Publication
Horizon Scanning: Investigations and Enforcement
In this horizon scan, we focus on key developments affecting companies operating in the UK, including in light of the recent change in UK government.
Industry must limit employee exposure to silica
Author:
Publication | April 2016
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
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:
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:
Because of the limitations with current technology, OSHA has extended the PEL compliance deadline to June 23, 2021 for the hydraulic fracturing industry.
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.
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
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:
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.
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.
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:
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.
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:
2 An employer in the hydraulic fracturing industry is exempt from the new regulations if it possesses objective data demonstrating that employee exposure to RSC silica will remain below the "action level" of 25 μg/m3 as an 8-hour TWA under any foreseeable conditions.
3 A program administrator must be qualified by appropriate training or experience that is commensurate with the complexity of the program to administer or oversee the respiratory protection program and conduct the required evaluations of program effectiveness.
4Unless a compliant examination has occurred within three years of exposure.
5 Unless more frequent examinations are recommended by a licensed health care provider.
6 Description must include employee's past, current, and future duties.
7 Employees are also entitled to free copies of the regulations.
Publication
In this horizon scan, we focus on key developments affecting companies operating in the UK, including in light of the recent change in UK government.
Publication
On 3 September 2024, the ECJ delivered its judgment in Illumina’s appeal against the General Court’s (GC) judgment confirming the European Commission’s (EC) powers to review concentrations under the EU Merger Regulation (EUMR) in circumstances where no Member State has jurisdiction under national law.
Subscribe and stay up to date with the latest legal news, information and events . . .
© Norton Rose Fulbright LLP 2023