On February 13, 2013, the San Antonio Express-News published an article titled “Eagle Ford pay is high, but work can be fatal.” On February 15, 2013, the Houston Chronicle published an article titled “Fatalities accompany Eagle Ford Boom.” Both articles were republished in newspapers across Texas. A common theme in both articles was that the oil and gas business is not subject to adequate oversight by OSHA. In response to these articles and other pressure exerted by the press and various labor organizations, on November 14, 2013, OSHA conducted a “Safety Stand Down” to raise health and safety awareness in the oil and gas industry. Of all of the hazards encountered in the industry, the OSHA press release concerning the stand down only specifically mentioned one- respirable silica dust.
Just two months before the Safety Stand Down, on September 12, 2013, OSHA published proposed new silica rules, after years of delay, intended to replace those instituted some forty years earlier. Almost as an afterthought, the notice of rulemaking and proposed new rules referenced hydraulic fracturing. According to OSHA, the new rules would impact some 25,000 workers employed in some 444 establishments by some 200 employers that have hydraulic fracturing operations or that have operations that support hydraulic fracturing. OSHA claims that the proposed Permissible Exposure Limit (“PEL”) of 50 micrograms per cubic meter of air will result in 12 avoided fatalities per year at a cost to the industry of between $26.4 and $28.6 million annually. According to some critics of the proposed rules, the proposed PEL would be nearly impossible to reliably measure and the benefit non-existent.
At present, the oil and gas industry, as well as all others covered by the General Industry standards of 29 CFR 1910, are required to maintain a PEL of 100 micrograms per cubic meter. The current regulations allow that PEL to be met by using personal protective equipment (“PPE”) such as respirators, supplied air hoods, and the like. The proposed rules will require that the PEL be met through administrative and engineering controls, and permit the use of PPE as a last resort. The current rules allow employers to meet the PEL by rotating employees through jobs over an eight hour shift so that the average exposure over that time is below the PEL. The proposed rules would not permit employee rotations to meet the PEL.