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Silica in the Fracking Industry: It’s Not Just Your Contractor’s Problem

While many refineries, chemical plants and manufacturing facilities rely on contractors to do some tasks, at most of these types of facilities, the operator’s employees usually outnumber the contractors. These companies know that they have a legal responsibility to address hazards in the workplace and comply with OSHA standards.

In the hydraulic fracturing business, however, it is not unusual for most of the work to be done by employees of contractors as opposed operators. I have been reminded of this several times in recent months when talking about OSHA’s new silica standard and the requirement that fracking operations provide engineering controls to limit exposures by June 23, 2021. I continue to be asked: “Do I really need to worry about this standard if my employees will not be exposed to silica?”

Putting aside the civil liability issues of adopting an “ostrich” perspective with respect to the exposure of contractor employees to hazardous conditions while drilling wells, OSHA may cite an operator even if its own employees were not exposed to the hazard. General supervisory authority over the worksite and the power to correct, and require correction of, safety and health violations may be all that is needed to support such citations. This has long been the law in most of the country and, now is the law everywhere — including Texas — as a result of the Fifth Circuit’s recent decision discussed here.

Of course, no company wants to have to micromanage its contractors, nor should they. However, in evaluating who to cite for not complying with the silica standard, OSHA might be persuaded not to cite an operator — and to only cite a contractor — if that the operator can demonstrate (either with a contract or other written documentation) that there was a clear expectation that the contractors were expected to maintain the worksite in compliance with the standard. I have even seen some operators incorporate explicit silica standard compliance requirements into contracts (e.g., “You will establish and implement a written exposure control plan that identifies tasks that involve exposure and methods used to protect workers; You will offer medical exams, including chest X-rays and lung function tests, every three years for workers exposed at or above the action level for 30 or more days per year;, etc.”), so that there is no doubt that the operator took these things seriously and expected its contractors to comply.

And even if your own employees are only occasionally on site, they should be trained never to ignore a safety hazard. If an employee of a contractor that you have hired is not wearing appropriate respiratory gear while being exposed to silica dust, your employee should report it immediately to the contractor’s supervisor. If the contractor has not installed the required warning signs to show the existence of silica exposure, your employees should ask why. While the contractor should be responsible for complying with the regulations, if it is pretty clear that they are not, the operator is just as likely to get cited by OSHA unless it can show that it was diligent in overseeing its contractors.

While contractors may be primarily responsible for safety, the operator bears responsibility to the extent that the operator selected the contractor in the first place. When engaging contractors, operators should vet their safety record and compliance with OSHA standards. The contractor that is the lowest bidder could end up costing you much more if it is a company that gives short shrift to worker safety. On the other hand, a robust contractor vesting process could be a good defense against an OSHA citation issued to the general operator.

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.