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By Elizabeth M. Walsh
Howrey LLP
Starting April 20, 2007, the Occupational Safety and Health Administration has agreed to implement new Portland cement inspection procedures at all construction work sites subject to federal jurisdiction and to encourage states that enforce their own occupational safety and health regulations to do the same. These Portland cement inspection procedures likely will focus inspectors' attention on whether contractors are complying with a checklist of generally applicable requirements for industrial hygiene and sanitation when performing any construction activity that exposes workers to Portland cement.
If an OSHA compliance officer determines during inspection that "work involving Portland cement exposure is being performed," the officer also must determine whether the "relevant employers" are in compliance with OSHA's new cement-specific interpretations of several existing standards, particularly those governing:
|  | Sanitation, 29 CFR §1926.51 (f).
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| | Personal protective equipment, 29 CFR §1926.95.
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| | Hazard communication ("hazcomm"), 29 CFR §1910.1200, made applicable to construction through 29 CFR §1926.59.
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| | General safety and health training, 29 CFR §§1926.21 (b) and 1910.1200 (h).
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| | Recordkeeping, 29 CFR Part 1904.
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For example, according to the Portland cement inspection procedures, existing sanitation provisions require that employers provide clean water, non-alkaline soap and clean towels to all workers engaged in Portland cement operations, and existing personal protective equipment provisions require that boots and gloves be provided to such workers "as necessary and appropriate for the job."
Also, if the compliance officer determines that Portland cement is being used in a way that potentially exposes employees to inhaling Portland cement dust - such as when performing "terrazzo work, mixing mortar" or "jobsite mixing of concrete" - the inspector must evaluate the relevant employers' compliance with OSHA's construction standard on inhalation hazards. 29 CFR §1926.55, "Gases, Vapors, Fumes, Dusts and Mists."
As for manufacturers, the new Portland cement inspection procedures specify that Material Safety Data Sheets for Portland cement are expected to address the potential inhalation and dermal hazards that may be associated with exposure.
The new inspection procedures arise out of OSHA's recent settlement of a legal challenge brought by the Building and Construction Trades Department, AFL-CIO and several other unions challenging a new OSHA standard limiting occupational exposure to the carcinogen known as hexavalent chromium or Cr(VI). Citing reports that Portland cement contained only trace amounts of Cr(VI), OSHA had exempted related exposures from any application of the new Cr(VI) standard. The unions negotiated to fill that apparent void by securing OSHA's agreement to enforce generally applicable pre-existing standards as to all Portland cement construction operations.
While in theory these Portland cement inspection procedures impose no requirement that does not already exist on the construction work site, in practice their newly packaged mandates likely will affect the compliance obligations of both the concrete subcontractors directly employing potentially exposed workers and the general contractors running the projects.
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For more information about the issues covered in this report, please contact Elizabeth Walsh in our Washington, D.C. office at 202-383-7392 or at walshe@howrey.com or contact your Howrey attorney. For more information about Howrey's Construction Practice Group, click here.
©2007 Howrey LLP
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