New OSHA regulations for hydraulic fracturing

On March 25, 2016, the Occupational Safety and Health Administration ("OSHA") published final regulations on reducing employee exposure to respirable crystalline silica ("RCS"). Under the new regulations, employers in the hydraulic fracturing industry must assess and confirm that employee exposure to RCS will not exceed a permissible exposure limit ("PEL") of 50 micrograms per cubic meter of air (50 μg/m3) as an 8-hour time-weighted average. The new regulations become effective on June 23, 2016 and employers in the hydraulic fracturing industry must generally comply with the regulations by June 23, 2021.1

General compliance requirements

The new regulations apply to all employers with employees exposed to RCS above 25 μg/m3 under any foreseeable conditions.2 There are no exceptions for small or mid-size businesses under OSHA's new regulations. The new 50 μg/m3 PEL is half of the current 100 μg/m3 PEL from prior regulations but twice as permitting as the 25 μg/m3 PEL previously proposed by OSHA. Although OSHA does not regulate RCS created by self-employed workers, employers are nonetheless required to protect their own employees from RCS exposure on the worksite.

In addition to the 50 μg/m3 PEL, employers must:

• Perform regular worksite exposure assessments with stringent laboratory analysis requirements;
• Demarcate and restrict access to "regulated areas" where RCS exposure may exceed the PEL;
• Provide adequate respiratory protection for employees when RCS exposure may exceed the PEL;
• Establish a respiratory protection program that is administered by a trained program administrator;
• Offer cost-free continual medical surveillance for employees;
• Implement a hazard communication program that notifies employees of the dangers of RCS and the location of regulated areas and provides employee education that ensures employees can demonstrate knowledge of the risks of RCS exposure, the new regulations, and their rights under the regulations;
• Follow specific housekeeping limitations to limit secondary exposure to RCS; and
• Institute a written exposure control plan.

The new regulations do not require specific engineering controls for limiting RCS exposure in the hydraulic fracturing industry. OSHA recognizes that engineering controls have not been widely implemented at hydraulic fracturing sites and it has no record of individual personal breathing zone results for specific exposure controls. OSHA has cited prior efforts to control RCS that it believes demonstrate "promise" for mitigating RCS. OSHA has also identified engineering controls that it believes are "on the horizon."

Examples of potential engineering controls identified by OSHA include:

• Ventilation systems designed to control dust emission from sand movers, conveyors, and blender hoppers;
• Road dust controls that purportedly reduce dust emissions by 40 to 95 percent;
• Water misting systems to address partially-enclosed conveyors and blender hoppers that purportedly reduce dust emissions by more than half;
• "Mini-bag" housing for equipment and filtered booths for sand operators that purportedly reduce exposure to respirable dust by about half;
• Bulk shipping containers that remove the need for sand movers;
• Reductions in "drop height" at transfer points and hoppers; and
• Modifying proppants, potentially with dust suppressants.

Because of the limitations with current technology, OSHA has extended the PEL compliance deadline to June 23, 2021 for the hydraulic fracturing industry.

Exposure assessments and regulated areas

Employers in the hydraulic fracturing industry must assess employee exposure to RCS at or above the action level of 25 μg/m3 in accordance with stringent laboratory sample analysis parameters.

Assessments must be performed on each employee or through scheduled monitoring of sample areas that are expected to have the highest incidence of RCS. Employees are entitled to the results of exposure assessments within 15 working days after completion and employers must allow employees or their representatives to observe the employer's exposure assessments. Employers must also provide employees written notice of corrective actions anytime an assessment indicates exposure levels above the PEL.

Employers must demarcate and restrict access to "regulated areas" where exposure assessments indicate RCS may exceed the PEL. The only people authorized to enter a regulated area are employees that are required to be present for their work duties, employees or an employee's representative accessing the regulated area to observe the employer's RSC assessment procedures, and agents of OSHA. Employers must provide and require authorized persons to use respirators in regulated areas.

Respiratory protection

When respiratory protection is required, the new regulations require employers to comply with the respiratory protection requirements of 29 C.F.R. § 1910.134. Employers must establish and maintain a respiratory protection program that: (a) is written; (b) includes worksite-specific procedures and elements for required respirator use; and (c) is administered by a trained program administrator.3

Written exposure control plan

Employers must create and implement a written exposure control plan. Exposure control plans were not presented by OSHA in prior proposed regulations.

At a minimum, an employer's written control plan must describe:

• the tasks in the workplace that involve exposure to RSC;
• the engineering controls, work practices, and respiratory protection used to limit employee exposure to RSC by task; and
• the housekeeping measures used to limit employee exposure to RSC.

Written exposure control plans must be evaluated at least annually and updated as needed. An employer's written exposure control plan must also be readily available for examination and copying by employees, their designated representatives, and representatives of OSHA.

Medical surveillance

Employers in the hydraulic fracturing industry must establish free medical surveillance by June 23, 2018 for any employee exposed at or above the PEL for more than 29 days per year. Medical surveillance for any employee exposed at or above the action level for more than 29 days per year must be established by June 23, 2020. Medical surveillance includes an initial baseline medical examination within 30 days of initial exposure4 to RSC and periodic examinations at least every three years thereafter.5 When necessary, employers must also provide free medical examinations by specialists for their employees. All examinations must be performed by a licensed health care provider and the employer must provide the provider with: (a) a copy of OSHA's new regulations; (b) an explanation of the employee's duties;6 (c) a description of the employee's exposure to RSC; (d) a report of the employee's protective equipment and use thereof; and (e) information from records of the employee's employment-related medical examinations. Employers are also responsible for ensuring that the results of medical examinations are explained to employees and that written reports of examinations are provided to employees within 30 days.  

Hazard communications

Employers must establish a program that complies with OSHA's general hazard communication requirements under 29 CFR 1910.1200, which regulates the requirements for labels and data on hazardous materials. Containers of crystalline silica must have labels and data sheets that are accessible to employees and that address cancer, lung effects, immune system effects, and kidney effects from RSC exposure. Employers must post specific signage at all entrances to regulated areas with warnings mandated by OSHA.

Employers must also ensure that all employees can demonstrate knowledge and understanding of:

• The health hazards associated with exposure to RSC;
• The specific tasks in the workplace that could result in exposure to RSC;
• The specific measures the employer has implemented to protect employees from exposure to RSC, including the engineering controls, work practices, and respirators to be used;
• The contents of the new regulations7; and
• The purpose and a description of the employer's medical surveillance program.

Economic impact

With staggered deadlines and the uncertainty surrounding future compliant technology, there is not a current consensus on the economic impact of OSHA's new regulations on the hydraulic fracturing industry. The Independent Petroleum Association of America and the American Petroleum Institute have both reported, however, that the new regulations are burdensome and will have profound detrimental economic consequences on hydraulic fracturing companies large and small.  

Ensuring compliance

OSHA's new regulations are certainly complex and will present particular issues for the hydraulic fracturing industry in the coming years. Parties potentially covered by OSHA's new regulations should consult with counsel. Our team at Norton Rose Fulbright can assist in determining if these regulations apply to your business, and can assist with the following requirements imposed by the regulations:

• advisement on what to expect and how to prepare for compliance with potentially limited resources by 2021;
• securing laboratory agreements to meet the new regulations' stringent requirements for sample analysis and exposure assessments;
• obtaining a compliant Respiratory Protection Program that is functional and tailored to your business;
• implementing a Written Exposure Control Plan that comprehensively addresses all the requirements of the new regulations;
• guidance on implementing an efficient and compliant medical surveillance program; and
• appropriate employee training, communications, and protections for compliance and risk management.