Toxic Exposure--- Know Your Workers’ Limits
Jany K. Jacob
(Reprinted from Seattle Daily Journal of Commerce)

         Construction work often involves the abatement of toxics discovered underground or inside a structure that is being renovated or demolished. Contractors who agree to take on this responsibility should be aware of both the standards for the proper abatement and disposal of toxics, as well as industry and regulatory precautions employed to minimize worker exposure to toxics. The Washington Industrial Safety and Health Act (“WISHA”), RCW 49.17, imposes obligations on contractor employers for the safety of construction workers on a project site. RCW 49.17.060 provides, in relevant part:
Each employer: (1) Shall furnish each of his employees a place of employment free from recognized hazards that are causing or likely to cause serious injury or death to his employees. . . .
Permissible exposure limits (or PELs) for worker exposure to toxics are set forth in the Department of Labor and Industries’ regulations found at WAC 296-62. WAC 296-155 establishes health and safety standards specific to the construction industry. Pursuant to RCW 49.17.070, WISHA inspectors have the authority to come onto a project site (i.e., randomized geographical inspections) and issue citations assessing monetary penalties for violations of these standards. Inspectors will also make site visits if employees file a complaint.

The regulations further provide:

(2) Every employer shall require safety devices, furnish safeguards, and shall adapt and use practices, methods, operations, and processes which are reasonably adequate to render such employment and place of employment safe. Every employer shall do everything reasonably necessary to protect the life and safety of employees.

WAC 296-155-040(2)(emphasis supplied).
Since these regulations impose a reasonableness standard, contractors who wish to avoid WISHA liability may have a hard time knowing when they have done enough. Unreasonable conduct may also incur tort liability in a negligence suit. One possible scenario is a tort action by injured employees of the subcontractor against the prime contractor (because workers’ compensation laws bar workers from suing their own employers for torts) for failure to ensure that all common areas on the construction site were safe places to work. See, e.g., Kelley v. Howard S. Wright Construction, 90 Wn.2d 323 (Wash. 1978). It may be easier in hindsight to determine at what point the contractor breached its duty of care to injured workers.

        Given the potential liabilities involved, the best protection for contractors may be to affirmatively implement a health and safety policy in the event that workers come into contact with toxics on the project site. This should be a written policy that sets in place a procedure for workers to report illnesses and injuries on the jobsite (and provide emergency medical assistance), as well as a procedure for them to report the discovery of hazardous substances on the jobsite to the company health and safety officer. Ideally, the designated health and safety officer should be on site readily at hand. In addition to a written policy, contractors may be well advised to warn employees in writing of the presence of hazardous substances, either through a bulletin or posters placed on the job site. These informational bulletins/ posters would ideally apprise workers of the estimated levels of exposure for each toxic substance on the jobsite. To do this, consultants may have to be hired to perform air monitoring and soil sampling laboratory analyses.

        Training on toxic substances recognition and handling should be made available to employees in appropriate cases. Employers should provide protective gear (goggles, gloves etc.) as required to workers performing these tasks. The designated health and safety officer’s responsibilities may include soliciting worker suggestions as to how best ameliorate the situation (for example, by providing better ventilation). An employee representative may also be designated as a “spokesperson” for worker concerns. It is important to note that workers have a legal right to refuse to do a particular task that would endanger their life or health.

        Regulated toxics commonly found on construction projects:

        Lead: Lead contamination in the environment is a result, inter alia, of the use of leaded gasoline, lead in batteries, and lead-based paint prior to the late 1970’s. Whether the lead found on the project site is soluble or insoluble is significant in determining the levels precautions that must be undertaken. Regulations pertaining to worker exposure to airborne lead may be found at WAC 296-155-176.

        The presence of lead-based paint may be tested using atomic absorption spectroscopy. Abatement of interior lead-based paint is ordinarily accomplished by replacement, removal or encapsulation. “Replacement” refers to tearing down the structure containing the lead-based paint and substituting it with new building materials. “Removal” refers to stripping down or sanding off the lead-based paint. “Encapsulation” refers to covering the lead-based paint surface with a material that will not easily erode over time to re-expose the lead-based paint surface.

        Silica: Silica is found in some abrasive blast materials, concrete/ cement and bricks. Exposure to airborne silica over time may cause silicosis, and, eventually, respiratory failure. Standards for exposure to this toxic substance may be found at WAC 296-62, part H.

        Asbestos: Asbestos was used in the past primarily as insulation. Its abatement is done through either encapsulation or removal. Encapsulation refers to the spray coating of asbestos-containing surfaces in order to contain the asbestos fibers indefinitely. Removal involves watering down the asbestos-containing material so that the number of asbestos fibers that escape will be greatly reduced. Air samples should be tested to ensure that the abatement is complete. Since asbestos fibers are believed to be carcinogenic, worker exposure issues in asbestos abatement should be taken seriously. Workers must be trained to use special equipment and wear protective gear such as respirators. In addition, the work site should be sealed off to prevent asbestos fibers from escaping. Regulations pertaining to asbestos may be found at WAC 296-62-077.