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New Silica Standard is Not Being Trumped

Last year, I talked about the new silica standard that could require major engineering changes in the hydraulic fracturing industry. Recently, several clients have asked me if it’s true, that they no longer have to worry about the silica standard, now that Trump has been elected. Alas, rumors of the death of the silica regulation have been greatly exaggerated.

While a new administration may be able to “freeze” regulations that were still pending when they came into power, the silica regulation is an existing regulation that could only be undone through a laborious notice and comment period — almost identical to the process of how it was put into place initially. The president cannot simply issue an executive order rescinding an existing regulation.

What may have contributed to the rumors of the silica standard’s demise was OSHA’s recent announcement that it was going to delay enforcement of the standard that applies to the construction industry until September 23, 2017, instead of June 23, 2017, because it determined that some additional guidance was necessary because of the unique nature of that industry. In its notice, however, OSHA was clear that employers need to continue to prepare to implement the standard’s requirements. Employers in the fracking industry will be required to begin complying with some of the obligations of the new standard on June 23, 2018, and should expect to implement engineering controls by June 23, 2021.

At this time, the only thing that could possibly interfere with the silica regulations is the United States Court of Appeals for the District of Columbia, which has been considering a challenge from industry groups. One sign that the court may not be inclined to side with the challengers was its recent denial of the industry group’s motion for the court to delay the case for 60 days in order to give the Trump administration time to decide if OSHA will continue to defend the rule. Given that OSHA engaged in a review of a comprehensive record during the rulemaking, and subsequently defended its factual determinations to the court, it seems unlikely that the administration would want to recant its prior positions in a proceeding before the second most important court in the country.

As I stated last year, I think employers would be wise to assume that the silica regulations are here to stay. But even if I am wrong, I believe that employers would still benefit if they began looking at their workplaces today and explored ways to reduce 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.