A precarious time

Increasing federal regulations will affect your business

Roofing contractors throughout the U.S. have faced difficult economic times during the past few years and eagerly are anticipating a boost in job activity that comes with the summer months. Unfortunately, the lethargic economy has not tempered federal agencies' efforts to advance new regulations, policies and procedures that may significantly affect roofing contractors.

During the past few months alone, the Occupational Safety and Health Administration (OSHA) has finalized and published new rules related to crane and derrick operations and crane operator certification; rescinded a 15-year-old directive to effectively prohibit a fall-protection option (slide guards) for residential roofing work; withdrawn a proposed interpretation of the general and construction industry noise standards; and withdrawn a proposal to include a check box for reporting musculoskeletal disorders on employer injury and illness logs (OSHA Form 300).

Although a few agency actions may benefit roofing contractors, the challenges presented by the new crane standard, residential fall-protection directive and other future government agency initiatives likely will dampen any thoughts of celebration.

For example, the Department of Labor (DOL) published its Fall Regulatory Agenda in December 2010, and a number of OSHA initiatives were prominent on the schedule.

In addition, the Environmental Protection Agency (EPA) is developing rules related to renovation and repair work that disturbs lead-based paint in public and commercial buildings. EPA rules regarding lead-based paint already are in place in certain residential buildings and child-occupied facilities.


The most significant OSHA regulatory initiative on DOL's fall agenda is the Injury and Illness Prevention Program (IIPP). In 2010, OSHA held several stakeholder meetings about this topic, and a proposed rule is the agency's highest regulatory priority. David Michaels, OSHA's assistant secretary of labor, mentions the IIPP initiative and its significance to the agency in nearly every speech he delivers.

Michaels has said IIPP "represents the most fundamental change in workplace culture since the passage of the OSH [Occupational Safety and Health] Act."

Not surprisingly, action on a standard quickly has moved to the Small Business Regulatory Enforcement Fairness Act (SBREFA) panel stage. Congress enacted SBREFA in an effort to help small businesses comply with federal regulations, and the act contains a number of provisions to achieve that goal. The SBREFA panel process allows small businesses to review federal agencies' regulatory drafts and comment on the proposed requirements at the formative stage of the rulemaking process.

The process is required for agencies when regulatory actions significantly will affect a substantial number of small businesses. Small-entity representatives (SERs), which are companies, trade associations or other interested stakeholders, review the regulatory proposal and provide comments and recommendations to the agency within 60 days after the panel convenes. The agency then revises the proposed rule and publishes it in the Federal Register along with the panel's recommendations.

With respect to IIPP, OSHA expects to initiate the SBREFA panel process by June. In all likelihood, a proposed rule could be published for public comment before the end of this year with final action expected in 2012.

The proposed IIPP rule is expected to contain requirements similar to those found in ANSI/AIHA Z10-2005, "Occupational Health and Safety Management Systems," which OSHA references in the new rule's abstract along with California's IIPP requirement. The main components of IIPP under California's rule include:

  • Management commitment to worker safety and health through strong policies and procedures
  • Assignment of staff responsibilities for implementation and management of a health and safety program
  • Communication with workers regarding occupational safety and health matters (This may include formation of a safety committee.)
  • Protocol for assessing worker compliance with the program
  • Hazard assessment and control under a system of scheduled inspections and evaluations
  • Accident investigations
  • Safety training
  • Recordkeeping and documentation

Based on these existing standards, the new OSHA rule is expected to be a performance-based standard. Rather than specifying exact elements employers must have in place, the rule will require employers to establish health and safety management system guidelines and implementation details.

For example, training in fall protection will not be specified in the standard to entail 20 hours of classroom attendance. Instead, workers will be required to complete comprehensive fall-related hazard assessments and controls with respect to all the tasks they are engaged in on job sites.

If your company does not have a written safety and health management program, you should begin developing one for several reasons. Future OSHA regulatory compliance is one aspect, but also be aware OSHA rules allow for a "good faith" reduction of as much as 25 percent for certain citation penalties if an employer maintains a written safety program.

In addition, many general contractors and building owners may require written safety programs from contractors who expect to bid on work offered by those owners or contractors. Many state funds for workers' compensation offer discounts to employer participants who maintain written safety programs. Independent insurance companies usually require a written safety program for a company to obtain coverage.


Roofing workers may be exposed to crystalline silica as a result of abrasive cutting of clay and concrete roofing tiles or pavers or grinding of mortar joints during flashing installation. The abrasive cutting action may release respirable silica into the air where it can be inhaled by workers or others in the immediate vicinity of the cutting operation. Breathing silica particles can result in silicosis, a debilitating respiratory disease whose symptoms (reduced lung function) may not appear for years but the consequences of which cannot be reversed.

OSHA's current construction regulation for crystalline silica (29 CFR §1926.55 Appendix A) contains a permissible exposure limit (PEL) calculation based on an obsolete counting method. OSHA's revision of this rule was based, in part, on the need to reflect current sampling and analytical technologies. A Notice of Proposed Rulemaking (NPRM) originally was expected to be released by the agency in February but has been delayed likely until sometime after this month. The proposed silica rule will set a new PEL and also contain requirements for worker monitoring and medical evaluations.

In the interim, workers who may be exposed to silica should wear respiratory protection if engineering controls such as wet-cutting or dust collection methods are ineffective.

For example, workers should wear air-purifying respirators—full-face or half-mask respirators or N-95 filtering face pieces. Respirator use is not simple to implement; if workers are provided respirators, employers are required to follow the respiratory protection program requirements under 29 CFR §1910.134.

Components of a written respiratory protection plan should include:

  • Medical evaluations of employees required to use respirators
  • Fit-testing procedures
  • Respirator selection procedures
  • Maintenance and cleaning procedures
  • Worker training for respirator use


OSHA instituted an NPRM in 2009 to revise its hazard communication (HazCom) standard because of conflicting requirements for labeling of hazardous chemicals and providing consistent information about the toxicity and physical hazards related to such chemicals.

The new OSHA regulation will bring the agency rules with respect to hazardous chemicals in line with the Globally Harmonized System (GHS) of Classification and Labeling of Chemicals. GHS was developed under the United Nations Economic Commission for Europe to develop an internationally consistent protocol for classifying and labeling hazardous chemicals.

The new OSHA regulation will not greatly affect how workers are trained. Employers still will be required to develop a written HazCom program, maintain current material safety data sheets (MSDSs) on all the chemicals workers use and train workers on the health hazards of those chemicals, among other requirements.

What will be different, after full implementation of the rule in 2015, is MSDSs will be in a standardized format; product warning labels will have consistent hazardous warning statements; and labels will be required to use pictograms to more readily alert users to chemical hazards.

From a practical standpoint, this rule will require significant administrative work by employers to verify all MSDSs are the versions that reflect GHS requirements. In addition, workers will have to be trained to understand the hazards the GHS pictograms attempt to describe.

The final HazCom rule should be issued late this summer.

Confined spaces

OSHA established requirements for confined spaces under its general industry standards in 1993, but those rules do not apply to construction job sites. A final rule on confined spaces in construction is expected near the end of this year.

The rule will contain provisions for worker training; hazard analysis; classification; entering, exiting and working in various confined spaces; and rescue from confined spaces. The most common exposure to confined spaces your workers may face may involve below-grade waterproofing applications. However, the new rule will not apply to most confined spaces that are categorized under the excavation rules of Subpart P, 29 CFR §1926.650-652.


Dust and particles from lead-based paint can be harmful to people of all ages, but young children are especially susceptible to lead's harmful effects. Lead can cause memory loss, kidney problems, brain and nervous system injury, stomach disorders and a variety of other symptoms that may result in permanent damage manifested in some cases by diminished IQ, learning disabilities and behavioral problems.

In an attempt to lessen public exposures to lead, EPA issued a regulation that became effective April 22, 2010. The regulation requires workers who perform renovations that disturb lead-based paint in residences and child-occupied facilities, such as schools, built before 1978 to be certified and follow specific work practices to minimize lead exposures.

In addition, the rule requires companies also be certified by the EPA if they employ certified renovators who perform work that may disturb lead-based paint in pre-1978 structures subject to the rule. To add to the rule's administratively cumbersome nature, states may enforce similar rules regarding lead-based paint renovations. Ten states currently enforce such rules. This has forced numerous contractors who perform work in multiple states to pay an EPA certification fee to operate in states under federal EPA jurisdiction and certification fees to states to perform similar services.

EPA is in the process of developing regulations to expand the lead renovation rules to include public and commercial buildings. In 2010, the agency requested public comments on its initial proposal to expand the rule, and NRCA submitted its views on the action. NRCA commented that regulations to control lead-based paint exposures in public and commercial buildings should be tailored to the risks posed to the occupants of such buildings and the general public so resources are focused on areas of exposure that pose the severest and most likely threat to the most susceptible persons. In NRCA's opinion, current research and studies of lead-based paint exposures may not be suitable justification for regulating renovations on public and commercial buildings.

EPA has initiated the SBREFA panel process to receive comments and recommendations with respect to the rule's expansion to public and commercial buildings. NRCA has been selected to participate in the process and will comment further on the new regulation's development. Under a settlement to a petition filed against EPA in the U.S. Court of Appeals, EPA has agreed to issue proposed regulations on exterior renovations to public and commercial buildings by Dec. 15.

Be prepared

Government regulatory activity that can significantly affect the way you conduct business continues to surge forward. You must be attentive to new requirements and pending agency actions and prepare a plan to implement revised company policies and procedures.

Professional Roofing will keep readers apprised of agency actions to help companies comply with regulatory demands as fines increase and agencies take a more punitive stance toward employers.

Harry Dietz is NRCA's director of risk management.



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