On August 23, 2013, the Occupational Safety and Health Administration (“OSHA”) announced a proposed rule that will drastically reduce the current Permissible Exposure Limit (“PEL”) for crystalline silica, an essential material found in the manufacturing, construction, mining, and oil and gas industries. The proposed rule will effectively reduce current the PEL by half, and will apply equally in general industry, maritime, and construction operations. MSHA is expected to release a similar proposed rule in December.
The proposed rule reduces the current PEL to 50 micrograms of respirable crystalline silica per cubic meter of air (50µg/m3) averaged over an 8‑hour day. Additionally, employers must measure the amount of silica that workers are exposed to if it may be at or above an action level of 25 μg/m3 averaged over an 8‑hour day. The proposed rule also includes requirements for exposure assessment, preferred methods for controlling exposure, respiratory protection, medical surveillance, hazard communication, and recordkeeping. More information on the proposed rule may be found on OSHA’s website: https://www.osha.gov/silica/nprm.pdf.
Industry experts estimate the total economic impact of compliance with the proposed rule will be a catastrophic $5.45 billion per year. OSHA expects that hydraulic fracturing will be the industry most heavily affected by the proposed rule. Given the exponential growth of hydraulic fracturing operations in the United States, this industry faces enormous costs of complying with the proposed rule.
It is arguable whether requiring industry-wide compliance with a dramatically reduced PEL will result in significant protection against silica-related diseases. The experience of groups like the National Industrial Sand Association, whose member companies have a long‑standing history of voluntarily compliance, demonstrates that compliance with the current PEL is more than enough to protect workers exposed to crystalline silica. OSHA compliance sampling, however, reveals a non‑compliance rate greater than 30 percent, showing that greater enforcement of the current PEL is what is needed for a continued reduction in silica‑related diseases.
The proposed reduced PEL is also problematic as few laboratories exist across the country with the ability to measure silica exposure accurately and reliably at such low concentrations. While OSHA asserts there are “numerous” accredited laboratories that may be able to accurately measure exposure levels at the proposed PEL, it hinted that implementation of the laboratory requirement may be necessarily delayed.
The proposed rule has been submitted for publication in the Federal Register. After publication, members of the public will have 90 days to submit comments on the proposed rule. OSHA will hold informal hearings, open to the public, in Washington, D.C. These hearings are expected to begin on March 4, 2014.
This article was authored by Amanda E. Ferguson, Jackson Kelly PLLC. For more information on the author, click here.