the material handling process

number around ten to twelve, although additional crews are on site and may be exposed.

Exposures are dependent on where workers are located, how much time they spend in

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enclosed areas with air filtration, the weather and the wind, and the configuration of the

equipment (Esswein et al. 2013). Thus, the geography of the worksite can influence the

exposures workers experience, which workers experience them, and their magnitude.

Respirable crystalline silica (RCS)35,36 is a known carcinogen associated with lung

cancer, renal disease, autoimmune disease, and the fibrotic lung disease silicosis (Leung,

Tak Sun Yu, & Chen, 2012). Silicosis is a progressive disease caused almost exclusively

by occupational exposures to RCS. When RCS particles enter the lower respiratory system,

the particle inflames the lung, but an individual cannot expel the particle (OEHHA, 2005).

The body responds by producing fibrotic scar tissue, creating scarring or nodules, and

increasingly loses its ability to respire (CDC, 2002, 2010; Leung, Tak Sun Yu, & Chen,

2012). Silicosis has three primary forms: acute, accelerated, and simple chronic, depending

on the duration and magnitude of exposures, latency it takes the disease to develop, and

the kind of scarring produced (CDC, 2010; Leung, Tak Sun Yu, & Chen, 2012). Silicosis

is irreversible, is associated with several comorbidities and often leads to death. Known,

nearly exclusively, as an occupational disease37, it afflicts mostly white males according to

recorded silicosis mortality in the U.S (Mazurek et al., 2015). Its relationship to ‘life-style’

activities such as smoking contributes to debates about who is responsible for the disease;

nonetheless it is one of the oldest identified occupational diseases that has already afflicted

workers in areas conducting hydraulic fracturing.

35 The respirable fraction of dust that is considered an occupational hazard is 10 or less microns in

diameter. While I refer to both RCS and silica, it is the respirable size that is considered hazardous. 36 In addition to hydraulic fracturing, workers are exposed to RCS in sandblasting operations (used as

an abrasive cleaning agent, for example, during oil tank cleaning), manufacturing, construction, foundry

work, coal mining, homebuilding, bricklaying, and quarrying, among others (CDC, 2002). 37 Silicosis can be an environmental hazard (Markowitz & Rosner, 2002). Hydraulic fracturing has

increased mining for silica sand in the mid-western U.S., raising concerns for the sand mining

communities, as well as places through which sand is transported by rail.

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The oilfield has long been a risky place to work38 of which RCS is only one of

several occupational health hazards. Other hazards are present at worksites constantly

while others are temporally bounded to certain work activities and environments. For

example, while volatile organic compounds off-gas from equipment and infrastructure,

multiple fatalities from hydrocarbon exposures during tank gauging have been documented

by NIOSH (Harrison et al., 2016). NIOSH has also found high levels of benzene, a

carcinogen, in the urine of workers involved in flowback operations (Esswein et al., 2014).

Low oxygen environments, and ‘sweet gas’ or hydrogen sulfide, a fatal fume that occurs

naturally in many regions, are also potential hazards and responsible for workers’ deaths.

Still, silica is one of the occupational health concerns that has garnered significant concern

from industry and government. The timing of their concern, however, is important to the

arguments made during the rulemaking process.

The dose makes the poison? RCS as an unknown risk in hydraulic fracturing

The dose makes the poison. This adage represents the traditional view of the

relationship between exposure to a hazardous substance and the illness resulting from that

exposure39. This assessment may go some way toward explaining OSHA’s admitted

prolonged lack of awareness of the RCS risks posed by hydraulic fracturing. It was not

until a study on RCS exposure was published by NIOSH that overexposure to RCS in

hydraulic fracturing attracted OSHA’s attention40. Indeed, one OSHA official explained to

me that the inclusion of the industry was a last-minute addendum to make sure that

38 I focus on onshore, upstream oil and gas, emphasizing hydraulic fracturing and exposures to silica. 39 Guthman and Mansfield (2013) and Vogel (2008) illustrate how this principle has been challenged

by new fields of environmental epigenetics and endocrine disruptors. Vogel illustrates how these ideas

were encoded within regulatory law and shape how the state regulates risk. 40 In 2012, OSHA and NIOSH published a hazard alert on RCS in hydraulic fracturing (OSHA &

NIOSH, 2012).

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hydraulic fracturing was in the final rule, a sentiment echoed by OSHA officials giving

presentations at OSH conferences, and a narrative that supported industry’s own position

that it also did not know of the silica hazard. While silica sand was knowingly being used

in the industry, that the magnitude of the exposures was potentially dangerous to its

workers was seemingly unknown.

Representatives of the oil and gas industry have claimed that the risks posed by

RCS in hydraulic fracturing were not known until the late 2000s, even though silica sand

used in abrasive blasting in the oilfield had been at the center of the tort crisis just a few

years before. At keynote presentations that I attended at both the 2014 and 2016 UT

Arlington bi-annual OSHA Oil and Gas Safety and Health Conference, industry

representatives applauded themselves for taking quick action to address the risks posed by

silica once RCS had been identified as a problem. In sessions devoted to silica, industry

leaders espoused similar sentiments and credited the National Safety Transmission

Exploration and Production Safety (STEPS) group in conjunction with NIOSH and OSHA

representatives with enabling this action. This served to suggest that industry had taken

responsibility for their workers’ health, and as will be developed throughout the chapter,

worked as part of a broader strategy to suggest that OSHA did not need to further regulate

the industry, and absolved industry of responsibility for further action, particularly that

mandated by OSHA.

Illustrating these successes in identifying the silica problem, STEPS, NIOSH, and

OSHA formed a strategic alliance during the 2014 conference and renewed it two years

later in 2016. When I asked members of STEPs, OSHA, and NIOSH about the partnership,

many replied that it would further formalize existing efforts to organize research and

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outreach. Several OSHA Area offices I interviewed indicated that their regional alliances

were important ways that OSH information was shared amongst industry, public health,

and regulatory stakeholders. Members of STEPS, often employees of oil and gas

companies, have also contributed to NIOSH’s National Occupational Research Agenda

(NORA) for Oil and Gas, which has helped to prioritize research into silica. STEPS also

organized the Respirable Silica Focus Group, through which industry, OSHA, and NIOSH

shared information regarding RCS exposure when this became recognized as a problem.

Meeting presentations, the minutes of which are made available on their national website,

spanned respirator use to engineering control technology. Despite this prominence, STEPS

did not give testimony at the hearings, although several of its members presented at the

hearings on behalf of their companies or primary organizations.

Industry’s narrative is that it was not aware of the magnitude of the silica problem

in hydraulic fracturing, but that once apprised of the risks it has taken responsibility and

moved to quickly address the problem. Despite this activity around silica, industry groups

continued to take the position that RCS exposure did not warrant a lower PEL, nor should

respirators be stopped as a compliance method. The belief was that industry, working

internally, had addressed the problem.

Industry representatives, however, were not alone in being slow to act. OSHA did

not address the relationship between RCS and hydraulic fracturing in rulemaking until an

advanced stage in the rulemaking process. Hydraulic fracturing was first substantively

included in the Preliminary Economic Analysis for the Notice of Proposed Rulemaking

(NPRM) in 2013. It was included in Appendix A of this document which comprises eighty

pages on NPRM’s impact on hydraulic fracturing. The impact described therein was based

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on research conducted principally by OSHA’s contractor, the Eastern Research Group

(ERG). However, this research was not conducted until many other processes for

rulemaking had been completed, including Small Business review panels, a principal

contention for industry representatives. Thus, its late inclusion set the tone for the

rulemaking debates which I observed in 2014, which already were primed to be adversarial.

Negotiating Health Risks: for whom?

The debates I observed at OSHA’s hearings entailed strategic interpretations of

OSHA’s responsibilities offered with the purpose of advancing certain interests (industry’s

health) at the expense of others (workers’ health). According to the first narrative offered

by industry representatives, it was not necessary for OSHA to take steps to further protect

the workers. The reason: current rates of silicosis mortality did not obligate the industry to

meet a lower PEL because mortality rates were decreasing and could not be attributed to

current industrial practices. During the time that I spent in the Caesar Chavez Auditorium

during the public hearings, I heard industry-affiliated speakers offer the same arguments

with tedious repetition and an intense focus on the technical aspects of the regulation. When

the hydraulic fracturing industry was discussed, its content spilled outside the regulatory

environment and drew parallels to the trainings, conferences, and events I was attending

for OSH, and the promotional literature circulated by oil and gas industry groups. Many

arguments were rooted in ways that industry generally, and the oil and gas industry

specifically, framed OSH concerns, with a focus on safety over health, the immediate and

discrete, over the long-term and unseen, consequences, all with an eye towards establishing

the uniqueness and unpredictability of the industry.

Each day when I attended the hearings, I sat down in the center back row of seats.

Union representatives and members of other workers’ organizations, who comprised the

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most demographically diverse group at the hearings, invariably sat to my left. Industry,

represented predominantly by white men, gathered in several groups to my right. Members

of the groups infrequently mixed, and with a few exceptions, provided rough boundaries

for the arguments that would be presented. Three tables were positioned across the flag-

accented stage, the outer two draped in blue cloth were embellished with the USDOL crest.

A rotating panel of scientists and OSHA representatives sat at the table stage left. Those

giving testimony sat stage right. One of two older white men, the presiding administrative

law judges, occupied the center table, from which they periodically intervened in tense

interrogations, reminded commenters to introduce themselves for the transcript, and kept

the hearings on schedule. I focus here on industry, in part, because so few members of labor

organizations gave specific voice to oil and gas concerns, and these came mostly by way

of question and answer. Labor unions, although charged with representing their own

membership, would at times include questions about hydraulic fracturing. Yet throughout

the hearings, it was industry that dominated the narrative, not only about the hydraulic

fracturing industry, but also by setting the discourse around a few key themes including

“significant risk.” Repeating these arguments across dozens of industry groups, by sheer

numbers and provocativeness of argument, at times, industry established its voice as the

one to be rejected41.

Before these parties gathered in Washington, D.C., for the informal hearings in

March and April 2014, the process of debating OSHA’s rule had been underway via written

41 This is not to say that unions were unheard. To the contrary, OSHA in its final rule spends significant

time on labor concerns and criticisms. However, many of the issues raised by industry had to be

addressed by labor. It was industry’s narrative on the rulemaking that framed much of the testimony,

particularly surrounding issues of hydraulic fracturing.

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comments submitted to OSHA between September 2013 and February 201442. Following

the hearings, OSHA received post-hearing comments until August 2014. In total, OSHA

received 1,786 submissions (2,068 comments), including over 980 attachments, mostly

letters and reports provided by the industries affected by the rule43. The rulemaking docket

also includes 2,458 supporting documents, principally transcripts and exhibits from the

hearings, scientific studies, and exposure assessments, all of which were subject to review

and response before OSHA issued its final rule in March 2016. A total of 137 documents

presented to OSHA included some analysis of hydraulic fracturing. In addition to

reviewing these documents, I also examined documents from major trade organizations to

identify the relevance of the oil and gas industry arguments to other industries.

Is Silicosis Even a Problem? Absolution from Responsibility

Industry groups contested the proposed rule by forwarding their own narratives

about responsibility, arguing on the one hand that there was no significant risk they were

responsible for mitigating, and on the other, that OSHA was ignoring their responsibilities

towards industry’s needs. First, industry representatives sought to demonstrate that workers

were not at significant risk when exposed at the 100 µg/m3 PEL. Thus, according to

industry, a stronger PEL was not warranted. Using CDC data to dispute OSHA’s

interpretation of risk, industry distanced current industrial practices from incidences of

42 Regulations.gov retains information pertinent to rulemaking from most federal agencies and hosts the

comments submitted to federal agencies during the notice and comment period. 43 Policy scholars have tried to rationalize these activities. In Yackee’s view, comments “provide a new

source of information and expertise to the bureaucracy” and “the bureaucracy can reduce future court

challenges by responding to the concerns expressed within comments” (2005, p. 106). This is in keeping

with what one OSHA official told me about the utility of public hearings. Adopted rules also set a

precedent for future rulemaking. In RCS rulemaking, some commentators were concerned about the

impact of OSHA’s PEL on MSHA’s approach to updating RCS limits.

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disease and argued that the 100 µg/m3 PEL was sufficient to protect workers44.

On the third day of the hearings, shortly after 9:30 a.m. on March 19th, 2014, the

Chamber’s counsel, Henry Chajet, took the stage. His ostentatious demeanor commanded

the auditorium, as it would throughout the hearings, as he introduced four scientists who

would defend the Chamber’s opposition to the proposed rule. OSHA had determined that

a reduced PEL for 50µg/m3 was necessary to address human health risks from RCS. The

Chamber disagreed. Speaking on its behalf, Dr. Jonathan Borak of Yale’s Medical School

offered an argument in which he opposed OSHA’s determination of significant risk.

Projecting the core of his message on a sloppily italicized PowerPoint slide, he challenged

OSHA’s conclusions as lacking “direct evidence” (Figure 2.5) an argument he grounded

in an analysis of CDC silicosis mortality data.

Figure 2.5: Dr. Borak's Presentation, March 19, 2014

Borak spoke confidently and assertively to deny OSHA’s position that a stronger

PEL was necessary. Using the CDC data, Borak concluded that too few people were dying

of silicosis to warrant a stronger standard. He emphasized that the number of people dying

from this disease had been in decline since 1968, using a chart that would be so repeatedly

presented, it inspired sighs and groans from the part of the room occupied by labor activists

(Figure 2.6), and which Borak would himself refer to as “that familiar CDC chart.”

44 I examine narratives offered by oil and gas trade groups such as the API and lobbies that analyzed

hydraulic fracturing such as the Chamber and the ACC. “Industry” refers to these speakers.

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Figure 2.6: CDC Mortality Data (Johnson, Freedman, & Chajet, 2014, p. 7)

On this basis, Borak argued that the current PEL was sufficiently protective:

The implications of the latency and the survival durations are fairly

straightforward, going back to that familiar CDC chart. If you consider that

a mean latency of 30 years, and a mean survival of 20 years—and I

understand that that’s a simplification, but for the moment, if you assume

it, then the fact is that virtually all cases reported as a mortality were first

exposed in a period that preceded the adoption of the PEL and the enactment

of the OSHA Act [sic]. […] And it suggests that the data have only limited

probative value with respect to whether this speaks to the permissible

exposure limit and its adequacy in protecting workers. (OSHA, 2014,

March 19, pp. 280-281).

Interpreting the CDC data alongside claims that the mean latency of silicosis is 30 years

(the far end of most estimates), and that individuals live with silicosis for 20 years, his

argument attributes diseases seen in the CDC data to industrial practices that predated the

implementation of the 100 μg/m3 PEL. Thus, Borak absolved recent industrial practices of

any accountability for instances of the disease. Borak all but explicitly stated that the 20

years a person survives with silicosis and the deteriorating health of those suffering from

the disease during this period did not constitute a significant measure of risk—a sentiment

he would return to during the question and answer period. Industry sought to use temporal

distance to absolve itself from responsibility for silicosis deaths seen in the data but also

towards utilizing further controls for silica exposures. In essence, Borak manipulated time

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to suggest that what was currently being done was sufficient.

Borak’s testimony reflected what the Chamber argued in its written comments, that

the decline in silicosis mortality indicated that OSHA had misinterpreted the CDC’s data,

which the Chamber labeled as “Trustworthy” (Figure 2.6). In the Chamber’s stated view,

OSHA’s analysis was flawed: its evidence of significant risk was based on “speculative

statistical analysis and modeling,” and its conclusions were in direct conflict with the CDC

data (Johnson, Freedman, & Chajet, 2014, p. 8). The Chamber dismissed OSHA’s claim

that the CDC data undercounted silicosis deaths45, arguing that discrepancies of this kind

did not diminish the industry’s broader message that silicosis had declined under the

current PEL. “There is no contradicting the reality of the clear and welcome steep trend

toward eliminating silica-related mortality” (Johnson, Freedman, & Chajet, 2014, p. 8).

API and Independent Petroleum Association of America (IPAA) made this point

repeatedly in written and oral comments. They argued that Borak had drawn the “rational”

conclusion that the current PEL had solved silicosis in the U.S., and distanced recent

industrial practices from responsibility for mortality associated with the disease

represented in the CDC data (API & IPAA, 2014, p. 9). In short, OSHA’s proposal for a

stronger PEL was based on an incomplete and erroneous interpretation of the available data

and for this reason was unwarranted and irrational.

This argument about the reliability of government data regarding mortality took a

turn from its earlier iterations in the 1970s (Rosner & Markowitz, 1995). In response to the

NIOSH 1974 report, industry challenged the sufficiency of NIOSH silicosis data that

endorsed a lower limit (Rosner & Markowitz, 1995, p. 257). In contrast, here, CDC data

45 There is no national registry for silicosis morbidity or mortality. The CDC’s estimates reflect causes

of death listed on death certificates.

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were championed as demonstrating the protectiveness of the 100 μg/m3 PEL and that

current industrial practices were not generally responsible for putting workers in danger.

For industry’s argument, the CDC data served to illustrate that industry was already

meeting its responsibilities to protect workers. Essentially, industry argued that new

regulations were unnecessary because its own correct interpretation of the data demonstrate

how they were already being responsible towards protecting workers.

Not all of the CDC data were beyond criticism. Despite the industry’s praise for

NIOSH at OSH conferences including during plenaries and sessions devoted to NIOSH

research on the industry, trade organizations challenged the representativeness of NIOSH’s

study showing workers were subject to a high level of RCS exposure at hydraulic fracturing

sites. Industry representatives argued that sampling was “inadequate to determine

representative exposure profiles” (API & IPAA, 2014, p. 3). According to Halliburton:

Absent evidence that the six sites were randomly selected or were

representative of U.S. hydraulic fracturing sites in general, the exposure

profiles used by OSHA cannot be properly extrapolated to all workers in

the hydraulic fracturing industry. (de Bernardo, 2014, p. 8).

The unrepresentativeness of NIOSH’s exposure monitoring underscored industry’s

contention, discussed shortly, that worksites are all different, but also that overexposure

might not be as significant as indicated by the NIOSH data. Industry members offered this

critique strongly during the process of rulemaking. Yet, when pressed in regard to sharing

direct measurements of exposure that could show ways that the NIOSH data were incorrect,

an expert for the Chamber offered a disgruntled and far from informative reply: he could

not directly confirm the representativeness of the NIOSH data because he was bound by

confidentiality, but that he did not see a “marked difference” between the data he was

familiar with and the NIOSH work, and thus that the NIOSH data were “not completely

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erroneous.” He painfully acknowledged that NIOSH research might be indicative of a

problem in the oilfield, reflected in this exchange:

DR. COBLE: And then have you ever seen any exposure monitoring data

from hydraulic fracking sites, other than the data in the OSHA—in the

NIOSH report that OSHA is utilizing? Is there any additional data that

you’re aware of that we could use for—to enhance our analysis?

DR. KNUTSON: Yes, I have.

DR. COBLE: Would you be able to submit some of that for —

DR. KNUTSON: I’ve got confidentiality agreements, so I can’t answer that.

Just roughly speaking, I did not see a marked difference.

DR. COBLE: So that the NIOSH data may be fairly representative, in your

mind, of an uncontrolled situation at a fracking site?

DR. KNUTSON: Well, it’s not completely erroneous. It —

DR. COBLE: Yes, okay.

DR. KNUTSON: Obviously, the problem with many monitoring data that

occurs in hydraulic fracturing is that there’s no two sites that are the same.

You’ve got the situation where the number of hoppers that you’ve got, the

conveyors, the type of sand, the size of the sand, the length of the

campaigns, all of these things change. (OSHA, 2014, March 19, pp. 499-

500).

In reiterating the possible unrepresentativeness of NIOSH’s findings, Knutson’s final

point, that well sites are all different, is an issue I return to in the next section.

Industry recycled the mid-20th century sentiment that silicosis is sufficiently

controlled by the established limit within the framework of rulemaking requirements.

When the oil and gas industry gave testimony during the closing days of the hearings,

Kenny Jordan, executive director of the Association of Energy Service Companies, echoed

this point, figuratively wagging a finger at OSHA, a tone and attitude many industry

members expressed:

MR. JORDAN: [I]t might be useful to remind OSHA also that fatalities in

silicosis ha[ve] fallen dramatically. In OSHA’s own preliminary reports,

fatalities attributed to silicosis have fallen from 1,156 deaths in 1968 to 161

in 2005. It is our belief that the current standard is very effective and such

a conclusion can be supported by the substantial decrease in fatalities.

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(OSHA, 2014, April 4, p. 4060).

Jordan stated that fewer deaths meant that a “very effective” PEL had resolved questions

about the extent to which workers needed to be protected from contracting silicosis. By

implication what matters is how many people die, not the consequences of living with a

respiratory disease, and that there is an acceptable level of deaths. Additionally, comments

from the API mirrored language from the Chamber to argue that the downward sloping

trend in silica-related deaths suggested that there was no need for a lower PEL:

OSHA’s conclusion contrasts sharply with the actual data demonstrating

[…] that silicosis mortality has been reduced by approximately 90% since

1968 […] there is no contradicting the reality of the clear trend towards the

goal of elimination of silica related mortality in the United States. (Johnson,

Freedman, & Chajet, 2014, p. 7).

Just as mid-20th century industry groups had argued that silicosis was solved, these

statements emphasize a fait-accompli sentiment: silicosis deaths have declined, and the

PEL is an “effective” solution. Thus the “goal” has been achieved. Although people were

still contracting silicosis, the situation did not warrant regulatory action to reduce exposure:

This is not to say that silicosis has disappeared in the American workplace.

There is no denying that cases of silicosis continue to occur in the United

States. […] But the fact that cases of silicosis continue to be found does not

indicate that the current general industry PEL of 100 μg/m3 is insufficiently

protective or that reducing the PEL to 50 μg/m3 is necessary to eliminate a

significant risk of silicosis among American workers. (ACC, 2014, p. 5).

Such arguments rested on an interpretation of risk measured by mortality—more precisely,

an acceptable level of mortality—thereby absolving industry of the responsibility for

mitigating exposure. Borak presented this position when he responded to a question

regarding whether silicosis was the only risk posed by RCS worth considering. Here again,

the tensions between the parties participating in the hearings were on display:

DR. GOLDSMITH: I’m here as a representative of George Washington

University in Georgetown, but I’m not paid by anyone.

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I have just an observation and a question for the panel. Back behind you all

is this graph of CDC decline in silicosis mortality, and I would tend to

suggest that there is certainly a reason for something positive to be said

about this.

[…] But my question is, is this the right thing to be looking at? Shouldn’t

we be looking at all of the silica-related disease, not just silicosis? […]

DR. BORAK: Let me take a first cut. I agree with Dr. Goldsmith. I think

that the slide you are seeing is a tribute to an important public health

success. Whether it’s complete or not is a separate issue. It reflects a

substantial decrease in deaths related to a preventable cause. Whether those

exposures occurred before or after OSHA should not diminish the

magnitude of the success. (OSHA, 2014, March 19, pp. 348-349).

Signaling his discomfort with Borak’s academic-industry affiliations, Goldsmith pressed

Borak to acknowledge RCS-related disease beyond silicosis. Borak began with the

rhetorical move of stating his agreement with Goldsmith, but only with the latter’s

concession that some progress has been made, not with the question Goldsmith presented.

Instead, Borak pivoted to the narrative he wanted to construct from the data, reiterating that

“this has been a wonderful success. So that’s my contribution to answering your question”

(OSHA, 2014, p. 351). Undeterred, in an effort to redirect Borak, Goldsmith followed up:

DR. GOLDSMITH: And don’t you also think that we should be looking at

a broader set of disease than simply looking at silicosis mortality?

DR. BORAK: Ah, yes, I think we are looking [at] a wide array of disease.

This happens to be a clearly documented and dramatic statement regarding

one of those most important disease[s], one of which is a signature disease.

I think that the question is not that—I, certainly, as a physician, do not

regard any of these diseases as unimportant, either to people or to the public

health. My concern had to do with whether 100 ppm PEL was or wasn’t

protective, and whether there were data, okay. But I certainly would not tell

you that these other disease[s] are unimportant. That would be a terrible

thing for me to say. (OSHA, 2014, March 19, p. 351).

At this point, Judge Solomon abruptly ended this line of questioning for time. Although

coming much closer to Goldsmith’s position, Borak did not fully concede Goldsmith’s

argument. While agreeing that other RCS-diseases exist and should be given consideration,

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he reemphasized his point that the current PEL is already protective based largely on his

analysis of mortality data.

This admission is significant, as later in the day, a consultant for the ACC46 offered

testimony that challenged the relationship between silica and silicosis. During this

testimony, the auditorium was markedly less full, and those that were left audibly disagreed

with many of his provocative claims about the futility of not only the well-established

relationship between silica and silicosis but also the reliability of scientific methods. Still,

such arguments that dispute accepted scientific facts serve to shift discursive spaces.

Michaels (2008) and Oreskes & Conway (2011) both chart how these efforts are

accomplished by industry through regulatory and governance spaces through campaigns of

“doubt.” This kind of uncertainty-as-discourse parallels how the industry sought to

represent its own physical movements, layouts, and patterns, discussed in the next section.

A few days later, Chajet brought up the exchange between Goldsmith and Borak

with more verbose language to reframe Goldsmith’s line of questioning in reference to the

“marvelous achievement” of the decline in deaths from silicosis.

MR. CHAJET: But we also believe that the current performance of

American industry is the most incredible success story in occupational

health in the last 100 years. And if you look at these CDC numbers, you can

look at them all day long, and they show nothing but incredible achievement

of trend, the discussion that took place the other day by David Goldsmith

and one of our witnesses exemplify. David Goldsmith, Dr. Goldsmith was

one of the first people that ever talked to me about silica disease 30 years

ago or more, and this achievement is a marvelous achievement. It is the best

set of data we have, and you can try to change that data all you want, but it

is the Center for Disease Control data. And if you run analysis of this, no

matter how you analyze it, it’s a steeply, steeply declining trend and a

tremendous success story that needs to be and will be continued. (OSHA,

2014, March 21, pp. 1130-1131).

46 This consultant, Anthony “Tony” Cox now heads the EPA’s Clean Air Advisory Committee for the

Trump Administration.

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While industry dominated many parts of the hearings and established the narrative

by which all others were forced to react, they were not the only voices visible. Many peer

reviewers, OSHA representatives, and labor advocates aggressively challenged these

arguments absolving industry from accountability for silicosis deaths. The hearings did not

focus entirely on the content of the proposed rule. Instead, they also reflected broader

power negotiations between the constituents. Many at the hearings clearly knew each other

from years and even decades of debate and indicated their familiarity with one another

during the question and answer sessions. Individuals uncomfortably shifted in their seats,

and their sighs signaled their frustration when industry, labor, or OSHA advanced specific

arguments. Chajet, Peg Seminario of the AFL-CIO, and others regularly posed questions

to illicit narrow points regarding their respective organizations’ positions on the rule and

on the nature and limits of OSHA’s authority. The question and answer periods following

testimony could become tense, at times moving far away from the topic of RCS exposure.

When the debate turned to Borak’s understanding of the scientific method, for example,

like many discussions, this focus not only intensified combativeness of the two sides but

also challenged the participants’ expertise as much as their arguments.

Even with these voices challenging industry, oilfield workers were unrepresented.

A few labor advocates brought up hydraulic fracturing, but there were no specific voices

that advocated on their behalf. Particularly powerful testimony was offered by sickened

and exposed foundry workers and construction workers47. The requirements of rulemaking

that give individuals and industry members the opportunity to participate placed many in

47 Some of this testimony that focused on the experience of living with silicosis would later appear on

OSHA’s website on silica and the new rule. This and similar text would be removed when the website

was updated around the time of the first implementation date for the new standard in October 2017.

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the room on the defensive, defending against the industry narrative that distanced

themselves from responsibility for silicosis by focusing its concern on the visible, tangible,

and quantifiable outcome of silica exposure, i.e., deaths from silicosis. As the ‘dose makes

the poison’ suggests, it is not just that workers are exposed, but how much, and that they

ultimately die from the consequences of these exposures.

The visible and immediate in OSH often engenders more concern than what is less

immediate and clearly recognizable as an occupational hazard. As former USDOL assistant

secretary Michaels (the head of OSHA) said of the hydraulic fracturing industry in an

interview with E&E News, “No one says ‘keep working’ when somebody’s lost a body

part” (Soraghan, 2017). Long-term issues, where ill health harms take years to develop, are

less examined, a sentiment echoed by NIOSH in interviews, informal conversations, and

conference presentations. In the training materials from the courses I have taken, safety is

the dominant topic. In one 4-day, 40-hour course, one 3-hour unit was devoted to health

concerns including silica. In another 8-hour course, two pages were dedicated health issues,

whereas the remaining 60 pages covered safety. Industry is often most concerned with what

happens during a working day and issues that can be easily attributed to what happens at a

worksite.

This translates to slogans and best practices that emphasize reducing incidents.

Some firms stress “Zero Incidents,” whereas others underscore low recordable injury rates.

Contracts with servicing companies are awarded based on, among other things, injury rates,

which serve as a signal for liability and insurance costs. Many contractors are required to

provide documentation of their injury rates and the OSH programs they have developed

through the reporting systems such as ISNetworld. Trade shows I attended featured table

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after table of exhibitors offering OSH services to manage risk, either by running or writing

safety programs or doing training with workers. In listening to many company pitches, I

noticed that most relied on strategies specifically designed to gain buy-in from workers

through behavior modification, including safety-incentive programs and surveillance

strategies. Behaviorally-based safety shifts the burden of governing risk away from

industry to the individual. Still, more than one vendor at the 2014 Safety Conference spoke

disparagingly of OSHA’s dismissal of behavior-based safety, under the direction of then

Assistant Secretary Michaels, due to the ways those practices make workers responsible

for mitigating risk.

“Incident” or “event” does not capture the harm caused by RCS exposure because

it is unlikely to produce recordable incidents that industry and OSHA measure and track.

If a worker does develop a silica-related illness, this will occur away from the oilfield,

years after repeated exposure. It can be difficult to show causality between silica-related

disease and exposure. The impact of RCS is largely “unseen” through the industry’s OSH

lens. Given that the most visible, quantifiable, and stark consequence of RCS exposure is

a dead silicotic, it is fitting that the industry’s narrative focuses on a reduced risk of silicosis

mortality. For the industry, the only “significant risk” is death. This viewpoint provided

the background against which industry argued that OSHA’s rule risked industry’s vitality

while generating no gains for workers.

The Health of Industry: The Cost of Movement and Materials

MR. JORDAN: Yeah. Frack sites are such a wide variety of animals,

depending on how many phases you’re pumping (OSHA, 2014, April 4, p.

4079).

MR. D’ANGELO: […] the limitations on employee exposures are both

special and temporal. (OSHA, 2014, April 4, p. 4081).

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Feasibility tests of the proposed rule that are mandated for OSHA rulemaking

enabled the industry to compare its own vitality to that of its workers and to create a

narrative in which respirators are the most feasible compliance option, thereby shifting

industry’s responsibility onto the workers. Here, industry made the case that its health is

threatened by OSHA’s efforts to regulate RCS exposure, not just by mandating a new limit,

but by telling the industry how it must mitigate RCS exposure. In Appendix A of the

NPRM, OSHA had provided multiple suggestions for industry to reduce exposure through

engineering controls that change the equipment and machinery and diminish the need to

require workers to wear personal protective equipment (PPE)48.

During the final week of the hearings, members of the oil and gas industry’s major

trade groups took to the stage at OSHA’s informal public hearings. API counsel, Wayne

D’Angelo49 (Figure 2.7), a young-looking white man, read prepared testimony on the

“Industry’s Commitment to Workforce Safety”:

MR. D’ANGELO: While hydraulic fracturing is not a new technology, its

use in conjunction with technologies such as horizontal drilling is more

recent. Without question, the intersection of these technologies has changed

the way the world looks at energy and has delivered tremendous benefits to

the U.S. economy. (OSHA, 2014, April 4, p. 4025).

D’Angelo and others championed the significant shifts in the U.S. and world energy

economy triggered by hydraulic fracturing.

48 OSHA writes in Appendix A: “if the control technologies that have been used in other industries can

be successfully transferred to the hydraulic fracturing setting, the compliance costs would equal less

than one percent of average revenues and less than five percent of average profits for recent years for

the hydraulic fracturing sector as a whole and for small entities” (OSHA, 2013, p. A-67). While OSHA

estimated the costs of these modifications to be modest, API staunchly refuted its economic analysis,

claiming in most categories that OSHA had underestimated or failed to estimate the costs of the

regulation (API & IPAA, 2014). 49 D’Angelo is no longer counsel for API, and is partner at Kelley Drye, a practice that specializes in

energy law.

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Figure 2.7: API testimony at the RCS Informal Hearings, April 4, 2014 (A. Hesse).

He continued:

MR. D’ANGELO: Not only has hydraulic fracturing helped make the

United States the world’s top hydrocarbon producer, this helped create

high-paying jobs, a renaissance of domestic manufacturing and historic

lows in our nation’s trade deficit. At the same time, the increased use of

natural gas has helped reduce America’s greenhouse gas emissions to levels

previously considered unattainable. (OSHA, 2014, April 4, pp. 4025-4026).

Citing “the unquestionable importance” (OSHA, 2014, April 4, p. 4026) of hydraulic

fracturing to the economic and environmental goals of the U.S., D’Angelo argued that

OSHA’s rulemaking has far-reaching consequences50. By implication, D’Angelo claimed

that a threat to the industry is a threat to the US.

50 Murphy (2017) describes the emergence of the ‘economy’ imbued with affect of weighty significance

in the mid-20th century. Mitchell (2006) too describes significance imbued through the making of the

‘economy’ in the early 20th century as an object of governance. Both signal the heftiness granted

arguments about the ‘economy.’ API’s claims have historical precedent. For example, Standard Oil used

the significance of the oil and gas industry to the nation’s economy and development to justify the

necessity of lead additives in gasoline in the 1920s in the U.S. (Markowitz & Rosner, 2002).

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Figure 2.8: Energy Nation Poster

Figure 2.9: PA Jobs Rally (A. Hesse)

This well-oiled argument, rehashed through advocacy programs such as Energy Nation

(Figure 2.8) and United Shale Advocates (Figure 2.9), organized by API and the Marcellus

Shale Coalition, respectively, advocates “responsible regulation” in television commercials

and letter-writing campaigns, as well as in tradeshows, and industry demonstrations I have

attended, where the tension between too-tough regulation and the industry’s ability to self-

regulate is frequently on the display. This responsibility is to industry first such that

regulations do not harm the economic engine to which these narratives attribute revitalized

domestic energy production and stronger national security (Figure 2.9). For his part,

another industry representative, Jordan proclaimed that the industry had precipitated

“unprecedented economic growth” and would soon render the U.S. independent of other

countries for its energy (OSHA, 2014, p. 4058).

D’Angelo’s testimony established what was at stake in regulating the industry

before turning to more specific arguments about the RCS rule. He began by arguing that

OSHA’s economic and technological feasibility analysis mischaracterized the industry’s

spatial and temporal configurations, which, he argued, do not follow predictable patterns:

MR. D’ANGELO: From both an economic and technological perspective,

most of OSHA’s errors derive from the fact that OSHA viewed the

hydraulic fracturing industry as just another industry subject to the proposed

rule. But the hydraulic fracturing industry is not the same as other industries.

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The hydraulic fracturing industry works in uncontrolled and widely

differing outdoor environments that change weekly, if not more frequently.

And no two workplaces or equipment configurations are ever the same. If

you have been to one hydraulic fracturing site, you’ve been to one hydraulic

fracturing site. (OSHA, 2014, April 4, p. 4029, my emphasis).

Just as the Chamber, the ACC, and API discredited OSHA’s interpretation of significant

risk, D’Angelo condemned OSHA’s feasibility analyses, stressing the agency’s inability to

gather knowledge given the variable nature of the conditions under which the industry

operates. By API’s account, every hydraulic fracturing worksite is different, making it

impossible to accurately analyze the rule’s economic feasibility. As Jordan put it, “So what

are the costs of the proposed rule? The answer is that OSHA has no idea. In fact, nobody

does” (OSHA, 2014, p. 4052).

Yet, both API and IPAA had argued in comments jointly submitted several months

earlier that the rule would undoubtedly prove too costly. They stated that the proposed rule

“would likely exceed $366,000,000” and that it “threatens the existence of all small

hydraulic fracturing businesses, and therefore, the competitive structure of the entire

hydraulic fracturing industry” (API & IPAA, 2014, p. 78). The flexible subcontracted

configuration of the industry was seen to be endangered by the rule, placing the entire

industry at risk. Although it is common for industry groups to argue that the cost of

regulation is ruinous, for the hydraulic fracturing industry this argument was made through

spatial and temporal arguments about the uniqueness of the industry making the costs of

the rule prohibitive and the use of engineering controls infeasible, hence making reliance

on respirators essential. This argument is a way of shifting responsibility onto individual

workers. Here, it is not so much willful ignorance of the broader processes that cause

workers to be exposed, but that other control mechanisms are infeasible and would be too

costly for the industry. This discursive shifting of responsibility is produced through

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consideration of considering industry’s vitality.

In challenging OSHA’s contention that hydraulic fracturing could use engineering

controls, industry groups stressed the variability and unique nature of the industry’s spatial

and temporal patterns. Not only are employers “constantly moving their employees and

equipment from well site to well site in a particular area” (API & IPAA, 2014, p. 80), they

move “personnel and equipment into other active regions of the U.S.” (API & IPAA, 2014,

p. 80). API pressed that OSHA had failed to consider how hydraulic fracturing was

different from other industries:

In the hydraulic fracturing industry, employers are constantly moving their

employees and equipment from well site to well site in a particular area to

conduct well stimulation work, including relocating personnel and

equipment into other active regions of the U.S. Each well may have

different footprints and surface limitations that require unique

configurations of equipment. The size and complexity of the stimulation

work may require use of different combinations of equipment and/or

proppant. Employee schedules in the hydraulic fracturing industry are such

that specific employees may not be paired with specific equipment or tasks.

(API & IPAA, 2014, p. 80).

API’s “may” statements suggest that the configurations of equipment and materials and

volumes of proppant were not conducive to generalization. This suggests a way that

uncertainty is produced; the question is not just the science is uncertain (Michaels, 2008;

Oreskes & Conway, 2011), or that the exposures are imperceptible (Murphy 2006) or

immeasurable, but rather that the industry’s day-to-day operations that rely on spatially

variable practices confound the federal regulation of its practices51. This effort to refute

OSHA’s analysis by asserting its own unpredictability extended into post-hearing

51 Industry has opposed most federal regulation of hydraulic fracturing in favor of state-level regulations

arguing that the states can adapt to the unique practices of the industry within particular states. The

structure of OSH regulations between federal OSHA and state-plans makes this state-level strategy

impossible. Instead the argument here focuses on no-regulation due to the industry’s spatial variability.

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comments in which API argued that the kind of soil encountered in hydraulic fracturing

could have a material effect on a company’s operations:

Factors like whether the well pad is situated on indigenous soils, caliche or

sand, limestone, granite or sandstone (the quartz content of which varies

widely) can also affect the situation. These factors are outside the control of

the oil service companies but can greatly impact exposures. (API, 2014, p.

4).

API suggested that service companies should not be responsible for mitigating exposure

with engineering controls given the extreme differences in the conditions in which

exposure can occur, framing these factors, including climate, soil content, and regulatory

environments (API, 2014, p. 4) as being out of their control. The irony of this rhetoric of

the responsibility of industry is that at times it relied on the structural constraints of

industry, the location of oil and the subcontracted nature, to absolve itself of responsibility.

Structural constraints are the very narrative that advocates of personal responsibility of

dismiss, as for Young, “the rhetoric of personal responsibility encourages an isolated,

atomistic way of thinking about individuals” (Young, 2008, p.23)52. Indeed, although

industry contended, as detailed in the next section, that workers should bear responsibility

for their health and industry’s health by wearing of respirators, industry’s argument about

its own responsibility to protect workers is synonymous with an irony that Young

highlights. “People who participate in social processes frequently deny the suggestion that

we bear responsibility in relation to them on the grounds that we confront forces that give

us no choice but to act as we do”(Young, 2008, p. 154).

52 For Young, the tendency of the rhetoric of responsibility to focus on either the structural constraints

or personal responsibility is one of its key failings. She details how influential social policy thinkers of

the mid-century recoiled to the so called ‘determinist sociological’ tendency vehemently ascribed

injustices to social structure, rather than individuals poor choices. For Young, their instance on personal

responsibility narratives builds from an argumentative position based in a false dichotomy of either

agency or structure, and one in which does not account for the background conditions of society to

themselves be inherently unjust (2008, p.3-27).

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Even ERG’s supporting evidence to Appendix A of the Proposed Rulemaking, the

evidence used by OSHA’s contractor, included a presentation from Universal Well

Services, annotated with the words “Very Unique” to describe its layout (Figure 2.10).

Such a phrase imperfectly reinforces the uniqueness of the industry, giving no evidence to

indicate what is unique about it. Even as the idea implies a norm from which Universal’s

configuration diverges, this configuration looks like those I have seen on a well site,

projected in conference presentations, drawn for me by an OSHA official, and diagramed

in reports. Still, in one of my Freedom of Information Act Requests, images of the well site

were redacted, as the company claimed its layout was a trade secret.

Figure 2.10: Universal Well Services Presentation (Ross, 2010)

Industry invested serious concern with regards to the complications posed by the

movement of materials and goods. It was not only that materials moved rapidly between

sites operating under dynamic conditions but that this took place across state boundaries

and regulatory environments. According to industry, these circumstances compounded the

cost of its proposed rule. At the hearings, Steve Crookshank, an economist with API, stated

that OSHA had failed to consider how these costs would be felt at each site, magnifying

the proposed rule’s costs, and illustrating OSHA’s mistaken analysis of the industry:

MR. CROOKSHANK: Consider transportation, assembly, and dismantling

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costs. OSHA assumes that, just like in the static workplace found in general

industry, the hydraulic fracturing industry need only bolt on its emission

controls once and will incur no further costs despite constantly moving

equipment on a per job basis. The reality is that control equipment would

need to be transported separately, and will need to be assembled and

dismantled at each different hydraulic fracturing site. These are not one-

time costs. These are costs incurred on every job site. (OSHA, 2014, April

4, p. 4055).

In Crookshank’s account, it would be necessary to transport equipment to and from

worksites, and that each worksite would incur costs in setting up control measures. In

Knutson’s view, these costs would be compounded because each site is unique in light of

the variability of its configurations and kinds of sand-moving equipment:

Each site is nearly unique and the number and type of the material handling

equipment varies from one site to another. Consequently, any control

system needs to be modular (or dedicated to a single piece of equipment)

and flexible. Moreover, when the equipment is moved to a new site, the

equipment does not move as a unit but could be split up and sent to several

different sites or to storage until needed for another project. (Knutson, 2014,

p. 7, my emphasis).

Together, these issues made engineering control costs prohibitive. According to this

perspective, OSHA had failed to meet its responsibility toward industry in terms of

implementing only regulations that were economically feasible such that regulations did

not place the industry at risk.

The materials and their movement repeatedly roused more concern from the

industry than did the people working on them. The workers were all but invisible in the

discussion of feasibility. As evidence of this, API and IPAA recognized the abrasive

properties of the sand on their equipment:

Sand is extremely abrasive. As such, it can damage equipment and

significantly shorten the useful life of equipment used in environments with

large amounts of sand. (API & IPAA, 2014, p. 70).

Without acknowledging what sand does to the human body, industry showed significant

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concern for what it does to its equipment. However, concern for how exposure to sand

might adversely affect employees’ lungs was overlooked.

Industry was resistant to considering engineering controls that would reduce

exposure, arguing that the cost of lowering the PEL through engineering controls would

threaten the industry because of the industry’s flexibility. The industry should be free from

using engineering control measures to protect workers because of its competitive structure,

in essence, its own vitality, was threatened. This argument would form the foundation of

industry’s position that due to technological limitations neither the 100 μg/m3 nor the 50

μg/m3 standards could be met without the use of respirators.

Infeasible Engineering Controls

In its proposed rule, OSHA had recommended that hydraulic fracturing firms use

engineering controls from sand control systems used in other industries. Reacting to this

technological feasibility analysis, industry objected to what they characterized as OSHA’s

reliance on control measures from what they described as less evolved industries. The

purpose was to distance industry from responsibility for providing engineering controls

and to support the conclusion that respirators were the only option, such that the

responsibility for protecting the health of the workers was shifted almost entirely to the

workers themselves.

In one example, OSHA had used dust containment efforts at a site in India as a

basis for comparison and for offering regulatory suggestions. Industry representatives,

however, rebutted OSHA’s suggestions in the very clearest terms, stating that “the

comparison of the Indian stone crushing operation to hydraulic fracturing is, at best,

tenuous” (Knutson, 2014, p. 3), “purely coincidental” (Knutson, 2014, p. 17) and

“impermissibly relies on reasoning by analogy that engineering controls studied at two

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vastly different and primitive industrial sites, in India and Iran, will be effective in the U.S.

fracking industry” (Johnson, Freedman, & Chajet, 2014, p. 22). Scolding OSHA for its

attempt to apply control measures from “primitive” sites to the more high-tech environment

of hydraulic fracturing, the Chamber argued that the two industries were wildly dissimilar

such that neither India nor Iran should be looked to for evidence of feasibility in relation

to regulating hydraulic fracturing. During the hearings, Knutson drew a visual contrast

between the Indian stone-crushing operation and hydraulic fracturing:

DR. KNUTSON: They have a beautiful picture in the report that really

explains what’s going on. They have a woman with a basket of rocks on her

head walking up to the crusher, another woman standing at the crusher with

a basket of rocks waiting to dump it into the crusher, and another woman

walking out of what appears to be a tunnel—appears, because there’s so

much dust in the air you can’t see what’s going on, that would have been

directly under the crusher, again with a basket on her head full of crystalline

silica. (OSHA, 2014, March 19, p. 456).

Offering a picture of an extremely primitive and feminine workplace, as an exotic other,

Knutson dramatically argued that these industrial practices cannot show hydraulic

fracturing anything about dust control. Finally, he wondered, “How this can be related to

hydraulic fracturing that is mechanically moving 20 sacks per minute through a carefully

controlled system, I’m at a loss” (pp. 456-458). Thus, he brought his account of OSHA’s

foolishness in relating these operations to the predominantly male and mechanized

hydraulic fracturing operations in the U.S. to an end.

A few days later, Chamber’s council, Chajet was more direct during his testimony,

arguing that “primitive sites” could not be compared to the “mechanized mechanical

system” characteristic of hydraulic fracturing. His bewilderment implied that such a

comparison was actually an affront to the rulemaking process:

MR. CHAJET: Let me just see if I have this slide to show you what Dr.

Gerhard Knutson was talking about. This is the worksite that OSHA used

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to compare to the American hydraulic fracking industry to determine

potentially feasible engineering controls. And another worksite with similar

conditions.

This is not acceptable in rulemaking in the United States to draw feasibility

conclusions from these types of conditions. We just don’t look at primitive

worksites and say it’s feasible from their use of a control to our use of a

mechanized mechanical system. It doesn’t work. (OSHA, 2014, March 21,

pp. 1133-1134).

Two weeks later at the hearings, the API made this juxtaposition directly with a side-by-

side visual to complement D’Angelo’s remarks about the dissimilarity between the Indian

example and the “complex modern hydraulic fracturing site” (Figure 2.11):

Mr. D’ANGELO: The photo I have up on my slide is a picture of the rock

crushing equipment that was studied in the Indian study and a complex

modern hydraulic fracturing site. Not only is the equipment dissimilar, the

exposures are dissimilar, the employee interactions with the emissions are

far different. […] How is such a conclusion supportable? (OSHA, 2014,

April 4, p. 4037).

Figure 2.11: PowerPoint Slide from API’s presentation (Exhibit 148)

It was not just that these comparisons were preposterous to industry representatives.

For them, OSHA’s rushed and insufficient analysis posed a significant risk to industry.

Returning to the language of fear and threat, Halliburton wrote that he “fears that the entire

industry will face significant compliance problems and costs imposed by the Rule” (de

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Bernardo, 2014, p. 3)53. Many expressed alarm that the outcomes of OSHA’s flawed

science and analysis would be disastrous. In expressing this concern, the American

Exploration and Production Council (AXPC) weighed workers’ lives against the interests

of industry on the basis of feasibility as follows:

Compelling industry to install infeasible and ineffective controls at great

cost will do little to protect workers but will inflict significant economic

harm on the E&P industry and domestic oil and gas production. It is because

of the compliance impossibility posed by OSHA’s proposed rule—and the

intensely flawed and careless analysis purporting to justify the rule—that

AXPC submits these comments, which fully endorse API/IPAA’s

comments and incorporate them by reference, in strong opposition to the

proposed rule. (Thompson, 2011, p. 2)54.

According to industry, the variability of its work processes hindered systematic knowledge

to recommend feasible engineering controls. The requirements of OSHA’s rulemaking

justified the argument that OSHA’s stipulated engineering controls would be disastrously

costly due to the flexibility of hydraulic fracturing practices and the variability of the

conditions in which it takes place. These threats to industry would do little for workers

given that OSHA’s “significant risk” determination was unsubstantiated due to a

decreasing mortality rate for silicosis.

Workers’ Responsibility: Respirators are the Only Option

In addition to suggesting engineering controls, OSHA’s proposed rule disallowed

respirators as a means of compliance with the PEL. Industry fiercely opposed this

provision. Just as flexibility made engineering controls infeasible, industry’s flexibility

became a device to shift responsibility from the industry to the workers. Industry

representatives were steadfast in their view that compliance was feasible only through the

53 Mark de Bernardo representing Halliburton, is at Jackson Lewis, a law firm specializing in workplace

law. At the time, Chajet was also at Jackson Lewis but is now at Husch Blackwell. 54 E&P refers to “exploration and production.”

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use of respirators. For example, the Marcellus Shale Coalition offered the following

argument:

The mobile and transient nature of hydraulic fracturing operations has a

significant impact on the technologies and processes that can successfully

be employed to protect workers from Respirable Crystalline Silica (RCS).

A primary mechanism of protecting workers from exposure to RCS at

hydraulic fracturing sites is the use of respirators. […] OSHA has

incorrectly assumed that control sand practices deployed at stationary

factory environments would be applicable to mobile and transient hydraulic

fracturing operations. Such an approach is not supported by data and is

therefore arbitrary and entirely inappropriate. (Spigelmyer, 2014, p. 2)55.

Given the special choreography of actors at a hydraulic fracturing site, which

industry suggested OSHA did not adequately appreciate, industry representatives argued

that respirators constitute the most effective way of protecting workers from exposure to

RCS. When pressed about this topic at the hearings, the D’Angelo affirmed that respirators

were necessary to meet even the current PEL. As silicosis has already been “solved,” the

D’Angelo questioned why current practices should be changed at all:

MR. O’CONNOR: This is Dave O’Connor. Do I understand correctly that

the panel members view not only the proposed PEL of 50 μg/m3

as

infeasible in hydraulic fracturing operations, but also the current PEL of

approximately 100 μg/m3?

MR. D’ANGELO: This is Wayne D’Angelo. We believe it’s infeasible to

meet—in many cases infeasible to meet the current PEL without use of

respirators, yes.

MR. O’CONNOR: Mr. Jordan, do you hold that view as well?

MR. JORDAN: I say given that the history and as we’ve seen the cases of

silicosis decrease, I haven’t seen the most recent numbers, that the current

level of 100 has been bringing that down for a number of years. So our

argument is why change it when what’s in place seems to be getting us to a

point—no death is acceptable, but at least getting us a point as we lower. So

our preference would obviously be to leave it where it is.

MR. O’CONNOR: Yes. But do you believe that engineering and work

practice controls can currently achieve a level of 100 μg/m3

of air in

55 David Spigelmyer is president of the Marcellus Shale Coalition.

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hydraulic fracturing operations?

MR. JORDAN: From what we have seen so far from an engineering control

standpoint, no, not without the use of respirators. (OSHA, 2014, April 4, pp.

4121-4122).

Industry representatives, therefore, directly argued that compliance with OSHA’s

regulations can only be achieved through workers using PPE—i.e., respirators—which

shifts responsibility for taking steps to mitigate health risks from the industry to its workers.

Even as industry stressed the challenges its spatial and temporal flexibility poses to

protecting workers with engineering controls, it celebrated itself for developing tools to

address the variability, mobility, and high turnover of its labor force56. During his

testimony, Jordan made special note of the course, Safeland, a collaboration involving

several companies to orient workers to well-site hazards. The course, the very name of

which speaks to the preeminence of safety over health, awards workers a card that they can

use to move between employers, thereby enabling the industry to avoid retraining its

workforce. Although he lauded the industry for taking this step, it is a technique long used

in general industry and construction for OSHA awareness training. In his explanation of

the program, Jordan revisited the idea that the industry has only recently become aware of

the risks associated with silica and applauded it for including a section on silica in the

course. In this account, industry is credited with taking steps to protect the workers for no

other reason than alerting them to the hazard. As described in Chapter 1, however claims

of being and acting responsible, however warrant scrutiny, as they can be used to shift

responsibility, and overshadow or obscure harmful and irresponsible activities (Noxolo,

56 Industry groups seldom mentioned workers (this was left largely to unions, public citizens, and worker

representatives). However, when describing how turnover impacts the industry in response to a question,

Jordan discussed turnover of “blue collar” “kids coming out of high school” who would either change

companies for “a quarter more an hour,” or “he” would find out that “this isn’t the business for them,”

after experiencing the lifestyle of hydraulic fracturing (OSHA, 2014, April 4, 4116).

96

Raghuram, & Madge, 2012; Tronto, 2013).

When Jordan mentioned that silica was included in the course, I made a note to go

back to my course materials. I had taken the SafeLand course at a regional training center

in Pennsylvania a few months earlier but recalled that silica had received only a very brief

mention. In fact, upon looking again at the course materials, I found that silica was barely

mentioned at all. Unlike chemical hazards, such as benzene and lead, each of which

received a bolded title in the course text and also appeared in the table of contents, silica

was mentioned only under the subheading of Physical Hazards, without any special

designation in the text. From the SafeLand course book:

There are many types of dusts that can cause health problems if proper

precautions are not taken. Silica dust, paint dust, including lead particles,

high air pressure and high noise levels all pose hazardous threats to those

working near sandblasting.

Hydraulic fracturing sand contains 99% silica. Transporting, moving and

refilling silica sand into and through sand movers, along transfer belts and

into blender hoppers can release dusts containing silica into the air. Workers

can be exposed if they breathe the dust into their lungs. Breathing silica can

cause an irreversible but preventable disease called silicosis. (PEC/Premier

Safety Management, 2012, pp. Module 2, page 14).

Nowhere is it explained that what silicosis does to the body is not only irreversible, but

carcinogenic and fatal. Nor are any protective techniques even mentioned. It would be up

to individual instructors to elaborate these points. However, although some instructors I

worked with and interviewed took the health risks associated with silica very seriously,

others considered dust to be just a normalized part of the job.

Narratives about the inability to use engineering controls and the necessity of

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respirators persist even as companies develop engineering controls for the industry57,

including John Oren of SandBox Logistics who presented testimony at the hearing.

SandBox Logistics presented their technique for sand delivery that avoids the use of the t-

belt to reduce exposures, and which they believed to be a commercially viable, feasible

technology for controlling silica exposure during the handling of materials that include this

substance in their composition. In a sparsely occupied auditorium, Oren challenged the

narrative to which most in the industry were committed. Indeed, during the question and

answer period, D’Angelo pressed Oren’s optimistic outlook regarding Sandbox’s costs,

implicitly suggesting that the mechanism was not as economical as advertised.

Another equipment manufacturer, HalenHardy58, also presented testimony.

Developed in central Pennsylvania, HalenHardy’s MASHH Mobile Air Shower blows

sand off workers’ uniforms before they take off their respirators—a solution only

applicable when workers wear respirators to protect themselves from RCS because they

are exposed in the first instance. Still, the shower had won the Technology Showcase

Award the previous year at the Shale Insight Conference, was a finalist for the

Environmental, Health and Safety Innovation Award at the Oil and Gas Awards in 2013,

and would go on to win the Technology Development of the Year Award in 2013

(HalenHardy, 2017). Yet, even as industry groups rewarded this solution that fit its

paradigm regarding how to solve the RCS problem, their representative, Donny Beaver,

admitted that hydraulic fracturing’s adoption of their technology had been “slower” than

57 At the 2014 OSHA Oil and Gas Conference that December, I attended a roundtable where others

developing control systems presented compliance options. In 2016, many on the panel returned, this

time to discuss if, and how well, their measures reduced exposures at or below the new PEL. 58 I requested an interview with HalenHardy following the hearings, my request was ignored after

several email exchanges.

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desired and that they had expanded into the construction industry (OSHA, 2014, p. 3918).

The insistence on compliance through respirators was also represented in an

awareness video developed by members of the industry. In 2016, the STEPS organization

released a training video on the hazards of RCS exposure. A safety manager, Ted, training

“the new guy” Joe on silica hazards, made statements including: “We watch out for each

other,” and “Everyone’s gonna be watchin’ ya’ to make sure you have this mask on.” Most

significantly however, Ted tells Joe that his company will “make sure you know where the

hazards are and how to protect yourself” (Lawhorn-Cryden, 2015, my emphasis). While

the video recounts engineering controls for silica, it places significant emphasis on the use

of respirators as a means of compliance and even mentions “air showers for employees to

clean them off” as an appropriate engineering control (Lawhorn-Cryden, 2015). The group

applauded for addressing issues relating to RCS explicitly makes workers responsible for

protecting themselves.

After OSHA had finalized the silica rule, industry maintained that respirators were

needed despite OSHA’s instance that they could not be used to meet the PEL long-term.

The month after the final rule was announced in 2016, Chajet gave testimony to the House

of Representative’s Subcommittee on Workplace Protections. He argued against OSHA’s

prohibition of respirators as a final means of compliance and was adamant that respirators

were protective, stating, “I do not even call them respirators, they are mini-environments”

(U.S. House of Representatives: Subcommittee on Workforce Protections, 2016, p. 74).

However, respirators transfer responsibility for safety and health to an individual

worker, who must be properly fitted for a respirator, must wear it correctly (in some

instances it is necessary for the worker to be clean shaven), and must don a respirator every

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time s/he faces a silica hazard. If they are to remain protected, workers cannot remove their

respirators, whether to speak through communication equipment or to get a deeper breath

of air. NIOSH reported clean-shaveness as a troubling issue repeatedly seen on worksites,

one that calls into question the seal between a worker’s face and the respirator, and hence

the device’s effectiveness (NIOSH 2010, 2011a, 2011b). These are significant reasons that

underscore PPE’s place at the bottom of the hierarchy of controls, discussed in Chapter 3.

PPE requires that equipment be available, that proper training and fitting for the equipment

be provided, and that workers use the equipment properly.

Thus, shifting of responsibility to the individual through respirators ultimately

serves industry, leaving risk and risk outcomes a function of proper worker use of PPE.

Harmon, a political theorist working in public administration and writing about

responsibilities within bureaucracies, notes:

The conservative variant [of agency] over-asserts the individual by

depicting him or her as the exclusive object of blameworthiness for

irresponsible behavior. This allows collectivities to maintain an official

posture of innocence of complicity in creating these conditions in which

such behavior may be rational in a perverse but nonetheless real sense.

(Harmon, 1995, p. 129).

By insisting that the principal responsibility for mitigating health risks falls to workers by

offering respirators as the primary means of protection, industry reinforces the idea that

workers must function as agents, who, for themselves and for their families, make rational

choices in their own self-interest to mitigate health risks. A failure to wear respirators

would simply become the responsibility of workers, rather than of industry. This is a

hallmark of risk and responsibility under neoliberalism; here, even as the state professes to

seek control measures that diminish individual responsibilities, its activities to not

undermine these logics. Indeed, the state’s own requirements for rulemaking provides

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venues in which discourses surrounding individual responsibilities and industry’s

absolution of responsibility can be reproduced. This reproduces moral agents whose

voluntary actions enact their responsibility—a problematic assumption, as these moral

agents are seen as having the freedom to exercise their agency to protect themselves from

health risks.

OSH Act and Rulemaking: Regulating Risk, Negotiating Responsibilities

The public hearings and comments submitted are a reflection of the OSH Acts

mandate, its interpretation through the courts, and the rules and requirements of rulemaking

stipulated by federal statute and executive orders. The authority granted OSHA in the OSH

Act to set PELs was the result of years of intense negotiations in Congress over the state’s

responsibility to industry and to workers. The OSH Act did not resolve these negotiations,

and its ambiguities have been subject to judicial review. The court’s interpretation of

Congress’s intention during the writing of the Act has had a profound impact on how

OSHA now attempts to fulfill its mandate through rulemaking (Michaels, 2008; Kerwin &

Furlong, 2010; Vogel, 2012), how it negotiates its responsibilities, and how it charts

relationships among workers, industry, and the state.

A key reason so much of the hearings focused on establishing risk is due to the

1980 decision in Industrial Union Department, AFL-CIO v the American Petroleum

Institute, where the Supreme Court found that OSHA must demonstrate the existence of

“significant risk” in setting a standard. Citing the legislative debates over the OSH Act, the

Court reasoned that Congress intended the right to a safe and healthful workplace to be a

qualified right. Within reason, the state could meet its responsibility to protect workers

even when risk existed in the workplace:

But “safe” is not the equivalent of “risk-free.” A workplace can hardly be

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considered “unsafe” unless it threatens workers with a significant harm.

Therefore, before the Secretary can promulgate any permanent health or

safety standard, he must make a threshold finding that the place of

employment is unsafe in the sense that significant risks are present and can

be eliminated or lessened by a change in practices. (Industrial Union

Department v. American Petroleum Institute, 1980).

The ruling had several implications. OSHA must show that a workplace is not safe; safe

does not mean “risk-free,” but rather free of “significant harm,” and that a new PEL would

be protective against “significant risk.” Insofar as OSHA can determine that a certain level

of exposure is unsafe and that a new PEL would be protective, OSHA can establish

standards to enact the right to a safe and healthful workplace59. This presumption places

workers at a disadvantage to industry by stating that a workplace is deemed to be safe

unless shown to be otherwise. Extrapolated to health, the issue is not the healthfulness of a

workplace, but rather the determination of its unhealthfulness, by the identification of the

presence of significant risk. Decisions in American Textile Manufacturers Institute v

Donovan (1980) and U.S. Steelworkers of America v Marshall (1981) further identified

that in rulemaking OSHA is required to use feasibility tests (GAO, 2011). These now

strongly shape OSHA rulemaking.

Since the 1980s, the U.S. has increasingly regulated environmental and

occupational risk through risk assessment, economic impact studies, and evaluations of the

technological capabilities of affected industries, buttressed by judicial interpretations of

statutes (Vogel, 2012). While often neoliberal policy is associated with less government,

not more (England, 2010), in this instance, more layers of bureaucratic requirements that

59 Under 29 U.S.C. § 654, 5(a)1, the General Duty Clause, OSHA can cite workplaces for exposing

workers to a known but unregulated hazard. However, exactly what constitutes a hazard is subject to

how the General Duty Clause is interpreted, which may differ from one administration to the next and

by different federal courts when its use is under appeal.

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account for industry’s needs produces a context in which less regulation is actually

achieved. Strides toward “accountability” and “regulatory flexibility” have been codified

as administrative requirements for rulemaking through executive orders and legislative

action (Vogel, 2012), and have often been associated with neoliberal policies and the

“capture” of governance and democratic rights by economizing logics (Brown, 2015). This

is particularly important to consider in public comment during rulemaking, where industry

and workers are can participate and make claims on the state.

Table 2.1: Statutes, Court Cases, and Executive Orders in OSHA Rulemaking

Act/Order/Ruling Date Purpose

Administrative Procedure

Act 1946 General rulemaking procedures, including rules on publishing

notices of proposed rulemaking, public participation

Regulatory Flexibility Act 1980 Requires regulatory flexibility analysis; inclusion of small

entities in rulemaking

Industrial Union

Department, AFL-CIO v.

API

1980 Supreme Court decision that requires only significant risks be

regulated; requires risk-assessments; “Benzene”

American Textile Mfrs.

Inst., Inc. v. Donovan 1981 No cost-benefit analysis in OSHA rulemaking; “Cotton Dust”;

feasibility analysis required

U.S. Steelworkers of

America v. Marshall 1981 Establishes feasibility as technical and economic

Executive Order 12866 1993 “Regulatory Planning and Review”; requires OIRA/OMB review

of proposed and final rulemaking; submissions of draft regulation

Small Business

Regulatory Enforcement

Fairness Act

1996 Provides small businesses enhanced participation and leverage;

requires consideration of small business needs, includes CRA

Congressional Review

Act (CRA) 1996 Within 60-legislative days after publication of a standard,

Congress can overturn regulation, with presidential signature

The issue is therefore not just workers’ health. OSHA considers “what is possible

technologically, operationally, and financially” (Kerwin & Furlong, 2010, p. 58) for

impacted industries. “Rulemaking gives precise form to the benefits we enjoy under a wide

range of statutes. In the process, it fixes the actual costs we incur in meeting the ambitious

objectives of our many public programs” (Kerwin & Furlong, 2010, p. 2). Thus, OSHA

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must meet three tests in negotiating its responsibilities: First, OSHA must establish that the

rule addresses significant risk to worker health. Second, OSHA must show the economic

feasibility of effected industries to be compliant. Finally, OSHA must demonstrate the

technological feasibility of effected industries to be compliant. OSHA gathers, analyzes,

and reports data around these objectives, including during hearings and public comment

periods. Other requirements structure the rulemaking process, expand oversight of

rulemaking to other agencies and branches of government, and include the voices of

regulated parties, namely those of industry groups (Table 2.1). OSHA had to respond to

opinions forwarded by participants, which it did in its final rule. In its responses, both in

the final rule, and also during the hearings, the requirements of rulemaking have limited

the ways that OSHA weighed its competing responsibilities.

Negotiating Risks: OSHA Responds

OSHA’s final rule responded to many arguments made during the hearings and in

the submitted comments about risk and feasibility. In its final analyses, OSHA asserted its

authority to consider mortality and morbidity when assessing risk and that its ability to

regulate risk for workers is “not a mathematical straitjacket” (OSHA, 2016, p. 16290). Yet,

when public health presenters argued that OSHA needed to more fully incorporate quality

of life concerns, OSHA pressed them for a way to quantify those issues, reflecting the

usefulness of such figures to regulators and OSHA’s efforts to negotiate its responsibilities:

MS. ROBINSON: You specifically note the ability to work, engage in

family and community life and otherwise be productive members of society,

as problems that people afflicted with silica-related diseases have.

And I’m wondering if you have any other information that you will be able

to submit to the record, maybe in post-hearing comments, so it would help

OSHA to sort of quantify these issues. (OSHA, 2014, April 1, p. 3764, my

emphasis).

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Even if OSHA does not quantify all the risks, and as one official explained to me, has to

engage in some forms of qualitative analysis, its authority is not limitless. In its final rule,

OSHA stated that it does not have the power “to establish a utopia free from any hazards”

(116 Cong. Rec. 37614 (1970), Leg. Hist. 480–482) in OSHA, 2016, p. 16290). Instead,

OSHA can mandate that risks be eliminated as long as it is feasible for all affected

industries. Rulemaking requires OSHA to negotiate the “health” of two different bodies;

OSHA reiterated that its principal responsibility is to protect the workers—but only in so

far as regulations are feasible (OSHA, 2016, p. 16289). Significant risk may persist, as is

the case for RCS:

The Agency considers the level of risk remaining at the new PEL to be

significant. However, based on the evidence evaluated during the

rulemaking process, OSHA has determined a PEL of 50 mg/m3 is

appropriate because it is the lowest level feasible for all affected industries.

(OSHA, 2016, p. 16287)

In contrast to the many pages spent on significant risk, OSHA’s reaction to the hydraulic

fracturing industry’s argument that its flexibility is not conducive to generalization was

limited, but it did strongly contest their knowledge claims:

Due to an unusually rich data set, and the great similarity of different

fracturing operations, both with respect to the equipment used and the

current levels of control, OSHA was able to estimate which controls are

necessary to go from an uncontrolled situation to the preceding PEL and

which are necessary to get from the preceding PEL to the new PEL in the

hydraulic fracturing industry. (OSHA, 2016, pp. Footnote 28, 16472, my

emphasis).

In a separate addendum, OSHA offered other reasons why its data set on which it based its

rulemaking was representative, using some of the industry’s own concessions to contest

their broader narrative:

However, they provided no explanation why geological basin would affect

the exposure levels. API acknowledged that it does not have data to indicate

that the topography differences of basins affect exposures (Document ID

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3589, Tr. 4126). Additionally, Chamber of Commerce witness Dr. Knutson

testified that he has seen industry exposure monitoring data from hydraulic

fracturing sites other than the data in the record, and that he did not see a

marked difference between this industry data and the data in OSHA’s

exposure profile (Document ID 3576, Tr. 500). Dr. Knutson testified that

he was unable to submit this industry data to the record due to

confidentiality agreements (Document ID 3576, Tr. 500).

Though dismissive of the flexibility argument, OSHA accepted that engineering controls

might not be fully commercially available and delayed hydraulic fracturing’s requirements

to meet the PEL with engineering controls for five years, or until June 2021. This allows

industry to meet the new PEL using respirators until that time. According to one OSHA

official, a key issue was that while from their evidence OSHA recognized that the

industry’s dust control technologies needed more time to become economically viable, they

did not provide evidence that these technologies were not going to work.

Even as OSHA interpreted significant risk and feasibility in ways more protective

of workers, how OSHA weighed its responsibilities provides industry with a discursive

space through which to reproduce narratives that reinterpret OSHA’s obligations and to

absolve itself of accountability for health risks and shift responsibility to the workers. The

central question remains as to whom these regulations are responsible. Furthermore, even

though the final rule has been enacted, industry’s narratives about OSH risk can prove

influential as the rule remains subject to challenges from outside and within the new

administration.

The final rule was published on March 25, 2016, with the first implementation dates

for the construction industry beginning September 24, 201760. Unlike other rules that were

60 Full enforcement for the construction industry began October 23th, 2017. In the intervening month

OSHA indicated that it would be accommodating to employers making ‘good faith efforts’ to be

compliant with the rule. September 23th, 2017 was a delayed start date from the original date of June

23th, 2017. OSHA indicated that it wanted to provide additional time for companies to meet compliance,

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subject to the Congressional Review Act and were repealed when the new administration

and Congress took office, the silica rule has gone into effect, although the ultimate fate of

the rule is still unknown. During his confirmation hearings, now Secretary Acosta’s to

would not confirm if the silica rule would be reviewed under President Trump’s Executive

Order 13771 that directs agencies to review rules and reduce regulatory burdens by

repealing two rules for every new one and in a cost-neutral way. Significantly, at least in

the short term, the agency is defending the legal challenges to the rule. Immediately after

the rule was published, ten lawsuits were filed by both industry and labor organizations,

and oral arguments were heard in September 2017 at the District Court of Appeals in

Washington, D.C. These oral arguments recycled many of the same arguments documented

in this chapter. How the courts ultimately rule, in what is could be long legal challenge will

have significant implications for the ways OSHA views feasibility and significant risk in

the future as its rulemaking efforts continue to negotiate the agency’s responsibilities to

industry and to workers. On December 22, 2017, the three-judge Appellate panel including

Merrick Garland, Karen Henderson, and David Tatel, upheld the rule, including on the

basis of significant risk. The Chamber and its industry collation has not announced if it

plans to appeal the decision. Barring these potential appeals, while industry’s narrative of

significant risk was given a platform, it did not sway the final outcome. However,

industry’s narrative of its spatial and temporal flexibility did gain the industry time to

continue using respirators as a means of compliance.

Conclusions

Rulemaking is a venue in which, under the auspices of guaranteeing workers the

and its own compliance assistance information had been only recently been made available. In the years

that I have watched OSHA, delayed enforcement dates are not uncommon.

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right to a safe and healthful workplace, OSHA formally negotiates its responsibilities to

workers and to industry, due to the requirements established by the state, but also the

history of vested interest groups. Rulemaking establishes the state with dueling obligations

to protect industry and workers, which it attempts to rectify “rationally” through three tests

of significant risk and feasibility. The evidentiary basis on which OSHA is to balance these

responsibilities opens rulemaking to comment from regulated and affected parties.

Tracing the negotiation of responsibility through this participatory mechanism

illustrates how certain ways of conceptualizing OSH are reproduced. In this instance,

industry uses this space to interpret data and circumstances to distance itself from

accountability to the state and transfer responsibility for acting on health risks to workers.

It should now be clear that the neoliberal economic world view, which

posits individual responsibility as the only meaningful level upon which to

understand responsibility, functions as one of these irresponsibility

machines. (Tronto, 2013, p. 61).

What Tronto makes clear is the varied ways that not only individual responsibility is

reinforced by the discourses and institutional processes within neoliberal institutions, but

moreover, how individual responsibility serves to absolve other actors of their compliancy

within unjust systems.

Although rulemaking embodies the state’s paternalistic responsibilities in terms of

protecting the economy and working people, its rules and requirements facilitate the

perpetuation of long-standing narratives about responsibility for workers’ health. Industry

perpetuates narratives that value workers through their deaths and advances “feasibility”

arguments wherein due to its flexible configurations, it can only fulfill those obligations to

protect workers’ health by shifting that responsibility onto workers. Rulemaking is not

divorced from broader processes of the state, industry and society. As Mitchell writes, these

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processes are reciprocal.

The power to regulate and control is not simply a capacity stored within the

state, from where it extends out into society. The apparent boundary of the

state does not mark the limit of the processes of regulation. It is itself a

product of those processes. (Mitchell, 2006, p. 175).

The arguments that circulate and perpetuate through rulemaking are historical vestiges, but

also reflections of current power dynamics that shape the relationships between workers,

the state, and industry. The decisions the state makes about regulating health are complex,

political negotiations that weigh competing truths about not only science and knowledge

but about which bodies’ health –workers’ or industry’s– matter most.

Rulemaking makes plain the ways that the state’s interest in health risk is a tenuous

negotiation. By tracing the negotiation of the states’ responsibilities, OSH rights are shown

not to be absolute but rather to embody a concern for both the fleshy, bodily health of

workers, and the immaterial discursive vitality of industry. The ambiguities of the state’s

negotiations reveal some of the consequences of locating responsibility within a non-

human agent, whose health can be threatened and evaluated against a living body.

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3. Chapter 3: Enforcement: Spatial and Temporal Practices Absolve

Responsibility as Liability

When I drove around parts of rural Pennsylvania, West Virginia, and Ohio, in areas

beset with oil and gas development from hydraulic fracturing between 2013 and 2015,

activity was everywhere and nowhere. Equipment facilities and man camps lined highways

and state roads. Twin axles and crew cab trucks whizzed by on country lanes. Pipeline

right-of-ways cut through thick forest. Yet, the nexus of this activity, the well pad, was

often obscured by the landscape. Forest and hills made it difficult to spot wells from the

road. There were clues about its locations: posted signs and newly bonded roads,

sometimes caravans of industry vehicles marking a path to the site. In my efforts to observe

industry activity—what one friend called a “safari”—I utilized state-permitting data and

GPS coordinates, and downloaded phone apps with rig locations; even with these tools, I

still drove around for hours searching for well sites. In some cases, members of a nearby

community told me where to find well sites. Other times, I trusted that twenty or thirty

minutes on a single lane road up a hill or down a dirt path would eventually lead me to a

well, but often decided not to trespass on roads marked private, even when that seemed the

only way to get to the well. Frequently even when I did find a well site, there was no one

around, and nothing was happening. In south-central Texas where the oil and gas industry

is ubiquitous, rigs were prominent in its flat landscapes. Yet, even with visual cues, it was

not always possible to find the path to get to the well site. Wells were often at the end of

circuitous dirt roads that acted as dividing lines between farmland. I took roads unmarked

on maps to drive towards a rig, but there too I found inactive sites.

The temporality and the rurality of many landscapes of hydraulic fracturing matter

for the state’s role in enforcing its notions of responsibility for OSH. These aspects

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challenge how the state ascribes blame for hazardous and unhealthy workplaces–

inspections–and signal the need to think creatively about the ways responsibility for

healthy workplaces is imagined and administered.

This chapter examines how the state enacts its ideal distribution of responsibility.

In this schematic, OSHA regulates employers who regulate employees

(OSHA→Industry→Worker) to understand the implications of a responsibility paradigm

within health governance. This chapter argues that OSHA enforcement utilizes a

responsibility-as-liability61 paradigm that constrains its efforts to protect a worker’s right

to a safe and healthful workplace. This approach pursues causal connections to ascribe an

outcome to an action and actor. As Young writes, “…to identify some factor or agent for a

condition means to absolve others. But such a monocausal conception is implausible”

(Young, 2008, p. 18).62 It prescribes a remediation but fails to contextualize disease risk

within broader processes and ultimately reproduces limitations on the state’s authority to

interfere in private workplaces.

I illustrate how responsibility-as-liability focuses on the enforcement of regulations

in which individual companies are held responsible for creating unhealthful working

conditions captured by a snapshot of exposures at a particular place and time. The chapter

shows how this model is confounded by the flexibility of the hydraulic fracturing industry

and the contexts in which this flexibility unfolds. The hydraulic fracturing industry operates

61 Here I am using liability to mean ways of finding an employer legally responsible for a discrete

instance of failing to meet the state’s standards for workplace conditions. 62 Young (2008) is motivated to address ways that individuals and institutions “distance ourselves from

responsibility” (p. 169) for structural injustice. Thus, her primary focus is on civil society and non-state

actors. Young is concerned by the tendency to look to governments for the provision of social needs

and the pursuit of social justice, despite the state’s failings across multiple contexts, and the successes

of private interests in arguing against a strong state. “So what is missing from the “It’s not my job–it’s

the government’s job” position is the recognition that the state’s power to promote justice depends to a

significant extent on the active support of its citizens in that endeavor” (Young, 2008, p. 169).

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with spatial and temporal flexibility utilizing a subcontracted structure. This has material

consequences for the techniques OSHA uses to regulate hydraulic fracturing and silica

exposures. OSHA lacks the enforcement tools and the means of collecting information

necessary to match industry’s structure and spatial and temporal patterns. OSHA’s focus

on blameworthy events denies the broader structures under which OSH problems emerge

and are intensified, and through which industry is able to avoid oversight. The chapter

shows how this notion of responsibility limits OSHA’s conceptualization of OSH

problems, making it unable to account for the structural dynamics that shape unhealthful

workplaces and that confound enforcement techniques. Tracing the practices of enforcing

responsibility through inspections reveals how inspections techniques and rationalities

reinforce limitations on the state’s authority to regulate private workplaces. By diagnosing

practices as healthful or unhealthful, OSHA’s enforcement logics overlook modalities of

responsibility outside the responsibility-as-blame paradigm that could provide alternative

methods for achieving OSHA’s mandate. Other theorizations of responsibility can

approach OSH regulation as forward-looking by focusing on the structural conditions that

support and maintain unsafe working conditions and that challenge oversight.

Responsibility as Liability, the Subcontracted Workplace, and Health Exposures

The modern workplace has been profoundly transformed. Employment is

no longer the clear relationship between a well-defined employer and a

worker. The basic terms of employment—hiring, evaluation, pay,

supervision, training, coordination—are now the result of multiple

organizations. Responsibility for conditions has become blurred (Weil,

2014, p. 7, my emphasis).

This chapter shows how the context and structure of hydraulic fracturing work blur,

in a blame-worthy sense, responsibility for health risk. The model of OSH responsibility

offered by OSHA is noteworthy, as it focuses on providing a context in which workers

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should be able to act healthfully but does not guarantee them a bodily state. This means

that OSHA does not assure that workers are free of illness or a certain level of bodily

integrity. Rather, it means that workers should be provided a workplace the state deems

unlikely to negatively impact the body because of its conditions. For Young (2008),

theories of responsibility that focus blame insufficiently addresses structural roots of

injustice and obfuscate how normalized behaviors reproduce those injustices.

A blame language can be inappropriate and unproductive in the context of

issues of structural injustice because it tends to divide people….This

oversimplifies the causes of injustice and renders most people

comparatively unable to help remedy the problem (Young, 2008, p. 116).

As she explains further “the purposes of social practices of finding guilty, blaming,

finding fault, holding strictly liable are to focus on particular agents in order to sanction or

demand compliance from them alone” (2008, p. 105). OSHA’s enforcement in the oilfield

is an exercise in ‘finding blame,’ where individual companies are held responsible for

discrete hazardous conditions. OSHA’s standards enforce “a normal set of background

conditions that we consider morally acceptable if not ideal” (Young, 2008, p. 107) that

ostensibly provide workers access to a “safe and healthful workplace.” Young considers

forward-looking relationships and those that address structural injustice, finding these

liability-rooted ways of ascribing responsibility inadequate. For Young, blame, fault, and

liability, are not synonymous with her theorization of responsibility.

The chapter shows practical reasons why a focus on a blame-worthy event, one in

which liability can be identified, rooted in OSHA’s inspections is insufficient to address

the hazards of hydraulic fracturing workplaces. Most significantly, the logistics of locating

a well site and arriving during an exposure confound enforcement efforts. Structural

conditions of hydraulic fracturing produce environments where unsafe, and hazardous

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working conditions flourish, specifically through just-in-time practices and “fissured” or

subcontracted workplaces that segregate workers based on tasks. These structures bifurcate

industry actors, making contractors (and the workers they employ), beholden to the needs

and desires of overseeing operators.

To underscore the unjust processes produced and maintained by subcontracting, the

chapter draws on others who have written about its how it facilitates contexts in which

industry can avoid oversight. Subcontracting has been a specific strategy in industries to

reduce and distance overseeing employers from responsibility, a strategy of reorganizing

labor well noted by geographers over the last several decades (Harvey, 1989). As Collins

(2003) writes, “subcontracting introduced new layers of social relations between workers

and owners and altered the legal relationship between employees and the firm” (p.61).

Subcontracting blurs who is responsible in the workplace. These altered structures

confound the states’ responsibilities to regulate employers and ‘protect’ workplaces under

the auspices of OSH (Weil, 2014).

Charting the utility of these flexible work arrangements in producing advantages to

employers while increasing the precariousness for workers, Coe (2012) agrees with Wills’

conviction that subcontracting is “paradigmatic” (2009, see also Wills et al., 2009), writing,

Wills (2009) convincingly diagnoses subcontracting as the central

mechanism involved, which both brings workers into downward

competition with each other and can make it hard to discern the ultimate

employer of precarious workers. (Coe, 2012, p. 275, my emphasis).

It is not just workers who are in downward competition but also firms. For Weil (2014),

flexibility is a fundamental component of the “fissuring” of workplaces, the stratification

of firms, and the increased vulnerability of workers. For him, the larger concern is where

flexibility allows actors “to skirt the social costs resulting from that flexibility” (p. 288).

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“Fissured” represents a cleavage of activities wherein “it has become far less expensive to

contract with other organizations–or create new organizational forms–to undertake

activities that are part of producing goods or providing services” (Weil, 2014, p. 44), a key

insight into the organization of the oilfield. Additionally, for Benner, flexibility has two

key senses relevant to considering OSH: flexible work and flexible employment (2002).

Flexible work “refers to the actual tasks performed by workers in the process of economic

activity, while “employment” refers to the contractual relationship (both explicit and

implicit) that shapes labor control and compensation” (Benner, 2002, p. 15). OSHA

regulation mostly focuses on the regulation of work, yet flexible employment shapes when

and where its standards apply and is what OSHA lacks the authority to regulate.

This chapter uses these insights to show how the flexibility of location and

organizational structure can exacerbate health governance oversights by exploiting the

geographies of resources that locate work in remote and difficult to find locations. It

suggests that health geographers not only can consider how the relations of work influence

health risk, but also how the state’s efforts to regulate health are confounded by these

structures of flexibility. Insofar as social costs stem from flexibility, and that flexibility

allows firms to allude oversight, OSH regulatory intervention should be reframed to

regulate flexible structures of work63, rather than discretely as an action-actor-consequence

paradigm of responsibility currently employed by OSHA. Walker’s (2008) attention the

practices of responsibility rather than their ideal state, puts a finer point on this emphasis.

As it connects to the way the state finds blameworthy events in workplaces, and

63 Young (2008) relies on a loose meaning of structure as a constellation of institutions, actors, and

processes, and oscillates between using the terms structure and structural processes. ‘Flexibility’ here

considers the ‘structure’ and ‘structural processes’ that contribute to unhealthful working conditions,

and which corporations and state actors may be seen to be responsible in perpetuating.

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thus finds liability in particular employers, this chapter draws upon health geography’s

emphasis on the ways that ‘objective’ and ‘scientific’ thinking give legitimacy to and shape

how relationships between health, disease, and places are identified. Sampling done by

industrial hygienists utilize tools of rendering exposures ‘perceptible’ that signal the

‘realness’ of workplace risk (Murphy, 2006)64, but also are subject to epistemological and

material constraints like weather, wind, and being at the worksite during an exposure. As

Murphy writes,

Chemical exposures were, and are, notoriously difficult to prove. They are

composed of molecules invisible to the unaided eye (if not the nose) and are

usually only investigated well after the initial moment of their presence

(Murphy, 2006, p. 83).

The concerns recognizing context and structural processes in the production of human

health risk are also informative here. Horton, for example, charts the role farm organization

plays in farmworker heat death, and questions how this is related to broader labor and

immigration policies (Horton, 2016). Here, I build on such analyses by considering how

the subcontracted organization of the oilfield intersects with the underlying assumptions

that guide how the state seeks to protect workplaces from silica hazards. I critique the

techniques of identifying exposure as a way to ascribe blame onto industry by illustrating

how this method absolves industry from responsibility for producing hazardous conditions

in its failures and insufficiencies. I further place these processes within dominant narratives

of the oilfield and of OSH that not only reinforce the idea of individual responsibility, but

64 Murphy explains this further how “exposures are contentious events. They involve litigation, blame,

neglect, and suffering” and how the way we conceive or exposures are rooted in epistemologies that

have been developed in producing science such “chemical exposure and their health effects as uncertain,

that is, as events that one cannot do something about” (2006, 10). While significant, this chapter does

not delve into the campaigns of uncertainty that enshroud sampling, litigation of OSHA findings, or

epistemologies of OSHA investigators trained in industrial hygiene.

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incentivize particular types of care and belonging that can serve to justify workers’

exposures to risk. Varied forms of caring valorized by narratives in the oilfield as workers

supporting the nation or their employer can clash with other forms of caring within OSH

objectives such as caring for one’s coworkers and returning home to one’s family and

friends. I make these arguments by drawing on interviews with OSHA65, participant

observation at oil and gas industry conference and trade events, my trips driving around

parts of the Utica, Marcellus and Eagle Ford Shales (PA, OH, WV, and TX), and textual

analysis of inspection case files66.

Fragmented Oversight: Institutional Context of OSHA Enforcement

In the late 19th and early 20th centuries, emerging liberal rationalities displaced a

classical view of the relationship between the state, the market, and society, at times

embracing moralistic and paternalistic roles for the state, including intervening in the

relationship between employers and employees (Rogers, 2009). Yet, surrounding these

debates were key tensions regarding the degree to which employers, rather than employees,

bore responsibility for these circumstances. Some championed regulations rooted in the

“producer pays principle” which held employers accountable for the hazards and harms of

workplaces. Others saw workers as individuals who rationally chose employment

65 I contacted OSHA offices in Pennsylvania, Texas, and Oklahoma in 2014 and 2015, focusing on

offices that had conducted silica inspections. Broadening my analysis in 2017, I began calling offices

in areas with high hydraulic fracturing with more general questions. After hearing several times that

OSHA does not do interviews because it is an “enforcement agency,” one office suggested that I send

in a formal request. I sent letters to 23 area offices that had reported inspections under a category used

for hydraulic fracturing and followed up with calls. This category captures more than just hydraulic

fracturing. Thus, three offices responded that they did do hydraulic fracturing inspections. Of those

remaining, I spoke with officials in 12 offices, sometimes with more than one person. These interviews

covered general issues on oil and gas inspections and hydraulic fracturing activities specifically. 66 Case files document inspection activities, and communication, fines, and abatement activities. These

include inspector narratives, checklists, and worksheets inspectors have jotted and sketched and

sampling reports. They also contain correspondence between OSHA and employers, including emails,

exposure data, remediation plans, and employer health and safety manuals.

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opportunities where dangerous work would be rewarded and incentivized through pay

(Dorman, 1996, p. 32).

As the state weighed in on these concerns, it approached OSH issues in primarily

three ways: legal liability, worker compensation, and factory legislation (Noble, 1986).

Legal liability gave workers the ability to sue their employers for injury and illness. The

burden of proof was high and required proven willfulness on the part of employers (Bale,

1987; Sellers, 1997). As discussed in Chapter 4, the workers’ compensation bargain in the

early 20th century provided workers with no-fault insurance for the injuries they faced at

work but prohibited workers from accessing tort law in all but a few circumstances. Factory

legislation, an idea imported from Germany and England (Noble, 1986; Rogers, 2009),

involved the setting and enforcement of standards through investigations beginning in the

mid-nineteenth century. Its precedent would underpin “command-and-control regulation”

that enables the State to require employers to meet standards, and how (Noble, 1986, p.

30). This strategy engenders notions of blame.

Turn-of-the-century reformers advocated for regulatory interventions to influence

the organization of work on the shop floor such that workers could make rational decisions

for themselves (Noble, 1986, p. 19; Dorman, 2006, p. 37). Through factory legislation, no

longer were employees solely responsible for uncertain outcomes. Employers now had

obligations to meet standards, could be blamed for producing the hazard and the hazardous

outcome, and possessed responsibilities to remediate the danger. Over the next several

decades, the states primarily developed workplace standards and led workplace safety

efforts (Asher, 1991). Federal involvement was limited. The USDOL gained Cabinet-level

status in 1913 (MacLaury, 2016 (1988)) and its initial efforts focused on protections for

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workers, particularly federal employees. By the 1930s, USDOL had broadened its purview

to aspects of private workplaces, again particularly for wages, overtime, and oversight of

federal contractors (Asher, 1991), but most OSH regulations remained at the state-level

until the 1970s (Noble, 1986).

In the 1960s, labor activists found traction in Johnson’s Great Society which sought

to concentrate social regulation at the federal level (Noble, 1986; Asher, 1991). Late in the

Johnson Administration and at the beginning of the Nixon Administration, OSH concerns

were drafted as legislation in what would become the OSH Act of 1970 (Noble, 1986). The

Act proved to be a multidimensional compromise between labor and business interests in

its final form (Vike, 2007). Labor gains were significant in the legislation. The Act placed

OSHA within the USDOL—much to the chagrin of industry—where it held powers to

establish and enforce OSH standards. The Act also allowed for workers’ involvement in

standard setting and workplace inspections. Nonetheless, industry also had some victories.

The resulting regulatory apparatus for OSH governance was fragmented; the compromise

had limited OSHA’s powers by diffusing oversight of compliance, research, and standard-

setting among OSHA, state-plan programs, NIOSH and the Occupational Safety and

Health Review Commission (Vike, 2007, p. 573)67. OSHA also did not take over OSH

activities from the Bureau of Mines. In 1977, the Mine Safety and Health Act created the

Mine Safety and Health Administration (MSHA)68. MSHA and OSHA oversee most

67 Other federal and state agencies overlap with OSH issues including protections for workers

for overtime, minimum wages, and break-time. Under USDOL, the Wage and Hour Division (WHD)

enforces the Fair Labor Standards Act and its provisions for worker classification and compensation.

The Employment and Training Administration funds the development of apprenticeship and safety

awareness programs and funded ShaleNET, a consortium of northeastern colleges and universities,

$19.9 million to develop training for shale workers (ShaleNET, 2016). 68 This replaced the Mining Enforcement and Safety Administration established in 1973 that had

succeeded the Bureau of Mines first established in 1910 (MSHA, n.d.).

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private workplaces but enforce their own health and safety standards. For example,

OSHA’s new PEL for RCS applies to hydraulic fracturing. The workers who mine the

silica sand used in hydraulic fracturing, however, are covered by MSHA’s more permissive

standard. Although a new MSHA standard was proposed under Obama based on OSHA’s

new standard. It is unclear if will be pursued under the Trump Administration. Conversely,

MSHA has a standard for Diesel Particulate Matter (DPM) in underground mining. While

DPM is a concern during hydraulic fracturing when site configurations concentrate

emissions from frac pumps, OSHA does not have a PEL for DPM, as I learned from NIOSH

presenters at an industry OSH conference.

Today, OSHA enforcement and compliance falls to ninety area offices divided

among ten regions. As has been reported by the GAO and was marked in my interviews,

individual area and regional offices retain different operating cultures and may implement

geographically focused programs, even if the standards they enforce are the same. Within

the ten regions, twenty-eight states have implemented State Plans which must include

standards as stringent or more stringent than federal regulations69. However, state-plan

enforcement varies widely (GAO, 2013, p. 4) and has repeatedly garnered scrutiny and

calls for more federal oversight and standardization (GAO, 1982, 1988, 1993).

Federal OSHA offices cover some of the most intense areas of hydraulic fracturing

for unconventional fuels including Pennsylvania, Texas, and North Dakota. Still, of the

3,521 inspections conducted for Support Services in the Oil and Gas Industry between 2006

and 2016, State Plan inspections accounted for 21% (746) of inspections. The most were

69 Of these twenty-eight state plan states, six cover state and local government workers. The remaining

twenty-two (twenty-one states and Puerto Rico) cover private and public workplaces.

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conducted in New Mexico (282) and Wyoming (196)70. States and localities (i.e.,

townships, cities, and municipalities) can levy regulations pertinent to OSH, and RCS

specifically, as seen in California, New Jersey and several cities (CPWR, 2016)71. Both a

practical and theoretical concern, Blomley and Baken (1992) and Blomley (1990), question

at what scale the state should regulate worker safety concerns, with a particular focus on

the role of local and community regulations of OSH issues. Given the stagnation of many

federal OSH reforms in the last several decades, OSH activists and labor scholars

increasingly have looked to state and local regulation to achieve better OSH oversight.

OSHA has few governance mechanisms that account for industries that do not

follow the vertical, factory models around which many early regulations were built. RCS

poses additional challenges as exposures are fleeting and impacted by weather conditions

and well locations are often remote. OSHA faces significant hurdles to implementing new

techniques to account for these issues. How hydraulic fracturing’s flexibilities complicate

efforts to investigate exposures to silica illustrate this.

Responsibility-as-liability: Inspections

OSHA penalties are a critical enforcement strategy meant to deter

employers from violating safety and health standards. (GAO, 2004).

Inspections encode a logic that makes employers responsible for hazards and

hazardous outcomes in workplaces. OSHA regulates employers who regulate employees.

This distribution of oversight seeks to temper workers’ responsibility to maintain safe

working practices and instead focuses on the context produced by an employer that can be

70 Wyoming has developed oil and gas industry-specific OSH regulations. 71 Canadian provinces impose OELs for most substances. For silica, these OELs range from

0.025mg/m3 for example in Alberta to .1 mg/m3 for example in Ontario (Government of Alberta, 2009;

Ontario Ministry of Labor, 2015).

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hazardous: the workplace. This engenders responsibility-as-liability enforced through

inspections, fines, and abatement requirements where employers are found responsible for

the condition of their workplaces. For Young,

The point of locating guilt or leveling blame is precisely to single out: to

say that this person, or these people, by virtue of what they have done, bear

direct moral and often legal responsibility for the wrong or a crime, whereas

others do not because their actions have not done the deeds. The practice of

blaming or finding guilty requires singling out some from others, and

applying some sanction against them or requiring compensation from them.

(Young, 2008, pp. 76-77).

Through its enforcement efforts, OSHA finds a company responsible for exposing a worker

to risk and also levies of fines. First, OSHA has to get on site to document the blame-

worthy event for which it can find employers liable for failing to meet the state’s standards.

How the state can get on site is mediated by complex rules, procedures and processes with

serve to limit the state’s authority to regulate private workplaces.

Whether an inspection is the result of a complaint, referral, or programmed, a

Compliance Safety and Health Officer (CSHO) conducts an inspection, and in the case of

health or RCS inspections, is often a certified industrial hygienist. Protocols identified in

the Field Operations Manual (FOM), among many other directives and guidance, detail

how CSHOs should enact OSHA’s authority. A typical inspection begins after a CSHO

arrives and gains entry to a facility. Once onsite, the CSHO conducts an opening

conference, informing employers of the inspection and their rights, and requesting

documentation and records. A CSHO then performs a walk around, interviews employees,

and collects samples, notes, photographs, and video of the worksite. The inspection ends

in a closing conference during which the CSHO and the employer discuss violations,

employer rights and responsibilities, and potential hazard remedies. It warrants emphasis

that these inspections do not keep pace with hydraulic fracturing activities. The code most

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likely to capture hydraulic fracturing contractors in the U.S. between 2007 and 2016 (3228)

accounted for 3.1% of the total rig count in that period (103,259)72. These are significant

considerations given that inspections are a primary means by which OSHA implements its

model for responsibility.

Subcontracting and Flexible Work in the Oilfield

The flexibility of the industry can hamper OSHA inspections. In the oilfield,

subcontracting produces a workplace theater where multiple teams work among each other

completing tasks with chemicals, electrical sources, large machinery, and equipment under

high pressures. Subcontracting was on view during a well site visit I took with Penn State’s

Marcellus Center for Outreach and Research. After driving along back roads through

forests and farmland deep into northeastern Pennsylvania, we arrived at a well site at the

start of a frac stage73. Piling out of a fifteen-passenger van, we donned fire-retardant suits,

shoe covers, hearing and eye protection, and hard hats, before being introduced to our

guide, a representative of the site’s operator, Southwest Energy. A large white man likely

in his thirties, he asked us to be cautious with our photography; one of the servicing

companies completing the frac did not want their name to be visible in any pictures. As he

showed us around the site, we walked across the well pad liner, avoiding pipes and stepping

over hoses at least a foot in diameter. In the bright sun of a late summer morning, it was

loud and hot. The area vibrated, and the noise grew louder as the engines supplying

72 U.S. EIA data for rig counts from 2006 to Nov. 2016. Given three codes that may capture oil and gas

activities, (213112 (inspection count: 3228), 213111 (inspection count: 2392), and 211111(inspection

count: 1095) this rises to 6715, or 6.5% of all rigs. However, these figures overestimate well sites

inspected as they capture more activities than just those at a well. 73 Frac is standard short-hand for hydraulic fracture; the lack of the ‘k’ in this spelling is in keeping with

industry practices. Frack is commonly used by fracktivists, or opponents of the industrial practice.

However, it is used on industry-supporting merchandise where Frack replaces its obscene counterpart

in slogans.

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horsepower to the frac ramped up. Workers from different contractors moved around us.

One, his full-piece respirator reflecting the sunlight, wore long gloves extending up his

arms to protect him from the acids he was handling. Others dragged hoses. Some wielded

wrenches three feet long. We climbed a ladder to the top of a sand king so we could take

in a full view of the site; the scene highlighted groupings of workers each engaged in their

tasks. Back on the ground, the representative explained how he did not employ many of

the workers we saw involved in tasks. Rather, we were observing subcontracting at work.

In the oilfield’s subcontracted structure, an operator employs multiple

subcontractors to engage in task-specific activities for short periods, and for many basins,

in remote locations. Sometimes referred to as a kind of “organized chaos,” this situation is

called SIMOPS (Simultaneous Operations) and can impact the health and safety of

operations negatively. As Weil explains:

A second characteristic of the fissured workplace in subcontracted

organizations is coordination problems: the more tasks are divided among

different business entities, the harder it becomes to coordinate them. The

private incentives pushing toward fissuring the workplace thereby create

social problems and costs in the form of increased safety and health risks

and, at worst, deaths at the workplace (Weil, 2014, p. 100).

Subcontracting is neither a new phenomenon nor unique to oil and gas. In this iteration, it

exploits advances in speed, technology, industrialization, and labor specialization. It

influences industry’s competitive structure, benefits from hazy employment relationships,

and ultimately reduces costs by maximizing the movement of people and equipment.

Subcontracting impacts which workers are exposed to silica, the circumstances

under which employers expose workers to silica, and if and how OSHA can hold employers

blame-worthy for exposures. Employees most likely to be exposed to silica work for

subcontractors who specialize in hydraulic fracturing completions. These can be large

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firms like Halliburton, Keane, or Baker-Hughes, or smaller contractors. Sand teams may

work at one site over the course of a day or may move between several sites, potentially

incurring exposures at each location. These servicing companies compete for contracts

from operators. Contracts may be awarded based on a subcontractor’s record of safety and

contractor rating systems and safety programs, dynamics that incentivize less reporting of

injury and illness, in addition to their regional availability and cost of services. This system

distances operators from its risks and social costs, by design. Operators benefit from a

system where they can set high safety standards, but often ignore patterns where

subcontractors, and their employees cut corners to meet production demands, including the

speed with which they complete tasks, and through cultures of under-reporting. In fact, in

the STEPS video introduced in chapter 2, Safety Manager Ted, hurries his own safety

training, saying to new guy Joe, “Well, it sounds like they’re starting to pump [a stage]

now, so we better get through this so you can get to work” (Lawhorn-Cryden, 2015). Even

in a safety video produced by a safety organization, the need to get to work and quickly is

so normalized that it takes precedence over the need to explain health and safety hazards

of the workplace.

This structure and the discourses surrounding OSH reinforce a system wherein

there are disincentives for hydraulic fracturing workers to follow OSH procedures, despite

the “commitment to safety” proffered by industry leaders. Health and safety courses,

workshops and conferences, encourage workers and safety managers to think of themselves

as part of their employer’s team, enrolling them in this structure. OSH training materials

and at OSH conferences emphasize particular forms of sanctioned care and emotion often

rooted in an idea that workers have families they want to get home to. These sanctioned

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forms of care incentivized OSH practices by portraying workers as striving to get home

safely to their families and helping to keep coworkers and brothers safe, but also while

producing energy for the nation. Repeatedly, workers are asked not to just consider their

own risk, but to keep in mind those at home, and one’s family on the oilfield.

During the 2014 OSHA Oil and Gas Conference, one oil and gas executive’s

plenary talk discussed safety as an emotion; he and other leaders tearfully described

wrenching experiences of telling wives and mothers that their men were not coming home

after fatal accidents. The concept of “making safety personal” was a repeated mantra, the

idea that in order to help workers be safe, they had to care about what it would mean for

their own loved ones. In emphasizing a particular kind of sanctioned paternalistic emotion

to take care of one’s family and friends, and one’s employer, these narratives underscore

that workers need to look out for themselves so as to not put employers in these emotionally

compromising positions. Tensions surrounding how hazards should be managed, if they

should be managed, and by whom, run through these OSH discourses. OSH narratives are

inconsistent. Industry’s position that they are responsible for certain OSH concerns

contrasts with narratives about workers’ responsibilities to their employer and family, and

risk-taking to match demands of work.

Normalized and valorized risk shapes the responsibility narratives in the oil and gas

industry that respond to these hazards and are significant to modalities of OSH that focus

on behavior-based safety, mantras of ‘zero-incidents,’ or efforts to ‘get home safe.’ Here,

OSH works to institutionalize care at work. Significantly, caring at work facilitates shifting

responsibility to the individual worker. At the OSHA conference in 2014, “making safety

personal” was a repeated mantra, the idea that in order to help workers be safe, workers

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had to understand how the things they cared about would also be at risk if they performed

work unsafely.

Hope is not a method. I say again, hope is not a method. By that I mean,

hoping to eliminate workplace fatalities is not a method for achieving that

noble vision. The elimination of death as an indirect consequence of our

efforts to explore for and produce the energy resources needed to fuel a

global economy requires multiple strategies. I firmly believe that one such

strategy that we must pursue to eliminate workplace deaths is by making

safety personal for every man, woman, and child in our workplace family.

(Warren Huber, 2014 OSHA Oil and Gas Conference, my emphasis).

To make safety personal frames workers’ care for their families and other co-workers as

an emotion endorsed by the industry and warranted by the risks workers face in the oilfield.

Workers’ emotion could help keep them safe. This acceptable form of care in the

workplace, while possibly a pragmatic strategy, also connects safety to personal

responsibility. First, being responsible becomes a function of caring in the right way, and

second, a lack of care could lead to irresponsible, unsafe behavior. Notably, this executive

also takes this opportunity in his speech to also distance the industry itself from direct

culpability for fatalities in the industry.

In the context where risk is normalized74, the industry has utilized OSH approaches

from other high hazard industries, including the military and has explicitly looked to hire

ex-military personnel. The relationships between oilfield OSH and the military are quite

explicit. The basic oilfield awareness training includes a unit on counterterrorism, OSH

conferences feature military speakers, and workshops draw on military protocols as ways

to manage OSH. Former members of the armed forces were often asked to stand up during

74 OSH has often grappled with questions of who needs protection and how much. Sellers (1997) uses

coal mining songs to illustrate the persistent imaginary of industrial workers as a white man who does

not need protection. That most OSH laws reflect risks in ‘high hazard industries’ also further illustrates

how OSH has reflected only certain kinds of laboring bodies (Murphy, 2006).

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conference plenaries; applause would erupt as many men rose from their seats for

acknowledgment. Former military members I interacted with during my research often

referred back to their service in Iraq or Afghanistan as being higher risk than oilfield work

and that they had faced death repeatedly.

The military is a sector in which employment is often idealized through its

relationship to sacrifice and where the risks of work are noble. Comparisons between the

oil and gas industry and the military are more pernicious given the discourses that surround

the industry, both those in support and those against. In addition to often being described

as an industry that fuels the nation, as exemplified by the quote in the previous paragraph,

pro-industry events draw directly on symbolism within US nationalism (see Figures 2.8

and 2.9). Films such as Frack Nation and the Marcellus Shale Coalition’s Truthland (a

response to the anti-fracking film Gasland) make impassioned arguments about the ways

oil and gas development secures the nation and helps protect a particular white, agrarian

way of life. Imagery and rhetoric of US nationalism are used to indicate the weightiness

and significance of oil and gas development and to justify the risks workers face and

workers’ potential sacrifice. The language of sacrifice is itself a part of the rhetoric of

surrounding unconventional oil and gas development75. Dr. Terry Engelder, then a Penn

State professor in geosciences (now emeritus), made a highly controversial comment in

2010 when he described about areas developing Marcellus Shale resources in 2010 with

75 This vocabulary has become a significant dimension of anti-fracking imaginary in Pennsylvania as

well. For example, James Guignard, an English professor at Mansfield University in Northeastern,

Pennsylvania, entitled his narrative of being a cyclist, community member, and teacher in the midst of

boom, Pedaling the Sacrifice Zone: Writing, Teaching, and Living above the Marcellus Shale

(2015).The idea of a sacrifice zone is not unique to this context, but instead often refers to areas that

have been environmentally degraded due to industrial and extractive activities (Fox, 1999; Lerner, 2010;

Shade, 2015).

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this language. It is not just risk that is normalized, but also sacrifice.

Hydraulic fracturing landscapes contain markers of these discourses. When I

started researching the oil and gas industry in the early 2010s in the Marcellus Shale region

of the northeastern U.S., I stumbled upon a recently opened safety supply store in

southwestern Pennsylvania that catered to the industry. I went inside, curious about why

workers needed to buy their own equipment if, as I had thought, employers were

responsible for providing protective equipment to their workforce. Mannequins, outfitted

in fire retardant suits and goggles, posed amidst displays of safety gloves, hard hats,

harnesses, and respirators. The clerk told me that often companies do not provide quality

equipment or enough equipment to workers; they may wear through boots, for example,

faster than they are replaced. I would later learn that some companies have used better

safety gear, like heated jackets, as a reward, but also that other workers, classified as

independent contractors, supply this equipment themselves76.

The store also captured narratives of workers I was encountering in my fieldwork.

I returned to the store several times, intrigued by the way its merchandise distilled much

of what I heard at health and safety conferences and courses, and how it commodified

individual responsibility for health through a very public expression of how governance

mechanisms for OSH lay the responsibility for health risk on workers. Indeed, as many

OSH narratives emphasize the need to get home safe at the end of the day, and to stay safe

to protect ones’ family and friends, this store also had oilfield themed children’s toys,

clothing for oilfield wives and other merchandise77. Within these contexts, OSHA enforces

76 Most of the safety equipment in the store catered to men. On a return visit, I noticed the store was

carrying women’s sizes for some safety gear, including pink fire-retardant suits. 77 The ‘family man’ is part of multiple representations of workers, as explored in Filteau’s work (2015a,

2015b). He finds multiple masculinities shape perceptions of ‘insider’/ ‘outsider,’ local, and belonging,

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its regulations surrounding what it deems appropriate workplace conditions.

A key incentive of subcontracting is to make the ascription of responsibility more

complicated, and distance operators from the social costs of their operations. Thus, these

subcontracted working environments challenge tools that OSHA has to enforce its

regulations; some problems stem from the extent of OSHA’s authority, while others

emerge from the geography of the industry, the topography of the area, and the factors that

make measuring silica exposures through the inspection process particularly challenging.

Avoiding Blame: Barriers to Inspections

Inspections are an effort to ascribe blame to an employer when an OSH hazard is

found. While OSHA has the authority to investigate exposures, rights and courtesies

afforded employers dampen its efforts. The state lacks extensive authority to intervene in

private workplaces and can only do so under certain conditions. The state’s authority to

regulate influences where and when the state can operate, and by extension shapes the

spaces as being workplaces in which certain regulations do and do not matter. OSHA’s

arrival at a worksite does not cause a work stoppage. Instead, limitations on OSHA’s

authority mean that employers can delay inspections with certain tactics. This can mean

that the concerning exposures have dissipated before OSHA can capture measurements.

For example, an employer can insist on legal representation and that the company conduct

side-by-side sampling. As one example, a CSHO describes an investigation of RCS

exposures at a well site at the Castroglavanni Farm Pad in Pennsylvania. A company

attorney for Baker Hughes delayed OSHA’s investigation by three hours while the CSHO

waited for a representative to arrive:

themes reflected in the store merchandise. Moreover, in the merchandise, representations of oilfield

masculinities were also suffused with sexualized and racialized notions of workers.

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On this inspection, sampling was delayed for the first 3 hours that hydraulic

fracturing was taking place due to the company’s attorney not allowing

sampling until a representative from the company arrived. The

concentration of silica for the short time sampled was 0.126mg/m3. The

concentration was almost at the calculated PEL of 0.137 (OSHA Inspection

943011, p. 51).

The inspection began at 7:45 a.m. In the inspection diary, the CSHO notes phone calls at

8:26 a.m. with the company attorney who wanted side-by-side sampling, but no one arrives

until after 11 a.m. (OSHA Inspection 943011, p. 107). Other parts of the inspection diary

record that the CSHO contacted the Area Director for guidance, per FOM directives, and

was instructed to wait for the company representative (OSHA Inspection 943011, p. 107).

Delayed by several hours, the sampling, once conducted, showed exposures just below the

PEL. Still, the CSHO documented how the employer limited the inspection and potential

unhealthful exposure to silica and illustrated how easily confounded the tools of inspecting

workplaces – exposure sampling – can be.

Employers can refuse entry and require that the CSHO return with a warrant

(OSHA, 2011). Employers may also procrastinate when producing documents reviewed

during the opening conference. One OSHA inspector discussed such tactics at length,

indicating they can be significant as silica exposures may change based on weather

conditions like rain and prevailing winds. As noted in one closing conference: “Discussed

that it was raining on day of the inspection. Lower level found” (OSHA, 2013, p. 104).

NIOSH has indicated the significance of weather and wind in exposures in its informational

material it has presented to industry members at conferences, where prevailing winds can

greatly impact the magnitude of exposures, and bear consideration when looking at the

layout of the worksite and where controlled access areas should be located. Yet, for OSHA,

weather can also mean the difference between ascribing blame or not. Thus, where a site

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is located and how the wellsite is laid out in its configuration, and the environmental

conditions produces spaces as in compliance or not and shape the state’s ability to enforce

regulations in workplaces in important ways.

While these delays may not be wholly unique to the oilfield, other impediments to

inspections occur due to the remote location of many well sites and just-in-time practices

that coordinate the presence of infrastructure and people onsite only during their discrete

tasks. OSHA lacks the ability to regulate these spatial and temporal practices, and adapts

to, or is ultimately confounded, by them. Records that indicate that inspections may fail to

take place because CSHOs arrive to find no activity at the well site exemplify this. In this

example, when the CSHO arrived on site in response to a complaint in Tunkhannock,

Pennsylvania, the CSHO found no activity at the Baker Hughes site.

5-23-2014. CSHO onsite for inspection. Process not active. No hydraulic

fracturing activities (water trucks/sand trucks/ per crane/sand movers)

observed at site. No Inspection. (OSHA Inspection 978294, p. 001)

The phrase “process not active” recorded in the inspection diary and inspection metadata,

reflects the “hurry up and wait” nature of the hydraulic fracturing industry. Unproductive

time is costly; operators may direct resources to worksites when labor and equipment

become available. This can lead to unpredictable and hurried work. Moreover, wells may

be drilled several months before the commencement of hydraulic fracturing. According to

several OSHA officials, there are many unknowns about the actual schedule of activities.

Wells may be drilled, but not hydraulically fractured for a period. As OSHA officials who

used permitting data discussed with me, even if OSHA uses permits to identify and locate

wells, start dates can be misleading as they may not reflect the actual work schedule. As

one CSHO noted in an inspection diary of the workplace, “Never know when going to be

busy” (OSHA Inspection 981830, 2014, p. 148). Indeed, in my surveys of areas

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experiencing shale development, it was not uncommon to find a well pad with little to no

infrastructure or to find a well pad stalled at some stage in development.

This temporal concern is a significant confounding issue facing many OSHA area

offices. Finding well sites doing hydraulic fracturing—not in some other stage of

development—was repeatedly mentioned. At some offices, using the coordinates of the

well site and other tools, they can find well sites, but it is “finding the activity” that is

illusive. It is not uncommon for an inspection to fail to go ahead as planned because the

process is discovered not to be active when the CSHO arrives. In this example, the site was

already finished with its activities, requiring the CSHO to open up a new inspection to visit

other sites.

11/9/12. opened follow up, learned the Parachute location was completed -

> process not active -> learned of new locations -> opened Program Planned

inspection. (OSHA, 2014).

While missing the activity is a concern for silica, it also applies to many other health and

safety concerns in the oilfield that emerge during particular worksite activities. As this

example, shows, OSHA does have some discretion to investigate worksites and adapt its

tools to the spatial and temporal logics of worksites. Finding no activity does not

necessarily preclude an investigation. In some instances, CSHOs may return if the well site

will be active later, but as several OSHA officials described, this is based on the

circumstances of the worksite.

04-26-2013. CSHO onsite for inspection. Employer not actively performing

hydraulic fracturing. Conducted opening/walkaround. Sampling to be

scheduled.

05-03-13. CSHO onsite for exp monitoring for silica. (OSHA, 2013).

In this example, the CSHO, finding no active hydraulic fracturing activities, returned a

week later to do exposure monitoring when the CSHO knew the site would be active. And,

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even though the employer knew that an inspection was imminent, the CSHO still found

overexposures from the monitoring conducted in the return visit.

These workarounds are not applicable in all situations. As mentioned previously,

hydraulic fracturing is completed in stages, meaning infrastructure comes and goes with

relative frequency depending on the stage at hand. Activities can occur one day and stop

the next. Decisions about whether or not to schedule a follow-up inspection depend on the

circumstances of the worksite and are at the discretion of the area office.

There are spatial problems as well. The distribution of worksites can inhibit the

CSHO from implementing parts of an inspection. These factors may impact an opening

conference and walk around, or delay monitoring and sampling. A report from an

inspection conducted out of the San Antonio Office in Texas illustrates the difficulty

produced by the spatial distribution of worksites.

The walk-around did not occur because the drivers and sand pusher work

12 hour shifts in numerous areas within a 150 mile radius of Pleasanton.

Once coordination for an active frack sand delivery was established it was

led by Mr. Livingston on Feb 13, 2013, in attendance at the Frack site was

the local safety manager, Mr. Phil Baxter, the corporates Safety Manager,

Mr. David Serach. On the EOG site was the senior safety specialist, Mr.

Josh Onderek, CSP. Personal Air Sampling was conducted for the delivery

drivers, however drivers could be anywhere within 150 miles of the main

office for the second delivery or picking up sand from Victoria, Texas or

making another delivery of a load of sand to another frack site. (OSHA

Inspection 679378, 2013, p. 17).

When the CSHO first goes out to inspect, they learn that employees could be anywhere in

a 150-mile radius, complicating the CSHO’s efforts to monitor workers hauling and

handling sand. Still, the CSHO coordinates with the employer to inspect on a day when the

employer will be working for EOG, a large operator, and finds overexposures to the PEL.

While the workers wore respirators, the employer had provided them with insufficiently

protective N95 dust masks (OSHA Inspection 679378, 2013).

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“Geography Detectives”: Finding Well Sites in a Landscape of Fixed Resources

It is not just finding the activity but finding the well site first that proves challenging

in some areas. As one OSHA official put it, CSHOs become “geography detectives” when

trying to find well sites in remote locations. This does not mean that a CSHO does not

eventually locate the site, but it can take a lot of time. This is true in parts of Pennsylvania

where much of development occurs in rural, often wooded areas in rolling hills and

mountains. The landscape makes it difficult to see well sites from the road, and newly

paved access roads, not always marked on maps, can make wayfinding more difficult. One

official in the northeast suggested that it was different finding well sites there than “in the

flatlands” where you can see “the dust clouds” from well site activity. As I described at the

beginning of the chapter, it was easier for me to spot wells in the flat land because towering

infrastructure was visible at a distance. Although officials reported being able to see

activity in flatter land, they also reported that it could be difficult to access the site, given

long distances, and sparse roads that lead to activity.

Another OSHA official in the northeast, indicated their luck in asking for directions

to well sites in rural areas learning to, “turn at this rock” to get to the site in question when

describing how hard it can be to find locations without reliable GPS or directions. In my

experience, finding the roads to travel to get to the well site could still be difficult, and

often the easiest way to find a well site, even with GPS locations, was to follow large

trucks, a technique echoed by one OSHA official.

When OSHA is determining if an employer is responsible for a hazard at a well

site, it matters if time is spent looking for the worksite itself. In one example from an

inspection report, the CSHO investigates a referral filed to the OSHA Area Office in

Wilkes-Barre, Pennsylvania, at 3:45 p.m. the previous day. Arriving in a sparsely populated

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area of Bradford County in the morning, the CSHO looks for a well pad where visible dust

clouds had recorded on the YouTube video forwarded to the office. The CSHO notes

observations of other well sites, “questioning local citizens,” and referencing RigData,

described momentarily. When the CSHO finally locates and arrives at the Talisman well,

it is 12:15 p.m. and hydraulic fracturing had been completed for over four hours.

After briefly gathering information from company representatives, the CSHO logs an exit

time of 12:30 p.m. The state’s authority to regulate mediated through its ability to find well

site active, is shaped by the flexible conditions of the industry.

This outcome was predicted in an email exchange between the Area Office Director

in Wilkes-Barre and the Regional Office in Philadelphia at the time of the complaint:

“Please keep in mind that the fracking operations I would expect have been completed

since the video was taken a week ago” (OSHA Inspection 685459, 2012, p. 16). In fact,

the inspector was only late by several hours. The spatial and temporal characteristics of the

industry, ranging from where it is located to its industrial practices can elude OSHA’s

efforts. Even if the well site is quickly located, as one inspector described to me, it can be

a difficult to get to the site while the exposure is occurring, because hydraulic fracturing

takes place in stages when teams of subcontractors can come on site to complete discrete

tasks. The intersection of the organization of the industry, the location of the work, and the

techniques of finding blame for health risk work together in many ways to confound OSHA

efforts to govern health risk.

OSHA does not gather systematic data about where wells are being drilled or about

when they are doing hydraulic fracturing. From my conversations with different area

offices and review of inspections from different regions, the use of available data, be it

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permit data from the State or RigData, varies. RigData is an industry service that provides

data about the location of oil and gas activities. I learned from OSHA officials that RigData

can be purchased by regional offices for area offices. Region 3 uses this service, which

includes Pennsylvania and West Virginia, and is purchased by the Regional Office in

Philadelphia. At the time of my conversations with Region 5 offices, which includes Ohio,

they did not.

OSHA does not have a central reporting system for employers to inform OSHA

about its activities. Thus, there is no central location that OSHA can query about the oil

and gas industry to implement an inspection when the specific site is unknown. This

contrasts from construction, where OSHA has a database that aims to maintain geographic

information of worksites (OSHA, 2011, pp. 2-10). When I asked on official why no efforts

had been made to create a reporting system, they explained that OSHA is limited in how it

can target locations for inspections and that changes to the current standards were

impractical. Were OSHA to require a specific industry to report where they were operating,

they would have to go through a rulemaking process, with regulations subject to the

Paperwork Reduction Act, something that has limited what OSHA has considered

requiring for reporting.

Available information about well activity from the state can vary state-to-state.

Many states, like Pennsylvania, report spud data, or the dates wells are drilled, but this does

not provide additional information about other stages of development which may be weeks

or months later. Arkansas, by contrast, provides detailed geographic information on a

weekly basis on well activity from permits to completions that CSHOs can use to find well

sites in certain stages of activity. The Texas Railroad Commission also has more specific

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information, although not publically available, and in some instances, may work with

OSHA to use these data for inspections. However, this is dependent not only on the staffing

and resources of an individual area office but also the institutional capacities of the

commission. Other states do not make this information available, a situation that frustrates

some OSHA officials with whom I spoke. While proxy databases exist regarding wells that

have been drilled and rig locations that might serve to identify hydraulic fracturing

worksites produced by the oil and gas industry (RigData), area offices do not coordinate to

share the types of tools other area offices are using. A mechanism to locate well sites would

be helpful even if it would still be reactive to the structural conditions emerging from the

flexibility of the industry and the geography of the shale basins that challenge enforcement.

However, exposures are not just the product of one worksite’s condition but are situated

within the broader context of the industry’s practices, many of which belie OSHA’s

oversight efforts.

Avoiding Categorization: Fissuring, Subcontracting and NAICS Codes

The specialization of hydraulic fracturing—supported by and maintained by

subcontracting—is not reflected in the classification systems used to categorize inspections

and employers. Under the North American Industrial Classification System (NAICS) no

code exclusively represents hydraulic fracturing activities78. Most silica-related hydraulic

fracturing activities fall under NAICS 213112, Support Services for Oil and Gas. Hydraulic

fracturing, however, only accounts for a small portion of these activities and silica-related

activities may be under several other codes (ERG, 2013). There is no standard specific to

78 Efforts to work around these limitations include the Fatalities in the Oil and Gas Industry (FOG)

project organized by NIOSH. Although it uses NAICS codes (211, 213111, 213112), FOG examines

fatality deemed to be related to Upstream Oil and Gas regardless of its NAICS classification by

combining data sources from OSHA, BLS data and news media (NIOSH, 2015).

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the oil and gas industry. OSHA’s General Industry Standards (29 CFR 1910) pertain in

most contexts, including those most likely to include silica overexposures, but

Construction Standards (29 CFR 1926) also apply when workers are involved in well pad

and road construction. Upstream oil and gas is also exempt from certain requirements, such

as process safety management79, some provisions of lock-out-tag-out (a process for de-

energizing equipment and electricity sources), and benzene standards.

The structure of the industry has been particularly advantageous for evading the

tools used to categorize employers for the purposes of subjecting employers to

requirements and programs. Were oil and gas industry’s injury rate higher, and less reliant

on many small-sized firms, it would be subject to more stringent reporting requirements

(King, 2016). Employers are required to report injury or illness that meet certain

“recordable” thresholds of harm; however, the way OSHA has traditionally captured the

prevalence of injury and illness has been unable to account for the industry.

Although oil and gas industry’s fatality rates far exceed the national average, its

injury rates were below average until implementation of OSHA’s new programs to tighten

gaps in the data it collects. In 2015, new rules required the report of any hospitalizations

and particular accidents, such as the loss of an eye or an amputation. These reports of

serious injuries showed that subcontractors for the oil and gas industry had some of the

highest rates of severe injuries of any industry in 2015 (Lee, 2016). These required reports

also suggest that there is a strong culture of non-reporting of less-severe injuries. Strong

incentives may have kept injury counts low and produced a pattern of under-reporting

injuries on OSHA 300 logs, documents used for injury recordkeeping (King, 2016). Firm

79 This is a management program for the handling and management of high hazard materials.

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size can also stipulate the reach of these reporting requirements. Small-sized employers are

not subject to many of these reporting rules unless high injury rates place their industry

under special scrutiny (King, 2016). Still, the industry was recently listed under OSHA’s

severe violator program (Galassi, 2015)80.

At health and safety conferences, I saw an emphasis subtly placed on

underreporting. Low injury rates make subcontractors appear more competitive for bids

with operators. Discussions at national conferences and at conferences for OSH in

Pennsylvania that I attended regularly covered how to keep injuries or illnesses from

becoming “recordable" incidents under the auspices that it would be wasteful to over-treat

a worker. Employers do not record all injuries or illness. By avoiding thresholds such as

treatment beyond first aid or prescription strength medicine, a workers’ illness or injury

could be treated without triggering a recordable event81.

OSHA regulations also only apply to certain employment relationships. OSHA

regulations do not apply to all workers, but only to those who work for an employer in a

capacity in which the employer can be held responsible. OSHA thus is concerned with the

nature of the relationship between companies and workers. In hydraulic fracturing,

subcontracting dominates this relationship. Operators employ drilling, completion, and

service companies, who may, in turn, employ subcontractors, who may also subcontract

work to other subcontractors or independent contractors. The ‘responsibility’ of these

80 The nominee for OSHA is expected to review, and possibly curtail the use of the severe violator

program. Now applied to the oil and gas industry, a severe violator enforcement case means that

employers may be subject to different provisions when settling cases with OSHA, required follow-up

inspections, a designation on OSHA’s website, among others (OSHA, 2013). Workplaces found to have

multiple willful, repeated or failure to abate violations during a non-fatality investigation will be

classified as a severe violator enforcement case (Galassi, 2015). 81 Employees of firms of ten or fewer employees may be exempt under certain conditions. For example,

if an employers’ DART Rate, or the number of Days Away, Restricted or Transferred, falls below the

national average, their worksite may be exempted from certain kinds of inspections (OSHA, 2016).

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operators to the activities undertaken by subcontractors is not always clear.

While some employers may use temporary employment agencies, individual

workers may classify as independent contractors who are exempt from most employment

and labor laws, including OSH regulations. Independent contractors are designated as

individuals who control their own work, a designation that has repeatedly been misapplied

in the oilfield. The WHD of the USDOL has investigated hydraulic fracturing for violations

of The Fair Labor Standards Act due to such misclassifications; in several cases in

Pennsylvania and Texas, companies have been required to pay back wages (Fehling, 2014;

Vorys, 2014; WHD, 2015a, 2015b; U.S. DOL 2016).

Even if workers are appropriately classified as employees, subcontracting can

produce a race to the bottom. As Weil has described, “[t]he more layers between the

primary corporation and its many subcontractors, the more likely there will be wage, and

other labor violations as businesses seek to lower labor costs and maximize profit margins”

(as quoted in WHD, 2015a). Many major operators require subcontractors document OSH

programs and comply with the operator’s own OSH rules. However, subcontractors can

purchase the documentation of health and safety programs they provide to operators with

little customization to a subcontractors’ specific practices. Small contractors may also cut

safety corners because they lack the resources to implement controls depending on the

operator. Small contractors form the foundation of firms operating in hydraulic fracturing,

a situation in which larger operators benefit.

At the 2016 OSHA Oil and Gas Conference in Houston, outgoing Assistant

Secretary Michaels cited these concerns produced by subcontracting, highlighting how

workers employed by small contractors are the most vulnerable in subcontracting structure.

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However, given the specificity and temporality of many health concerns, OSHA’s capacity

to capture discrete instances of risk and harm that capture these dynamics is curtailed.

Hierarchy of Controls: Engineering Controls and Respiratory Protection

Inspections impose what Young would suggest is an “interest in identifying

particular agents as the liable ones…generally backward looking in their purpose” (Young,

2008, p. 98). This is particularly true if inspections are considered to be deterrents to

unhealthful employer behavior. Inspections, however, can require remediation.

Remediation plans in inspection case logs encourage—and in the new silica standard

mandate—the use of the Hierarchy of Controls (HoC) that favors certain control methods

over others. The HoC is a framework for seeing workplace problems and solutions and

demanding in what order hazards should be addressed. Hazards are addressed through

elimination (removing the hazard), substitution (changing the material used), engineering

controls (changes to the environment), administrative controls (altering the organization of

work/the way workers work/training), and personal protective equipment (the gear donned

and used by workers) (Figure 3.1).

Figure 3.1: Hierarchy of Controls (CDC, 2016)

The HoC favors distancing workers from implementing safety and health practices,

placing emphasis and responsibility on employers to keep workplaces safe with the

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assistance of expert knowledge and technology. Significantly, the HoC contrasts to how

Horton (2016) has described responsibility for heat illness and OSH. For Horton,

A growing literature in the occupational health sciences employs this focus

on individual decision making in its attempts to reduce heat illness among

farmworkers. Emphasizing the need for “health education and health

promotion,” the literature tends to portray heat illness as the result of poor

knowledge and faulty choices (Horton, 2016, p. 4).

The HoC complicates, although it does not invalidate, this reading of OSH responsibility82.

The HoC relies on a distrust of worker’s decision making such that they cannot be trusted

to act rationally in an OSH sense. Employers are required to implement controls first before

PPE is used by employees. When placed within the context of OSHA’s regulatory structure

the HoC illustrates how responsibility to control risk is produced through a hierarchy that

requires employers act first. Health and education messages in the oilfield often utilize

elements behaviorally based safety, but other parts of OSH, and particularly those endorsed

by OSHA, at least in theory, subscribe to the HoC’s hierarchical model of responsibility.

When a contractor has been required to abate RCS overexposures, OSHA has

emphasized engineering controls83. However, employers may argue the structure of the

industry poses challenges, suggesting that the way OSHA requires abatement may not be

fairly distributed amongst actors given the broader structure of the industry. In this

example, the representative from Chalk Mountain, the cited employer, argues that the

structure of the industry, where a subcontractor rents the equipment it uses from another

82 For example, administrative controls, a high tier on the HoC, includes employer requirements as well

as training, which often place workers are responsible for health. 83 OSHA has also required remediation plans that are extensive for overexposures for RCS such as

occurred following an inspection of Halliburton in Grand Junction, Colorado (OSHA Inspection 98326,

2014). The 300-page inspection file includes months of exposures evaluation, remediation reports,

updated exposure monitoring of remediation, and plans. These remediation documents identify points

of exposure to RCS and tools and techniques for remediation, which Halliburton then implemented.

These documents represent OSHA’s authority to dictate changes to the labor process to reduce

exposures, even as the employer may have flexibility in how it responds.

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provider to complete a job, prevents compliance efforts.

Employer does not agree with citation 1 item 4, saying that it would be

unfair to implement engineering controls on equipment that does not belong

to his company. The movers belong to the drilling company (EOG resources

on this site), but may be rented to the drilling companies. Mr. Livingston

stated [Exempted]. CSHO explained that an employer would receive an

engineering citation for silica because the personal monitoring results were

above the PEL. CSHO informed that employers are responsible for keeping

employee exposures below the PEL. (OSHA Inspection 842583, 2013).

In this case, who is responsible for abatement? For OSHA, this is relatively

straightforward: the controlling employer. However, the company may be renting the

equipment to keep costs low such that they are awarded the contract in the first place. The

contextual factors for a company’s activities are not considered. For OSHA’s purposes, the

equipment is unsafe, and it is the responsibility of the employer to remediate. Despite the

employer’s arguments regarding the infeasibility of implementing controls, the CSHO, in

this case, cited the employer.

Lack of new equipment may also be used to suggest reasons for the absence of

engineering controls.

23. Employer Knowledge: On 04/04/2013, the employer [Exempted] Site

Safety Leader) state(sic) that he knew that employees at the site were

exposed to silica dust. [Exempted] state that he assumed employees at the

site were overexposed but had not seen any monitoring data. [Exempted]

state that engineering controls were not utilized to reduce employee

exposure to silica. [Exempted] state he was informed that Halliburton’s new

sand movers, Sand Castles, produced less dust. [Exempted] stated that the

Halliburton did not have enough Sand Castles for all crews so Mountain

Movers were still used at this site. [Exempted] state that employees working

within the vicinity of the Mountain Movers were required to wear

respiratory protection (OSHA Inspection 98326, 2014, p. 39).

The CSHO documents here what the employer knew of the hazard, showing that the safety

leader for Halliburton knew that there was more protective equipment in his organization

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and that he was aware that employees were likely exposed84. Given the number of

worksites Halliburton was working on at the time, the organization lacked the resources to

provide more protective movers to all worksites. Rather than slow the work, Halliburton

supplied employees with respirators. The citation here is not for the organization of work,

but for the discrete exposure. Would it be prudent for the industry to slow down work so

that only safe equipment was being used? This, unfortunately, contradicts the “hurry up

and wait,” “get the job done” culture I observed within OSH spaces that normalized and

incentivized the standards associated with the industry’s structure. At one OSH conference

in a session focused on silica, attendees praised new technologies that sped up the hydraulic

fracturing process further. Holmes raises what is jeopardized through by considering risk,

responsibility, and blame through individualizing notions without accounting for context:

When risk and blame are individualized, the solutions imagined and

interventions planned focus on changing the behavior of the individual.

However, attempting to intervene on individual behavior in such contexts

draws attention away from the structural forces producing mortal danger

and death in the first place. (Holmes, 2013, p. 26).

While Homes focuses on individualization through bodies, the HoC reproduces these

processes at the employer level by focusing on controlling discrete hazards. OSH

discourses, by contrast, “make safety personal.”

The difficulties posed by the structure of the industry are not unknown to OSHA.

Returning to his remarks to the 2016 OSHA Oil and Gas Safety and Health Conference,

outgoing OSHA’s Assistant Secretary Michaels stressed that the subcontracted, complex

structure of the oil and gas industry was particularly concerning because of the challenges

it poses to health and safety. These challenges include the use of smaller subcontractors

84 Employer knowledge of hazardous conditions is one of the criteria OSHA uses to determine “serious”

violation types (OSHA, 2015, pp. 4-13).

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who do not have the means or knowledge to implement OSH programs sufficiently, and

who work for small profit margins and are encouraged to work at high speeds due to the

demands of the industry.

OSHA can enforce the Multiemployer Policy to cite operators under certain

circumstances if OSHA designates an operator a “controlling employer” (OSHA, 1999).

While it has not consistently been implemented across administrations, OSHA expanded

its use according to Michaels, which he indicated at several industry conference speeches.

In the Multiemployer Policy, OSHA has a reactionary tool to address the challenges posed

by subcontracting. However, it is not consistently applied to inspections at oil and gas and

hydraulic fracturing site. Of areas offices I spoke with, this policy neither seemed to be

widely in use, nor in use at all in the hydraulic fracturing industry; the policy was more a

concern for construction. The multi-employer policy does also not dictate changing

industry’s structure. Indeed, to be cited, an employer must be considered “controlling,”

meaning the mechanism still focuses on causal relationships, leaving the broader structure

and forces that help produce health risk unregulated. OSHA endorses a responsibility

rooted in blame where an employer is blamed for unhealthful exposure.

The emphasis on exposure necessarily entails attention to bodies. Thus, I turn to

examples where OSHA does focus on bodies through its enforcement. OSHA signals its

preference in the HoC to remove workers from the decision-making process as much as

possible, limiting worker responsibility for implementing health and safety controls and in

fact the new silica standard allows for only a few exceptions for respirators as a means of

control. OSHA seeks to remove workers from hazards and only in the last instance, through

personal protective equipment (PPE). Absent engineering or administrative controls,

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controlling exposure falls to an individual worker’s proper use of PPE.

OSHA has strong reasons for wanting workers to be protected from exposures

without the use of respirators. As first mentioned in Chapter 2, respirators can be

improperly used; they are hot and uncomfortable, facial hair impedes their seal, workers

are not adequately trained and fit-tested, and sometimes employees find they prevent their

other job-related tasks. Some workers may remove the respirator mid-shift, allowing sand

to accumulate on the inside of the respirator, only to don respirator again later in the shift.

At the time of the inspection, the employee (a) worked as a sand counter for

6 months and performed hydraulic fracturing operations for 12hrs/d – 2

weeks/month. The employee (a) worked on top of the sand movers

(mountain Movers) and visually checked inside the thief hatches (access

ports) to ensure an accurate count of proppant (silica sand) inside each

chamber. The employee (a) was required to wear respiratory protection and

wore a N95 dusk mask. The employee (a) did not properly don his 2-strap

N95 respirator and only utilized one strap. The employee (a) allowed the

lower strap to hang loose so that he could raise the respirator to effectively

use his headset communication radio. Improper use of the respirator

increased the employee (a)/s exposure to respirable crystalline silica.

(OSHA Inspection 98326, 2014, p. 38).

This employee, required to visually assess the volumes of proppant in a sand mover, was

seen to improperly wear his respirator while working. Leaving one strap of his respirator

that would secure the mask unhooked, this broke the seal between the face and the mask,

diminishing the respirator’s effectiveness. According to the CSHO’s notes, he did this to

speak on the radio. Significantly, the employer was cited for the infraction, not the

employee. Even though OSHA did not fine the employee, the inspection log reports that

the employee had a history of not following rules and that the company would discipline

him for not following respiratory protection protocol. While this follows the “proper”

distribution of OSH responsibility following OSHA’s logics, these forms of blame do not

address underlying concerns about why the work is structured such that the employee

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needed to speak through a communicator while being exposed to silica. OSHA does not

place blame on employees officially (it does not fine employees), but that does not mean

that its efforts at enforcement deal with the underlying concerns about workplace

environments that stipulate that employers are blame-worthy and responsible, nor are

immune to the broader discourses that focus on blaming workers for their behavior.

OSHA does not completely absolve workers of responsibility, but it does not

impose punitive measures such it directly controls workers’ bodies or behaviors.

Section 5(b) of the Act states: “Each employee shall comply with

occupational safety and health standards and all rules, regulations, and

orders issued pursuant to the Act which are applicable to his own actions

and conduct.” The Act does not provide for the issuance of citations or the

proposal of penalties against employees. Employers are responsible for

employee compliance with the standards. (OSHA, 2011, pp. 3-10, my

emphasis).

Employers are directed to ensure their employees follow OSH rules. Workers are given an

assurance of an environment, not a bodily state, that is facilitated by the employer and

ensured by OSHA. Employee compliance is the responsibility of employers. OSHA

regulates workers through proxy; thus, OSHA can also regulate how employers monitor

their employees’ bodies through citations for incomplete fit testing of respirators.

Employers must ensure their employees have learned how to properly wear, seal, and test

respirators before their use, and that employees are physically capable of wearing one.

Employees were required to wear half-face elastomeric respirators (3M)

and had not been fit tested on an annual basis. Both Employees, sand

operator and blender operator, work within zones that Baker Hughes has

established as requiring respirators due to dust exposures. Employees have

been overexposed to silica during the hydraulic fracturing operations

according to Baker Hughes results on other sites. OSHA inspections have

documented overexposures to silica at two inspections where sampling was

performed. (OSHA Inspection 943011, 2013, p. 51).

As the CSHO documents, Baker Hughes knew of the hazards posed by RCS exposure but

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failed to ensure that their employees could safely wear respirators, per OSHA requirements

that safe use of respirators includes annual fit testing by the employer.

Medical evaluations to clear employees for respirator use is only one concern.

OSHA is also concerned with employer’s monitoring of employee’s facial hair.

23. Employer Knowledge: . . . The Safety Superintendent issued half face

APRs to employees at the site. The Safety Superintendent state that

employees had been provided respiratory training, fit tests, and medical

evaluations . . . Both employees had facial hair that could impede the APR

seal. The Safety Superintendent allowed the employees to continue to work

without shaving. (OSHA Inspection 98326, 2014).

In contrast to a previous example, the language of this inspection focuses on the actions of

the Safety Superintendent, not the employees. The issue, as framed in the inspection case

file, is that the superintendent allowed employees to continue with work without shaving,

not that the employees did not shave. Here the CSHO reflects the ways OSHA’s mandate

focuses on regulating employees’ bodies by regulating their employers. This means

employers are responsible for surveilling and disciplining workers through the policing of

facial hair85.

Employers’ respiratory protection programs may dictate acceptable facial hair

growth, styles, or grooming are conveyed through worker training and documented in

respiratory protection programs. The training video produced in Texas by the STEPS

Network on RCS hazards ends with the safety manager, Ted, offering the new employee,

Joe, a disposable razor and shaving cream to remove his stubble before going to work.

85 OSHA’s concerns about facial hair are echoed by observations in NIOSH reports. Notes from

NIOSH’s field visits speculate that the facial hair they saw on workers might interfere with the

protective values of the respirators. “[S]ince many of the workers had facial hair (beards, goatees and

sideburns) that came into contact with the sealing surface of a respiratory, the degree of respiratory

protection for the workers is unknown” (NIOSH, Redacted, p. 4). These observations suggest that

employers are not enforcing shaving policies, nor are employees self-regulating.

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Leaning over to look more closely at Joe’s face (Figure 3.2 and Figure 3.3), Ted says,

Well here’s a good example of a company rule for ya. When’s the last time

you shaved amigo? You know that respirator’s not going to seal with that

stubble on your face. (Lawhorn-Cryden, 2015).

Figure 3.2: Ted inspecting Joe’s Face (Lawhorn-Cryden, 2015)

Figure 3.3: Joe noting his beard growth (Lawhorn-Cryden, 2015)

When this exchange between Joe and Ted was produced in 2015, STEPS knew that OSHA

wanted workers to be protected from silica using engineering controls. Yet, it reinforced

the narrative that silica hazards should be controlled by respirators and not engineering

controls seen in Chapter 2. To do so, safety manager Ted employs the casual language of

friendship used in occupational health discourse to soften his own surveillance of Joe and

his grooming practices. Yet the language is not so neutral, as in attempting to disrupt the

hierarchy of work, his patronizing tone reinforces it. Further, not only does the focus on

facial hair reify the gendered dynamics of the industry, that being safe and healthful

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requires particular kinds of enacting masculinity, the methods Ted uses to convey of his

paternalism (at the behest of his employer) . Particular bodies (Joe’s) are deemed irrational,

and in need of protection, yet a discourse which simultaneously demands that these same

‘irrational’ bodies take responsibility for their own health. The ‘rational’ calculus accepts

individual responsibility for health risk to fulfill other responsibilities to employers and

family. As Joe states, “Ok, Ted, I really appreciate the info, and I’m sure my family does

too. Now I understand why it’s so important to follow company policy” (Lawhorn-Cryden,

2015). Joe accepts in this exchange that he would be at fault where he not to shave and then

subsequently become ill. Drawing upon workers’ emotional desires to go home to their

families, OSH training reinforces workers’ responsibility for safe work.

This is perhaps even more concerning given that safety manager Ted offers this

practical advice under the auspices of helping keep Joe safe. This may indeed be Ted’s

intention. Many safety managers I spoke with at conferences cared about their workers and

did not want them to get hurt or sick. Yet, they also found themselves in a bind. They

offered workers advice that they thought the workers would likely not take for reasons of

workplace culture, pride, or other norms and pressures, but also found themselves trying

to insulate their employers from harm as well. Here, Ted reinforces the personal

responsibility narrative that absolves employers of their role in producing health hazards.

Thus, when implemented and enforced, training and programs enable employers to regulate

their employee’s bodies through their own narratives of responsibility for health risk86.

86 OSHA can fine employers for failing to provide workers with information about hazards they face.

This assumes that with information from labels and symbols or access to information from Material

Safety Data Sheets, employees can make more informed decisions to protect themselves and comply

with employer rules, again reinforcing the idea that workers just need the information to behave

‘rationally’ regarding OSH.

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In many ways, a worker’s long-term health relies on the proper use of control

methods, be they engineering controls or respirators, and the proper grooming, fitting, and

training they require. In these examples, OSHA’s regulation of OSH hinges on its ability

to observe discrete infractions, its ability to find companies responsible for placing bodies

at risk at a particular place and time. The distribution of responsibility under OSHA centers

on the employer citations, fines, and abatement and are tethered to a narrow conception of

responsibility, that is unable to consider other factors, particularly structural factors, that

shape and even produce health and safety risks. Be the focus of an inspection on the

employers’ behavior or the employers’ control of an employee’s behavior, the focus is on

a discrete blameworthy event.

Institutional capacities

Federal OSHA’s institutional capacities also figure into the oversight of OSH and

OSHA’s efforts to enforce standards and warrant discussion here. OSHA’s budget is

subject to Congressional approval and has been nearly flat for three years (OSHA, n.d.)87.

Today, between state and federal offices, 2,200 inspectors oversee 8 million work sites and

130 million workers, translating to one compliance officer per 59,000 workers (OSHA,

n.d.). While this varies from office to office, one area office in the mid-west reported that

they do not have the staffing levels to do inspections unless a complaint is filed. The lack

of institutional capacity is a long-standing concern of GAO reports and has prompted

efforts to target high-hazard industries, triage inspections, and create compliance through

voluntarist measures (GAO, 1978). The effectiveness of inspections and enforcement have

87 OSHA has consistently had low ratios of inspectors to workers, and a 1978 report estimated that

OSHA and individual states had inspected less than 1% of workplaces (GAO, 1978). A 1990 report

stated that OSHA had around 800 inspectors for 3.6 million workplaces, covering 55 million workers

(GAO, 1990).

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been recently called into question, particularly due to the low levels of fines (GAO, 2013).

Since OSHA’s inception, scholars have debated how fragmentation and a lack of

institutional capacity have been maintained and to whose benefit. For some, this system

controls capitalism to capital’s benefit, but never enough to threaten accumulation

(McCaffrey, 1982, p. xvii; Noble, 1986). For others, OSHA regulations reflect the success

of internal or external interests, either as a “balance among private interest groups” or as a

reflection of the agency’s internal politics (McCaffrey, 1982, p. xvii). Rather than see these

as opposed, moments of OSHA’s history can be read across these theoretical positions

(McCaffrey, 1982). OSHA’s evolution over the last forty-seven years has not been

unidirectional. For example, the Carter Administration took a more activist approach to

enforcement than had Nixon’s or Ford’s (Noble, 1986). Yet OSHA still was limited by

concerns over inflation and the impact of regulation on business (McCaffrey, 1982). Under

Reagan, deregulatory efforts saw the diminishment of OSHA’s enforcement authority

(Vike, 2007) and requirements to further incorporate industry and economic concerns

persist (Noble, 1986; Michaels, 2008). These demands for government accountability and

corporate-interest paralleled a resurgence in the “acceptable risk” narrative of Adam Smith,

updated in Viscusi’s “Risk by Choice” (1983) that buttressed laissez-faire approach to OSH

(Dorman, 2006, p. 37) and a focus on individual responsibility of rational workers for

workplace risk. Voluntary programs and employer assistance for small businesses have

developed through the 1990s, 2000s, and 2010s under different administrations.

From an enforcement perspective, executive leadership has influenced the

interpretation and implementation of programs and standards such as the general duty

clause and the multi-employer citation policy (McCaffrey, 1982; Shapiro & Rabinowitz,

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1997; Headrick, Serra, & Twombly, 2008). While the power of the executive in this agency

matters greatly, approaches—be they enforcement or voluntary compliance focused—have

not been mutually exclusive. Obama’s OSHA implemented programs to target hazardous

employers and increase fines even as it simultaneously increased partnerships with

industries exemplified by voluntarist terms like “cooperation” and “education” (Noble,

1986). These undertakings aim to improve OSHA-employer relationships for better OSH

outcomes on a voluntary basis and are in many ways a practical response to OSHA

institutional constraints concerning the oil and gas industry. OSHA’s partnerships do not

address these structural issues.

OSHA consultation offices also assist mid- and small-sized companies’ regulations

(OSHA, 2011, pp. 2-1) and some programs confer benefits to employers, including

exemptions from programmed inspections and reductions in fines (OSHA, 2011). OSHA

also distributes information to employers about emerging concerns and participates in

industry conferences, strategic partnerships, and alliances. As discussed in Chapter 2,

OSHA joined with NIOSH and National STEPS to facilitate shared communication,

research, and organizing, including “Safety Stand-Downs” (OSHA, 2016; OSHA Region

VI, 2015). OSHA uses these mechanisms to incentivize, rather than demand, compliance.

These programs remain focused on fixing discrete problems—be it silica, road safety, tank

gauging fatalities, or fall hazards—even as these voluntary measures suggest that industry

members take responsibility. OSHA’s key deterrence strategy is penalties, a form of blame

levied in fines and violations resulting from inspections. This way of conceptualizing

responsibility confirms that there is an individual unit to which blame can be ascribed.

Fines and Blameworthiness

OSHA operates endorses individual employers as moral and political units who can

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be held responsible for creating hazardous and unhealthful working conditions. When

doing so, it can levy fines on employers. Fines are the monetary value the State places on

the hazards and risks workers face. The first time since 1990, OSHA increased its fines to

match inflation, under the Bipartisan Budget Act of 2015. Serious violations now receive

penalties over $12,000 (Smith, 2016) up from $7,000, and willful and repeat violations are

just over $125,000, increased from $70,000. However, OSHA frequently reduces fines

significantly, even for fatalities (McCluskey et al., 2016). OSHA may negotiate fines with

violating employers, reducing for good faith measures, the size of the company and its

history, or if an employer immediately remediates; in 2012, OSHA reduced fines if

employers abate violations directly, accounting for $1.28 million in 2012 (McCluskey et

al. 2016).

Many inspections I reviewed utilized the Expedited Informal Settlement process.

Informal settlements were implemented by OSHA in 1980, and as its name implies, such

settlements are seen to shorten the process of hazard correction and abatement.

Justifications for these tools include the reduction of litigation costs to OSHA and small

businesses (GAO, 1984, pp. i-ii). Thus, OSHA offers incentives to hasten abatement, even

if it means that symbols of a company’s blameworthiness—citations and fines—are

reduced.

These fines, expedited or not, are extremely low. In 2015, the Department of Justice

began the Worker Endangerment Initiative to investigate OSH crimes under environmental

statutes, which have higher, more severe penalties (DOJ, 2016). Concerns over the severity

of civil penalties arise amidst weak and rarely enforced criminal penalties which are

misdemeanors (Committee on Health, Education, Labor and Pensions, 2008). Still, fines

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and criminal prosecution emphasize finding individuals blameworthy of hazardous

conditions and outcomes. These enforcement techniques do not address concerns about the

structure of the industry under which these hazards are produced, and moreover, under

which who is responsible is blurred88.

Authority to Inspect: Emphasis Programs

OSHA triages its inspections for most concerns when OSHA receives a complaint

or referral. Its staffing levels shape which spaces remained closed from state scrutiny, and

which become open. For silica, most reports trigger an onsite inspection because silica has

been under National and Regional Emphasis Programs, programs that prioritize OSH

concerns by triggering onsite investigations to complaints, directing focus on certain

exposing industries, increasing outreach to affected industries, among other strategies89.

Still, inspections for silica lagged far behind the number of well sites.

OSHA offices that enforce these programs report variations in their level of

authority to inspect well sites. Some offices in Region VI and Region VII, which include

Texas, Kansas and Arkansas, reported to me the authority to inspect if a well site is seen

from the road, while other offices also reported that these well sites had to be located in

randomly generated regions for the inspection to occur in a legal way. Other offices in

Region VI, and in Region III, which includes Pennsylvania, indicated that they did not

inspect well sites in this way, either because they lacked the staff to perform such

inspections, or because they did not have the authority. They had to be careful not to target

88 Obama’s USDOL sought to clarify ambiguities regarding employer-employee relationships,

including who is a ‘controlling employer;’ the Trump Administration removed this clarifying guidance

for these relationships in June 2017. 89 These programs may explain why at an OSH conference in 2014 participants spoke disparagingly of

the “YouTube Lady,” a woman in Northern Pennsylvania, who they described as sending videos of

silica at well sites to OSHA to try to trigger onsite investigations.

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one worksite unfairly. Several OSHA officials explained to me that this caution reflects

how offices interpret the directives in regional emphasis programs for oil and gas but also

is influenced by how regional federal courts have interpreted OSHA’s enforcement

authority and if an inspection would stand up to being challenged. These differences are

significant and shape the context in which OSHA enforces its standards for silica within

the context of the industry’s subcontracted structure.

Conclusions

John Howard, the director NIOSH, has written that non-standard work

arrangements, which can include subcontracting, warrant the OSH community’s attention.

While nonstandard work arrangements may offer expanded economic

opportunities for businesses, mounting evidence shows that these novel

ways of working pose occupational health and safety risks for some

workers. What kinds of risks, how much risk, and the number of workers

who bear the risks from nonstandard work arrangements are not entirely

clear. (Howard, 2017, p, 7).

But when describing how these should be addressed, he relies on a paradigm of OSH that

focuses on discrete instances of risk, and that is mirrored in OSHA enforcement strategies

for finding blame and liability. His article offers that OSH professionals should be

identifying “interventions to mitigate or eliminate those risks” (Howard, 2017, p. 7) from

non-standard work arrangements, rather than offering that these work arrangements be the

subject of reform themselves. Here, like in enforcement efforts, by focusing on the unique

encounters that unfold at work—the discrete risks—discourses in OSH limit the ways that

responsibility can be envisioned.

Responsibility-as-liability has practical and theoretical limitations when applied to

OSHA’s ability to ensure workers the right to a safe and healthful workplace. This

approach engendered by OSHA inspections pursues causal connections to ascribe an

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exposure to an employer through citations and fines, as well as demanding a remediation

of the hazard, often to make workplaces safer in the future. While OSHA is self-limited by

its rules and regulations, the flexibility of work and employment of the hydraulic fracturing

industry exploits regulatory oversights. OSHA lacks the enforcement tools and means of

collecting information necessary to match industry’s flexibility. This reveals OSHA’s

limited capacity to regulate responsibility stemming from structures and processes that

produce unhealthful working conditions.

OSHA’s form of health governance, with its focus on blame-worthy events and

their legal implications, is confounded by the spatial and temporal properties of the industry

and represents a focus on responsibility that fails to consider the complexity of the context

in which exposure occurs. OSHA’s focus on blameworthy events and the work belies the

broader structures under which OSH problems emerge and are intensified, and through

which industry more easily avoids oversight. Space and time are confounding factors in

health governance.

Young argues that “the social connection model of responsibility says that

individuals bear responsibility for structural injustice because they contribute by their

actions to the processes that produce unjust outcomes” (2008, p.105). Indeed, Young and

Neuhaüser illustrate the importance of understanding how individuals, events, and

ultimately injustices are not isolated, but rather imbricated within complex structures. It

follows then, that responsibility be considered not solely to the “exposing” employer, but

more broadly to the collective responsibility of those imbricated in those structures

OSHA enforcement ignores other modalities of responsibility outside the

responsibility-as-blame paradigm that could provide alternative methods for achieving

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OSHA’s mandate. Flexibility either through work or employment creates firms who are

less accountable yet profit from unsafe working practices. Efforts to create a responsibility

to reorganize should not be equally distributed. “The acceptance of responsibility for

structural injustice is often costly for agents, and this leads to the question of who should

bear the weight of responsibility and the costs coming with it” (Neuhaüser, 2014), but

rather should be conceptualized through the power relations that produce bifurcated actors

within the oilfield’s subcontracted structure.

This chapter has considered how the structures of work and their relationship to

exposures shape the state’s efforts to enforce its model of responsibility for health risk

through inspections. As industry actors are unable to be held accountable—they are

absolved—through both the discourses of OSH and the material practices of finding blame.

The chapter demonstrates how tracing responsibility and critiquing its formations under a

liability model rooted in discrete exposures, misses the broader contexts in which OSH risk

emerge, and work to absolve industry of responsibility for health risk, and towards

remediation.

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4. Chapter 4: Workers’ Compensation: Finding Fault in ‘Fault-less’

Responsibility

Insurance, we all know, transfers risk. Yet, what we usually think of as a

transfer of risk is also a transfer of responsibility. (Baker, 2002).

As a form of social insurance, workers’ compensation fundamentally deals with

questions of risk and responsibility. Workers’ compensation distributes risk for

occupational hazards and determines who is responsible for providing for injuries or

illnesses incurred through work. Its intentions purport to be both moral and economic,

aiming to restore life after harm and to return the smooth movement of populations and

economy. Unlike other OSH mechanisms, workers’ compensation does not focus on

demonstrable blame as an instrument to assign responsibility. Under the compensation

bargain, employees give up rights to sue employers in exchange for no-fault insurance for

the dangers faced at work. Yet, workers’ compensation compensates workers who have

been exposed or fallen ill in an “appropriate” way, making workers bear the burden of the

spatio-temporalities of their industry should they become ill otherwise.

This chapter illustrates the practicalities inherent to this model of responsibility

where workers’ compensation eligibility is determined not only by a body’s physical

attributes (the state of illness, and its severity), but also its spatiotemporal attributes (where

and when a worker have labored and lived, and in what time they have gotten ill) while no-

fault in nature. Employers may be liable, but workers bear the responsibility to not only

make a claim but also become sick in the right way. The chapter argues that standards that

accompany this “fault-less” insurance neglect the flexibility of a workers’ employment and

also characteristics of long-term lung diseases. Here, then, the distinction between blame,

fault, and liability becomes significant. The responsibility to act—to make a claim on the

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state– falls to the employee, even when an employer is liable. Yet, when the spatio-

temporal characteristics of an employee’s disease or work history absolves the employer

and the state of liability, by default, the state blames for employee for their condition,

leading the employee to be responsible for finding means of remediation.90As discussed in

chapter 1, the neoliberal state shifts responsibility and care onto individuals; here this

occurs in two ways. First workers are responsible for showing that their illness is

occupational under exclusionary definitions of workers’ compensation that have encoded

within its rules since its inception. Second, faced with the lack of access to this ‘exclusive

remedy’ workers must turn to their families and other social insurances provided by the

state, themselves often insufficient, to find assistance for their illness.

While fault is, in theory, not the preeminent concern under workers’ compensation,

fault still lingers, having been replaced by concern for what is defined as “occupational.”

As a matter of health governance, this illustrates how responsibility for health is produced

by the exclusions facilitated by governance structures, flexible employment, spatial

variability, and persistent underlying assumptions about the relationship between

employers and employees. These patterns of health responsibility have specific

manifestations within the oilfield due to the spatiotemporal practices of the industry. As I

demonstrate in this chapter, silicosis requirements, in particular, illustrate these processes.

The practices of this industry are not singularly unique and are found across a variety of

different industries. Thus, the confluence of workers’ compensation schemes and the

hydraulic fracturing industry’s flexibility have implications for other sectors, and more

90 As will be seen at the end of this chapter, there are some complexities to this construction.

Pennsylvania has allowed workers to pursue torts of employers in some cases where workers’ diseases

manifest outside of the statute of limitations for diseases. This provides a different mechanism by which

employers could be found responsible, albeit to different evidentiary standards.

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generally can contribute a shifted lens and new context for the ways that health geographers

to approach the definition of ‘disease’, and the ways that caring responsibilities for health

emerge out of institutional processes.

Practices of Responsibility, Liability, and Blame:

This “geography of responsibility” opens the way for critical assessments

of how, and upon whom, responsibilities fall, and how the topography of a

particular social life regulates the flow of shared understandings about who

is going to be expected to see to and account for situations, outcomes, or

tasks. (Walker, 2008, 86).

This chapter takes as its central starting point the idea that responsibility is

practiced. It is not enough to know that workers’ compensation shifts the burden of risk

through “fault-less” liability; instead, this shift necessitates charting who can act, and under

what circumstances; it requires examining the processes of providing workers with access

to these fault-less compensatory funds. Walker’s focus on responsibility is significant in

that she does not limit the analysis only to “purely” moral norms but situates them within

a “social world” (p. 217). Building from Young’s critique of responsibility through liability

and blame, this chapter explores how the mechanisms used to assign liability can

themselves be unjust.

Under what I call the liability model of responsibility, I include all such

practices of assigning responsibility under the law an in moral judgment

that seek to identify liable parties for the purposes of sanctioning, punishing

or exacting compensation or redress. (Young, 2008, p.98)

In the case of workers’ compensation, the state seeks to shape norms by establishing

guidelines for whom and what are compensable under certain contexts. Workers’

compensation illustrates how governance of health and responsibility specifically is

refashioned under the term occupational. The state’s ways of ‘finding occupational’ belie

common patterns of hydraulic fracturing work and common disease progression, making

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workers responsible for seeking recompense through other social insurances. These laws

foster uneven and inequitable health-relationships through exclusionary applications of

time and space.

The analysis builds upon work in health geography and cognate fields that examine

the political-economic processes that shape discourses of health and disease. Specifically,

these scholars illustrate how scientific and medical narratives about the causes of disease

are reproduced and co-constitutive of particular social, political, economic, and ecological

processes. Recent efforts have further argued that such examinations be placed within a

historical context, a particular concern for those examining political ecologies of health

(King 2009; Jackson & Neely, 2015), but also those who trace the governance processes

surrounding health (Craddock, 2000; Brown, 2009). Narratives of where disease comes

from, and how it can be measured and identified shape what has become occupational

health (Murphy 2006; Nash 2006), and strongly influence the ways that diseases are viewed

under workers’ compensation, particularly surrounding the biomedical model of disease

(Barnetson, 2010). For Barnetson, the relationship between workers compensation and the

biomedical model emerges within the Canadian system due to strict requirements of

causality that see disease rooted within one discrete event. While there are similar

requirements in the U.S., I focus here on ways the workers’ compensation system also

reflects and embodies the state’s the competing responsibilities, namely cost internalization

and humanitarian remediation through its definition of disease in problematic ways. I

connect these legal definitions, which encode particular spatial and temporal assumptions

about disease, with the hydraulic fracturing industry’s flexible labor practices, to show how

workers’ compensation requirement intersect with hydraulic fracturing industry’s spatio-

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temporality flexibility to render it anew as an exclusionary social insurance.

This analysis builds on health geographers’ attention to movement in the production

of health. As Guthman and Mansfield write, movement conceptually charts new ways of

thinking about health and health risk through time and space:

Yet, just as chemicals move in and out of bodies, they move in and out of

particular spaces. People are mobile as well; those exposed elsewhere may

reveal diseases not from those spaces, while those in those spaces might not

be manifesting the disease (2013, p. 498).

Stasis, then, should not be an assumption of the governance mechanisms that seek to

address health risk. Wherein both bodies and workplaces are mobile over time, it is neither

just the body or the disease risk that move, it is both.

Responsibility as it is encoded in workers’ compensation, makes workers

responsible for the movement within their industry. Thus, the chapter contributes to

understanding how health risk is produced through not just the distribution, of the disease,

by state’s procedures for recognizing it. Here, I draw upon geographers’ history of

examining how laws and policies engender particular spatial practices to produce

inclusions and exclusions around race, class, sexuality, and gender (Craddock, 2000;

Biehler, 2009; Brown, 2009; Carter, 2012). This chapter’s focus is not so much on health

outcomes, but rather on examining the procedures used by the state to ‘recognize’ or ‘see’

diseased bodies. I examine space and time as mechanisms of exclusion when considering

who is responsible for the consequences of health risk for occupational disease, a process

that varies from state to state. Raising concerns regarding health justice and the availability

of access to this social insurance, workers’ compensation requirements can push workers

to seek compensation from other social insurance programs, or, in a few states, seek

recompense through the courts, further intensifying these uneven geographies.

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This chapter analyzes workers’ compensation statutes in all fifty states and

Washington, D.C. Although it focuses on hydraulic fracturing activities, examining all

states is necessary when considering that workers do not tend to stay in oilfield work for

significant periods. Additionally, the chapter draws on interviews with health and safety

instructors, participant observation at workers’ compensation and occupational safety and

health conferences, and textual analysis of worker safety and health materials.

From Common Law to Employer Liability to Workmen’s Compensation

We usually conceive the process that brought about the harm as a discrete,

bounded even that breaks away from the ongoing normal flow. Punishment,

redress, or compensation aims to restore normality, or to “make whole,” in

relation to the baseline circumstance. (Young, 2008, p. 107).

In the U.S., workers’ compensation addressed concerns over litigation between

employers and employees that had arisen in the late-19th century (Rogers, 2009). Workers

sued in state courts for compensation of wages or payment of medical expenses due to

workplace injuries (Bale, 1987) and disease in a small number of cases (Bale, 1988). The

courts interpreted common law under a doctrine of “due care” which considered the free

market a fair distributor of industrialization’s impacts, and under which “laborers bore the

risk of accidents resulting from the usual work hazards, while employers assumed the

burden of those resulting from their failure to exercise proper care” (Rogers, 2009, p. 16).

The courts required that workers show negligence or willfulness by the employer, a high

burden of proof for the employee (Bale, 1987). Workers had responsibility for the hazards

they faced at work, having voluntarily and rationally entered a working relationship.

While “employer liability” asserted that “the employer was held negligent if he

violated the common-law duty of providing a reasonably safe place to work” (Bale, 1987,

p. 36; see also Sellers, 1997), employers could utilize three defenses to refute an

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employee’s claims of harm. The “fellow servant rule” barred recoveries if a fellow

employee caused the injury. “Contributory negligence” denied compensation to injured

workers found to have in any way been at fault, and under “assumption of risk” workers

assumed the known risks of their workplace because of employment (Bale, 1987, p. 36).

Fault was a central concern in this ascription of responsibility. Workers had to show

that the employer was willfully and negligently at fault and that neither they nor another

employee contributed to the injury or illness. While many cases were dismissed or found

in favor of the employer, in some cases, large sums were awarded amounting to what Bale

has called “a compensation crisis for capital” (Bale, 1987, pp. 36-37) and what others

contend was a “crisis of uncompensated injuries and deaths” (Torrey, 2010). As juries

awarded large sums, insurance companies responded by raising coverage rates (Bale, 1987,

p. 48). The insurance industry flourished under these emerging industrial conditions. They

began collecting data, finding patterns between industrial conditions, diseases, illnesses,

and death (Bale, 1988; Sellers, 1997; Rosner & Markowitz, 2006). Under welfare capitalist

initiatives, many employers instituted workers’ insurance and benefits programs, at times

using punitive and coercive measures to ensure uptake (Asher, 1987). In other cases,

workers could purchase workers’ insurance or life insurance, although costs were often

associated with the perceived risk of the industry (Bale, 1987; O’Malley, 2004).

The idea that the free-market would deal with the consequences of workplace

hazards fell out of favor as new ideas about the role the state could take to provide the

welfare of its citizenry acknowledged the problems, economic and humanitarian, that

emerged as many workers failed to gain adequate compensation through the courts or

insurance. Social reformers sought to reshape litigious relationships (Rogers, 2009), efforts

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that first materialized in a federal workers’ compensation program for civil servants in

1908 and then through state-based workmen’s compensation programs over the next

decade, establishing the system still in place today (Rogers, 2009; Szymendera, 2017). It

is worth noting that the history of corporate insurance, medical surveillance by companies,

and other policies in the early 20th century also influenced these developments concerning

workers’ compensation for injury and disease as companies saw these efforts as good

business also (Sellers, 1997).

The legislative success of the compensation laws had only become possible

as many corporate officials had come to agree with judges and legislators

that the unlimited bodily damage allowed in the nineteenth-century

workplace was morally wrong and even economically wasteful in the

extreme. Yet increasingly owners and managers had become convinced that

more careful tending of their employees’ health could bring tangible profits.

(Sellers, 1997, p. 107).

Workers’ compensation required that employees “agreed” to the compensation

bargain as a consequence of their employment (Rosner & Markowitz, 2006; Rogers,

2009)91. Indeed, it is implied within most employment arrangements and thus enables the

state imposes its model of responsibility on employers and workers. The state took

responsibility for mediating the relationship between workers and employers—

conceptualizing responsibility through no-fault insurance—where irrespective of fault or

blame, employers, their insurance companies, and the state held responsibility for

providing compensation for injury. Benefits were diminished from what might be awarded

in a lawsuit, but workers no longer had to prove that employers had been neglectful or

willful in enabling unsafe working conditions in court. The bargain permitted an employee

91 If employers held insurance, at first voluntarily, they were protected from litigation. Policymakers

worried that mandatory workers’ compensation would violate employers’ rights to due process until the

U.S. Supreme Court held that it did not in 1917 (Duncan, 2003). After workers’ compensation became

compulsory in most states, workers ostensibly agreed to this bargain by nature of their employment.

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to seek recompense if they met certain requirements. Reformers expected workers’

compensation would incentivize employers to maintain safe working conditions such that

their insurance costs would not rise due to injury (Rogers, 2009). These hopes were not

actualized over the last century, raising questions about for whom these systems provide

and protect.

No workers’ compensation program in the U.S. is identical to any other states’

program, and no federal standard or oversight directs state programs (USDOL, 2016).

Workers’ compensation, with a few exceptions, has stayed the responsibility of individual

states92, leading its implementation to be geographically uneven, and moreover, its

recompense insufficient (Grabell & Berkes, 2015; OSHA, 2015; USDOL, 2016). At least

thirty-three states have diminished benefits available through workers’ compensation and

made eligibility requirements more demanding since 2003; wide disparities exist in

the payment and care across states (Grabell & Berkes, 2015) and efforts to eliminate

fraudulent claims and reduce program costs have produced stifling requirements for

workers, including complex medical evaluation requirements that often benefit employers

rather than employees.

Who is liable?

Since its introduction, workers’ compensation has only applied to certain workers.

Workers’ compensation might better be called employee compensation as these benefits

are only available to employees who are harmed under certain conditions. Workers’

compensation laws exclude independent contractors, and evaluative measures can be used

to determine if a worker was engaged in activities as an employee at the time that they

92 In the 1980s and 1990s, federal compensatory schemes developed for black lung victims from coal

mines and for irradiated workers exposed in U.S. National Laboratories (Michaels, 2008).

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encountered the hazard. In Pennsylvania, this includes if the worker was furthering the

interests of the employer93. Indeed, much of workers’ compensation seeks to distance

employers from being ‘unjustly’ held liable for a workers’ injuries or illness for which they

did not directly contribute, even if that belies the structural processes in which they operate.

This is an anathema for Young:

Where there are structural injustices finding that some people are guilty of

perpetrating specific wrongful actions does not absolve others who actions

contribute to the outcomes from bearing responsibility in a different way.

(2008, p. 106).

The upstream oil and gas industry uses subcontracted labor and independent

contractors; both challenge efforts to determine the “responsible” employer. In the case of

independent contractors, there is no “responsible” employer; these workers are exempt

from workers’ compensation. However, subcontracting, a central component to oil and gas

operations discussed in Chapter 3, can complicate who is the responsible employer as both

the subcontractor and the operator seeking to distance themselves from the costs of health

and safety by not holding workers’ compensation insurance94. Ohio has developed clear

statute to capture this, as it describes under the section of its workers’ compensation

website devoted to oil and gas:

Many employers believe they can shield themselves from workers’

compensation liability by using subcontractor relationships rather than

hiring employees. This is only true if and when all involved contractors

comply with Ohio workers’ compensation requirements.

Ohio law – Ohio Revised Code 4123.01 – states that the liability of a non-

complying subcontractor is transferred to the general contractor. Therefore,

the best way for the general contractor to avoid such liability is to ensure

each of its subcontractors has valid Ohio workers’ compensation coverage.

93 Bathroom breaks, smoking breaks, and meals are covered as part of the natural course of work. 94 This was and has been a central strategy of corporations to ‘distance’ themselves from the medical

and health costs of their operations, very deliberately detailed in the coal industry’s example of the

“Massey Doctrine” (Weil, 2014).

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(Ohio Bureau of Workers’ Compensation, 2017).

In Ohio, the subcontractor must also hold insurance, or the liability moves on to the general

contractor (or operator, in the case of oil and gas). The employer or their insurance

company holds financial responsibility for paying for the claim for benefits, lost wages,

and medical expenses. These chains of liability are straightforward in most cases of

accidents and injuries; the employer liable is the employer where the injury, a discrete

event, occurred.

Determining who is responsible can be more complicated for diseases of long

latency, where temporal issues then come into play. States often stipulate that the employer

responsible be the one where the last hazardous exposure occurred. A state may require

this exposure to have occurred over some period, such as for sixty-days, twelve months, or

two years, but only apply in the case of certain diseases, and under certain conditions. For

example, in Pennsylvania,

The employer liable for compensation . . . shall be the employer in whose

employment the employee was last exposed for a period of not less than one

year to the hazard of the occupational disease claimed. In the event the

employee did not work in an exposure at least one year for any employer

during the three hundred week period prior to disability or death, the

employer liable for the compensation shall be that employer giving the

longest period of employment in which the employee was exposed to the

hazards of the disease claimed (77 P. S. § 1514).

The question of liability is highly specific to the context of an individual’s employment.

Similarly, in Colorado,

In the case of silicosis, asbestosis, or anthracosis, the only employer and

insurance carrier liable shall be the last employer in whose employment the

employee was last exposed to harmful quantities of silicon dioxide (SiO2)

dust, asbestos dust, or coal dust on each of at least sixty days or more and

the insurance carrier, if any, on the risk when the employee was last so

exposed under such employer.

While the state provides the framework by which employers can be held accountable, it

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simultaneously stipulates the requirements that employees and their ailments must meet.

These efforts to compensate disease help fulfill workers’ compensation’s both moral and

economic goals by limiting liability and reducing compensable claims.

First, workers’ compensation provides for ill workers, and second, it insulates

employers from undue OSH costs. Thus, much focus within these programs and statutes

centers on making workers’ compensation less costly, more efficient, and more insulated

from fraudulent claims. This perspective on providing benefits in a way that is both

economical and beneficial to the employer, and through the development of an insurance

agency itself, mirrors OSH and workers’ compensation values as well as their perspectives

on employees and employers. At health and safety conferences for the oil and gas industry,

sessions returned to questions of workers’ compensation issues where it was assumed that

many workers were filing false reports to get extra money and time off. Many people were

concerned with mitigating workers’ compensation fraud, assuming workers would file

fraudulent claims for non-work-related injuries and illness. It was not just about keeping

workers safe, but about reducing the costs from workers’ compensation claims, particularly

when workers did not, in the eyes of the employer, warrant compensation. The boundary

of the working day, for example, if something happened while a worker was in a parking

lot, or driving to work, were commonly debated issues as health and safety professionals

and HR reps tried to determine the spatial and temporal extents of their liability.

This sentiment colored sessions at the Pennsylvania Department of Labor and

Industry Annual Workers’ Compensation Conference in 2016 held for human resource

officers, adjusters and lawyers. Its sessions often focused on disgruntled employees,

managing a company’s liability, and preventing employees who try to take advantage of

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employers who “show humanity” through good faith efforts. For example, sessions

included #socialdetection –Deep Internet Mining covering techniques to detect fraudulent

claims through social media, As the Claim Turns, a two-part series on extensive (and

potentially drama-filled) claims process, and Employment Law Interaction with Workers’

Compensation: A Case Study which used examples to illustrate when other federal

programs like ADA, FMLA, and COBRA applied, sometimes in exclusion of workers’

compensation. In this Employment Law session, discussion centered around cases where

employees were trying to get more money out of employers than the employers felt their

employees were owed, a skepticism that spilled into discussions on ways to reduce claims

and costs. Across these conferences and milieu, whether a worker’s ailment was

compensable, whether they were a compensable employee, whether they engaged in

furthering the interests of the employer during a “natural” workday, and to what extent

medical evidence substantiated that the worker was ill in the first place was of issue. These

forms of investigation focus squarely on the harmed individual, and not the context of

work; they seek to root out workers’ compensation cases where the employee is actually

responsible, to absolve the employer of liability.

Reducing fraudulent claims from workers is only one consideration to secure the

economic health of this insurance mechanism. West Virginia’s website reads:

The West Virginia workers’ compensation market is thriving! There are

over 260 carriers offering workers’ compensation insurance to West

Virginia employers. Currently, there are over 200 carriers writing policies

in our state. Since the workers’ compensation legislative changes went into

effect in 2006, the aggregate loss costs have decreased over 72%. (West

Virginia Office of the Insurance Commissioner, 2017).

Some states provide insurance discounts to employers who take part in safety classes and/or

organize safety committees (groups of employees who collaborate around safety issues).

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These programs are meant to make workplaces safer at the outset such that there are fewer

workers’ compensation claims. In Pennsylvania, many safety classes are available in online

webinar formats. Offered by Pennsylvania Training for Health and Safety (PATHS),

PATHS classes I have taken included and promoted behavior-based safety techniques.

These included course materials that seek to promote behavior change through, for

example, the “Ten Commandments of Safety and Health” where the blame for accidents is

found in worker behavior, even if liability lies with the employer. Such programs reinforce

ideas about workers’ responsibility for health even as statute technically holds employers

responsible. While compensable employee comes with added layers of assumptions about

a workers’ responsibility for health, this is only the first consideration. There are significant

requirements for what ailments are compensable that place the burden of showing

‘occupational’ on the worker. These burdens are not only rooted in the status of the body-

as diseased-but in where, how, and for how long a body labored.

What is compensable? Occupational Disease

The first workers’ compensation programs provided compensation for some,

but not all, occupational injuries by establishing what counted as ‘occupational’ to limit

compensable injury (Rogers, 2009). Of issue was if and how it could be shown that an

injury was incurred during work. Industry recognized that no-fault insurance could be

advantageous for occupational diseases as well and lobbied for its inclusion in workers’

compensation when occupational disease litigation drew concern in the 1920s and 1930s

(Rosner & Markowitz, 2006). These competing interests, encoded in occupational disease

litigation from its earliest iterations, has convoluted what compensation is meant to achieve

and what is ‘fair compensation.’ Indeed, the idea of ‘fair compensation,’ and for whom (the

employer or the employee) has often swayed towards employers.

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Labor historians have charted how silicosis was a linchpin in the development of

many worker protections in the 1930s including the scheduling of occupational diseases in

workers’ compensation statutes. Silicosis, once known as the ‘king of occupational

diseases’ (Rosner & Markowitz, 2006) in the 1930s instigated and hastened many states’

inclusion of occupational diseases under workers’ compensation statutes (Rogers, 2009).

Concerns regarding silicosis and occupational diseases stemmed from exposures in the

mines and foundries (Rosner & Markowitz, 2006; Rogers, 2009). Mounting litigation and

the deaths that resulted from the Hawk’s Nest disaster made clear including occupational

disease under workers’ compensation advantageous to both labor and industry groups,

although these groups approaches and demands differed widely (Rogers, 2009),

particularly following litigation the disaster’s cases (Sellers, 1997). In the ensuing decade,

labor lobbied for “blanket” coverage of occupational disease, while industry campaigned

for restrictive inclusion, where it even supported these efforts, opining the potential for its

inclusion to be “ruinous,” and many states ultimately opted to implement “compromises”

(Rogers, 2009, p.163).

Although occupational injuries had been covered by many states, the introduction

of occupational disease challenged these systems that had developed around primarily

acute injuries where causation was clear. By contrast, silicosis, and other occupational

diseases that result from often repeat exposures over periods of time were more challenging

under this framework. Strikingly, many state statutes sought to contain the costs of

occupational diseases’ inclusion by limiting who was able to file for these funds. These

limitations included the degree to which a person was disabled, and when they were last

exposed. How the states handled instituting these limitations has had lasting legacies; here,

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of note have been the persistent way that space and time have been used to limit bodies’

accesses to the compensation bargain.

Some states sought to cover silicosis and other ‘dusty lung diseases’ first, and then

incorporated other occupational diseases at a later date (Rogers, 2009). Other states focused

on incorporating occupational diseases more broadly, sometimes under “Occupational

Disease Acts” or by expanding the definition of ‘injury’ to include occupational disease

(Larson, 1973). “Viewed nationally, then, the Depression-era silicosis crisis expanded state

compensation of disease coverage but left gaps and limitations” (Rogers, 2009, p. 164). It

also produced an uneven patchwork of limitations for both occupational disease and

silicosis. “The key operative concepts affecting the various silicosis limitations vary so

much from state to state that no overall generalizations about their definition are possible”

(Larson, 1973). These legislative histories left lasting legacies on present-day statutes.

Even as the 1970s saw modest efforts to update occupational disease laws (Larson 1973;

Kutchins, 1981) most efforts maintained the limiting spirit of their original intent.

Workers’ compensation programs relieved workers of the burden of showing

employer fault in workplace ailments and instead established a burden of proof: that an

ailment is occupationally acquired. To insulate employers from liability for the disease to

which their workplace may not have directly contributed, workers’ compensation excludes

bodies that are unable to meet the thresholds the State establishes for what is occupational.

Thus, the definition of “occupational disease” constrains what can be compensated and are

significant (see Table 4.1 for examples).

Some states define occupational diseases within their definition for injury, offering

that the term “injury” includes disease, even as many injuries occur immediately after

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exposure to a hazard or accident, and diseases may take years to develop. With injuries, its

relationship to a particular hazard at a specific point and time, the cause and effect linkages,

are clear. Many occupationally acquired diseases take years of repeat exposures to develop

and lack that same direct cause-effect relationship. Other states have specific statutes for

occupational disease, but in either case, the attachment of the term “occupational” to the

disease or injury signals that liability lays with someone other than the afflicted worker if

the ailment is work-related.

The workplace conditions must be shown to be at fault. In other words, work must

be the space in which a workers’ body encountered a distinct risk that could have caused

the harm. In Oklahoma,

“Occupational disease,” as used in this act, unless the context otherwise

requires, means any disease that results in disability or death and arises out

of and in the course of the occupation or employment of the employee or

naturally follows or unavoidably results from an injury as that term is

defined in this act. A causal connection between the occupation or

employment and the occupational disease shall be established by a

preponderance of the evidence (OK §85A-65-D-1., my emphasis).

The workplace (and by virtue the employer) must be shown to be at fault by a

preponderance of evidence. The burden of proof has not changed that drastically;

employers may not have to be negligent, but they do have to be at fault.

Definitions of occupational disease further limit what is deemed “compensable.” In

Ohio:

(F) “Occupational disease” means a disease contracted in the course of

employment, which by its causes and the characteristics of its manifestation

or the condition of the employment results in a hazard which distinguishes

the employment in character from employment generally, and the

employment creates a risk of contracting the disease in greater degree and

in a different manner from the public in general. (OH § 4123.01, my

emphasis).

Here, not only is the requirement that the disease is occupational, it must be shown

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to arise from employment in a way that is beyond the risk faced by the general public.

While the state is cautious to make employers liable for something which their activities

did not directly contribute, such a standard simplifies the relationship between disease,

exposure, and outcome. The requirements of workers’ compensation statutes, focused on

the discrete exposures measured in laboratories that were used to attribute exposure to

disease provided more ways of limiting compensation. As Murphy writes,

Enshrined in investigation protocols, juridical precedents, and workers’

compensation rules, the use of such technologies and the formulation of

specific causality became necessary to prove the very existence of

occupational illness (Murphy, 2006, p. 59, my emphasis).

Statutes may omit diseases of “ordinary life” or those that cannot be shown to be

“occupational” in origin. Definitions of occupational disease may enumerate exhaustive

exclusions, or list the only diseases the state deems compensable. Sometimes they do both.

In the case of silicosis, it is widely considered to be a disease only occupationally-acquired.

However, silica exposure is also carcinogenic, can cause renal disease and autoimmune

disorders, but it is difficult to show that these ailments have occupational origins, and

instead can be attributed to multiple sources, including “lifestyle choices.” Compensability

may also be limited by temporal and geographic characteristics of the disease and of work,

detailed in later sections.

Thus, in sum, states define injury under disease, applying logics first founded on

often discrete injurious events onto ailments that may arise out of repetitive exposures.

Many states also preclude diseases of ordinary life or any disease that may have been

equally impacted by exposures faced outside of work. Mental illness is generally excluded.

Moreover, although one of the original intentions of workers’ compensation was to shift

the burden of proof off of the employee, many states require, in the case of occupational

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disease, that a causal connection is demonstrated by a “preponderance of evidence.” Put

most directly by Wyoming, “The employee has a greater burden of proof in proving

compensability of “injuries which occur over a substantial period of time” (Wyo. Stat. §

27-14-603(a)).

Table 4.1: Examples of occupational disease definitions.

State Code Key points

Alaska AS §23.30.395 (24) “injury” means accidental injury or death arising out

of and in the course of employment, and an occupational disease or

infection that arises naturally out of the employment or that naturally or

unavoidably results from an accidental injury; “injury” includes breakage

or damage to eyeglasses, hearing aids, dentures, or any prosthetic devices

that function as part of the body and further includes an injury caused by

the wilful act of a third person directed against an employee because of

the employment

Injury is inclusive

of disease

Arkansas AR 11-9-601. Compensation generally. (e) (1) (A) “Occupational

disease,” as used in this chapter, unless the context otherwise requires,

means any disease that results in disability or death and arises out of and

in the course of the occupation or employment of the employee or

naturally follows or unavoidably results from an injury as that term is

defined in this chapter. (B) However, a causal connection between the occupation or employment and the occupational disease must be

established by a preponderance of the evidence. (2) No compensation

shall be payable for any contagious or infectious disease unless

contracted in the course of employment in or immediate connection with

a hospital or sanitorium in which persons suffering from that disease are

cared for or treated. (3) No compensation shall be payable for any

ordinary disease of life to which the general public is exposed.

Causal connection

from a

“preponderance of

evidence”

No compensation for “ordinary

disease of life”

Iowa IA §85A.8: An occupational disease must be incidental to the character

of the business, and a direct causal connection with the employment must

be shown. A disease from a hazard where the employee was equally

exposed outside the employment is not compensable.

Casual connection

Cannot be “equally

exposed” outside

work

Montana MT39-73-104 Eligibility requirements for benefits. (23) (a)

“Occupational disease” means harm, damage, or death arising out of or

contracted in the course and scope of employment caused by events

occurring on more than a single day or work shift. (b) The term does not

include a physical or mental condition arising from emotional or mental

stress or from a nonphysical stimulus or activity.

Must have a

relationship to

working day

Excludes mental

illness

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Nevada NV § 617.430(2). An occupational disease shall be deemed to arise out

of and in the course of the employment if: (a) there is a direct causal

connection between the conditions under which the work is performed

and the occupational disease, (b) it can be seen to have followed as a

natural incident of the work as a result of the exposure occasioned by the

nature of the employment, (c) it can be fairly traced to the employment

as the proximate cause, and (d) it does not come from a hazard to which

workmen would have been equally exposed outside of the employment.

Causal relationship

Cannot be “equally

exposed” outside

work

South

Carolina SC § 42-11-10. “Occupational disease” defined. (A) “Occupational

disease” means a disease arising out of and in the course of employment

that is due to hazards in excess of those ordinarily incident to

employment and is peculiar to the occupation in which the employee is

engaged. A disease is considered an occupational disease only if caused

by a hazard recognized as peculiar to a particular trade, process,

occupation, or employment as a direct result of continuous exposure to

the normal working conditions of that particular trade, process,

occupation, or employment. In a claim for an occupational disease, the

employee shall establish that the occupational disease arose directly and

naturally from exposure in this State to the hazards peculiar to the

particular employment by a preponderance of the evidence.

Relationship

between hazard in

employment and

disease shown

through

“preponderance of

the evidence”

Rating the Impact of Workplaces on Bodies

Having a disease is not often significant enough to warrant compensation.

Compensation often requires demonstrable harm and the loss of one’s ability to work.

When occupational diseases were included under workers’ compensation, industry pressed

for their inclusion based on if the worker was disabled, how severely, and to what extent it

had impeded their ability to work (Rosner & Markowitz, 2006). Occupational diseases

were included in workers’ compensation statutes in a “negative” way, as efforts were

“primarily aimed at limiting coverage for diseases” (Kutchins, 1981, p. 217).

Today, workers’ bodies may be classified as suffering from “temporary partial

disability,” “permanent partial disability,” “temporary total disability,” or “permanent total

disability.” Restrictions persist in what are considered “impairment-based,” “loss-of-

earnings-capacity,” “wage-loss,” or “bifurcated” workers’ compensation systems where

eligibility for compensation is assessed by a body’s inability to work, wage diminishment,

the degree of impairment, and the expected duration of disease (National Academy of

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Social Insurance, 2010). Benefits may be diminished commensurate with the degree of

disability and the degree to which other, non-work-related ailments influence a condition.

In these cases, the knowledge of a medical provider can limit or expand access to benefits.

For example, doctors’ opinions determine if, and if so, by how much, an ill worker’s

occupational affliction is compounded by a pre-existing condition such as asthma. For

occupational disease lifestyle choices such as smoking can be used by doctors to reduce or

invalidate claims altogether (Hopkins, 2015). A claim, therefore, is subject to certain

assumptions about how workers should also be caring for their bodies “responsibly,” and

seeks to limit anything for which an employer cannot be “blamed.” The use of the term

“occupational” merely shifts the language of blame.

Finally, to obtain “expert” knowledge often, employers require workers to use

employer-approved or insurance-approved medical providers to demonstrate that the

ailment is occupational. Doctors do not always provide objective analysis as has been

documented within the coal industry and the denial of hundreds of claims of black lung

disease (Hamby, 2014). Although some states allow workers to get second opinions, and/or

use a doctor of their own choosing, this varies by state. Claims may be litigated; in

Pennsylvania, it is up to a Workers’ Compensation Judge to evaluate the scientific evidence

to follow. There are other requirements for gaining eligibility that produce exclusions and

inclusions from spatial and temporal limits for disease manifestation, exposure, and work.

Spatiality of Temporal Limits

The workers’ compensation system requires a worker and their ailment fulfill

eligibility requirements under certain spatial and geographic logics that have developed

over different legislative histories. Each state’s statute has changed over the last century

with laws, exclusions, provisions, addenda, and case law that are dense and confusing.

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Some retain incredibly vague requirements, while others provide tediously detailed

definitions and procedures for occupational disease claim. The complexity of how these

systems work produces a system that insufficiently meets the needs of ill workers. While

in theory, workers’ compensation serves as a mechanism by which the State seeks to

mediate the relationship between workers and employers and fulfill four key

responsibilities — humanitarianism, cost internalization, promotion of safety, and

vocational rehabilitation (Torrey, 2010), some states statutes preclude flexible employment

and moreover ignore common disease progression, including silicosis. Forms of ignorance,

willful or otherwise, are related to mechanisms of irresponsibility, a process Tronto

connects to Mills’ concept of ‘epistemological ignorance’ (Tronto, 2013). Ignorance, in its

various forms, is powerful too shaping knowledge, social processes that respond to risk

(for a collection of papers on this, see Proctor & Schiebinger, 2008). Here, by ignoring the

ways that disease progress, occupational disease statutes shift responsibility back onto

workers.

Workers must report the injury to begin the compensation process when injured or

ill due to a workplace hazard, accident, or exposure. These guidelines stipulate the behavior

of the ill worker. These behavioral requirements, not just the definitions of disease

themselves, produce inclusions and exclusions for those whose illness conforms to these

norms, and those that fall outside the purview of the state. Claims and notices are the first

steps in being recognized by an employer and by the State as another class of worker, an

ill employee, and to claim the benefits afforded by the compensation bargain. These

processes are a form of claims-making on the state to be recognized. Yet, the provision of

a service is not enough and is often mediated through complex procedures and forms of

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recognition95.

Many states require two notification processes, although the terminology and exact

requirements differ. Notices require either written or verbal communication with an

employer about injury or illness. This can take the form of a verbal statement to a

supervisor or a letter. Workers may be also required to file a claim with a state commission

or an insurance company. Both notices and claims must be made within a specified period

that can vary from several days, months, years, or “whenever is most practicable.”

Figure 4.1: Time Limitations for Occupational Illnesses, Notices

Figure 4.1 shows the extent of this variability for notice to employers for occupational

disease. Many limits expire within one week to one month after an employee was exposed

or became aware they manifested disease. Not all states treat this reporting the same nor

95 As King suggests, “Navigating the health-care landscape requires certain forms of status and

documentation that facilitate encounters between the state and its citizens” (King, 2017, p. 75), where

not being able to be seen by the state can be a function of the paperwork one has. Under workers’

compensation, its not just the paperwork, but the time by which that paperwork is filed such that a

worker can claim a particular kind of harmed status.

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do they standardize when these “clocks” begin. However, within top oil and gas producing

states (Table 4.2) almost all notice requirements occur within one month (Pennsylvania,

Colorado, Texas), some as short as one week (Wyoming, West Virginia, Ohio). Failure to

give notice does not always disqualify a worker from compensation, but again, this depends

on the state and the type of claim.

Table 4.2: Top Oil and Gas States, Sept. 2017 (U.S. EIA, 2017)

State Oil (thousand

barrels/day)

Natural Gas (million

cubic feet/day)

Alaska 482 (3) 8,512 (3)

Colorado 397 4,667

Louisiana 133 6,325

North Dakota 1,081 (2) 1,933

Ohio 53 5,334

Oklahoma 469 7,009

Pennsylvania 18 14,808 (2)

Texas 3,574 (1) 21,560 (1)

West Virginia 26 4,585

Wyoming 215 4,722

Variability among states extends to occupational disease claims. Many states

stipulate that claims be filed within a period after a worker has become aware of their

disease, should have known of the disease, or since the disease manifests (Figure 4.2).

Often only a few years in length, these are more permissive requirements. Forty states

require claims following the employee’s knowledge, the average time being two years.

While adjacent states are often similar, in areas with hydraulic fracturing activities (e.g.,

Pennsylvania, West Virginia, Texas, Ohio, Colorado, North Dakota, and Oklahoma) these

requirements can range from within one year to within five.

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Figure 4.2: Occupational Disease Claims, Since Knowledge of Disease or Disability

Twenty-one other states and Washington, D.C., require a claim be filed within a specified

time limit since the last hazardous exposure (Figure 4.3). This is punitive, as occupational

diseases may manifest well after these time limitations have expired. On average,

requirements stipulate a claim must occur within 2.6 years. Many occupational diseases,

particularly lung diseases, can manifest symptoms that go undiagnosed or misdiagnosed

because they present as other, more common illnesses, or as diseases of everyday life.

Moreover, many hazardous occupational exposures can produce illnesses, like cancer, for

which it may be difficult, if not impossible, to show a causal relationship, and again may

fall outside of these temporal requirements.

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Figure 4.3: Occupational Disease Claims: Time Limitations Since Last Hazardous Exposure

Twelve states stipulate that employees make themselves visible to the State with

requirements for both time since last hazardous exposure as well as time since knowledge

of the disease. Some states may require the later of the two measures, others the earlier

These procedures mark the first steps a worker must take to be recognized under

the compensation bargain. An employee who fails to meet these standards often becomes

invisible to the workers’ compensation system. Individual states place responsibility on the

employer to put themselves within the field of visibility of the state’s programs. While the

workplace has been established as a location of risk, employees must act to be seen within

these time constraints to access the bargain. Time constraints pervade the workers’

compensation process beyond this initial contact. In contested/litigated cases, there may be

periods in which workers (and employers) may gather evidence. Certain benefits may be

subject to limitations of weeks or months.

The state places the responsibility of making oneself visible to the State on the

employee. To meet eligibility requirements, an employee’s illness must conform to

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geographic and temporal parameters established by the state that limits what can be

compensated. Moreover, some states specifically articulate requirements for the silicosis,

“dusty diseases” and other pneumoconioses in both their requirements for claims and their

definitions of the disease.

Defining “Dusty Diseases”: “The Hitch,” and Silicosis Compensation

Workers’ compensation in many states precludes a worker from filing

compensation because their disease manifests outside of the time limitations set by the

state. However, this may also occur due to the flexibility of their employment. The ways

many states compensate long-latency diseases like silicosis does not conform to temporary

and transient employment. Many workers’ compensation statutes fail to accommodate the

structure of many industries, including workers involved in hydraulic fracturing activities

in the oil and gas industry.

Examining the “hitch” shows how the dynamics of industry and illness confound

the workers’ compensation requirements. A work schedule in the oilfield is known as a

“hitch.” Rotations vary across companies, but they are periods of intense work followed

by a break period of several days, weeks, or months. Workers may work twelve to sixteen-

hour days, two weeks on, two weeks off, three weeks on, one week off, or even six months

on, six months off, depending on where they work and for whom they work. Although

workers often stay in a general region during a hitch, workers can cross state borders

multiple times, working in layered or adjacent shale plays. The industry experiences high

turnover; individuals move in and out of oilfield work and between companies to avoid

layoffs or to secure better pay and better “hitches” (“better” geographic locations or on-off

schedules). Many oilfield workers may also come from other high-hazard industries, such

as mining, construction, defense services, and agriculture which may have exposed them

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to health hazards over the years, including respirable crystalline silica. Many of the workers

I encountered at bars, and industry events had come from other dusty trades like coal or

construction.

When I drove around an area experiencing significant oil and gas development from

hydraulic fracturing—even in states where the industry has been long developed—trucks

from out of state or out of the country were noteworthy in small towns. During my time in

northeastern Pennsylvania, I became something of a license plate expert; at a distance, I

could identify the simplicity of a Texas license plate, the italicized lettering of tags from

Alberta, or iconic statute to the left side of plates from Oklahoma. While these tags often

are used to symbolize how oil and gas jobs, in some areas “not going to locals” or signal a

new wave of development and leases, they are also a key marker of the mobility of the

workers themselves. When eligibility requirements for compensation require certain

configurations of work, namely spatial fixity over a period of time, these patterns of work

are exclusionary to the governance structures that make employers liable for workplace

diseases like silicosis.

Hydraulic fracturing workers face hazards from exposure to silica most

significantly during hydraulic fracturing, particularly workers engaged in the material

handling of sand used in hydraulic fracturing, although lower-level exposures can occur

during other parts of the extractive process. During interviews with two health and safety

instructors, the instructors stressed how oil and gas was a great job, but that it was a dusty

one. Dust was just seen to be part of the job. The normalization of risk mirrors the

normalization of chronic pain and other ailments. In conversations at trade shows, drug test

companies and safety trainers would discuss with me the challenges of prescription drug

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abuse to manage chronic pain. At long-term stay hotels, I found leaflets for chiropractors

and pain management clinics were posted alongside takeout menus for wings and local

sports bars. It is expected that work in this industry takes a heavy toll on the worker’s body.

Discursively, work takes on outsized importance because of the risk. Exposure to risk is a

key component to the ways workers are represented in both trade publications and health

and safety conferences. Even as the narrative is “we work safely” by implementing controls

on the hazards faced, the original, risky context is valorized; for example, workers are

lauded at conferences for the work they do, because it is dangerous, as they produce oil

and gas for the nation; often these claims are made by comparing oil and gas work and

safety procedures to those undertaken by the military and NASA. Here, examining how

discourses of risk help shape workers’ responsibilities underscores the relationship

between responsibility and vulnerability (Walker, 2008), where the long-term health

consequences of work are just a component of what it means to be a good and responsible

worker.

It follows then that the assumption of risk shapes the implicit and explicit ways that

workers are represented as being responsible for their own health. In the STEPs Safety

Video, new guy Joe suggests that wearing a respirator is going to be uncomfortable in the

heat of Texas. His new manager, Ted responds by emphasizing upon Joe how he will need

to consider in his day-to-day discomfort in wearing a respirator alongside the long-term

consequences of not wearing the mask. (Figure 4.5):

Joe: It’s pretty hot out here, Ted. This dusk mask–its just going to make it

worse.

Ted: Here, Joe. Take one of these straws. Try breathing through that. Now

breathe through it a little bit. Imagine walking around having to breathe

through that. The disease caused by silica, silicosis, is just like breathing

through that straw

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Joe: Wow. That’s tough. (Lawhorn-Cryden, 2015).

Figure 4.4: Joe Breathing through a coffee stirrer (Lawhorn-Cryden, 2015)

Implicitly, Joe is being told that he needs to consider his life years from now if he does not

correctly and consistently wear the respirator. He takes on responsibility for mediating the

exposures his employer exposes him too, being asked to compromise short-term, but

meaningful discomforts in the face of potential long-term impacts. He moreover may lack

access to the benefits of the workers’ compensation bargain.

The spatial and temporal dynamics of the hitch would preclude many workers from

claiming for silicosis. As was discussed earlier, workers must file claims within a certain

amount of time and some states, although not all, have time requirements for silicosis,

dusty lung diseases, and other pneumoconioses. Like with general occupational disease

claims, these differ from state to state and are stipulated based on when a disease manifests,

the time since the last injurious exposure, or the later/earlier of the two dates. Figure 4.6

shows states that limit silicosis claims based on time since last hazardous exposure,

including several are states with extensive hydraulic fracturing activity such as West

Virginia and Oklahoma. In these states, the time requirements would preclude an employee

from filing a silicosis claim in the case of chronic silicosis, and in most cases accelerated

silicosis. In West Virginia and Oklahoma, these exclusions begin just three years after the

last hazardous exposure.

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Figure 4.5: Silicosis and Pneumoconiosis Claims: Time Limitations Since Last Hazardous Exposure

The clock for other states’ requirements for silicosis claims begins at the time an

employee knew of the disease or at the time the disease manifested. This standard based

on knowledge of the disease or its manifestation is more permissive (Figure 4.7). Again,

several states heavily engaged in hydraulic fracturing activities have these limitations,

including Colorado and Oklahoma. If a worker gets an accurate diagnosis of silicosis

within the time requirements can be an issue. Because silicosis presents like several other

lung diseases, it often is not diagnosed until its later stages or after death, if at all. Several

states, including Oklahoma, West Virginia, and New Mexico, also stipulate temporal

requirements for time since last exposure and time since knowledge of the disease. In the

case of Oklahoma, an individual has one year to claim following knowledge, of the disease,

but within three years since the last exposure.

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Figure 4.6: Silicosis and Pneumoconiosis Claims: Time Limitations Since Knowledge of

Disease/Disability

There are additional requirements that differ by state that intersect with the patterns

of work characteristic of the “hitch” in exclusionary ways. These provide limitations based

on where the worker has worked and for how long, and where a worker has been exposed

to silicosis and for how long. Table 4.3’s requirements specify the temporal and

spatial characteristics of a worker’s employment for compensation. For example, a

silicotic—the person with silicosis—must have been employed in Pennsylvania and

exposed to silica for two years. West Virginia has multiple provisions. A silicotic must

have been exposed for five years, two years in West Virginia, within the ten years since

the disability, and filed within three years of the last period of exposure. Alternatively,

allowing the claimant more time to account more for the nature of silicosis, a claimant

could have been exposed for ten years in the fifteen years since last exposure.

Table 4.3: Definitions of Silicosis for Silicosis Claims

State Limits on silicosis, occupational pneumoconiosis and dust disease due to work

location, duration of exposure, and time since disability

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Alabama In the 5 years prior to injury, must have experienced 12 months exposures in each of the

12 months; the employee has 2 years from last exposure to file claim

Arkansas In 10 years prior to disablement, must have been exposed for 5 years, 2 of which must

have been in Arkansas; the disablement must occur within 3 years of last exposure

Idaho In 10 years prior to disablement, must have been exposed for 5 years, the last 2 of which

must have been in Idaho

Iowa In 10 years prior to the disability, must have been exposed for 5 years, 2 of which must

have been in Iowa

Kansas In 10 years prior to disability, must have been exposed for 5 years, 2 of which must have

been in Kansas; must manifest with 3 years

Kentucky Continuously exposed for 2 years in Kentucky

Maine In 15 years prior to disablement, must have been exposed for 2 years

Montana Must have inhabited Montana for previous 10 years

Nevada Must have been exposed to harmful amounts of silicon dioxide while employed in Nevada

for 1 year

New Mexico In 10 years prior to disability, must have been exposed during 1250 work shifts in New

Mexico; disablement must occur within 2 years of employment with whom claim is filed

Oklahoma In 10 years prior to disability, must have been exposed for 5 years, 2 of which must have

been in Oklahoma

Pennsylvania In 10 years prior to disability, must have 2 years aggregated exposure while employed in

Pennsylvania; must manifest with 300 weeks

South Dakota Must have been exposed for 2 years in South Dakota

West Virginia

In 10 years prior to disability, must have been exposed continuously for 5 years, 2 of

which must have been in West Virginia; Or 10 years exposure in 15 years since last

exposure; Claim must be filed within 3 years of last period of exposure of 60 days or

more, or within 3 years since diagnosis

These spatial and temporal parameters determine the compensability of disease. Many of

these requirements make workers exposed to silica in the hydraulic fracturing industry who

may develop lung diseases into the future ineligible for workers’ compensation due to the

nature of the disease and due to the characteristics of their work. They would be burdened

with the responsibility for occupational acquired disease by the nature of states’ exclusions.

Oilfield workers engaged in hydraulic fracturing work may be employed in one

state over a period of years, but only for a short duration as workers move from site to site

and traverse state boundaries to complete jobs. Workers may also shift employers over the

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course of several months and find themselves employed in different states. Workers who

are exposed to silica in hydraulic fracturing operations, at its highest levels during material

handling, and at lower levels from well-site activities and construction, may not be captured

by this law once they begin to be symptomatic because of their employment history. Their

disease may not manifest in time to claim for benefits. Indeed, a key impetus for these

exclusions was to reduce and insulate costs, even from their earliest introduction into

workers’ compensation statutes in the 1930s. As these legacies have persisted to the

present, they continue to include these cost-limiting restrictions.

Workers’ Compensation in the Oilfield: Texas and Pennsylvania

There are several models for compensation represented across areas of extensive

hydraulic fracturing; these models have additional implications for occupational disease

and silicosis claims, and what it means for responsibility. For example, Texas uses an “opt-

out” strategy to workers’ compensation. As the name implies, this system allows employers

to opt-out of the compensation bargain. Texas’ system is more than a century old and

allows employers write their own compensation insurance and/or be subject to litigation.

Opt-out programs frequently have fewer benefits, shorter time claims periods, and have

little or no state or independent oversight. Employees do not have the option to opt-in or

out, employers do. Opt-out indicates a movement away from the intentions of the workers’

compensation bargain. Such measures favor employers, allow programs to be written to

the needs of individual employers, and shifts the injury and illness burden back to workers.

It is submitted that opt-out legislation is an overreaching pro-business

measure which, under the veil of innovative reform, will unconscionably

shifts costs of work injuries and deaths from employers to injured workers

and others. And a troubling part of this machination is the denial to injured

workers of access to the workers’ compensation adjudication system, or

some true equivalent, so that in case of dispute due process can be afforded

(Torrey, 2015, p. 9).

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Employees may not have leverage in negotiating, mediating, or litigating

settlements as “non-subscriber” employers may require employees to sign arbitrations

agreements as a precondition of their employment (Torrey, 2015); some have indicated

that employers and their insurers are granted expansive discretion in changing the benefits

structure. Several southern states have tried to adopt this model recently, through a new

movement spearheaded by the Association of Responsible Alternatives to Workers’

Compensation built on Texas’s law (Grabell & Berkes, 2015; Torrey, 2015). However,

opt-out was recently setback when Oklahoma declared its program unconstitutional by the

state supreme court. The USDOL also began investigating Texas’s opt-out plans under the

Obama administration (Berkes, 2016).

In Texas, when workers’ compensation does apply, the Workers’ Compensation

Division within the Texas Department of Insurance does not have special provisions for

silicosis. Rather occupational diseases are only compensable if an employee gives notice

to an employer within 30 days after knowledge that the injury is work-related and files a

claim within one year. These requirements do not reflect the disease latency of chronic

silicosis.

Pennsylvania does not follow the “opt-out” model but may be setting a precedent

for other states through its case law regarding diseases of long latency. The Department of

Labor and Industry oversees the Commonwealth’s Bureau of Workers’ Compensation

which administers the Pennsylvania Workers’ Compensation Act and Occupational

Disease Act covering many of workers’ ailments, including occupational diseases, with

specific provisions for silicosis. Employers in Pennsylvania must hold workers’

compensation insurance, the state’s insurance fund, or be self-insured.

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Workers’ silicosis claims must meet criteria codified by the Pennsylvania

Occupational Disease Act. Workers seeking compensation for disability or death from

several lung diseases, specifically, silicosis, anthraco-silicosis, coal worker’s

pneumoconiosis, or asbestosis must have been employed and exposed in Pennsylvania for

at least a combined two years in the ten years before the disability began and workers must

file for occupational diseases within 300 weeks (77 Pa. Stat. § 412). The parameters for

exposure to silica while employed in Pennsylvania and the window in which the disease

must have caused disability precludes many silicotics. For hydraulic fracturing, this may

prove even more challenging as they may not be employed in Pennsylvania for two years,

nor will they develop the disease in time to claim for benefits.

However, in 2013, the Pennsylvania Supreme Court ruled in Tooey v. AK Steel

Corporation that if occupational disease, in this case, asbestosis, manifests outside of the

prescribed temporal limits established under workers’ compensation then the immunity

from liability provided by the Workers’ Compensation Act does not apply, and a worker

can pursue civil cases against their employers. This decision included scrutiny of the

purpose of the Workers’ Compensation Act, and it’s stated “remedial” and “humanitarian”

goals.

[W]hen reviewing issues concerning the Act, we are mindful that the Act is

remedial in nature and its purpose is to benefit the workers of this

Commonwealth. Thus, the Act is to be liberally construed to effectuate its

humanitarian objectives, and borderline interpretations are to be construed

in the injured party’s favor. (Tooey v. AK Steel Corporation, 2013 p. 9).

The ruling focuses on the grammar within the Act that blurs its applicability to occupational

diseases that fall outside of the specific requirements. Drawing from the humanitarian spirit

of the law to restore injured workers, the Court unbound workers from the exclusive

remedy by finding they were not precluded from seeking damages. The court concluded

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that because the State’s limitations exclude a worker from being “seen” by the workers’

compensation bargain, the bargain does not apply, thereby allowing them to seek

recompense through the courts. It has yet to be determined if and how this ruling will

impact Pennsylvania and other states. However, it points to the other mechanisms that

workers can seek for relief, such as torts and other forms of social insurance. Significantly

with respect to other social insurance, the court’s efforts to be humanitarian, caring, or

careful, in the application of the exclusive remedy of workers’ compensation, shifts the

burdens to other parts of the state that themselves insufficiently provide workers relief for

their occupationally acquired disease.

Workers’ Responsibility through Other Parts of the State

The apparent growth of the contingent workforce challenges existing

structures of data collection, legal responsibility and liability, and future

planning for social safety net programs. (Foley, et al. 2014, 773).

Although the workers’ compensation system reflects the responsibilities and

obligations of the state to take responsibility for its working society, the State has

intervened through other mechanisms for the good of society.

The welfare corporate society embodies at least three important principles

largely absent from earlier, more laissez-faire liberal capitalism: (1) the

principle that economic activity should be socially or collectively regulated

for the purposes of maximizing the collective welfare; (2) the principle that

citizens have a right to have some basic needs met by society and that where

private mechanisms fail the state has an obligation to institute policies

directed at meeting those needs; and (3) the principle of formal equality and

impersonal procedures, in contrast to more arbitrary and personalized forms

of authority and more coercive forms of inducing cooperation. (Young,

1990, p. 67).

Social insurance, at the state and federal level, has, in theory, affirmed the State’s

obligations to regulate economic activities in the interest of society and to ensure that

individuals have access to basic needs. Such efforts shift towards bureaucratic structures

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wherein hierarchies, rules, and procedures are utilized to provide fair distributions and

outcomes. This has engendered multiple forms of social insurance that seek to capture

different kinds of harms and needs that the state must meet. While Young speaks highly of

the development of the welfare state, rooted in the idea of insurance-based compensation,

she also indicates its logical shortcomings and highlights, how disadvantaged peoples,

To a large extent, though not entirely, they are conditioned by

institutionalized rules and social practices that put people in differential

positions of power in relation to others, give some people higher status than

others, or afford them a wide range of options for their actions compared to

others (Young, 2008, p.39).

Indeed, while workers’ compensation provides one way to examine the ways that bodies

are measured in relation to one another, their worthiness of being compensated, this occurs

across all welfare programs. Inclusions and exclusions are made through a vast array of

social programs that determine the types of bodies that deserve state support or

intervention.

Through the compensation bargain, the state purposely limits workers’ ability to be

seen by other parts of the state. “[I]n practical terms, the workers’ compensation system

represents an enforced social compact.12 In trade for statutory coverage, workers are barred

from pursuing actions at law” (Kutchins, 1981, p. 213). The bargain limits what workers

can receive in return for their injuries. “To be barred from bringing an action for intentional

employer wrong-doing is a significant loss for workers” (Kutchins, 1981, pp. 214).

There are few options left to workers seeking monetary compensation or

recognition by the State for the harms they incurred through work. Workers can seek tort

litigation. These commonly must be brought against material manufacturers, who have, in

response to increased silicosis tort litigation in the 1990s and early 2000s leveraged several

of their own defenses (Cook, 2005). Although the recent ruling in Pennsylvania under

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Tooey v. AK Steele may change how workers pursue silicosis claims in some places, more

commonly, workers turn to other parts of the state to seek relief from lost wages, medical

expenses, and the wear and tear of disease on daily life when they are excluded from the

purview of workers’ compensation.

A harmed worker may seek remediation through different social services if they

meet the eligibility requirements for those programs.

Other social benefit systems—including Social Security retirement benefits,

Social Security Disability Insurance (SSDI), Medicare, and, most recently,

health care provided under the Affordable Care Act—have expanded our

social safety net, while the workers’ compensation safety net has been

shrinking. There is growing evidence that costs of workplace-related

disability are being transferred to other benefit programs, placing additional

strains on these programs at a time when they are already under

considerable stress (Utterback et. al, 2016, pp. 5-6).

The USDOL found that cost shifting is particularly pernicious in high hazard industries,

where employers pay relatively little for the large costs their injuries place on individuals.

Findings of cost shifting, and the burdens families bear when workers’ compensation is

insufficient or unattainable concur with recent journalistic investigations of workers’

compensation that have additionally found unethical outcomes in the ways that these

programs provide compensation (Hopkins, 2015; Grabell & Berkes, 2015). Workers do not

receive adequate funds for their injuries and are forced to find recognition from other parts

of the state or self-fund the costs of work’s harms to the body. This requires workers find

ways to make their illness “visible” to different social services depending on the nature of

the issue. Moreover, access to such funds has been the basis for the diminishment of second

injury funds which were developed after World War II and would have captured those

workers in less “traditional” work structures where diseases were the product of current

work and previous experience (USDOL, 2016, pp. 18-19).

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The programs to which costs are shifted are commonly grounded in different ideas

about how the state should intervene in “life.” This results in different benefit structures

and eligibility requirements. For example, Social Security Disability insurance is meant to

provide “partial income replacement to workers with significant work histories who

experience a severe disability that makes them unable to perform not only their past job

but any job in the national economy.” Workers’ compensation, by contrast, is for wages

and medical care specifically for to work-related ailments (USDOL, 2016, p. 30). Perhaps

more pernicious is that cost shifting moves costs to both individuals and families, but also

a social safety net program is largely paid for by contributions from payroll.

It is important to note that workers’ compensation costs are largely paid by

employers, with experience-rating to encourage employers to ensure

workplace safety. SSDI, on the other hand, is funded largely by payroll

contributions from nearly all workers and employers; contributions from the

current workers and employers – along with interest on the program’s

reserves and a small amount of revenue from income taxes on benefits –

fund the benefits of the current beneficiaries. (USDOL, 2016, p. 31).

Even as costs shift to other government programs, compensation and care of workers often

falls to individual workers and their families (Leigh & Marcin, 2012; Buffie & Baker,

2015; Hopkins, 2015). This cost-shifting is also a movement in the responsibilities for care

to the families of ill workers and workers themselves. As described in chapter 1, care and

responsibility help illustrate the relationality and networks through which social life

unfolds that cut across different levels of analysis. Here, it is not just that responsibility for

care is shifted to individuals but also that the shift occurs through the failure of the social

welfare system to adequately incorporate care and responsibility in its programs.

Workers’ compensation is a complex and bifurcated mechanism by which the State

sees injured workers, but it is not the only part of the state that measures, monitors, and

manages. The state sees through many programs using requirements that produce

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inclusions and exclusions based on the underlying rationale for the program, or the

requirements established to show harm through a lawsuit. In each instance, the state

evaluates individual claims on the State, even as it seeks to manage its population. Taken

as a whole, the system—rather than restoring bodies, populations, and economies—

provides insufficient compensation to workers while simultaneously reproducing

mechanisms by which employers can shift the cost, burdens and harm their economic

activities produce. A key concern for health geographers, many of these insufficiencies

stem from the use of space and time to exclude.

Conclusion

At the same time, we can see that care is badly needed in the public domain.

Welfare programs are an intrinsic part of what contemporary states with the

resources to do so provide, and no feminist should fail to acknowledge the

social responsibilities they reflect, however poorly… Almost all feminists

recognize that there should be much more social and public concern for

providing care than there now is in the United States, although it should be

provided in appropriate and empowering ways very different from those in

place. There should be greatly increased public concern for child care,

education, and health care, infused with the values of care. (Held, 2006, p.

69)

Insofar as workers’ compensation aims to produce a social insurance that provides

for injured and ill workers, the mechanisms by which it seeks to achieve those aims, and

the contradictions internal to those efforts, need further examination. Here, not only are the

workers’ compensation programs insufficient, they internalized exclusionary logics and

requirements that undermine the humanitarian dimensions of workers’ compensation’s

stated goals. This chapter has tried to understand how through its efforts to be both

humanitarian and cost-limiting, the state has sought to shift responsibility and care for

workplace illness to workers, their families, and other parts of the state.

By examining how the state defines ‘occupational’ it is possible to see how first

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particular ideas about bodies and configurations of workplaces, and second ideas about the

state’s responsibilities to minimize costs and provide humanitarian relief to workers, come

together under workers’ compensation statutes. The Occupational Safety and Health

Administration (OSHA) estimates that 2.5 million workers in the United States are

annually exposed to silica, and according to OSHA’s own analysis 30% of general industry

measurements exceed the older, more permissive PEL, and “19% exceeded it by 3 times

or greater” (OSHA, 2013). No national occupational disease registry exists to capture how

many individuals die of silicosis annually, and while its own analysis of death certificates

indicates that silicosis is declining, the CDC reports significant limitations in using these

data. Moreover, there are limitations when using workers’ compensation data due to

underreporting, lack of standardization, and the complexity introduced by contingent,

subcontracted, or non-traditional arrangements of labor (Foley, et al., 2014). Thus, there is

little definitive information to help illustrate the distributive impacts of silica exposures.

However, it is possible to illustrate how the procedures of filing a claim not only

contribute to this lack of data, but also themselves create injustices where certain kinds of

bodies are unable to make claims on the state. The governance of responsibility for health

is a spatiotemporal process, wrought by confusing, exclusive requirements, that further

silos long latency health concerns, reinforcing the adage “out of sight, out of mind”

discussed in Chapter 2. The workers’ compensation system reflects the responsibilities and

obligations of the State to take responsibility for its society and its economy. This involves

direct intervention by the State in the activities of employers, but also, workers.

Under workers’ compensation, the state affirmed that private economic activity

should be regulated for society’s benefit and that the state had the authority to intervene in

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this capacity. How this has occurred has varied widely from state to state and body to body.

Through workers’ compensation, the State purports to protects workers by providing the

framework by which, in most cases, an employer or their insurance company is made to

pay for a harmed employee. However, such paternalistic responsibilities conflict, as was

the case in Chapter 2. Workers’ compensation programs also encode the State’s obligations

to employers: to protect them from unnecessary claims and costly litigation. It does so by

producing exclusions based on space and time. The state alleges that it is possible to know

what is best and fair for workers and employers, yet the state does not meet its obligations

to provide for, protect, and reintegrate those who have been excluded by way of illness.

How the state defines workers ailments as occupational and hence compensable is

illustrated through the spatial and temporal restrictions the state imposes. Not only are

benefits often insufficient, but they also exclude portions of society based on the eligibility

requirements used to “see” workers and their ailments that do not account for the

manifestation of diseases, nor the geographic and temporal patterns of work and

employment that workers in high hazard industries, like hydraulic fracturing, may face.

While employers might be liable under certain conditions, the responsibility to act fall to

workers to show that their ailment is occupational. Moreover, workers bear the

responsibility for the way their disease progresses and the spatial and temporal patterns of

their industry, depending on the state(s) they have worked in and for how long; in some

instances, this burden removes employers’ liability, and shifts responsibility onto workers

to find remediation through other parts of the state.

The techniques make certain bodies visible and others not, often in ways that belie

the progression of occupational diseases and the dynamics of the labor process. Through

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the definition of occupational and specifications of diseases, programs have used

spatiotemporal parameters to limit compensable injuries and diseases, and individual

bodies. While fault is not the preeminent concern for compensability under workers’

compensation, the question of blame still lingers regarding whether a ‘workplace’ can be

seen to be at fault and if an employee can show that a disease is ‘occupational’ according

to the standards for that threshold set by the state. These limits make invisible workers in

industries that rely on itinerant labor, temporary workers, impermanent or mobile

worksites, and other labor practices where workers frequently move, change employers, or

are intermittently employed and exposed.

Taken as a whole, workers’ compensation, rather than restoring the flourishing of

bodies, populations, and economies, provides insufficient compensation to workers at the

same time it reproduces mechanisms by which employers can cost shift the burdens harms

from their economic activities produce. Indeed, workers’ compensation programs present

a form of social insurance that transfers risk back on to workers and on to other parts of

welfare state through other social insurances. As a matter of health governance, this

illustrates how responsibility for health is shaped by the exclusions produced by

governance structures, flexible employment, and spatial variability.

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5. Chapter 5: Conclusion: Mapping New Geographies of

Responsibility in Occupational Health

As first described in Chapter 1, responsibility is about relationships, defining

accountability, expectations, and caring activities among institutions, groups, and

individuals for past circumstances and future possibilities. In OSH, many of these

responsibilities emerge through the laws and regulations defined and enacted by the state.

Chapters 2, 3, and 4 have examined different regulatory mechanisms through which this

occurs, including rulemaking, inspections, and workers’ compensation. However,

responsibilities for OSH can be contextualized and implied by the state in subtler ways.

Such methods are reflected in recent changes to OSHA’s website for silica. In October

2017, OSHA updated its website on silica, coinciding with the first implementation dates

of its new silica rule. The old version of the website had used quotes, some from the

informal hearings during the silica rulemaking, that registered the embodied consequences

of silica exposure for working bodies (Figure 5.1):

“Take a straw about the diameter of a dime and try to draw air through that

straw. And as time progresses, shrink the diameter of the straw. And then

put a bag over your head, because you slowly suffocate.” Lanny Wade,

safety and health consultant

“We are people, just like anyone else, and we deserve to have good health

just like anybody else.” Jonas Mendoza, Construction Worker.

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Figure 5.1: Previous OSHA Website96

OSHA’s website had given voice to those who bore silica’s consequences, workers and

their families, not the most well-funded or the loudest. It had acknowledged the humanity

embedded within OSHA regulations, illustrating that there was something more behind the

highly technical and clinical language that comprises much of what constitutes its rules.

OSHA’s old silica website reflected its responsibility to protect workers.

The updated webpage substituted this narrative with one more accommodating of

OSHA’s responsibilities towards industry. The tacit ways silica impacts bodies and lives

are gone. The new website replaces this text with disembodied descriptions. It now states

that crystalline silica is abundant and that the respirable kind is smaller than the sand seen

at the beach or playground. More than once, the website stresses how small these particles

are. Now absent are statements such as “OSHA’s Final Rule to Protect Workers…” and

“Rule requires engineering controls to keep workers from breathing silica dust,” assertions

96 This image was generated using http://web.archive.org, a non-profit organization that records digital

traces on the internet.

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and provisions many industry lobbyists contested during the rulemaking process. Other

information has been moved elsewhere and stripped of its old packaging. Once prominent

text that reported that the rule would result in 600 lives saved, prevent 900 new cases of

silicosis, and have $7.7 billion in net annual benefits is buried deep within a FAQs page. It

is not that basic facts are now absent, but how the information is conveyed and prioritized.

The website’s changed language, new look, and logo (Figure 5.2) is an indication

of a different attitude towards OSH; one that looks far more sanitized and clinical, more

cooperative with industry’s positions. This is perhaps best exemplified by what OSHA

intimates about responsibility in its silica logo. It reads: “Control Silica Dust. Breathe

Easier.” The grammar suggests that those who breathe are also those who control dust; the

responsibility to protect falls to the worker doing the breathing. These frameworks are

consequential. While such a change does not immediately signal a change in laws and

regulations, it sets a different stage for their enactment, a different tone for the ways rules

and regulations will be weighed, and a shifted context through which OSH problems will

be identified and approached.

Figure 5.2: OSHA logo for silica hazards

OSH continues to be a contested concept about the responsibility for risk and

uncertainty of what happens to individuals at work. It summons debates about

individualism, freedom, and agency and to whom or to what the state is more responsible,

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industry or workers. Even as the state assures workers a right to a safe and healthful

workplace, the framework it uses to do so—that employers provide employees access to

safe workplaces—is not straightforward or fully realized, as is discussed in the empirical

chapters of the dissertation.

Health geographers have a long-standing concern regarding how individual

responsibilities for health and health risk are produced. It is not just that individuals are

made responsible for health risk; responsibilities persist and are reproduced at the

institutional level. This dissertation traced responsibilities, showing how, in particular, the

state’s concern for worker health is not absolute but emerges through the state’s

negotiations of responsibilities to different entities. It reexamined the relationships between

structural processes and bodies that shape human health. In OSH, the state has taken on

responsibilities to primarily two groups–workers and industry–whose interests do not

necessarily or often overlap. Occupational health provided this dissertation with a rich

context to trace responsibilities, as OSHA’s regulations ostensibly seek to rebalance

responsibilities for health risk but are also confounded by structural processes of work and

employment as exemplified by the hydraulic fracturing industry and its exposures to silica.

These institutional responsibilities have a complex relationship to the discourses of

responsibility associated with workers. The state’s efforts to distribute responsibilities are

entangled with, contradicted by, and reinforce discourses within OSH that stipulate

workers’ personal responsibilities often incentivized through sanctioned forms of caring.

Workers’ relationships to care valorize and reward the risks of oilfield work and

vulnerability to long-term disease. Workers are trained to protect and insulate their

coworkers from risk, ‘get home safe,’ but also produce energy for their nation and their

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employers. Despite laws and regulations to the contrary, OSH discourses shift

responsibility for health risk to individuals. Not only does this occur through institutional

processes, procedures, and their insufficiencies, it is reinforced though relationships to care

in OSH training and discourse. Here, in the absence of a realized state framework for OSH,

the oilfield paradoxically valorizes and rewards risky work at the same time it incentivizes

workers to be safe by caring for fellow workers and their families.

In the remainder of this chapter, I suggest new engagements for health geography

that stem from this research, review the findings of the empirical chapters, and offer future

directions for the dissertation regarding theory and policy.

New Directions: Health Geographies of Occupational Health and Responsibility

This dissertation illustrated the value of using occupational health as a lens to

understand the historically contingent web of structures, processes, and social norms

reproduced at the institutional and individual level that shape human health. Although both

qualitative and quantitative analyses within health geography have grappled with the

influence of place on bodies and bodies on place, its central focus has not often been on

occupational health. Occupational health provides an opportunity to think about the

relationships between human health and place, as it, by its nature, asserts a relationship

between them: it is health as produced by and through relationships between working

bodies and their workplaces. Occupational health offers a way to think through key

normative tensions surrounding what health and health risk mean, who is responsible for

health and health risk, and who has a right to health. The dissertation demonstrated that

health geographers have rich empirical opportunities to continue to conceptualize and

theorize health in new institutional contexts and through different OSH concerns.

Occupational health is not just about bodies and their workplaces but is mediated

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through institutional rules and regulations. It is a constellation of institutional structures,

socio-economic processes, and individual actions that seek to mitigate the risk and

uncertainty of the bodily outcomes of individuals at work. In the U.S., occupational health

is posited as a right to a particular workplace, the right to a context in which to make

‘healthy’ decisions. Such a framework, as shown through this dissertation, has significant

limitations as it continues to focus on individualized actions rooted in notions of rational

actors/workers, and embodies a concern for the health of industry as well.

Thus, occupational health is a constructed concept that expresses the relationships

between bodies and laboring in particular places, sustained through rules and regulations

that not only regulate individual bodies but also regulate industry and the state itself. The

responsibilities of the state are multiple, negotiated, and often contradictory. How these

institutional responsibilities are conceptualized and unfold through time have an impact on

human health and exposure to health risk. As discussed in Chapter 1, the concept of

responsibility has helped geographers to explore neoliberal processes particularly around

the management of risk (Bickerstaff, Simmons & Pidgeon, 2008; Mansfield, 2012a,

2012b). While these often focus on the production of individual responsibilities produced

through policies, discourse, and social norms, it is equally important to consider how

responsibilities are defined, shifted, and contested institutionally. Each of the empirical

chapters seeks to map the relationships that define and are defined by multiple institutional

responsibilities. Thus, this dissertation called on health geographers to think about the

nuances of the state and its interests in protecting human health by tracing relationships of

responsibility.

An Interest in Health?: Rethinking the State’s Responsibility for Occupational Health

Health geographers have opened the ‘black box’ of the body and have sought to

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complicate the environment and render it active in academic conceptions of health

(Guthman & Mansfield, 2013). From intersectional approaches to political ecologies of

health to a simultaneous emphasis on socio-natures of the environment and the body, health

geography has become a dynamic field that explores the complex relationship between

health and place despite persistent friction surrounding its methodological divisions and

theoretical pluralism. New foci on the liveliness of viruses and bacteria and their co-

dependencies on the body, and examinations of the environment that insist on its dynamism

within human and non-human health, have reshaped the scales and relations geographers

explore to more complex and more ephemeral processes (Guthman & Mansfield, 2013;

King & Crews, 2013; Jackson & Neely, 2015).

Health geographers have more domains through which to unpack the state’s

interests in human health, and how it is constituted through spatial practices and

assumptions, particularly by examining occupational health. Health geographers focus on

how health emerges through rationalities and techniques of power that encode self-

disciplining logics to facilitate the governance of populations. These produce a politics of

the body in how individuals should care for one another, and also how an individual should

be responsible towards and care for itself (Mansfield, 2012a, 2012b; Murphy, 2015). While

the actions of the state are problematized for reproducing homophobia, racism, and sexism,

rarely are the underlying commitments of the state seen as being competing, multiple, or

incompatible. Similar issues could be directed towards efforts within health geography to

understand the ways that the neoliberal state shifts responsibilities for care through logics

of self-care, and thus reinforces individual responsibility for health risk. Concerns for the

infusion of neoliberal thinking into health programs and policies do not go far enough to

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examine the commitments of the state to ‘industry’s’ health as well.

Chapter 2 and Chapter 4 considered how the ‘problem’ of workers’ health sits at

the intersection of the state’s competing commitments to its citizenry and their well-being,

but also the development of a flourishing economy. This dissertation took seriously the

idea that the state’s interest in human health is itself a product of complex institutional

processes that distribute, negotiate, and reify particular paradigms of responsibility. This is

important as health geographers engage in discussions surrounding the ‘right to health,’

within human rights frameworks (Carmalt & Faubion, 2010), wherein the focus turns to “a

broadly conceived set of elements required for humans to be as healthy as possible”

(Carmalt & Faubion, 2010, p. 298) but where the other interests the state has, which may

well compete with its interest in health, are under-examined. In summary, occupational

health offers health geographers empirical opportunities to richly engage and deepen many

of its theoretical interests in ways that have normative implications for how we

conceptualize human health.

Health for whom or for what?: Rethinking Health Responsibility as Multiple through

Rulemaking, Inspections, and Workers’ Compensation

In rethinking responsibility, I suggested not only a shift in focus from the individual

to the institutional, but I also emphasized a more complicated idea of what the concept

means as it manifests within institutional regulations and practices for health. This means

seeing responsibility of and for health and health risk as forward- and backward-looking,

and as mediated through discrete events and structural processes. Each chapter of the

dissertation took a distinct approach to thinking about responsibility by unpacking a

mechanism the state uses to regulate responsibility for OSH in the oilfield. In each case, it

is not just that the state distributes responsibilities, but how it distributes responsibilities

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for health risk and to what effect. I use a summary of the chapters of the dissertation to

identify future contributions of this framework for health geography.

Chapter 2 examined how responsibility is negotiated in participatory spaces of

rulemaking. The chapter found that not only is the state responsible towards the health of

both workers and industry but that its mechanism for writing new regulations and

negotiating its own responsibilities reproduce problematic ways of conceptualizing OSH.

Using the example of recent silica rulemaking, this chapter reframed how health geography

has engaged with the state by showing that the ways it regulates health risk reflect its

competing commitments. The governance of health risk is shaped by unresolved questions

about to whom OSHA has the greater responsibility, industry or workers.

In regulating occupational health, OSHA considers not only the health of workers

but also that of industry. The rules and regulations of rulemaking reflect how the neoliberal

state has reoriented relationships to risk and responsibility. The state has dueling

obligations to protect industry and workers, which it mediates through three tests of

significant risk and feasibility. OSHA bears the burden of meeting these tests, and OSHA’s

success or failure in doing so is the basis on which regulated and affected parties can contest

proposed regulations. These tests include concern for industry’s ability to implement new

regulations without threatening industry’s vitality in addition to concerns for human health.

Rulemaking allows for the personification of industry as a moral entity and as an entity

that has ‘health,’ an allowance which has consequences. In the arena of rulemaking,

industry is able to reproduce a narrative in which its own health is protected by individual

workers’ use of respirators, a narrative in keeping with broader trends within OSH in the

oilfield. Regulations would have shifted the burden of protection from workers themselves

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on to individual companies. Industry further utilized this platform of rulemaking to deny

its own responsibility for producing silicosis deaths and to suggest that its own vitality

precluded it from implementing measures to protect workers health.

The chapter also showed how health risk responsibilities are produced through the

discourses and practices of governance which reify and rely upon “rationalist” notions of

government action and individual bodies. Such a focus laid bare the ways that the

organization and practice of responsibility among actors demonstrates who and what is

valued (Walker, 2008). Under the premise of guaranteeing workers the right to a safe and

healthful workplace, rulemaking is the venue in which OSHA negotiates its responsibilities

to workers and to industry that have developed through a long history of vested interest

groups. In summary, Chapter 2 showed that the state’s interest in human health manifests

as complex, political negotiations that weigh competing truths about to which health,

workers’ or industry’s, it is most responsible. In so doing, it also showed the complexities

of seeing industry as able to make claims on the state for the protection of its own vitality,

offering new ways for health geographers to trace responsibilities for health risk.

Chapter 3 showed how conceptualizing industry as a unit capable of ‘responsibility’

has utility, however, when examining the enforcement of OSHA standards. OSHA

requirements utilize a model where OSHA is responsible for assuring that employers

provide a safe and healthful workplace. OSHA focuses on employers’ provisions of

contexts in which workers should be able to act healthfully. This does not guarantee

workers a healthful bodily state. OSHA finds employers responsible and liable for creating

unhealthful workplaces when OSHA discovers an employer has failed to meet OSHA’s

standards for what constitutes a safe and healthful workplace.

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Chapter 3 examined how responsibility-as-liability enacted through OSHA’s

enforcement of regulations holds individual companies responsible for creating unhealthful

working conditions measured by exposures at a certain place and time. This approach

requires a discrete overexposure to silica to ascribe a punitive outcome (an OSHA citation)

to an employer. The state’s conceptualization of responsibility, however, fails to

contextualize the emergence of health risk through structural patterns of work and

employment. It relies upon finding responsibility for risk in individualistic and isolated

instances, rather than by more broadly considering structural processes that themselves

confound OSHA’s enforcement policies. This is further problematic as OSH discourses

absolve industry of responsibility by locating responsibility within individual workers,

particularly by valorizing forms of care, that not only reinforce, but in some instances are

contradictory to, OSH goals. Thus, OSHA’s logics of enforcement overlook existing tools

that could help diminish oversights posed by subcontracting and fail to contextualize the

contexts in which OSH risk emerges.

The oilfield’s organization and operating locations provide the industry means to

absolve itself of responsibility for health risk because blame cannot be found. Specifically,

Chapter 3 drew upon interviews, participant observation, and analysis of OSHA inspection

records to illustrate barriers to inspections in the oilfield. These included not being able to

find well sites given their remote location, not being able to find hydraulic fracturing sites

while they were operating given the short duration of silica exposing activities, and the

complex factors that shape exposures including weather and equipment layouts. Thus,

Chapter 3 illustrated what health geographers could gain from exploring occupational

health more extensively, demonstrating how the subcontracted organization of the oilfield

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intersects with the underlying assumptions that guide how the state seeks to protect

workplaces from silica hazards. Structural conditions of hydraulic fracturing enable

hazardous working conditions and allow industry members to allude oversight by

distancing overseeing companies from the actual exposure, or by merely making it difficult

for the state to measure exposure. Young’s Social Connection Model (2008) reframed these

issues by providing language and critique to see industry as responsible towards structural

processes from which it profits.

By drawing on Young’s critique, Chapter 3 showed how OSHA’s model is

confounded by the flexibility of the hydraulic fracturing industry and the contexts in which

this flexibility unfolds. An organization of work that by design shifts responsibilities away

from larger companies, subcontracting has material consequences for the techniques used

to govern human health, including those that regulate hydraulic fracturing and silica

exposures. Indeed, inspections techniques and rationalities work to limit the state’s

authority to govern occupational health in part because of the limited ways OSHA

conceptualizes responsibility. In summary, Chapter 3 showed how OSHA’s framework for

workplace responsibility is insufficient as it leaves OSHA subject to the structural

dynamics that not only shape unhealthful workplace conditions but that also confound its

own enforcement efforts. This underscored the need within health geography to examine

the relationship between the geography of industry and the governance of health risk.

Finally, Chapter 4 explored the problematic ways that responsibility is enforced

through narratives of liability and blame by considering responsibility-without-fault in

workers’ compensation in the US. This chapter examined how the requirements for

workers’ compensation of occupational disease, and how these intersected with the

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spatiality of oilfield work. Ostensibly this social insurance shifts concerns about who

caused the disease off of workers by not requiring workers show who was at fault. Workers’

compensation nevertheless has developed such that workers bear this burden in multiple

ways. Specifically, using the hydraulic fracturing industry and silicosis as examples, the

chapter examined how responsibility for occupational disease is produced by the

exclusions encoded within workers’ compensation statutes, flexible employment and work,

and persistent underlying assumptions about the relationship between employers and

employees.

Workers’ compensation statutes burden workers with the responsibility for the way

their diseases progress and the spatial and temporal patterns of their industry. The state

paradoxically re-inscribes responsibility on individual workers through requirements that

“see” workers and their ailments under particular requirements. These often exclude the

latency of many diseases and are ignorant to the spatial patterns of work and employment

of many high hazard industries, including hydraulic fracturing. In some instances, where

worker’s compensation relief is inaccessible due to these restrictions, workers must find

remediation through other parts of the state and from their social networks. Such patterns

take on specific contours in the oilfield due to the spatiotemporal practices of the industry

but also are illustrative of concerns regarding workers’ compensation that apply to other

highly mobile industries.

Significantly, the definition of what constitutes a compensable illness uses time and

space as exclusionary measures for workers’ access to compensation. Employers may be

liable, but workers bear the responsibility to become sick in the right way. Workers’

compensation relies upon exclusions to this social insurance that belie the latency of many

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occupational diseases and patterns of flexible employment. This functions to shift

responsibility (and care work) onto workers and their families. The chapter showed the

significance of tracing the procedural requirements embedded within practices of OSH

responsibilities by the state. Even when the state seeks to assign responsibility without a

notion of fault, it continues to rely on definitions of causality that place responsibility back

onto workers.

The state uses a framework for responsibility that enrolls the state’s obligations to

employers: to protect them from unnecessary claims and costly litigation. Thus, due to the

state’s interests in not only being humanitarian, but also cost-reducing for industry, the

workers’ compensation system reproduces a form of fault-finding by another name —

occupational. Chapter 4 illustrated how finding an ailment ‘occupational’ means that

workers’ compensation eligibility is determined by a body’s physical and spatiotemporal

attributes such that ‘blame’ and ‘fault’ are re-inscribed in the system. The chapter showed

how the state’s responsibilities to minimize costs and offer workers humanitarian relief for

workplace illness manifest in the definitions of ‘occupational’ within these statutes.

In summary, Chapter 4 illustrated how, instead of achieving its stated goals

(restoring bodies, populations, and economies), workers’ compensation transfers risk and

operates as a mechanism that shifts the burdens of harms from economic activities back

onto workers. Importantly, this chapter used the example of silicosis claims and the

hydraulic fracturing industry to illustrate how health governance and responsibility for

health emerge through exclusions produced by governance structures, flexible

employment, and disease latency. While health geographers have shown the ways that

prevailing paradigms within the health and medical sciences shape institutional definitions

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of health, this chapter reveals how laws and regulations encode different concerns in their

framing of health through a focus on responsibility.

Together, these chapters illustrated how individuals and institutions are connected

through complex relationships of responsibility, often that center around protecting

‘health’– industry’s and workers’– from risk. Tracing multiple notions of responsibility

revealed how workers and OSH are connected to one another, through time and space, and

by policies and regulations that dictate relationships of responsibility This approach

highlighted how the state ideally structures responsibility for and towards health risk and

the processes the state uses to enact that distribution of responsibility. It showed how the

state’s efforts to ostensibly redistribute responsibility reproduce the individualistic notions

of responsibility that circulate through OSH, contributing to our understanding of the

processes that shape health governance, but also that influence health justice.

These insights helped ground the ways this dissertation unraveled the complexity

of health governance and its consequences. Health governance in this context flows from

ways that the state’s interest in worker health concedes concern and consideration for

industry health. The way the state defines responsibility decontextualizes the broader

structural processes that produce unsafe health exposures. This works to limit the state’s

own regulatory and enforcement efforts and reinforce longstanding discourses about

responsibility for occupational health risk. This system, through diverse channels,

inconsistencies, oversights, and powerful narratives, works to leave workers individually

responsible for occupational health risk.

Future Theoretical Engagements: Mapping Responsibility in OSH

While the dissertation examined the ways that tracing a reimagined responsibility

provides a new analytic lens for health geography, future engagements of this research

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could expand upon several themes in greater detail that would provide important synergies

with other parts of the discipline and the social sciences more broadly. For example, the

concept of uncertainty offers other directions for the study of OSH and responsibilities for

and towards health risk. Uncertainties abound in the OSH context, be they material (the

ability to measure an exposure (See Murphy, 2006)) or discursive (narratives of

unknowability in rulemaking (See Michaels, 2008)). Uncertainty underpins OSH in the

oilfield, as OSH policies and procedures seek to insulate workers and employers from the

unknown consequences of work be they physical, financial, clinical, or otherwise. This

would contribute to the growing interests within health geography surrounding the

production and circulation of uncertainty, particularly that research which seeks to

“account for why this uncertainty exists and how it is claimed, produced and reconstructed

by different interest groups across time and space” (Senanayake & King, 2017, p. 6).

A key component of this literature to date has focused on uncertainty– real,

‘manufactured,’ or intrinsic to science. The uncertainty of scientific knowledge, how it is

produced, managed, circulated, and given authority through particular populations, social

practices and culture, the state’s activities, and the scientific enterprise itself such that it

produces power relations and impacts social and science policy (Murphy 2006; Wagner &

Steinzor, 2006; Michaels, 2008; Zinn, 2008). This emphasis on how science claims are

produced to sustain and maintain particular power relationships and achieve particular

political ends could be used to more fully conceptualize ways that material and discursive

forms of uncertainty emerge in OSH in the oilfield. While uncertainty figures into the

‘science’ of regulatory activities, it has other dimensions. For example, Hall has recently

written on the relationship between temporary employment and the uncertain outcomes of

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injury reporting in influencing how workers deal with their injuries (Hall, 2016). Others

have written on the multiplicity of uncertainties and ‘unknowns’ and the ability of states to

capture or control them (O’Malley, 2004). The empirical contributions of this dissertation

could contribute a new dimension from which to examine OSH and uncertainty through a

particularly geographic lens by focusing on the multiple dimensions of the ‘uncertainty’ of

hydraulic fracturing’s flexible operations and how it influences the regulation of risk.

Another future direction of this dissertation would be a more thorough undertaking

of the relationship between OSH, the imaginaries of workers encoded with OSH policies

and regulations, and its relationship to regulating health risk through engagement with

feminist and critical scholarship. In many instances OSH has historically utilized an

imaginary of the ‘average’ white male body, a rational actor not in need of protection,

excluding bodies that are seen as more fragile and irrational through the ways they are

racialized or gendered (Sellers, 1997; Messing, 1998; Markowitz & Rosner, 2002; Murphy,

2006). Yet, simultaneously this white male body is rendered disposable; in the case of the

oilfield, for the ways ‘his’ labor reproduces the ‘nation’ and its geopolitical and

geoeconomic goals. Here, feminist health geography could provide useful insights to

understanding the relationships between health, gendered and racialized identities, and

OSH activities that much of the empirical discussion of OSH in the oilfield could also

contribute to. Men’s experiences of health are mediated through multiple negotiated

masculinities (Courtenay, 2000; Courtenay & Keeling, 2000; Thien & Del Casion, 2012),

and is a negotiation that may be influenced by the organization of a company’s safety

structure (Filteau, 2014). As health narratives often reify dominant narratives of individual

responsibility, so too do health narratives reinforce and privilege masculine, white,

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heterosexuality especially in science and policy surrounding health (Del Casino, 2007;

Brown, 2009; Sothern & Dyck, 2009; Brown & Knopp, 2010; Mansfield, 2012c).

OSH requires particular ideas of the self, of work, and of the population, as it relies

upon the multiple, and often contradictory strategies of self-monitoring, regulation and

direct intervention to shape workplace culture, space, and behavior. These processes are

significant to understanding the context of OSH for extractive industries which have

historically centered around and symbolized certain kinds of masculinity (Scott, 2010).

Future directions from this dissertation could connect how these ideas of the laboring self

and health are connected to and reproduced by the ways that the state regulates OSH

concerns. As OSH has often focused on the white, heterosexual man, its structures have

also produced and excluded those populations it views as marginal. Feminist geography

provides a lens into the reproduction of sexist and racialized power relations and provides

a framework for critically examining the role the state has in governing workers’ bodies

further. Thus, by drawing on the OSH imaginary of a worker, as mediated through

regulatory spaces, future research could more fully trace the justice implications at the

intersection of health, identity, and policy through a particularly feminist and geographic

lens. This would provide ways of further developing this dissertation’s engagement with

not only responsibility but also care. Questions of the relationship between care, gendered

processes, and gendered identities have been central to the theorizing of care and the

relationship of care and responsibility to feminist ethics and justice (Tronto, 1993; Held,

2006; Tronto, 2013).

The reduction of care to the private realm reserved for women, as something

below politics, has been challenged by feminist geographers inspired

particularly by the work of feminist political theorists who posit care as the

key to social accountability and responsible citizenship (see, for example,

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Tronto, 1993). (McEwan & Goodman, 2010, p. 104).

For Tronto (2013), the relationship between hegemonic masculinities and discourses of

‘tough guys’ not caring is significant a dimension to the reproduction of many of these

processes. With more attention to the ways the oil and gas industry, through OSH in

particular, requires care-at-work, and sanctions particular forms of care, the dissertation

could contribute a different lens on the ways that care both is used to reinforce, but also

undermine public/private distinctions and gendered social relations.

Much of this dissertation focused on the ways that the state has reoriented its

responsibilities to working individuals such that it achieves its aims to protect the economy

and its public. Still, the dissertation has not examined how individuals and populations

internalize the state’s logics in ways that are self-regulating and self-disciplining. This

could be a future direction for the research presented in this dissertation. Such a focus

would necessarily entail far greater attention to biopolitical forms of power within OSH

and could engage with feminist geographers who have sought to understand the

relationship between power/knowledge and the reproduction of oppressive institutions,

particularly patriarchy and capitalism, through prevailing forms of governance (Pykett,

2012). This research seeks to understand the politics of everyday life and have drawn upon

theorizations of biopower and discipline to understand how through direct rule, and self-

regulation, institutions, particularly the state and the family, coordinate social control

(Mills, 2011; Staeheli, 2013; Smith, 2016). As mentioned in the introduction, much of the

focus in health geography on responsibility has been looking at issues of

responsibilitization, particularly as individuals internalize logics about self-care and self-

management. Thus, the ideas about the self, and how much workers internalize them, are

key lingering questions. Such questions may also pose challenges to Young’s social

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connection model that need to be further considered.

With respect to the state, feminist geographers have also emphasized how the state

produces gendered, racialized and sexed bodies through state programs, policies, and law

(MacLeavy, 2007). The law acts to produce certain truths about bodies that produce and

maintain power relations and is also the mechanism by which it wields fear and shapes

understandings of the self. Critical and feminist scholarship could be further explored in

this dissertation through more engagement with the notion of public and private that has

driven much critical and feminist scholarship over the last three decades. As previously

mentioned, one dimension of this is the ways that care and responsibility work to reinforce

particular ideas about bodies in space. While health geographers have at times implicitly

and explicitly examined issues of public and private with regards to women’s health (Dyck

et al., 2001; Parr, 2004) and public health programs (Biehler, 2009), a more substantial

focus would help illustrate the reproduction of central liberal tensions that emerge through

governmental and biopolitical power over bodies and health. In particular, feminist

theorists and geographers, including Iris Marion Young, have focused on the ways that

public-private divisions restrict different groups from full participation in social life or as

citizens. For women, this is often rooted in notions of the home, and the maintenance of

patriarchal power. These scholars have shown how despite its rhetorical use as an

impermeable boundary, public and private are blurred in practice, where it suits particular

needs, particularly as it has allowed the state to reinstate its own patriarchal roles and

responsibilities.

Another approach to furthering the engagements of this dissertation would be to

more fully theorize the ways that the state’s rules and regulations self-regulate its own

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authority to reinforce notions of public and private. This is particularly evident in the ways

OSHA enforces regulations for OSH. Much like Cuomo has shown how domestic violence

response seeks to root out ‘bad’ male heads of household while re-articulating and re-

asserting the privacy of the home and the public/private divide (Cuomo, 2015), much could

be further explored about the ways inspections, for example seek to expose ‘bad’ industry

actors, while maintaining workplaces as a space relatively free of direct state oversight.

Such avenues would provide new ways of thinking about what health governance protects

and reproduces through the logics that inform its activities.

Indeed, such critical geographic and feminist analysis has provided clear examples

of the ways that law is mutually constitutive of space, both public and private, inclusionary

and exclusionary (Blomley and Bakken, 1992; Brickell & Cuomo, 2017). State logics and

laws thus mediate public and private, and individuals and industry, and binds workers and

employers to certain OSH responsibilities and conditions of employment. These are

particularly significant insofar as laws not only create and reproduce space and time, but

also embody particular assumptions about space and time, as has been seen in the examples

in this dissertation. Exploring the relationships between the co-constitution of law and

space can be further enhanced by studies of occupational health.

In summary, there are many theoretical opportunities for this research to expand

and to consider further. Deeper engagements with uncertainty, gender and identity,

biopolitics, and the production of public and private through conceptualizations of caring

responsibilities in OSH and the state’s laws and regulations could provide more insights

not only for geographers but also policymakers.

Future Policy Considerations for OSH: Shifting approaches to responsibility

This dissertation challenged the techniques and rationalities that underpin how the

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state approaches securing workers’ a right to a safe and healthful workplace. It highlighted

the problematic ways that OSH is framed by the state and reinforced through its procedures.

It also underscored practical concerns and considerations that policymakers could use to

help guide future decisions such that workers’ health receives the attention and weighting

that the ‘right to a safe and healthful workplace’ suggests.

First, Chapter 2 illustrated the ways that the state has not yet fully decided to whom

the state is more responsible, workers or industry. OSHA is burdened with showing ill

harm to workers from certain chemicals and no (or manageable) harm to industry. Practices

are deemed safe until shown otherwise. This approach to risk, one that displaces a

precautionary approach through, in particular, many Supreme Court interpretations (See

Chapter 2, also Vogel, 2012), automatically places industry in the privileged position.

Industry can expose workers until their practices are shown to be to be harmful to workers

and can use contestations over knowledge and scientific legitimacy to slow if not impede

regulatory change (Michaels, 2008). Policymakers can propose and implement policies and

future legislation that work to shift, if not reverse the approach within the US to

environmental and human health risks that has been reactionary rather than precautionary

(for some comparisons and suggestions, see Vogel (2012)’s discussion of the EU’s shifting

approach to regulation).

As shown in Chapter 2, rulemaking further reifies this permissive approach by

forcing OSHA to meet feasibility tests of its new rules. Changing requirements to make

industry members identify ways of being complaint with OSH regulations would be one

small step towards shifting these burdens. More significant change could include requiring

industry to show that the products and practices used have, or can be made to have, minimal

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risk. While such small change would itself be difficult given the political realities of the

federal government, they are goals to work towards for policymakers interested in

reweighing the state’s obligations.

Another approach stemming from the findings in Chapter 2 would be to utilize state

and local regulatory frameworks to change laws surrounding silica and other hazardous

substances. States with state-plan OSHA could implement and enforce stronger limits to

exposures to substances known to be hazardous; many localities also can regulate activities

in workplaces and could, for example, outlaw practices that expose workers to certain risks.

This is already a practice being pursued by many labor groups, but one that could be

expanded to include concerning activities in industries that are not formally represented by

organized labor.

Chapter 3 highlighted problems with the ways that the state enforces its regulations.

Laws and regulations can be strict, but lack consequence if they are not enforced. Chapter

3 elaborated on different ways that the hydraulic fracturing industry is able to allude

OSHA’s oversight, including the ways the flexibility and location of the industry impede

inspection efforts. Some of the most practical considerations from this chapter include

developing a database of where and when industrial practices are ongoing so that inspectors

have a better chance of finding worksites and monitoring the hazardous exposures of

concern. With respect to hydraulic fracturing, some states already require this kind of

reporting about oil and gas work practices. The construction industry also maintains a

database of this nature through a state university. OSHA could rely upon one of its many

training centers, or its voluntary partnerships with universities and industry to help

maintain these types of records and provide a centralized database that inspectors could

226

query.

Further, OSHA could more fully enforce its multi-employer policy, introduced in

Chapter 3, and expand its definition of a controlling employer, or the employers deemed

responsible for the conditions of work. This would allow OSHA to issue citations to more

industry members within the subcontracted structure responsible for producing hazardous

working conditions. The immediate employer would not be the only one cited for an

individual hazardous exposure. Instead, OSHA could trace responsibility back to the

overseeing contractors and operators. These recommendations would not undermine the

current system of subcontracting but would provide ways of closing some of the gaps in

oversight that emerge through the ways OSHA’s definition of responsibility for OSH risk

is enforced.

Chapter 4 detailed insufficiencies and exclusions central to the ways the state

navigates its humanitarian and cost limiting goals for workplace illness. These exclusions

should be removed to reflect the nature of occupational disease and the spatial mobility

and other realities of many industries. These changes to statute would need to be

accomplished on a state by state basis or through the implementation of a federal workers’

compensation system.

Moreover, the burden of proof in workers’ compensation still often rests with the

employee. Further changes could involve requiring employers or their insurance

companies to show that workers had not been exposed to hazardous substances that caused

the illness; employers are required to keep safety data sheets on all hazardous substances

in the workplace as well as implement programs to remediate concerning substances.

Employers thus could provide the data to show that workers were not exposed. Omissions

227

in data would require great forms of deceit to disprove a workers’ claim, were the

concerning substance present. This would also shift the reporting responsibilities,

somewhat, off of workers and on to the industries who benefited from their labor. Still,

these changes would not fundamentally reverse or fix the underlying and uneven

insufficiencies within the workers’ compensation system, of which more funding, complete

overhauls, if not an entirely new system, is likely required.

Finally, OSH training and materials themselves could be carefully reframed with

respect to silica and other hazards. Many models in the oilfield seek to reinforce and re-

inscribe workers as the most, and best, way to mitigate OSH concerns. Narratives that place

workers at the center of identifying and mitigating health risks, particularly from

substances that they do not have to be exposed to in the first place (there are alternatives to

silica, including ceramics and coated silica), underscore institutional processes that cause

workers to bear the burden of health risk. This is not to say that workers should not be

trained in how to keep themselves out of harm’s way. Workers should be made aware of

the risks of work and given tools to manage many of them. It would be hard to argue that

workers should not be taught how to avoid slips in wet circumstances, how to de-energize

power supplies, or how to use wetting methods when cleaning environments to reduce dust.

However, not all hazards need a worker to mitigate them. Many can be addressed through

engineering controls, substitutions, and administrative controls and workers should be

made aware of these control technologies, so, when at all feasible, workers have the

knowledge to request different solutions to hazards.

Behavioral models that place the burden on workers to mitigate and ‘take

responsibility’ for their health can also reinforce notions that workers’ exposures to the risk

228

were their fault in the first place. This ultimately shifts responsibility away from the

employers for whom, in many cases, these risks were produced as a consequence of their

industrial efforts. While training should offer methods for workers to keep themselves safe,

these should not reproduce the notion that workers themselves are responsible for the

hazards and their health consequences, nor should they reinforce discourses which valorize

and incentivize risk-taking.

In the same way, official discourses from OSHA could be reframed. OSHA could

use its language and role in producing knowledge about workplace safety and health to

better underscore different relationships of responsibility. As the introduction to this

chapter indicates, how OSH problems are framed shapes implicit messages about who is

responsible for OSH risk. OSHA could utilize understandings of OSH risk that make more

central its own commitments to worker health.

In summary, the analysis and findings of Chapters 2, 3, and 4 offer ways of thinking

about regulatory mechanisms through responsibility that can inform directions to take OSH

policy in the future. Although the suggestions above work within the existing frameworks

for OSH in the US, they do seek to change the tenor of the state’s approach towards

responsibility for OSH. This includes seeing responsibility more expansively so as to

include the subcontracted nature of many OSH risks, and moreover, shifting the burden of

who must show risk onto the industries and employers who produce them.

Conclusion

So think real hard, Joe, before you take that respirator off. Make sure you’re

in a safe area. We do our part here to try to make sure we provide a safe

work environment, but you gotta do your part too. (Lawhorn-Cryden, 2015).

Responsibilities for OSH emerge through complex frameworks that are set and

enacted by the state, but which are also shaped and furthered through industry’s narratives.

229

As manager Ted from the STEPS Silica Training Video explains to Joe in vocabulary that

echoes the state’s regulatory language, responsibilities lie with many parties. However, the

final, most immediate responsibility falls to workers even when that regulatory framework

distributes responsibility elsewhere. This occurs through complex negotiations of

responsibilities, not only of workers deciding whether or not to wear a respirator, but also

in the negotiations of responsibilities by the state. OSH both exceeds and is directed by

how the state views its responsibilities and implements those it imposes onto others.

Regulatory frameworks for OSH in the U.S. diffuse responsibility in problematic

ways. This dissertation used the context of the occupational exposures to silica in hydraulic

fracturing to call on health geographers to reexamine relationships among institutions and

individuals that influence human health. The dissertation has argued that tracing

responsibilities as they manifest at the institutional level can provide a new lens to examine

the governance of health risk. Responsibilities can be multiple but also distributed amongst

actors in ways that bear examination as they reproduce structures in which workers are

exposed to, and made responsible for, workplace hazards. For Young,

Part of the difficulty of seeing structures, moreover, is that we do not

experience particular institutions, particular material facts or particular rules

as themselves the source of constraint: the constraint occurs through the

joint action of individuals within institutions and given physical conditions

as they affect our possibilities. (Young, 2008, p.55).

By focusing on occupational health, health geographers have an opportunity to

conceptualize these processes through laws and regulations that stipulate a relationship

between workplaces and human health. These insights provide health geographers not only

new empirical and theoretical directions, but also tools to engage in and contribute to policy

discussions regarding how the state seeks to protect and provide for human health.

Responsibility for OSH unfolds through complex negotiations, frameworks,

230

discourses, and practices. The state’s interest in OSH is mediated through, often competing,

responsibilities to other entities. Thus, the provision and protection of the right to a safe

and healthful workplace is not simple or fully realized. As exemplified by the changes to

OSHA’s website, in the U.S., the underlying conceptions used by the state to articulate its

commitments to working people are ever more significant as the new administration seeks

to rebalance its responsibilities to workers and employers in both blunt and subtle ways.

231

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Alaska Stat. § 23.30.105 Time for Filing Claims.

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Ariz. Rev. Stat. § 23-901.02 Liability of Last Employer.

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Ariz. Rev. Stat. § 23-1061 Payment of Compensation

Ark. Code Ann. § 11-9-601 Compensation Generally

Ark. Code Ann. § 11-9-602 Workers' Compensation, Occupational Disease,

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Ark. Code Ann. § § 11-9-702(a)(2). Compensation Claims—Filing.

Cal. LAB. Code § 5500.5 Workers’ Compensation and Insurance, Compensation

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DC Code § 32-1510. Occupational disease.

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Idaho Code Ann. § 72-443 Workers’ Compensation and Related Laws, Period of

Exposure in Silicosis Cases.

Idaho Code Ann. § 72-445 Workers’ Compensation and Related Laws Compensation for

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Idaho Code Ann. §72-448 Workers’ Compensation and Related Laws Notice and

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820 Ill. Comp. State § 310/1 Workers’ Occupational Disease Act Citation of

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Ind. Code Ann. § 22-3-7-9 Worker's Occupational Diseases Compensation Definitions;

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Ind. Code § 22-3-7-10 Worker's Occupational Diseases Compensation Definitions,

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Ind. Code § 22-3-7-32. Worker's Occupational Diseases Compensation Notices

Ind. Code Ann. § 22-3-7-33 Worker's Occupational Diseases Compensation Exposure;

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Iowa Code §85A.8 Occupational Disease, Defined.

Iowa Code § 85A.12 Occupational Disease Compensation. Disablement or death

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Iowa Code 85A.13 Occupational Disease. Provisions relating to pneumoconiosis.

Iowa Code §85A.18 Occupational Disease, Notice of Disability.

Kan. Stat. Ann. § 44-5a01. Occupational diseases. Occupational diseases; treated as

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Kan. Stat. Ann. §44-5a09. Occupational diseases. Silicosis defined.

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compensation rights.

Kan. Stat. Ann. § 44-5a13. Occupational diseases. Compensation for death from silicosis

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Ky. Rev. Stat. Ann. §342.316.4. Workers’ Compensation Act. Liability of employer and

previous employers for occupational disease -- Claims procedure -- Time

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253

Me. Stat. tit.39-A 885 Pt A § 603. Occupational Disease Defined.

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Md. Lab & Emp Code § 9-101(2016) (b) Workers’ Compensation. Definitions.

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Md. Lab & Emp Code § 9-711. Workers’ Compensation. Claim application -

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Mass. Gen Laws ch. 152 § 26 Workers’ Compensation. Definitions.

Mass. Gen. Laws ch. 152 § 41 Workers’ Compensation. Notice of proceedings for

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Mass. Gen. Laws ch. 152 § 44. Workers’ Compensation. Notices.

Mich. Comp. Laws § 418.441 Workers’ Disability Compensation Act Claim for

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Minn. Stat. §176.151 Workers’ Compensation. Time Limitations.

Minn. Stat. §176.021 Workers’ Compensation. Occupational Disease

Miss. Code Ann. § 71-3-3 Workers’ Compensation Definitions

Miss. Code § 71-3-7. Workers’ Compensation General Provisions. Liability for payment

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Miss. Code § 71-3-35. Workers’ Compensation General Provisions. Limitation.

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Mo. Rev. Stat. § 287.020. Workers' Compensation Law Definitions

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Mo. Rev. Stat. § 287.420.1. Workers’ Compensation Law. Written notice of injury to be

given to employer--exceptions.

Mo. Rev. Stat. § 287.430.1. Workers’ Compensation Law. Limitation as to action,

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Mont. Code. Ann § 39-71-601. Workers’ Compensation. Statute of limitation on

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Mont. Code Ann. § 39-71-407. Workers’ Compensation. Liability of Employers.

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Mont. Code Ann. § 39-71-407(10). Workers’ Compensation.

Mont. Code Ann. § 39-71-713. Workers’ Compensation. Diminution of Compensation.

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254

Neb. Rev. Stat. § 48-137 Labor. Compensation claims; actions; statute of limitations;

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Nev. Rev. Stat. § 617.344. Occupational Diseases. Claim for compensation:

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Nev. Rev. Stat. § 617.010. Occupational Diseases

Nev. Rev. Stat. §617.140. Occupational Diseases “Silicosis” defined.

Nev. Rev. Stat. § 617.342. Occupational Diseases. Notice of Occupational Disease.

Nev. Rev. Stat. § 617.344. Claim for compensation: Requirements for diseased

employee, dependent or representative to file claim; form.

Nev. Rev. Stat. § 617.450. Occupational Diseases. Specific occupational diseases;

schedule.

Nev. Rev. Stat. § 617.460. Occupational Diseases. Silicosis and diseases related to

asbestos as occupational diseases; compensation and claims.

Nev. Rev. Stat. §617.470. Occupational Diseases Occupational diseases of respiratory

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N.H. Rev. Stat. Ann. § 281-A:16. Definitions

N.H. Rev. Stat. Ann. § 281-A:19. Workers’ Compensation. Notice of Injury.

N. J. Rev. Stat. § 34:15-34. Workers’ Compensation. Time for claiming compensation for

occupational disease.

N. J. Rev. Stat. § 34:15-31. “Compensable occupational disease” defined

N.M. Stat. Ann. 52-3-10. Employer liability for compensation; conditions when no

payment to be made.

N.M. Stat. Ann. §52-3-11. Last employer liable; exception.

N.M. Stat. Ann. §52-3-16. Claim to be filed for occupational disease benefits; effect of

failure to give required notice or to file claim within allowed time.

N.M. Stat. Ann. §52-3-32, Occupational diseases; proximate causation.

N.M. Stat. Ann. §52-3-33. Occupational diseases; definition.

N.M. Stat. Ann. §52-3-42. Limitation on filing of claims; rights barred unless timely

filed.

12 N.Y. CCR ch. V. § 2. Workers’ Compensation. Occupational disease.

12 N.Y. CCR ch. V. § 28. Workers’ Compensation. Limitation of right to compensation

12 N.Y. CCR ch. V. § 45. Workers’ Compensation. Notice to employers

N.C. Gen. Stat. § 97-58. Workers’ Compensation Act. Time limit for filing claims.

N.C. Gen. Stat. § 97-24. Right to compensation barred after two years; destruction of

records.

N.C. Gen. Stat.§ 97-22. Notice of accident to employer.

N.C. Gen. Stat. §97-58. Time for Filing Claims.

N.C. Gen. Stat. § 97-53. Occupational diseases enumerated; when due to exposure to

chemicals.

N.D. Cent. Code § 65.05.01 Claims and Compensation. Claims for benefits - When and

where filed.

N.D. Cent. Code, § 65-01-02. Compensable injury.

255

N.D.Cent..Cod § 65-05-01. Silicosis.

Ohio Rev. Code § 4123.01 Workers’ Compensation. Definitions.

Ohio Rev. Code § 4123.28 Workers’ Compensation. Record of injuries and occupational

diseases; reports.

Ohio Rev. Code. § 4123.68 Workers’ Compensation. Schedule of compensable

occupational diseases.

Ohio Rev. Code. § 4123.85 Workers’ Compensation. Claims for compensation or

benefits in cases of occupational diseases.

85A Okl. St§ 65. Occupational Disease.

85A Okl. St § 66. Asbestosis--Silicosis--Definition--Limitation on Compensation

85A Okl. St § 69. Statute of Limitations--Initial Claim--Claim for Additional

Compensation--Failure to File—Exception.

Or. Rev. Stat. § 656.802 Occupational Disease Law. Occupational disease.

Or. Rev. Stat. § 656.807 Occupational Disease Law. Time for filing of claims for

occupational disease.

77 Pa. Stat. § 27.1. Occupational diseases; definitions.

77 Pa. Stat. § 412. Workers’ Compensation Act Liability and Compensation

Compensation for silicosis, anthraco-silicosis, coal worker's pneumoconiosis, or

asbestosis.

77 Pa. Stat. § 602. Claims for Compensation.

R.I. Gen. Laws § 28-34-1. Workers’ Compensation. Definitions.

R.I. Gen. Laws § 28-34-2 Workers' Compensation – Occupational Diseases.

Occupational diseases listed – Treatment as compensable injury.

R.I. Gen. Laws § 28-34-4 Workers' Compensation – Occupational Diseases Relationship

of disease to employment – Time of bringing suit.

R.I. Gen. Laws § 28-34-9. Workers' Compensation. Notice to employer of claim.

R.I. Gen. Laws §28-35-57. Workers' Compensation. Limitations of claims.

S.C. Code § 42-11-10. Workers' Compensation. “Occupational disease” defined.

S.C. Code § 42-11-20. Workers' Compensation. “Disablement” and “disability” defined.

S.C. Code § 42-15-40. Workers' Compensation. Time for filing claim; filing by registered

mail.

S.C. Code § 42-11-60. Workers' Compensation. Requirements for compensation for

pulmonary diseases.

S.C. Code § 42-11-70. Workers' Compensation. Time in which disease must have been

contracted.

S.D. Codified Law § 62-8-1. Definition of terms.

S.D. Codified Law § 62-8-4. Right to compensation -- Applicability of workers'

compensation law.

S.D. Codified Law § 62-8-11. Occupational Disease Disability. Filing time to qualify for

disability or death compensation.

256

S.D. Codified Law § 62-8-14. Occupational Disease Disability Silicosis cases--Period of

exposure.

Tenn. Code Ann § 50-6-301. Workers’ Compensation Law. Occupational diseases

defined.

Tenn. Code Ann § 50-6-302. Retroactivity -- Coal worker’s pneumoconiosis, effect of

federal law.

Tenn. Code Ann § 50-6-303. Compensation and benefits.

Tenn. Code Ann § 50-6-305. Workers’ Compensation Law. Notice of contraction of

disease and claim for compensation.

Tenn. Code Ann § 50-6-306. Workers’ Compensation Law. Statute of limitations

Tex. LAB Code § 409.001. Workers’ Compensation Act; Notice of Injury to Employer.

Claim for Compensation. Occupational disease.

Utah LAB Code §34A-3-103. Occupational Disease Act.

Utah LAB Code §34A-3-109. Utah Occupational Disease Act. Limitations -- Rights

barred if not filed within limits -- Burden of proof.

Vt. Stat. Ann. tit. 21, § 601. Definitions.

Vt. Stat. Ann. tit.3 § 656. Notice of injury and claim for compensation.

Vt. Stat. Ann. tit.3 §1700. Vermont Workers’ Compensation and Occupational Disease

Rules. Statute of limitations.

Vt. Stat. Ann. tit.3 §1800. Vermont Workers’ Compensation and Occupational Disease

Rules. Occupational disease claims.

Va. Code Ann. §65.2-405. Workers’ Compensation. Notice to be given.

Va. Code Ann § 65.2-400. Workers’ Compensation. Occupational disease defined.

Va. Code Ann. §65.2-405. Workers’ Compensation. Notice to be given.

Va. Code Ann § 65.2-406. Workers’ Compensation. Limitation upon claim; diseases

covered by limitation.

Rev Wash. Code § 51.08.140. Occupational disease.

Rev Wash. Code § 51.28.055. Industrial Insurance. Time limitation for filing claim for

occupational disease—Notice—Hearing loss claims—Rules.

W. Va. Code § 23-4-1. Workers’ Compensation. To whom compensation fund disbursed;

occupational pneumoconiosis and other occupational diseases included in “injury”

and “personal injury”; definition of occupational pneumoconiosis and other

occupational diseases; rebuttable presumption for cardiovascular injury and

disease or pulmonary disease for firefighters.

W. Va. Code § 23-4-15. Workers’ Compensation. Application for benefits.

Wis. Stat. §102.12. Workers’ Compensation. Notice of injury, exception.

Wis. Stat. §§102.17. Workers’ Compensation. Statute of Limitations.

Wyo. Stat. §27-14-503. Workers’ Compensation. Statute of Limitations.

VITA

Arielle Leah Hesse

EDUCATION

2018 Ph.D. Geography, The Pennsylvania State University, University Park, PA

Minor: Women’s Studies

2011 M.Sc Geographical Sciences: Society and Space, University of Bristol, UK

2010 B.A. The Pennsylvania State University, University Park, PA

Major, Geography, with Honors, French and Francophone Studies, Jewish

Studies, Minor: English

RELATED PUBLICATIONS AND REPORTS

2017 Hesse, A. Governance at the intersection of health and energy, in Handbook on

Geographies of Energy, eds. B. Solomon and K. Calvert. Edward Elgar.

2016 Hesse, A., Kelsey, T., Pohlman, M. Economic Changes in Pennsylvania

within the Context of Marcellus Shale Development. Marcellus Shale Impacts

Study Wave 2. Center for Rural Pennsylvania.

2016 Brasier, K. Chandler, R. Glenna, L., Hesse, A., Kelsey, T., Monnat, S.,

Perchinski, J., Schafft, K., and Suchyta, M. 2016. Marcellus Shale Impacts Study

Wave 2: Chronicling Social and Economic Change in Southwest Pennsylvania.

Final Report to the Center for Rural PA

2016 Monnat, S. M., Ely, D., Suchyta, M., Chandler, R.F., and Hesse, A. 2016. Health

Insurance Coverage, Health Care Utilization, and Health Outcomes within the

Context of Marcellus Shale Development. The Marcellus Shale Impacts Study,

Wave 2. Center for Rural PA.

2016 Hesse, A. Baka, J., and Calvert, K. 2016. Enclosure and Exclusion within

Emerging Forms of Energy Resource Extraction: Shale Fuels and Biofuels, in

Palgrave Handbook of the International Political Economy of Energy, eds. T. Van

de Graaf and B. Sovacool.

2011 Andrews, E. and Hesse, A. 2011. Draft Technical Report prepared for the US

National Climate Assessment Case Study: Marcellus Shale: Impacts and

Intersections with Climate Change. Prepared for Climate Change in the Northeast.

SELECTED RESEARCH GRANTS & AWARDS

2014 National Science Foundation Doctoral Dissertation Improvement Grant

2012 Honorable Mention, National Science Foundation Graduate Research Fellowship

2011 Anne C. Wilson Graduate Student Award, Penn State

2010 John W. White Graduate Fellowship: Penn State Faculty Senate

RELATED RESEARCH

Research Asst, Penn State; Evidence in US Hydraulic Fracturing Rulemaking

Research Asst, Penn State; Impact of Model Policy: Analysis of State Fluid Disclosure

Laws for Hydraulic Fracturing

Research Asst, Penn State; The Marcellus Shale Impacts Study: Chronicling Social and

Economic Change in Southwest PA