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Proposed regulation could mean higher safety costs for construction firms

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Proposed regulation could mean higher safety costs for construction firms

A proposed federal regulation seeking much stricter limits on employee exposure to toxic silica dust could translate to substantially higher compliance costs for small and midsize construction contractors.

This year, the federal Occupational Safety and Health Administration published a proposed rule aimed at lowering worksite exposures to crystalline silica, which the agency says kills hundreds of workers and sickens thousands more each year.

The proposed rule would reduce permissible exposure levels, or PELs, for silica dust at construction sites by as much as 80%, as well as require contractors to implement advanced engineering and administrative controls to limit workers' potential for exposure while performing high-risk operations, including cutting or grinding concrete and other types of masonry, drywall finishing, large-scale excavation and rock-breaking.

“It's a very far-reaching proposed standard,” said Delwyn Kubeldis, vice president and senior risk consultant in Willis North America Inc.'s national construction practice in Pittsburgh. “There's going to need to be a lot of input from all the potentially affected parties to make sure that OSHA develops a regulation that both increases worker protection and safety and is cost-effective and feasible for contractors.”

The proposed reduction would be the first significant revision of OSHA's silica exposure standards for construction workers in more than 40 years. The existing permissible exposure levels were first implemented in 1971, years prior to crystalline silica's designation as a human carcinogen by the National Toxicology Program, the National Institute for Occupational Safety and Health and the International Agency for Research on Cancer.

Contractors in certain construction industry segments also would be required to put in place new on-site air monitoring systems, on-site training, medical examinations and record-keeping protocols.

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“It's going to force construction employers to really take a hard, robust look at how they're going about complying with the permissible exposure limits, and to spend the money on the types of controls that would be necessary to meet the new standards,” said James Curtis, a Chicago-based partner at law firm Seyfarth Shaw L.L.P. “In many instances, that can be very expensive.”

Safety and risk management experts said small and midsize contractors would likely bear the brunt of the proposed rule's impact on the construction industry, were it to be finalized.

The majority of large contractors already deploy many of the exposure mitigation controls called for under the proposed regulation: wetting down concrete and masonry-cutting operations to keep silica-containing dust from dispersing into the air; enclosing or otherwise isolating the operations; or using specialized tool-mounted vacuums and filters to collect dust created before it is inhaled by workers.

Alternatively, experts said, many small and midsize contractors opt for lower-cost protective measures — primarily personal respirators and dust masks — for workers performing high-risk operations.

“That protects the person wearing the mask, but all of the people around him obviously aren't protected,” said John Moore, an Atlanta-based vice president and construction specialist at Marsh Inc.'s workforce strategies group. “That's definitely not the ideal way to address the issue, but unfortunately that's the way the less sophisticated companies are mostly choosing to go about it.”

OSHA officials have estimated that the new requirements would impact as much as 60% of all U.S.-based construction firms, and result in total annual compliance costs of approximately $511 million industrywide, or about $1,052 per company per year.

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However, after the proposed rule's formal release in September, many private construction contractors, business advocacy groups and construction trade associations complained that they were not given nearly enough time to evaluate the 232-page regulation, or the agency's 1,402-page preliminary analysis of the rule's economic impact on employers.

“The scope and breadth of the proposed rule is quite large, and we're slowly but surely working our way through all of the details,” said Kevin Cannon, general counsel for the Arlington, Va.-based Associated General Contractors of America, one of 13 construction trade associations to petition OSHA for an extension to the proposed regulation's public comment period, which had been set to expire Dec. 11.

Late last month, OSHA officials agreed to extend the deadline for public comments on the proposed rule by 45 days.