Dealing with Hazardous Substances on the Construction Site

Originally posted 2015-06-30 10:39:37.

For this week’s Guest Post Friday here at Construction Law Musings, we welcome Vickie Lane.  Vickie is the primary point of contact for Business Development with HAZMAT Plans & Programs, a consulting and training firm that also works under the name of HP&P Safety.  Vickie’s functions with HP&P include extensive pre-project research and support though estimating, planning and cost administration.  Vickie attended Ohio State University and now enjoys her role as a first time grandmother and spending free time up in the Colorado Rocky Mountains.   Vickie can be reached at vlane@hppsafety.com or on Twitter @HAZMATPlans and @hpandpsafety.

Most of us perceive hazards on a construction site to be those that can be readily visualized or perhaps easily imagined, like trench cave-ins or falls from heights.  These are the obvious, but what about the nocuous, microscopic hazards that can’t be seen by the human eye, but can destroy the health of your workers?  Welcome to the world of hazardous materials.

The inherent danger associated with hazardous substances is workers might not be not aware of exposure.  Think of a snake in the dark scenario.  If it is a rattlesnake, you have warning before the bite.  A cobra on the other hand gives no such warning and the bite can be fatal.  So it can be with hazardous and toxic substances.

A few things to know:

1.  OSHA does not use the term HAZMAT.  OSHA refers to hazard materials as “hazardous and toxic substances”. HAZMAT is the term used by the DOT to refer to hazardous materials in transport.

2.  Standards that can apply to hazardous substance include OSHA, EPA, RCRA, your state’s Department of Health and Environment, and if in transport to or from locations, large quantities fall under DOT and PHMSA.   NIOSH has a wealth of health and safety information on work around toxic and hazardous substances.

NIOSH also provides studies of workplaces if workers or employers feel there has been exposure to hazardous and toxic substances.  This work is done under their Health Hazard Evaluation Program. More information on the HHE program can be found at http://www.cdc.gov/niosh/hhe/HHEprogram.html.

3.  Hazardous substances can be found in many shapes and forms including particulate, gas, vapor, mist, liquid, and dust.  Workers’ exposure to toxic substances can come from inhalation, skin contact, ingestion or eye contact.  This is where it is extremely important for contractor adherence to OSHA’s standards for Personal Protective Equipment.  The right gloves and respirators can be life savers.

4.  Identify the hazardous substances in your workplace.  Lead, Asbestos, Silica, Isocynates are  a few of the most common forms of toxic substances found on a construction site.   Excessive exposure to any of these can result in respiratory problems, lung damage, nervous system damage and future respiratory arrest……also, don’t forget the dust on your work clothes can endanger your family’s health too.

5.  Once again, remember multiple regulatory standards may apply.  OSHA standards apply with a current National Emphasis Program on Asbestos, Lead and Silica.  The EPA and “Your State” Department of Health also have regulations with an emphasis on Lead and Asbestos in construction.    Disregards regulations on work around on any of these hazardous substances and you could be looking at fines and penalties from OSHA, EPA and “Your State” – Not to mention the potential of lawsuits from workers and possible public exposure!

6.  Earthwork may involve soil contaminated with heavy metals or minerals.   OSHA requires HAZWOPER training for any workers who may be exposed to hazardous substances.  24 Hour training is required for the Occasional Site Worker such as project managers or truck drivers.  40 Hour HAZWOPER training is required for those who actually have the potential to exposure while working in the contaminated soil…..when calling for training, remember HAZWOPER not HAZMAT training.  We consultants can be easily confused!

7.  Keep a copy of MSDS sheets at the jobsite and in the main office.  Also, be sure to have a Hazard Communication Program and if need be, Respirator Program in place.  Employees who require respirators for work will also need to be trained and Fit-Tested.  A medical evaluation is required prior to fit-testing for all employees whose work will involve mandatory use of respirators and is suggested for those who voluntarily use elastomeric face pieces.

8.  Ensure that your Emergency Action Plan is up-to-date and in place.  Think BP.  Need I say more?  An EAP not only can protect your workers but our environment.

Work around hazardous and toxic substances can be complex and complicated.  Proper planning, education and PPE will help to protect your workers from that “snake in the dark”.  For more information, OSHA 29 CFR 1926 Subpart Z, Toxic and Hazardous Substances and OSHA 29 CFR 1926.65, Gases, vapors, fumes, dusts and mists.

As always Vickie and I welcome your comments below. Please subscribe to keep up with this and other Guest Post Fridays at Construction Law Musings.

Construction Contract Basics: Venue and Choice of Law

Previously in this on-again-off-again series of posts on construction contract basics, I discussed attorney fees provisions and indemnification.  In this installment, the topic at hand is venue and choice of law.

As construction professionals (outside of us construction attorneys), you are likely to be focused on things like the scope of work in a construction contract, the price terms, payment, delays, change orders, and the like.  However, the venue (where any lawsuit or arbitration will have to happen) and the choice of law (what state’s law applies) can be equally important.  You need to know where you will have to enforce your rights under the contract and also what law will apply.  Will you need to go to another state to enforce your rights?  Even if not, will your local attorney have to learn the law of another jurisdiction?  These are important questions when reading and negotiating your prime contract (if with the owner) or subcontract (if with the general contractor). Continue reading Construction Contract Basics: Venue and Choice of Law

Restoration Frustration

Originally posted 2009-03-27 09:00:00.

For this week’s Guest Post Friday, Musings is privileged to have a good friend Rick Provost weigh in. Rick has over 20 years of experience helping to build the country’s largest design/build franchise network specializing in exterior home improvement. Formerly the President and CEO of Archadeck®, Rick now provides his franchising expertise through The Consultancy, a consulting firm specializing in business systems development for contractors. Rick also is a facilitator, coach, and consultant for Business Networks, a peer-review network for remodelers and insurance restoration contractors, and a columnist for Remodeling Magazine Online.

While at a recent conference of the Restoration Industry Association (RIA), I heard several contractors complain about remodelers and home builders attempting to get into the insurance restoration business. With head-shaking disdain, they remarked that the restoration business isn’t as simple as builders think. And they’re right.

But that’s not what some would have us believe. Shortly after the conference, I found a Website advertising a book that would teach contractors the Six Easy Steps to becoming an insurance restoration contractor, including how to achieve a remarkably precise 87.62% bid success rate, with HUGE PROFITS. BIG, FAT, WONDERFUL 20% to 40% PROFITS!

A few of these “easy steps” remind me of the first half of comedian Steve Martin’s joke about how to become a millionaire and never pay taxes: “First…get a million dollars.”

Easy Step 1 is to “Establish a relationship with the proper insurance company ‘insider’, known as an adjuster.” Go ahead and establish that relationship. However it helps to have knowledge of the special procedures unique to restoration work. Easy Steps 2 through 6 are to analyze the damage, perform the repair cost analysis, obtain an agreed scope and price from the insurance adjuster, set up the contractual relationship, and then proceed with the repairs. Bingo!

Let’s isolate just one of those “easy” steps. An insurance estimate is scoped and priced differently than a remodeling job, usually using the Xactimate software program, which requires special training. If you’re a participant in an insurer’s program, they will pay your cost based on Xactimate’s pre-set values plus 10% markup — not margin — for your overhead, plus 10% for profit. (Pause for laughter.) Money is made in this business, to be sure. But could you make money in your business if you used that formula, literally?

Now, perhaps I’m being cynical. Maybe it is easy to dive into 24-hour emergency response and restoration of water, smoke, and fire damage. Maybe you have the equipment to perform content inventory and pack-out, fire damage demolition, smoke mitigation, mold remediation, gray and black water mitigation, and even (shudder) trauma scene cleanup. But I’ve made my point. Restoration work is a completely different animal than remodeling.

Different, that is, until you get to the “put-back” or rebuilding step. This is where the remodeling industry intersects with the restoration industry. Put-back means what it implies–replacing the structure and finishes to their original state: framing, insulation, drywall, trim, flooring, painting, and so on. Margins are typically lower than for mitigation work because put-back requires management and technical skills that cost more in the marketplace. This would obviously dilute a restoration contractor’s blended margin if he carried the fixed costs necessary to perform that kind of work. Therefore, many choose not to pursue it. But it’s also the type of work that matches a remodeler’s skills and resources.

Given the state of the remodeling industry right now and for the foreseeable future, this may present an opportunity for you to subcontract for a local restoration firm that does not currently perform the put-back portion of insurance claims work. The difficulty will be in convincing them that their company’s good name will not be tarnished by your failure to perform acceptably. That’s a hot-button issue, as their business relies on maintaining a satisfactory reputation among the insurance adjusters who feed them work. One bad job could undo years of goodwill.

So if you can demonstrate why there would be no risk in subbing to your company; or if you’re willing to become an employee, there might be an opportunity for steady work through this protracted slowdown. After all, fires and burst pipes don’t care about the economy.

(P.S. The second half of Martin’s joke is “Then say… ‘I forgot!’”)

Happy New Year 2024 from Construction Law Musings

Another year of work, fun, interesting cases, and relationships is in the books.  I hope all of you had a great 2023 and I wish you a prosperous 2024.  Without further ado, Happy New Year from Construction Law Musings and The Law Office of Christopher G. Hill, PC.

Please join the conversation with a comment below.  Also, I encourage you to subscribe to keep up with the latest Construction Law Musings.

Contracts and Fraud Don’t Mix (Even for Lawyers!)

Originally posted 2020-07-23 15:57:40.

In prior posts here at Construction Law Musings, I have discussed how fraud and contracts are often like oil and water.  While there are exceptions, these exceptions are few and far between here in Virginia.  The reason for the lack of a mix between these two types of claims is the so-called “source of duty” rule.  The gist of this rule is that where the reason money is owed from one party to another (the source of the “duty to pay”) is based in the contract, Virginia courts will not allow a fraud claim.  The rule was created so that all breaches of contract, claims that are at base a failure to fulfill a prior promise and could, therefore, be considered to be based on a prior “lie,” would not be expanded to turn into tort claims.  This rule has been extended to claims that most average people (read, non-lawyers) would consider fraud because there was no intent to fulfill the contract at the time it was signed. Continue reading Contracts and Fraud Don’t Mix (Even for Lawyers!)

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