ASPIRE is a quarterly magazine published by PCI in cooperation with the associations of the National Concrete Bridge Council. The editorial content focuses on the latest technology and key issues in the Concrete Bridge Industry.

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Page 11 of 55

PERSPECTIVE A Different Approach to Risk Allocation on Construction Sites OSHA’s crystalline silica rule requires it by Michael R. Peelish, Law Office of Adele L. Abrams PC Respirable crystalline silica dust is different from all other contaminants located on a jobsite. There is no other material that makes up so much of the earth’s crust and is found in so many construction materials and products. It also can be released in respirable-sized particles by many different tasks. Silica dust is pervasive in how it permeates the jobsite, and how it affects workers of different employers. When a general contractor uses multiple subcontractors to construct commercial bridges, buildings, warehouses, or outdoor structures, how do the parties allocate the risk of silica dust exposure for each company’s employees? This is a significant issue when multiple contractors occupy the same worksite. Some contractors may generate high levels of silica dust from a variety of activities, while others may generate no contributing respirable silica dust themselves, but work downwind from other contractors who create exposures above legal limits for workers. The new Occupational Safety and Health Administration (OSHA) permissible exposure limit (PEL) is 50 μg/m3 for an eight-hour time-weighted average, which is only 20% of the previous limit. The new exposure limitations (OSHA 29 CFR 1926.1153), along with the rest of the silica rule’s provisions for training, exposure monitoring, and medical surveillance, are scheduled to take effect for the construction sector on June 23, 2017. OSHA can issue citations to the general contractor, the creating contractor (the entity that generates high levels of silica dust), the exposing contractor (the employer whose workers are exposed above the PEL), and the controlling contractor (the party who, by practice or by contractual agreement, is responsible for eliminating this hazard from the workplace). Often, OSHA will consider contract documents among various employers at a shared worksite in determining who has primary responsibility for hazard mitigation, and this can be reflected in how citations are issued in terms of negligence. The typical approach of being handed a consensus document and asked to sign it does not allocate risk adequately. In our review of several consensus documents, the contract language addressing risk allocation concerning silica dust is not sufficient. These consensus documents can create a Tammany Hall–like ring of employers pointing their fingers at the next employer and not willing to take any claim of responsibility for dust overexposure. Unfortunately, if OSHA visits a multi-employer jobsite and finds overexposures because the parties have not adequately addressed the responsibility of controlling silica dust, it normally will cite multiple parties and let the courts sort it out. There can also be ripple effects, because once a contractor is documented to have exposed other companies’ workers to hazardous levels of silica dust, third-party tort actions for personal injury or wrongful death can follow. To avoid this scenario, controlling silica dust below the PEL is the solution the parties should try to achieve. The web of contracts on a jobsite in the precast concrete industry might go something like this: The general contractor has a contract with the precast concrete producer, which has a contract with the shipping company to deliver the concrete components, and has another contract with the erector subcontractor to install the concrete components, and yet another contract with a patching and grouting company to make sure every concrete component is acceptably installed. In short, the general contractor will have contracts with as many subcontractors of various trades as are necessary to complete the job. The building owner will have its engineers on the jobsite to ensure the project goes according to plan. Woven into these relationships will be the rental equipment company personnel operating and maintaining the cranes, high lifts, fork lifts, excavators, and crushers, just to name a few.

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