Report of the MCAA Legislative Committee

SILICA EXPOSURE
Since the mid-year meeting in September, OSHA has put forth a draft proposed standard on silica exposure which would have an enormous impact on our industry should it go forward in its current form. Fortunately, MCAA got involved in the process very early on and three of our members participated in the small business review process, allowing us to assess the impact of the draft standard on our industry. During that review process, MCAA concluded that the draft standard is simply not technologically or economically feasible; many of its provisions are just not practical in a dynamic construction and many companies would likely close their doors if forced to comply.

As drafted, this standard puts forth two alternative Permissible Exposure Limits (PEL) of 50 and 75 to the existing PEL of 100 micrograms per cubic meter. Because the costs associated with a lower PEL are so high, it is my understanding that OSHA may very well retain the current exposure limit -- something MCAA strongly advocated in its comments on the draft standard. While the PEL is a key issue, there are many other provisions in the draft standard that are very disconcerting and if adopted as part of a final rule will have a serious economic impact on the masonry industry. I've written extensively about this draft standard in our magazine and newsletter, so I'll focus this legislative committee report on MCAA's efforts to convince OSHA that the policy they've put forward is simply not acceptable.

For starters, we have asked OSHA to "rejuvenate" their Special Emphasis Program (SEP) on silica in an effort to work with the construction industry to collect the data necessary throughout the industry to pinpoint areas of the country where silica exposure is a serious problem. Through this SEP, we believe OSHA should make an effort to achieve broader compliance with the existing standard on silica through education, outreach, compliance assistance and enforcement provides the industry with compliance assistance, education, outreach and enforcement before considering a change. The reported number of cases of silicosis has dropped dramatically from approximately 1800 in 1968 to 187 in 2001. While we would agree that one incident of silicosis is too many and our industry makes the health and safety of our workers the highest of priorities, we object to a stringent standard which would put companies and jobs at risk and make various forms of masonry much less competitive.

Second, we have approached the Bricklayers Union about the possibility of putting together a Task Group comprised of 6 of our members and 6 representatives from the BAC to sit down and discuss the effectiveness of current work practices and engineering controls, determine the extent of the problem in industry, review and discuss the provisions in the draft standard and ultimately compile a handbook of industry practices which would be approved by OSHA and used by the masonry industry to prevent and eliminate worker exposure to silica. We are waiting for the BAC to get back to us on whether or not they intend to participate in this effort, but we at MCAA have every intention of moving forward with an industry Task Group to put together a set of guidelines and work practices governing exposure concerns related to silica. This will not only be beneficial to our members, but should send a strong signal to OSHA that we are serious about the issue and want to resolve it in a more reasonable fashion.

In the meantime, because we at MCAA are so concerned about the economic implications of this draft standard on silica, we are in the process of organizing a political strategy to bring this matter to the attention of Labor Secretary Chao and others within the Administration we believe need to be sensitized to the fact that jobs will be lost if OSHA proceeds with a standard which includes extensive medical screening, constant monitoring for silica on the job site and the establishment of regulated areas. The medical screening alone has been estimated to consume 10 percent of a companies profits; how can companies with an average 4 percent margin be expected to absorb that cost and stay in business? MCAA also estimated the costs of monitoring at $350 per worker per day. Those costs cannot be passed on. We will be working closely with our colleagues in the construction industry to help the Bush Administration understand the severity of the regulatory policy OSHA is contemplating. We will continue to keep you apprised of further developments. In the meantime, your assistance in filling out the survey on silica which has been provided to you would be greatly appreciated.

HEXAVALENT CHROMIUM AND PORTLAND CEMENT
Just when we thought we had our hands full with OSHA's draft proposed standard on silica exposure, there is another health standard in the works which may also impact our industry. This draft standard addresses exposure to hexavalent chromium in general industry, maritime and construction. If you've never heard of this chemical, don't worry, you're not alone. Unlike silica, I've gotten nothing but blank stares or silence on the other end of the phone when I mention hexavalent chromium. And with good reason. There's simply not enough exposure to the chemical in construction to warrant such a broad new standard. Perhaps after the initial regulatory review process, OSHA will agree with me and remove construction from the proposal altogether. In case that doesn't happen, however, it is extremely important that MCAA remain involved in the development of the standard because it will undoubtedly set a precedent for what follows on silica. It has all the same horrible provisions requiring medical screening, monitoring and regulated areas and if we don't remain active in scaling some of these provisions back, the consequences may be disastrous.

Hexavalent chromium is a compound widely used in chrome plating, stainless steel welding, ferrochromium alloy production and wood preserving. Hexchrom is also found in dyes for textiles and brick, Portland cement and colored glass and block, among other things. During welding, the chemical can be inhaled and has been found to be toxic, causing increased cases of lung cancer.

In the case of Portland cement, brick masons sometimes contract allergic or contact dermatitis from wet cement, causing their skin to burn and crack. Some in industry would argue that the contact dermatitis from Portland cement is caused by the high Ph levels in the cement, not hexavalent chromium itself which is only a trace element. For that reason, OSHA's draft proposed standard addresses only exposure from inhalation and eye contact with hexchrom, and not skin contact. Unfortunately, however, that may well change. Due to pressure from outside interest groups, OSHA has been forced to take another look at the exclusion of Portland cement and collect data which justifies leaving it out of the standard. Specifically, OSHA is looking for any studies which clearly show that there is no direct nexus between hexavalent chromium and contact dermatitis. Second, the agency is interested in learning more about industry practices, information in safety programs, training of workers and Personal Protective Equipment provided which inform workers about the hazards associated with wet cement, what to do to avoid contact and how to treat it if you are exposed. This information is key and must be provided to OSHA so they will have plenty of ammunition to argue for the exclusion. Beyond Portland cement, for those of you that have fabrication facilities and do a lot of stainless steel welding, you will be impacted and should be paying close attention to this issue.

But rest assured that we at MCAA are leading the charge to retain the exclusion for Portland cement and will do everything we possibly can to make the rest of the standard workable and economically feasible should it remain applicable to the construction industry.

APPRENTICESHIP TRAINING
As most of you may be aware, MCAA has been working on legislation which would provide a tax credit to defray the costs of apprenticeship training for those companies with a certified program. Because the tax credit proposal is controversial, not to mention costly, and generates little support from some key members on both the House Ways and Means Committee and the Senate Finance Committee, MCAA decided it was time to look at alternatives. Consequently, we began working closely with the Independent Electrical Contractors to find another approach which would benefit our members, reduce the budget implications and gain broader support on Capitol Hill. We also decided that it would be in our best interests if we could find a way to convince the building trades and other union organizations to either support our efforts or at least agree not to stand in the way of them. Our discussions with the unions have been very productive. In fact, it was one of their representatives that recommended the type of tax benefit we are in the process of drafting with Congressman Mark Foley of Florida. Essentially, the legislation would allow contractors to take an enhanced deduction once their apprenticeship training costs reached a certain percentage of their overall labor costs. In other words, if your annual training costs were $35,000 (or 1 percent of your labor costs), you could deduct $70,000 from your taxes. There are some other accountability issues which the unions are still reviewing, but we hope to have Congressman Foley introduce a bill by mid April. Stay tuned.

ASSOCIATION HEALTH PLANS
For the last several months, MCAA has been actively engaged in efforts to enact legislation which would allow small businesses to pool their resources through their national trade associations to offer health coverage to their employees and their families at a much lower cost. This legislation, the Small Business Health Fairness Act (or Association Health Plan), has passed the House of Representatives but still remains bogged down in the Senate. The Senate, however, remains focused on one goal: to develop solutions to the problem of the more than 40 million Americans who lack health insurance coverage. For that reason, a Task Force on the Uninsured was formed to consider a number of legislative proposals to remedy that problem.

Since the formation of the Task Force, numerous meetings have been held with Senators and staff to discuss the merits of the Association Health Plan legislation. However, it remains unclear as to whether the Task Force will develop a bill that would be brought up in the Senate for a vote this year or whether it will merely issue a set of principles aimed at guiding development of legislation.

Meanwhile, President Bush continues his efforts to convince the Senate to take up and approve the AHP legislation. In his budget message to Congress, President Bush reiterated his support for Association Health Plans as a means of making it easier and more affordable for small employers to provide health insurance coverage for their employees and give millions more working Americans access to health benefits.

MCAA will continue working with members of the Uninsured Task Force and make every effort to ensure that the AHP legislation be incorporated into whatever proposal the Task Force produces for addressing the problem of the uninsured.

BRICK PAVERS
In June of 2002, the Federal Access Board - the federal body governing handicapped access issues - released draft guidelines which recommended that pedestrian access routes be smooth and free of irregular surface features, such as granite pavers, cobble stones and other types of rough or jointed surfaces. They argued this would minimize the sometimes painful vibrations persons using wheeled mobility aids may experience traversing rough and uneven surfaces. The advisory committee, however, was not able to identify suitable methods for measuring surface roughness or rolling vibration that would help determine whether a given surface was sufficiently smooth and recommended for more research on the relationship between surface roughness and wheeled mobility aids.

The Board received over 1400 comments on the guidelines. On behalf of our industry, the Interlocking Concrete Pavement Institute (ICPI), the National Concrete Masonry Association (NCMA) and the Brick Institute of America (BIA) submitted a study done by Dr. Rory A. Cooper, from the Human Engineering Research Laboratories in Pittsburgh, PA, who conducted an evaluation of the vibration exposure during electric powered wheelchair driving and manual wheelchair propulsion over selected sidewalk surfaces. Dr. Cooper found that there was really no significant difference in the vibrations between concrete or brick pavers and therefore should be considered acceptable as a pedestrian access route for wheelchair users. The point could also be made that the brick pavers are much easier to repair and more flexible than their concrete counterparts.

The Access Board recently met again in mid-January to discuss the guidelines and the comments received. Dr. Cooper presented his findings to the Board, and representatives from MCAA (also representing IMI) and ICPI met personally with one of the newest Board members to educate them about the issue. Thus far, the response to the study has been favorable, but more work needs to be done on the final specifications before the guidelines are published in early spring. Accordingly, ICPI, NCMA, BIA, MCAA and IMI will continue to work with the Board and its staff to ensure that they adopt the industry's technical specifications for "smoothness" as part of any final guidelines. We expect those guidelines to be submitted in early Spring and we will report back to you on the actions taken by the Board.

MCAA FORMS ALLIANCE WITH OSHA
On Wednesday, March 17, MCAA signed an alliance with OSHA focusing on fall protection, scaffolding, forklift safety and wall bracing.

Specifically, OSHA and MCAA will cross train personnel in the association's best practices or effective approaches, as jointly determined by the groups. We will also convene or participate in forums, roundtable discussions or stakeholder meetings to help forge innovative solutions in the workplace or to provide input on safety and health issues.

MCAA believes that one of our primary responsibilities is to ensure the safety of our workers on the job site. For that reason and many others, we are proud to be aligned with OSHA so that when an issue related to health and safety arises, we will be able to sit down and discuss it and work it out in an expeditious and mutually beneficial manner.

MILITARY CONSTRUCTION
As you may recall, at this time last year, we learned that the Department of Defense (DoD) had implemented a policy requiring barracks projects be built using more conventional methods of construction, including wood or other materials that conformed to the UBC, thus moving away from more traditional masonry design. Although the policy was required by legislation enacted in 1996, it was justified through cost savings estimated with a "back of the napkin" life cycle cost analysis done in a vacuum by the Army Corps of Engineers. The Corps has since substantiated the usefulness and practicality of downgrading their construction methods with the help of the General Accounting Office (GAO), the investigative arm of Congress.

In a report issued on June 10, the GAO recommended that the Secretary of Defense promote a coordinated, focused effort to determine the feasibility and cost effectiveness of barracks privatization. GAO also recommended that DoD undertake engineering studies to resolve questions about the use of residential construction practices and compliance with antiterrorism force protection requirements. DoD was also told it must issue guidance on maximizing use of existing barracks space while eliminating excess barracks infrastructure in an effort to save additional military construction dollars.

Congress has since given its endorsement to the GAO recommendations, mandating, in the Fiscal Year 2004 Military Construction Appropriations bill, that they be implemented without delay and directing the Secretary of Defense to provide a report to Congress by March of next year detailing actions taken in response to GAO's recommendations and itemizing any budgetary savings achieved as a result of their implementation.

There are several aspects of this directive that MCAA finds troubling and not simply because many of our members routinely do defense contract work at military installations. For this reason, we have done our own critique the life cycle cost analysis done by the Army Corps of Engineers and found it to be completely inadequate and unsophisticated. In the next week, the Masonry Industry Council (MIC) will be sending a letter to the head of engineering for the Corps to ask for a detailed explanation as to how they arrived at the data contained in their LCCA. When we get some answers from the Corps, we intend to share that information with our allies on the Hill and press for a more standardized method of life cycle costing as well as provide our own analysis as to why we believe masonry construction is more durable and therefore less costly to maintain. We'll keep you apprised of further developments and can assure you that we'll make every effort to see that DoD's construction policy doesn't adversely impact our traditional market share of contract work.

SCAFFOLDING MATERIALS, HANDLING AND STORAGE
When we last reported on this issue at the mid-year meeting, we were awaiting a response from OSHA as to how they intended on addressing problems with an interpretation the Directorate of Construction issued last spring confirming that it is in fact a violation to leave more than even incidental amounts of materials on scaffolding at the end of the work shift. As you may recall, this interpretation was issued when two contractors were cited for leaving materials on their scaffolding at the end of the day. MCAA went directly to OSHA and told them their interpretation was going to create more safety hazards than it would resolve.

We are pleased to report that our efforts paid off. OSHA ultimately wrote a new interpretation and directive which essentially says that while contractors are in fact prohibited from leaving materials on scaffolding at the end of the work shift, it is only a de minimus violation and contractors cannot be cited for it. This is an enormous victory for our industry. Had OSHA not agreed with us and issued this new directive, the cost implications could have been enormous. (For more technical details, refer to the report of the Safety Committee)

MACPAC POLITICAL ACTION COMMITTEE ACTIVITIES
Thanks to the many generous contributions of its members, MCAA's Political Action Committee has been very active in a handful of key races around the country, including the reelection bid of President Bush. We have focused our efforts on a few House members and two Senate races - one in Washington State and the other in North Carolina. Both elections could play a role in determining whether or not the Senate Republicans retain leadership control of that body. For further details on all of this, I'd encourage each of you to attend our PAC reception Tuesday night from 6:00 to 7:30 p.m. The PAC needs your support if we are to continue to help elect business minded individuals to Congress who understand our issues and vote accordingly.