Proposed OSHA Rule On Silica Exposure Could Have Significant Impact On Fracking Industry

“’Exposure to silica can be deadly, and limiting that exposure is essential,’ said Dr. David Michaels, assistant secretary of labor for occupational safety and health. ‘Every year, exposed workers not only lose their ability to work, but also to breathe. This proposal is expected to prevent thousands of deaths from silicosis—an incurable and progressive disease—as well as lung cancer, other respiratory diseases and kidney disease.’” (BakerHostetler)

Late last month, the Occupational Safety and Health Administration (OSHA) announced a proposed new rule to curb employee exposure to crystalline silica, which according to the agency creates an elevated risk of lung cancer, silicosis, and other diseases.

The new standards will apply across all industries that use stone and sand products, including glass manufacturing, foundries, and sand blasting, but could have a particularly significant impact on fracking operators. From law firm King & Spalding:

“If adopted, the new rule would also increase the risk of litigation of companies engaged in fracking for claims by employees of the company and of contractors alleging injury from exposure to silica.”

For your reference, here’s a roundup of commentary and analysis on the proposed new rule:

New Rule Proposed By OSHA Regarding Silica Exposure Likely To Impact Fracking And Increase Risk Of Litigation (King & Spalding):

“The permissible exposure levels under the new rule would be cut 50 percent, from 100 micrograms a cubic meter of air to 50 micrograms. According to OSHA, it currently enforces 40-year-old permissible exposure limits for silica that are outdated and do not adequately protect worker health. OSHA estimates that the proposed rule would result in saving nearly 700 lives per year and prevent 1,600 new cases of silicosis annually.” Read on>>

OSHA Will Issue A Rule on Crystalline Silica (BakerHostetler):

“The proposal is based on extensive review of scientific and technical evidence, consideration of current industry consensus standards and outreach by OSHA to stakeholders, including public stakeholder meetings, conferences and meetings with employer and employee organizations.” Read on>>

OSHA Finally Releases Proposed New Rule on Silica Exposure (Ogletree, Deakins, Nash, Smoak & Stewart, P.C.):

“How a typical employer implements this new program—with exposure assessment, samplings, lab results, medical exams—at or under OSHA’s estimated cost of $1,242 per year is difficult to envision. Certain components of the proposed rule may be perhaps economically infeasible, especially for small companies. Many stakeholders have already noted that there is a scarcity of accredited laboratories, raising concerns over technological feasibility.” Read on>>

OSHA Proposes Silica Rule Affecting Fracking Workers (Stoel Rives LLP):

“At fracking sites, silica sand is delivered by truck and typically transported by conveyor belt before it is blended with other fluids and injected into the well. The resulting exposure of silica dust from these operations was recently identified by National Institute for Occupational Safety and Health (NIOSH) as a hazard for workers involved in fracking operations.” Read on>>

Be Aware of OSHA’s New Proposed Rule on Silica (Baker, Donelson, Bearman, Caldwell & Berkowitz, PC):

“Because OSHA has been intently scrutinizing the oil and gas industry and silica is often used in the fracking process, it is very important that the industry as a whole pay attention to this proposed rule. Many opponents of the rule have concerns about the technological feasibility of complying with the proposed rule, especially since the rule is going to require engineering controls primarily to reduce silica exposure rather than relying upon respirators to protect workers.” Read on>>

OSHA Proposes New Silica Dust Standard (McDermott Will & Emery):

“To reduce worker exposure to or below the reduced PEL, the proposed rule would require implementing engineering and work practice controls, including exposure assessments and monitoring, establishment of regulated areas or controlled access areas, respiratory protection programs, employee training and information, and medical surveillance of employees over-exposed for 30 or more days annually.” Read on>>

OSHA Seeks Comments On New Proposed Standards For Control Of Workplace Exposure To Crystalline Silica (Pepper Hamilton LLP):

“The rules are expected to be published soon in the Federal Register, and the regulated community will have 90 days to submit comments – although it appears that the long-awaited rulemaking could drag on for some time to come, as the proposal by OSHA invites the public to not only submit comments but to propose other alternatives to those contemplated by the agency.” Read on>>

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