Today the U.S. Occupational Safety & Health Administration (“OSHA”) published the new Permissible Exposure Limit (“PEL”) for occupational exposure to respirable crystalline silica (“silica”).  The new standard sets a PEL of 50 micrograms per cubic meter (µg/m3) and an action level (“AL”) of 25 µg/m3.  These are the same levels proposed in 2013.  The final rule provides impacted industries more time to come into compliance than the proposed rule (two years for most industries and five years for hydraulic fracturing operations).  While some industries may be aided by additional time to develop and deploy engineering and work practice controls, additional time will not aid those industries without feasible control options and will not mitigate concerns about the inability to sample exposures as a low level which trigger obligations under the standard.  Most importantly, the new lower PEL does little to further protect workers.

As OSHA’s own data shows, silica-related mortality has declined by over 90% since the 1960s.  Those cases that continue to be reported (a mere 0.00585% of the workers OSHA estimates to be exposed to silica) likely reflect the residual effect of exposures to silica that occurred before widespread use of respirators and other controls, or the result of failures to comply with the previous PEL (~100 µg/m3 for general industry and ~250 (µg/m3 for construction).  Had OSHA used its resources to enforce compliance with the current PEL and allow companies to protect their employees with respiratory protection programs, OSHA could have effectively eliminated any further risk of silica-related mortality at a fraction of the cost of this rule – and the rule is costly.

Even OSHA predicts the silica standard will have an annualized cost of over $1 billion dollars, but these costs are likely significantly underestimated.  Information received during the public comment period and in hearing testimony suggests that OSHA underestimated actual costs by an order of magnitude or more.

These costs can be attributed to the rule’s significantly stricter limits and OSHA’s mandate that those limits be met through expensive engineering and work practice controls even if employers are already fully protecting employees through the use of respirators.  These costs can also be attributed to the so-called “ancillary provisions” – actions required of employers in addition to those controls needed to comply with the stricter PEL.

The oil and gas industry submitted extensive comments on the proposed PEL, pointing out flaws in the economic feasibility analysis conducted for hydraulic fracturing operations and detailing the substantial challenges that those operations face in implementing control technologies for silica exposure.  The comments concluded that the control technologies were economically and technologically infeasible for large parts of the industry, and that the hydraulic fracturing industry should be allowed to continue fully protecting its workers through the use of respirators.  Industry organizations therefore requested that OSHA delay the engineering control requirements for at least two years.  OSHA, in its final rule, recognized the industry’s concerns and gave hydraulic fracturing five years to comply with engineering control requirements, citing the fact that the necessary technology is not widely available despite industry’s best efforts to develop and deploy effective dust control technology.

Ancillary provision requirements include initial and periodic exposure monitoring; establishment and enforcement of regulated areas; prohibitions on dry sweeping and use of compressed air for cleaning; training, recordkeeping, hazard communication requirements; and medical surveillance.  For medical surveillance, OSHA significantly expanded the universe of employees required to be screened by the program.  While the proposed rule required medical surveillance for employees exposed above the PEL for 30 or more days per year, the final rule changed that requirement to require surveillance of employees exposed above the AL for 30 or more days per year.

Key Dates – Most industries must meet the PEL and control measures by June 23, 2018, while the hydraulic fracturing industry has until June 23, 2021 to implement engineering controls.  Employers must commence medical surveillance of workers exposed at or above the PEL for 30 or more days per year by June 23, 2018; this requirement expands to workers exposed at or above the AL for 30 or more days per year by June 23, 2020.