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. ClarkAdam R. Young, and Craig B. Simonsen

Seyfarth Synopsis: The Bureau of Labor Statistics (BLS) has found a seven percent increase in 2016 fatal injuries reported over those reported in 2015. BLS noted that this was the third consecutive increase in annual workplace fatalities.  The statistics show an ongoing struggle for employers with a number of occupational safety and health health hazards.

By industry or workplace, BLS found that work injuries involving transportation incidents remained the most common fatal event in 2016, accounting for 40 percent of all industries.  Workplace violence and other injuries by persons or animals increased 23 percent, becoming the “second-most common work related fatal event in 2016.” For more information about workplace violence we have frequently blogged on the topic.  See for instance, Airport Active Shooter Incident — What Can Happen in Just 15 Seconds, and What Business Needs to Know, OSHA Updates its Enforcement Procedures Directive for Exposure to Workplace Violence, Proposed Rule for Prevention of Workplace Violence in Healthcare and Social Assistance Industries, and NIOSH Offers Free Training Program to Help Employers Address Safety Risks Faced by Home Healthcare Workers.

In addition, exposure to harmful substances or environments rose 22 percent.  “Workplace homicides increased by 83 cases to 500 in 2016, and workplace suicides increased by 62 to 291. This is the highest homicide figure since 2010 and the most suicides since Census of Fatal Occupational Injuries (CFOI) began reporting data in 1992.”

Stunnningly, overdoses from the non-medical use of drugs or alcohol while on the job increased from 73 in 2011 to 217 in 2016. “Overdose fatalities have increased by at least 25 percent annually since 2012.”  Fatal injuries in the leisure and hospitality sector were up 32 percent and reached an “all-time series high in 2016.”  BLS concluded that this was largely due to a 40-percent increase in fatal injuries in the food services and drinking places industry.

Occupations with increases greater than 10 percent in the number of fatal work injuries in 2016 include:

  • Food preparation and serving related occupations (64 percent);
  • Installation, maintenance, and repair occupations (20 percent);
  • Building and grounds cleaning and maintenance occupations (14 percent); and
  • Sales and related occupations (11 percent).

Foreign-born workers made up about one-fifth of the total fatal work injuries. Thirty-seven percent of the workers were born in Mexico, followed by 19 percent from Asian countries.  Workers age 55 years and over had a higher fatality rate than other age group.

In response to the BLS Report, Loren Sweatt, Deputy Assistant Secretary for OSHA, commented that “[a]s President Trump recognized by declaring opioid abuse a Nationwide Public Health Emergency, the nation’s opioid crisis is impacting Americans every day at home and, as this data demonstrates, increasingly on the job.”  “The Department of Labor will work with public and private stakeholders to help eradicate the opioid crisis as a deadly and growing workplace issue.”

Employers in the industries identified in the CFOI Report, including oil and gas, construction, retail, mining, and others need to be mindful of OSHA’s and MSHA’s enhanced monitoring and inspection activities. Take steps to ensure that company safety and health policies and training are up-to-date and are being rigorously implemented. Be sure to have a plan in-place for when an agency inspector does come calling, so that the company is protected and any citations and liabilities are minimized.

For more information on this or any related topic please contact the author, 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. 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

pumpjack, West Texas, cottonwood treeThe U.S. EPA announced earlier this week a proposed rule to reduce emissions of greenhouse gases (GHG) and volatile organic compounds (VOC) from the oil and natural gas industry. The proposal is nearly 600 pages long. Proposed rule (August 18, 2015).

The proposed rule will add methane to the list of gasses regulated at new, modified, and reconstructed equipment at completed hydraulically fractured oil and gas well sites, compressor stations, and processing plants. The proposed rule also expands the regulation of VOCs to cover certain existing sources such as storage tanks, pneumatic controllers, compressors, and fugitive emissions in ozone nonattainment areas.

The oil and gas industry has expressed concern that the proposed regulations will hurt productivity and points out that the industry has already taken great strides to reduce methane emissions at well sites.

We had previously blogged about the Administration’s goal, under the President’s Climate Action Plan, to cut methane emissions from the oil and gas sector to 40 to 45 percent below 2012 levels by 2025. EPA indicated that methane is the second most prevalent greenhouse gas emitted in the United States “from human activities,” and that nearly “30 percent of those emissions come from oil production and the production, transmission and distribution of natural gas.” Pound for pound, methane’s impact on the environment is 25 times greater than carbon dioxide.

The proposed standards will affect certain new, modified, and reconstructed equipment, processes and activities, and are “based on practices and technology currently used by industry.” To cut methane and VOC emissions, the proposed rule requires:

  • Finding and repairing leaks;
  • Capturing natural gas from the completion of hydraulically fractured oil wells;
  • Limiting emissions from new and modified pneumatic pumps; and
  • Limiting emissions from several types of equipment used at natural gas transmission compressor stations, including compressors and pneumatic controllers.

The Agency’s fact sheet on the proposed rule indicates that the rule is “a step estimated to yield a 95 percent reduction in VOCs, and a similar methane reduction as a co-benefit.”

In addition to the proposed rule, the Agency also issued a 310 page Control Techniques Guidelines for the Oil and Natural Gas Industry (Draft). EPA-453/P-15-001 (August 2015). The fact sheet provides guidance to states for the regulation of VOCs in ozone nonattainment areas and the mid-Atlantic and northeastern states in the Ozone Transport Region.

The Agency will accept public comment on the proposed rule for 60 days after the publication in the Federal Register.