OSHA’s Proposed Silica Rule Presented to the West Virginia Oil and Natural Gas Association Jessica M. Jurasko, Esq. 401 Liberty Avenue, Ste. 1500, Pittsburgh, PA Phone: (412) Fax: (412) June 17, 2014

w w w. j a c k s o n k e l l y. c o m 2 JUNE 17, 2014 OSHA’S PROPOSED RULE ON SILICA EXPOSURE AND ITS EFFECTS IN THE OIL & GAS INDUSTRY

w w w. j a c k s o n k e l l y. c o m 3 Overexposure to Silica Dust Crystalline silica is a common mineral found in the earth’s crust and used as a major component in materials used to make concrete, brick, and glass Silica sand is frequently used in the fracking process as proppant –Hydraulic fracturing sand contains up to 99% silica Respirable crystalline silica is the portion of crystalline silica that is small enough to enter the gas-exchange regions of the lungs if inhaled

w w w. j a c k s o n k e l l y. c o m 4 Overexposure to Silica Dust Breathing silica can cause silicosis –also linked to lung cancer, tuberculosis, COPD, kidney, and autoimmune disease Silicosis, a lung disease, occurs when lung tissue comes into contact with respirable silica particles –Silicosis causes inflammation and scarring which reduces the lungs’ ability to take in oxygen

w w w. j a c k s o n k e l l y. c o m 5 Proposed Rule On September 12, 2013, OSHA published a proposed rule on Occupational Exposure to Respirable Silica No timetable for adoption of a final rule – first substantive changes to the rule since 1971 Hearings concluded in April 2014 – now in 90- day period of post-hearing submission of comments and briefs

w w w. j a c k s o n k e l l y. c o m 6 OSHA and NIOSH issued an alert in 2012 concerning worker exposure to silica during fracking The alert does not create a legal obligation, but OSHA’s general duty clause requires employers to ensure workplaces are free from recognized hazards that may cause death or serious physical injuries

w w w. j a c k s o n k e l l y. c o m 7 GENERAL DUTY CLAUSE Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or likely to cause death or serious physical harm to his employees. 29 U.S.C. § 654(a)(1).

w w w. j a c k s o n k e l l y. c o m 8 OSHA has indicated that several other standards and directives cover operations that may expose workers to silica: –Air Contaminants (29 C.F.R ) –Hazard Communication (29 C.F.R ) –Respiratory Protection (29 C.F.R ) –OSHA Directive CPL National Emphasis Program—Crystalline Silica

w w w. j a c k s o n k e l l y. c o m 9 OSHA's Proposed Crystalline Silica Rule: General Industry and Maritime OSHA is proposing two standards to protect workers from exposure to respirable crystalline silica-one for general industry and maritime, and the other for construction-in order to allow employers to tailor solutions to the conditions in their workplaces. Source: OSHA Directorate of Standards and Guidance Number of Workers Exposed to Respirable Crystalline Silica in Selected General Industry/Maritime Sectors Industry sector Number of workers currently exposed Number of workers currently exposed above proposed PEL Asphalt Roofing Materials4,3951,963 Concrete Products54,44919,204 Cut Stone12,0857,441 Dental Laboratories41,1941,329 Foundries48,22324,658 Jewelry10,5084,600 Porcelain Enameling5,5451,932 Pottery10,1484,777 Railroads16,8955,629 Ready-Mix Concrete43,92032,110 Shipyards4,5503,250 Structural Clay Products8,4354,377 Support Activities for Oil and Gas Operations 25,44016,056

w w w. j a c k s o n k e l l y. c o m 10 Scope of Proposed Rule –Dust monitoring –Testing –Medical surveillance –Preferred methods of compliance –Job exposure –Disease pathology –Economic impact

w w w. j a c k s o n k e l l y. c o m 11 Proposed Rule Effects Lowers the PEL (permissible exposure limit) to 50 micrograms of respirable crystalline silica per cubic meter of air, calculated as an 8-hour time-weighted average –Half the previous limit for general industry –Exposure level applies to all employees, not just those working directly with silica

w w w. j a c k s o n k e l l y. c o m 12 Seven primary sources of silica dust exposure during hydraulic fracturing operations: 1.Dust from thief hatches on sand movers when hot loading 2.Dust from open side fill ports on sand movers during refilling 3.Dust from on-site traffic

w w w. j a c k s o n k e l l y. c o m 13 4.Dust from sand movers’ transfer belt 5.Dust created when sand drops in and is agitated in the blender hopper and on transfer belts 6.Dust from transfer belts between sand mover and blender 7.Dust from top end of the sand transfer belt on sand movers

w w w. j a c k s o n k e l l y. c o m 14

w w w. j a c k s o n k e l l y. c o m 15 Rule explicitly covers hydraulic fracturing OSHA recognizes that fracking presents unique challenges because exposure to silica is expected to be over a large area OSHA recommends the oil and gas industry opt for a written access control plan in lieu of a regulated area

w w w. j a c k s o n k e l l y. c o m 16 Determining worker exposure levels is important for selecting the right type of control measures –Engineering controls –Respiratory protection This includes proper respirator selection, fit testing, medical evaluations, and training

w w w. j a c k s o n k e l l y. c o m 17 Practices and procedures to help protect workers from exposure to silica include: –Limit workers and time spent in areas where dust and silica levels may be elevated, and consider ways to perform tasks remotely to remove employees completely from these areas –Apply fresh water to roads and well site to reduce dust

w w w. j a c k s o n k e l l y. c o m 18 Written Access Control Plan Plan must contain provisions: –For a person to identify any areas where exposure to respirable silica are or reasonably could be expected to exceed the PEL Employees must be notified of the areas Areas must be demarcated from the rest of the workplace with limited access –Requirements apply to all employees (including temporary workers and subcontractors)

w w w. j a c k s o n k e l l y. c o m 19 –Where contamination of employees’ clothing is possible, the plan must provide means for employer-provided protective clothing or the means to remove the contaminating dust

w w w. j a c k s o n k e l l y. c o m 20 Respirators When engineering controls do not reduce silica levels below OSHA PELs, employers must provide workers with respirators and have a respiratory protection program in place that meets the requirements of OSHA’s respiratory protection standard at 29 C.F.R. §

w w w. j a c k s o n k e l l y. c o m 21 Respirators Personal respirators are NOT considered dust control by OSHA –Each site will require a plan to ensure that silica remains below the PEL without relying on respirators –Can only be used if engineering controls combined with work practice controls cannot bring the respirable levels of silica below the PEL –Respirators must be provided

w w w. j a c k s o n k e l l y. c o m 22 Respirators Choose the appropriate respirator for the job and environment. –Use at least a NIOSH-approved N95 respirator

w w w. j a c k s o n k e l l y. c o m 23 Fit Testing and Training Ensure that workers are properly wearing respirators –Observe workers donning and working with respirators Provide training and information to workers about the hazards of silica and other chemicals –Prepare and implement a written hazard communication program –Provide workers access to SDSs (safety data sheets) on silica and other chemicals they are exposed to during fracking operations

w w w. j a c k s o n k e l l y. c o m 24 Medical Surveillance OSHA now requires that employers medically monitor all workers who may be exposed to silica dust Initial evaluation must be completed within 30 days of assignment Full medical evaluation must be conducted every three years for an employee who was exposed to silica levels that exceed the PEL for a total of 30 days –Requirement and exposure rate are cumulative across employers

w w w. j a c k s o n k e l l y. c o m 25 Questions?

For more information on this and other occupational safety and health topics, please visit: Jessica M. Jurasko, Esq. 401 Liberty Avenue, Ste. 1500, Pittsburgh, PA Phone: (412) Fax: (412)