Recent Local Law Shows that the Law’s Understanding of Blasting is not Improving

In 2003, I published an article in The Journal of Explosives Engineering entitled “The Laws Governing Blasting,” in which I explained that, despite the fact that blasting is the most widely used method for rock removal on construction projects, court decisions pertaining to blasting damage claims often wrongfully hold blasters liable for alleged damage their blasting could not have possibly caused. As my article explains, these decisions reach the wrong conclusion because of a general misunderstanding of the science governing blasting. By citing technical and legal sources, the article demonstrates that courts often ignore scientific evidence in favor of lay testimony that the blasting caused damage because cracks were noticed after the building shook. However, years of research by the United States Bureau of Mines (“USBM”) demonstrates that such anecdotal evidence is not reliable or accurate.

A fundamental principle from the USBM research stated in USBM Bulletin 8507 is that blast generated vibrations that are measured at the nearest structure at less than 2 inches per second at 40 Hz are not likely to cause damage to typical residential construction. (For a full discussion of the scientific information pertaining to the USBM research, see my earlier article). Based upon the USBM research, a plaintiff’s statement that I felt my house shake and then I noticed cracks should not be considered sufficient evidence for the plaintiff to meet its burden of proof. Yet, as explained in my prior article, numerous cases from all jurisdictions have held that such testimony from laymen is sufficient evidence to uphold a jury verdict. However, these statements of “fact” are nothing more than circumstantial evidence that the plaintiff’s property was damaged by the defendant’s blasting.

While circumstantial evidence is certainly admissible, more should be required in blasting cases. The general rule that the plaintiff must produce expert testimony to meet the burden of production in cases where the issue to be resolved requires specialized knowledge should be applied in blasting cases. The laws governing blasting have failed to evolve along with the technological improvements in explosives and the advances in scientific knowledge pertaining to the effects of blasting. The construction applications of blasting began over a century ago and, at that time, blasting developed a reputation and a legal classification as an abnormally dangerous activity that may have been deserved but no longer applies today. As I argued in 2003, the law needs to advance to reflect the state of the modern explosives industry. Nonetheless, things appear to be getting worse instead of better for the blasting industry.

On June 22, 2015, a local law went into effect in Albany County, NY that, among other things, requires a blaster to offer testing of private drinking water supplies within a one mile radius of the proposed blasting. See Local Law 3 for 2015, Albany, NY. Said testing is to take place during a 60 day notice period. Id. Thus, this new law is costly, overly burdensome, and unnecessary.

First, blast generated vibrations are the strongest at the point of detonation and weaken the further the blast wave travels. In order to be at a level that could damage a well at a distance of one mile from the blast site, the blast energy at the nearest structures would have to be at dangerously high levels. Such levels are not likely to be achieved, however, because most of the blast energy is used to fracture the rock at the site and it is only the “waste energy” that is available to affect offsite structures. Thus, requiring well testing at a distance of one mile is a needless expense.

Second, it is not always clear when blasting will be necessary on a construction project. Requiring a 60 day notice period may substantially delay new development. Such delays are costly to contractors and project owners. Not to mention, a contractor’s failure to meet a contract completion date because of this new law may result in more litigation. In today’s economy, there is no need to further burden new development.

Third, such a notice requirement is likely to make local property owners nervous. Because of the perceived dangers associated with blasting, the general public is already more concerned about blasting than is warranted. Receiving a notice such as the one required by the new local law is likely to increase such anxiety and make development more difficult due to public opposition.

In short, the blasting industry needs a public relations campaign to educate lawmakers and the general public. In the interim, if you are a blaster that is accused of causing property damage, please give me a call. I’m an attorney who is also a licensed Professional Engineer with experience in the blasting industry. In addition to understanding the science and the laws governing blasting, I can explain it in a way that may allow you to avoid unwarranted liability.

Scott Orenstein
(860) 760-3317

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