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ABC and Safety Coalition Concerned with OSHA’s Proposed Crystalline Silica Rule

ABC and members of the newly formed Construction Industry Safety Coalition, a group of national construction industry trade associations, expressed concern over a proposal from OSHA addressing crystalline silica exposure in the construction industry.

On Aug. 23, OSHA proposed drastically lowering the existing permissible exposure limit (PEL) for silica, prescribed control methods that contradict existing safety practice, and mandated new recordkeeping and training requirements. Independent studies have estimated compliance with similar provisions to cost $1 billion to $2 billion per year.

“OSHA still has not explained how a lowered PEL will be effective at reducing the number of silica-related illnesses, particularly when the agency has admitted its failure to properly enforce the existing standard,” said ABC Vice President of Government Affairs Geoff Burr. “The agency clearly missed an opportunity to take a cost-effective approach while still improving compliance and worker safety.”

The Construction Industry Safety Coalition is urging OSHA to develop technologically feasible alternatives for compliance with a silica rule that address costs and consistency with existing federal regulations and do not overly burden small businesses. In addition, the coalition said the agency should consider factors unique to construction, as industry-specific tasks and activities are highly variable and change constantly as projects progress.

“ABC and our coalition partners are reviewing OSHA’s proposal, and we look forward to the opportunity to express our concerns fully at the appropriate time,” Burr added.

The coalition represents associations from all sectors of the construction industry, including commercial building, heavy industrial production, home building, road repair, specialty trade contractors and material suppliers. Workplace safety and health is a priority for all members of the coalition, and each is committed to helping create safer construction jobsites for workers.

(From ABC)

RPM International Inc., Medina, Ohio, and its subsidiary, Tremco Inc., Beachwood, Ohio, have paid $60.9 million to resolve allegations that Tremco filed false claims in connection with two multiple award schedule (MAS) contracts with the General Services Administration (GSA) for roofing supplies and services, according to the Justice Department.

Tremco failed to provide the government with price discounts given to nonfederal government customers. Tremco also allegedly marketed expensive materials to government purchasers without disclosing the availability of the same materials at a lower cost that were manufactured and sold by the company. Tremco is a manufacturer of construction products and services and is a subsidiary of the RPM Building Solutions Group.

“Companies that knowingly skirt the rules for securing government business undermine the integrity of the procurement process and create an unfair advantage against companies that are playing by the rules,” says Stuart F. Delery, assistant attorney general for the Justice Department’s Civil Division. “We are committed to ensuring a level playing field and protecting taxpayer dollars.”

Allegedly, from January 2002 to March 2011, Tremco knowingly violated its contractual obligations to provide GSA with current, accurate and complete information about its commercial sales practices; report changes in discounts to comparable commercial customers; and pass those discounts on to government customers. As a result, the government allegedly paid more than it should have for Tremco’s services and products. In addition, Tremco allegedly improperly marketed generic products as a superior line of the same product and used a defective adhesive formula in its roof systems.

The GSA MAS program provides government purchasers with a streamlined process for procurement of commonly used commercial goods and services. To be awarded an MAS contract—therefore gaining access to the broad government marketplace and ease of administration that comes from selling to hundreds of government purchasers under one contract—contractors must agree to disclose commercial pricing policies and practices.

The settlement resolves a qui tam, or whistleblower, lawsuit filed on behalf of the government by former Tremco vice president Gregory Rudolph, who will receive more than $10.9 million as his share of the recovery in the case. Under the whistleblower provisions of the False Claims Act, private citizens can bring lawsuits on behalf of the government and share in any recovery. Rudolph’s lawsuit also includes allegations on behalf of several states under their false claims statutes. The settlement with the federal government does not resolve the state actions.

The claims settled by this agreement are allegations only, and there has been no determination of liability.

(From NRCA)

On Aug. 23, the Occupational Safety and Health Administration (OSHA) announced it is proposing a new rule to modify regulations governing worker exposure to crystalline silica in the workplace.

Exposure to airborne silica dust, which can have detrimental health effects, occurs in operations involving cutting, sawing, drilling and crushing of concrete, brick, block and other products that contain sand. The proposed rule includes two separate standards—one for general industry and maritime employment and one for the construction industry.

NRCA is reviewing the proposed rule to determine how the regulatory changes affect the roofing industry. NRCA also is working within a coalition of construction organizations in Washington, D.C., to analyze the proposal’s effect on construction employers and formulate public comments that will be submitted to OSHA.

The rule provides for a 90-day public comment period from the date of publication in the Federal Register, which likely will be sometime this week. OSHA also will hold public hearings regarding the proposed rule throughout the U.S. The agency then will have to respond to the public comments when it issues its final rule.

(From NRCA)

Insurance Institute for Business & Home Safety (IBHS) released a midterm update to its Rating the States Report, which reviews the progress the 18 most hurricane-prone coastal states along the Gulf of Mexico and Atlantic Coast have made in strengthening their residential building codes.

Rating the States Midterm Update reviews building code activity in the same states featured in IBHS’s original report released in January 2012, assessing them according to whether they have taken positive action, negative action or no action to improve their codes during the ensuing 18 months. Although this update does not re-score each state, it discusses actions taken to provide more current insights into the strengths and weaknesses of each state system. IBHS plans to issue a new report in 2015, which revises the rating for each state based on actions taken since the original report.

The midterm update reports that most of the states with strong building code systems in place at the time of the original report have updated their codes to the most recent model building codes and, in some instances, passed legislation to further strengthen code protections. Most of the states with low scores in the original report have taken no action to improve their codes.

Following is a list of the states based on their 2013 assessment (with their ranking from 0-100 in the original report):

Positive action: Alabama (18); Connecticut (81); Florida (95); Georgia (66); Maryland (73); New York (60); Rhode Island (78); South Carolina (84); and Virginia (95)

No action: Delaware (17); Maine (64); Massachusetts (87); Mississippi (4); New Hampshire (49); New Jersey (93); and Texas (18)

Negative action: Louisiana (73) and North Carolina (81)

(From NRCA)

The Bureau of Labor Statistics (BLS) has released preliminary results from its National Census of Fatal Occupational Injuries that show the number of fatal work injuries decreased in 2012.

In 2012, 4,383 workers died from work-related injuries compared with a final count of 4,693 fatal work injuries in 2011. Based on preliminary counts, the rate of fatal workplace injuries in 2012 was 3.2 per 100,000 full-time equivalent workers compared with a rate of 3.5 per 100,000 in 2011.

In response to the data, Secretary of Labor Thomas E. Perez issued a statement discussing the poor safety conditions that cause fatal injuries in the workplace each year. Although he applauded the reduction in fatalities in 2012, he said there still are steps to be taken to improve safety in the workplace.

“Employers must take job hazards seriously and live up to their legal and moral obligation to send their workers home safe every single day,” Perez said in his statement. “The Labor Department is committed to preventing these needless deaths, and we will continue to engage with employers to make sure these fatality numbers go down further. No worker should lose their life for a paycheck.”

(From NRCA)

The American Institute of Architects’ Architecture Billings Index (ABI), a leading economic indicator of construction activity, increased in July with an ABI rating of 52.7 compared with 51.6 in June. The inquiries for new projects score was 66.7 compared with 62.6 in June. A score above 50 indicates an increase in billings.

Regional averages include the Northeast’s rating of 54.3; South’s rating of 54.2; West’s rating of 51.1; and Midwest’s rating of 50.8. Mixed-practice construction received a rating of 56.9; commercial/industrial construction received a rating of 54.2; multifamily residential construction received a rating of 53.3; and institutional construction received a rating of 50.6.

“There continues to be encouraging signs that the design and construction industry continues to improve,” says AIA Chief Economist Kermit Baker. “But we also hear a wide mix of business conditions all over the country, ranging from outstanding and booming to slowly improving to flat. In fact, plenty of architecture firms are reporting very weak business conditions, as well, so it is premature to declare the entire sector has entered an expansion phase.”

The ABI is derived from a monthly survey produced by AIA’s Economics & Market Research Group. The survey is distributed to a panel of AIA member-owned firms and asks whether their billings increased, decreased or stayed the same during the previous month. Based on comparison of data compiled since 1995, ABI results provide a nine- to 12-month view into the future of nonresidential construction activity.

(From NRCA)

Beginning Jan. 1, 2014, individuals and employees of small businesses will have access to insurance coverage through the Affordable Care Act’s (ACA) health insurance exchanges (Exchanges). Open enrollment under the Exchanges will begin on Oct. 1, 2013. ACA requires employers to provide all new hires and current employees with a written notice about ACA’s Exchanges. This requirement is found in Section 18B of the Fair Labor Standards Act (FLSA).

On May 8, 2013, the Department of Labor (DOL) released Technical Release 2013-02 to provide temporary guidance on the Exchange notice requirement. This temporary guidance will remain in effect until the DOL issues regulations or other guidance.  According to the DOL, future regulations or other guidance will provide employers with adequate time to comply with any additional or modified requirements.

In connection with the temporary guidance, the DOL announced the availability of model Exchange notices for employers to use to satisfy the Exchange notice requirement. The DOL also set a compliance deadline for the Exchange notices.  Employers must provide employees with an Exchange notice by Oct. 1, 2013.

(From ABC)

NRCA University will offer NRCA University Webinar: New OSHA HazComm Rules: What You Must Do Sept. 19 at noon CST.

As of Dec. 1, revisions to the Occupational Safety and Health Administration’s (OSHA’s) Hazard Communication standard will take effect. Full compliance will not be required until 2016, but OSHA is requiring employees to be trained to understand the new labeling elements (such as pictograms, hazard statements, precautionary statements and signal words) and safety data sheet format by the Dec. 1 effective date.

During the one-hour webinar, NRCA Director of Risk Management Harry Dietz will explain the changes to the regulations and outline exactly what steps you must take by certain dates to ensure you are in compliance with the new OSHA rules.

The webinar is free for members and $55 for nonmembers.

(From NRCA)

Diane N. Wells and Thomas G. Wells v. Hector Castro, et. al., 38 Fla. L. Weekly D1509a, Case Trytek v. Gale Industries, Inc., 3 So. 3d 1194 (Fla. 2009); however, the trial court’s attempt to overturn and modify or vacate the arbitration award as to this determination was not within the limited statutory grounds for doing so pursuant to ss. 682.13 and 682.14.

No. 3D12-3039, filed July 13, 2013. Writ of Mandamus was issued to compel the trial court to confirm an arbitration award and to quash an order determining that one of the parties was the “prevailing party” for purposed of an award of attorney fees. The parties had agreed that the arbitrator could determine the “prevailing party” as part of the proceedings on breach of contract and construction lien claims, and the arbitrator made the determination that there was NO prevailing party under the factors set forth in

(From RPPTL Subcommittee)

Citizens Property Insurance Corporation v. Mango Hill #6 Condominium Association, Inc., 38 Fla. L. Weekly D1507c, Case No. 3D10-2630, issued on July 10, 2013. Trial court’s application of the Florida Arbitration Code to confirm an “appraisal” award for roof damages following Hurricane Wilma was held to be inappropriate, and the award reversed and remanded. This case discussed the differences between the more formal “arbitration” and  the less formal “appraisal” proceedings, with the later conferring no right of notice or to hear evidence, and with the sole issue for determination in an “appraisal” proceeding being the value of the loss, and NOT the other issues of coverage and defenses.

(From RPPTL Subcommittee)