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Industry Groups Anguish Over New Silica Standard That Could Require Major Engineering Changes in the Hydraulic Fracturing Industry

It didn’t take long for industry groups to file legal challenges (in the Fifth and Eleventh Circuits) to OSHA’s new silica standards. Whether the courts will find that OSHA ignored evidence of technological and economic infeasibility that was presented during the rulemaking process or simply conclude that OSHA is owed deference with respect to these standards is hard to predict. Based on recent deference decisions in the courts, I am inclined to predict that the rules will be upheld. While there is no question in my mind that OSHA grossly underestimated the costs of complying with its new standards, much of the scientific evidence and analysis in the 600-plus pages of the final rule was compelling to this reader. This is a big issue: Approximately 2.3 million employees are exposed to crystalline silica dust at work, including those engaged in hydraulic fracturing, where crystalline silica is often a component of fluids used to stimulate well production of oil or natural gas. Few disagree that exposure to silica dust can cause serious illnesses, including lung cancer. For an industry that has been attacked almost daily by one or more of the presidential candidates, one has to wonder whether the correct response here is litigation or better engineering.

So what is the new standard? For more than 40 years, the permissible exposure limits (PEL) for silica has been 100 micrograms of respirable crystalline silica per cubic meter of air for general industry, and 250 micrograms for the construction industry. Under the new regulations, which go into effect on June 23, 2016, the PEL will drop to 50 micrograms per cubic meter for all industries. The new regulations will also require employers to use engineering controls and work practices as the primary methods to limit exposures below the PEL; employers cannot simply rely on respirators. Employers will also be required to assess the exposure of each employee who is or may be reasonably exposed to respirable crystalline silica above 25 micrograms per cubic meter. Employers will be required to provide medical examinations available at no cost to any employees who will be occupationally exposed (i.e., exposed to greater than 25 micrograms for 30 or more days a year), including an initial baseline medical examination and periodic follow-up examinations. Results of those examinations will be provided directly to the employee, not the employer. The new regulations also include requirements for hazard communication, training, air monitoring, recordkeeping, and provision of written control plans.

While the regulation goes into effect on June 23, 2016, employers will only have to begin complying with some the obligations of the standard on June 23, 2018. Because controls for respirable crystalline silica in hydraulic fracturing are still in development, the rule allows additional time – until June 23, 2021 – for those employers to implement engineering controls to limit exposure, and will be able to allow employees to use respirators between June 23, 2018 and June 23, 2021, when exposures exceed the PEL. Given these timelines, some employers may choose to wait on the legal challenges to be resolved. My own view is that waiting would be unwise, given my earlier prediction that the Secretary of Labor will ultimately win this one. However, even if I am wrong and the new standard is invalidated, I believe that employers would still benefit if they began looking at their workplaces today and explored ways to reduce employee exposure to silica dust.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.