By James L. Curtis, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: OSHA has just released a Memorandum on the Enforcement Launch for the Respirable Crystalline Silica Standard in General Industry and Maritime rules.

In its June 7, 2018 Memorandum about the new Crystalline Silica Standard OSHA states that it will shortly issue interim enforcement guidance until a compliance directive on the new standards is finalized.

The OSHA Memorandum also declares that during the first 30 days of enforcement, OSHA “will assist employers that are making good faith efforts to meet the new standard’s requirements.  If upon inspection, it appears an employer is not making any efforts to comply, compliance officers should conduct air monitoring in accordance with Agency procedures, and consider citations for non-compliance with any applicable sections of the new standard.  Any proposed citations related to inspections conducted in this 30-day time period will require National Office review prior to issuance.”

Most of the provisions of the Respirable Crystalline Silica Standard for General Industry and Maritime, 29 CFR § 1910.1053, will become enforceable on June 23, 2018. The standard establishes a new 8-hour time-weighted average (TWA) permissible exposure limit (PEL) of 50 µg/m3, an action level (AL) of 25 µg/m3, and additional ancillary requirements.

We have previously blogged on the new silica standard.  See OSHA Publishes Crystalline Silica Standards Rule Fact Sheets for Construction, Circuit Court Finds OSHA Failed to Adequately Explain the Crystalline Silica Standards Rule, and OSHA Publishes “Small Entity Compliance” Guides for the Crystalline Silica Standards.

For employers and industry stakeholders, OSHA provides a General Industry and Maritime Fact Sheet with a summary of the new regulatory requirements under the rule. OSHA also provides a Small Entity Compliance Guide for small entities.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Brent I. ClarkJames L. Curtis, Patrick D. Joyce, Adam R. Young, and Craig B. Simonsen

Seyfarth Synopsis: OSHA has just released several fact sheets applicable to industries regulated under the Crystalline Silica Standards in Construction Rule.

OSHA has recently released several silica dust fact sheets, including Controlling Silica Dust in Construction – Crushing Machines Fact Sheet (OSHA FS-3935 – 2017), Controlling Silica Dust in Construction – Heavy Equipment and Utility Vehicles Used During Demolition Activities Fact Sheet (OSHA FS-3936 – 2017), Controlling Silica Dust in Construction – Heavy Equipment and Utility Vehicles Used for Grading and Excavating Tasks Fact Sheet (OSHA FS-3937 – 2017), and Controlling Silica Dust in Construction – Large Drivable Milling Machines (Half Lane and Larger) Fact Sheet (OSHA FS-3934 – 2017).

The fact sheets reiterate OSHA’s position that when inhaled small particles of silica can irreversibly damage the lungs. The fact sheets describe dust controls that can be used to minimize the amount of airborne dust when using crushing machines and heavy equipment, as listed in Table 1 of the Respirable Crystalline Silica Standard for Construction.  Specific engineering controls listed are “wet methods,” and “dust suppressants,” and “exhaust ventilation,” and “operator isolation” such as “enclosed cab.”

We will continue to keep readers updated as this issue progresses.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By James L. Curtis and Craig B. Simonsen

Seyfarth Synopsis: In a win for labor, the DC Circuit Court of Appeals orders the remand of the Crystalline Silica Standard for Construction and General Industry (Silica Rule) for OSHA to explain its decision to omit medical removal protections.

In a decision this morning, the U.S. Court of Appeals for the District of Columbia has remanded the Silica Rule to OSHA, holding that “OSHA was arbitrary and capricious in declining to require [medical removal protection] for some period when a medical professional recommends permanent removal, when a medical professional recommends temporary removal to alleviate COPD symptoms, and when a medical professional recommends temporary removal pending a specialist’s determination.”  The Court remanded the Rule to OSHA to reconsider or further explain those aspects of the Rule.  North America’s Building Trades Unions v. OSHA, No. 16-1105 (December 22, 2017).

This is a win for labor that had fought to have the measures included in the new Rule.  The Court rejected other challenges to the Rule raised by business and industry groups.

We have previously blogged about crystalline silica and this rulemaking, including OSHA Publishes “Small Entity Compliance” Guides for the Crystalline Silica Standards, OSHA Adopts 30-Day “Phase-In” of Enforcement of Crystalline Silica Standard for Construction, OSHA Proposes Silica Worker Exposure Hazards Rule, and New OSHA Hazard Safety Bulletin for the Hydraulic Fracturing Industries.

We will continue to keep readers updated as this issue progresses.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Brent I. ClarkIlana R. Morady, and Craig B. Simonsen

Seyfarth Synopsis: President Trump’s selection for Administrator at MSHA has been confirmed this week by the Senate.

In a 52-46 vote, David G. Zatezalo, of West Virginia, was confirmed by the U.S. Senate this week, on November 15, 2017, to be Assistant Secretary of Labor for Mine Safety and Health (MSHA). The vote was along party lines, with Zatezalo  getting 52 Republican votes.

Zatezalo has deep roots in the mining industry, including a Mining Engineering degree from West Virginia University in 1977, and having become a Professional Engineer and received an award for high grade on the mining exam in 1981.  According to the Whitehouse press release, “Zatezalo began his mining career in 1974 with Consolidation Coal Company as a UMWA Laborer, became a foreman and subsequently General Superintendent for Southern Ohio Coal Company and General Manager of AEP’s Windsor Coal Company. He later rose to be Vice-President of Operations of AEP’s Appalachian Mining Operations.”  He had also served as Chairman, President, CEO, and COO of Rhino Resources GP, LLC, and as President of Hopedale Mining, LLC.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Brent I. ClarkAdam R. Young, and Craig B. Simonsen

Seyfarth Synopsis: OSHA has recently published “Small Entity Compliance” Guides for the new Crystalline Silica Standard for Construction and General Industry.

OSHA recently released small entity compliance guides for both construction and general industry.  See Small Entity Compliance Guide for the Respirable Crystalline Silica Standard in Construction (OSHA 3902 – 2017), and Small Entity Compliance Guide for the Respirable Crystalline Silica Standard for General Industry and Maritime (OSHA 3911 – 2017).

OSHA does not define what it means by “small entity” in the Guides, other than referring to helping “small businesses.”  Generally, under the Small Business Act, Public Law 85-536, as amended, a small business concern is one that is “independently owned and operated and which is not dominant in its field of operation.”

We have previously blogged about crystalline silica, such as: OSHA Adopts 30-Day “Phase-In” of Enforcement of Crystalline Silica Standard for Construction, OSHA Proposes Silica Worker Exposure Hazards Rule, and New OSHA Hazard Safety Bulletin for the Hydraulic Fracturing Industries.

Crystalline silica ubiquitous in modern society. Crystalline silica is found in many naturally-occurring building materials and used in many industrial products and at construction sites. Materials such as sand, concrete, stone, and mortar contain crystalline silica. Crystalline silica is also used to make products like glass, pottery, ceramics, bricks, concrete and artificial stone. Industrial sand containing crystalline silica is used in foundry work and hydraulic fracturing (fracking) operations.

While these Guides may assist employers in understanding compliance with the new rules, note that OSHA specifically states that:

This document provides guidance only, and does not alter or determine compliance responsibilities, which are laid out in OSHA standards and the Occupational Safety and Health Act. This guide does not replace the official Respirable Crystalline Silica standard [s].  The employer must refer to the standard to ensure that it is in compliance. Moreover, because interpretations and enforcement policy may change over time, for additional guidance on OSHA compliance requirements the reader should consult current administrative interpretations and [OSHRC] decisions….

Employers who work with silica must now comply with the Crystalline Silica Standard.  Due to the complexity of the regulations and requirements, we recommend you contact your occupational safety and health attorney as soon as possible to discuss a path to compliance.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Patrick D. Joyce and Craig B. Simonsen

Seyfarth Synopsis: OSHA announced a thirty day phase-in for enforcement of the Crystalline Silica Standard for Construction under 29 CFR 1926.1153.  The new rule will be fully effective by Monday, October 23, 2017.

OSHA’s new crystalline silica rule is wide-reaching and, for that reason, the rulemaking has been contentious. We have blogged about crystalline silica many times: OSHA Proposes Silica Worker Exposure Hazards Rule, OSHA Extends the Comment Deadline for Proposed Silica Worker Exposure Hazards Rule, New OSHA Hazard Safety Bulletin for the Hydraulic Fracturing Industries, and Senators Ask OSHA to Consider the Fracking Industry Economy and to More Fully Extend the Comment Deadline for Proposed Silica Worker Exposure Hazards Rule.

Crystalline silica is a staple of modern society. Crystalline silica is a common mineral found in many naturally occurring materials and used in many industrial products and at construction sites. Materials such as sand, concrete, stone, and mortar contain crystalline silica. Crystalline silica is also used to make products like glass, pottery, ceramics, bricks, concrete and artificial stone. Industrial sand containing crystalline silica is also used in certain foundry work and hydraulic fracturing (fracking) operations.

OSHA estimates that 2.3 million workers are potentially exposed to crystalline silica on the job, and that nearly 676,000 workplaces will be affected by the crystalline silica rule, including in construction and in general industry and maritime. The rule was expected to result in annual costs of $1,524 for the average workplace covered by the rule. The total cost of compliance with the rule was estimated at “just over $1 billion” (per year).

In an effort to remedy some of the difficulties that have arisen to come into compliance with the construction portion of the new rule, the Agency had previously decided to delay enforcement of the standard from June 23, 2017, until September 23, 2017.

Now that September 23 has passed, the Agency issued a standard interpretation letter for the Launch of Enforcement of the Respirable Crystalline Silica in Construction Standard, 29 CFR § 1926.1153.  The new rule will be fully effective on Monday, October 23, 2017.  Specifically the interpretation states that:

During the first 30 days of enforcement, OSHA will carefully evaluate good faith efforts taken by employers in their attempts to meet the new construction silica standard. OSHA will render compliance assistance and outreach to assure that covered employers are fully and properly complying with its requirements. Given the novelty of the Table 1 approach, OSHA will pay particular attention to assisting employers in fully and properly implementing the controls in the table. OSHA will assist employers who are making good faith efforts to meet the new requirements to assure understanding and compliance.

If, upon inspection, it appears an employer is not making any efforts to comply, OSHA’s inspection will not only include collection of exposure air monitoring performed in accordance with Agency procedures, but those employers may also be considered for citation. Any proposed citations related to inspections conducted in this time period will require National Office review.

For employers in these industries, it is important to note that this phase in period provides little additional time to come into compliance with the new rule. Due to the complexity of the rule, we recommend you contact your occupational safety and health attorney as soon as possible to discuss a path to compliance.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Brent I. Clark and Craig B. Simonsen

iStock_000062437178MediumSeyfarth Synopsis: OSHA has just announced a three month delay of enforcement of the Crystalline Silica Standard for Construction under 29 CFR 1926.1153.

Crystalline silica is a staple of our modern society.  OSHA notes that it’s a common mineral that is found in many naturally occurring materials, and used in many industrial products and at construction sites.  Materials such as sand, concrete, stone and mortar contain crystalline silica. Crystalline silica is also used to make products like glass, pottery, ceramics, bricks, concrete and artificial stone.  Industrial sand is also used in certain foundry work and hydraulic fracturing (fracking) operations.  OSHA estimates that 2.3 million workers are exposed to crystalline silica on the job.

Because crystalline silica is so important to modern society, the OSHA silica standards rulemaking has been contentious.  We have blogged previously how OSHA Proposes Silica Worker Exposure Hazards Rule, OSHA Extends the Comment Deadline for Proposed Silica Worker Exposure Hazards Rule, New OSHA Hazard Safety Bulletin for the Hydraulic Fracturing Industries, and Senators Ask OSHA to Consider the Fracking Industry Economy and to More Fully Extend the Comment Deadline for Proposed Silica Worker Exposure Hazards Rule.

OSHA estimates that nearly 676,000 workplaces will be affected, including in construction and in general industry and maritime.  In addition, the rule is expected to result in annual costs of about $1,524 for the average workplace covered by the rule.  The total cost is estimated by OSHA at “just over $1 billion” (per year).

In an effort to remedy some of the issues and problems in compliance with the new rule, to provide OSHA with the opportunity to conduct additional outreach to the regulated community, and to provide additional time to train compliance officers, the Agency has decided to delay enforcement of the standard from June 23, 2017, until September 23, 2017.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Patrick D. Joyce, Jeryl L. Olson, and Craig B. Simonsen

Blog - Fracking WaterSeyfarth Synopsis: With significant objection from Industry, EPA has issued its Final Report on whether hydraulic fracturing activities can impact drinking water resources under certain circumstances.

The U.S. Environmental Protection Agency published its controversial final report on “Hydraulic Fracturing for Oil and Gas: Impacts from the Hydraulic Fracturing Water Cycle on Drinking Water Resources in the United States.” In the report, which has already been subject to great objection from Industry, EPA issued its finding that hydraulic fracturing (fracking) activities in the U.S. may have impacts on the water lifecycle, affecting drinking water resources. The Agency had put out a draft of the report for public comment in June 2015, which we blogged on at that time. 80 Fed. Reg. 32111.

The report was prepared at the request of Congress. Its purpose was to follow water resources used for fracking through the entire water cycle from water acquisition, to chemical mixing at the well pad site, to well injection of fracking fluids, to the collection of fracking wastewater (including flowback and produced water), and finally, to wastewater treatment and disposal. EPA claimed that the study “identified conditions under which impacts from hydraulic fracturing activities can be more frequent or severe.” The report also identified “data gaps [that] limited EPA’s ability to fully assess impacts to drinking water resources both locally and nationally.” The final conclusions were based on review of over 1,200 cited sources.

In response to EPA’s report, the American Petroleum Institute (API) blasted the EPA’s “abandonment of science in revising the conclusions to the Assessment Report….” API and the fracking industry requested changes to EPA’s Draft Report that EPA did not incorporate in the Final Report. As a result, API Upstream Director Erik Milito said, “the agency has walked away from nearly a thousand sources of information from published papers, technical reports and peer reviewed scientific reports demonstrating that industry practices, industry trends, and regulatory programs protect water resources at every step of the hydraulic fracturing process.”

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Seyfarth Environmental Compliance, Enforcement & Permitting Team.

shutterstock_206483089Seyfarth Partner Andrew H. Perellis is quoted in this Forbes Legal News article today, Sierra Club’s Legal Theory In Frackquake Case Draws ‘Star Trek’ Comparison (March 31, 2016).

The article concerns a complaint filed on Feb. 16 in the U.S. District Court for the Western District of Oklahoma, Sierra Club v. Chesapeake Operating LLC, Devon Energy Production Co. LP, and New Dominion, LLC. The complaint was filed under the citizen suit provision of the Solid Waste Disposal Act, amended as the Resource Conservation and Recovery Act, 42 U.S.C. § 6901, et seq. (RCRA).

In particular, the complaint seeks to allege an imminent and substantial endangerment for which injunctive relief is available under RCRA, Section 7002(a)(1)(B). However, the alleged harm is not associated with threaten exposure to the waste water but instead because the disposal of the water under pressure is alleged to increase the frequency and severity of earthquakes in the area.

Perellis, as quoted in the Forbes article, says the lawsuit is the equivalent of using RCRA to sue “a company that warehouses hazardous chemicals over a danger arising from an increase in truck traffic to and from the facility.” Calling the case “the ‘Star Trek’ of lawsuits,” Perellis said, “they are boldly taking RCRA where it has never gone before.”

By Patrick D. Joyce and Craig B. Simonsen

Blog - Fracking WaterThe U.S. Environmental Protection Agency released a draft assessment study last week showing that hydraulic fracturing (“fracking”) activities in the U.S. may have potential impacts on the water lifecycle, affecting drinking water resources. 80 Fed. Reg. 32111 (June 5, 2015).

The report, Assessment of the Potential Impacts of Hydraulic Fracturing for Oil and Gas on Drinking Water Resources (External Review Draft), prepared at the request of Congress, follows the water used for fracking through the entire water cycle from water acquisition, to chemical mixing at the well pad site, to well injection of fracking fluids, to the collection of fracking wastewater (including flowback and produced water), and finally, to wastewater treatment and disposal. Dr. Thomas A. Burke, EPA’s Science Advisor and Deputy Assistant Administrator of EPA’s Office of Research and Development, noted that “EPA’s draft assessment will give state regulators, tribes and local communities and industry around the country a critical resource to identify how best to protect public health and their drinking water resources.”

While EPA’s study, which included over 950 sources of information, found specific instances where well integrity and waste water management related to fracking activities directly impacted drinking water resources, the number of instances found were “small compared to the large number of hydraulically fractured wells across the country.”

The study identified specific vulnerabilities to drinking water resources including:

  • Water withdrawals in areas with low water availability;
  • Fracking conducted directly into formations containing drinking water resources;
  • Inadequately cased or cemented wells resulting in below ground migration of gases and liquids;
  • Inadequately treated wastewater discharged into drinking water resources; and
  • Spills of fracking fluids and fracking wastewater, including flowback and produced water.

The study noted that while there were few instances of drinking water contamination cause by fracking, this may be due to a lack of pre- and post-fracturing data on water quality and the inaccessibility of some information on fracking activities.

The draft study will be finalized after review by the Science Advisory Board and public review and comment. Public teleconferences are scheduled on the draft report, on September 30, 2015, October 1, 2015, and October 19, 2015. Public face-to-face meetings will be held on October 28, 2015, October 29, 2015, and October 30, 2015.

Public written statements for the teleconferences or for the face-to-face meetings should be received by the EPA Docket,  No. EPA–HQ–OA–2015–0245, by August 28, 2015.