Fearing costs and fines, homebuilders struggling with OSHA rules

When businesspeople complain often enough about the inconveniences and annoying impositions government lays on them, it can become white noise.

Hard for others to appreciate.

But sometimes, the running give and take between government and business turns a corner and becomes a hard, sobering reality check.

These days, local homebuilders are trying to work through federal safety regulations that they say will cost them, home buyers, roofers and subcontractors a lot of money. Although the Occupational Health and Safety Administration is working with the builders to clarify compliance with some of the changes, they still are causing substantial change in building operations and, according to builders' advocates, could cost enough money to cause some to go out of business.

Regulations intended to protect residential construction workers aloft from falling from six feet or higher went into effect earlier this year, with some forbearance by OSHA, while builders, their advocates and OSHA attempted to reconcile them with the real circumstances the builders and their employees work in.

For some builders, it appeared OSHA had jacked up its attitude and lost sight of the goal -- in this case, job safety -- and become obsessed with imposing unrealistic standards, capturing the employer in the act of violating any one of thousands of details and fining them into submission. It hasn't helped that that the home-building industry is at the same time trying to escape a depression.

Among the biggest issues was the prevention of falls.

People working on roofs used to secure strips of lumber across the roof horizontally, creating a "roof cleat" or "slide guard" to prevent the worker from sliding or offering a handhold for the worker who did.

Now, the rules say you need a "personal fall arrest system" -- for example, a harness worn by the worker and tethered by a line to an anchor attached to the roof and capable of supporting 5,000 pounds.

During framing, those anchor points do not exist, so the home-building industry is struggling with how to accommodate the need to protect the employees in other ways, for example, with a net suspended inside the walls being framed to catch the unfortunate worker who falls.

"This is where the industry is struggling," said Mike Rezac, president of the Home Builders Association of Lincoln. "They'll fine us if we have no personal fall arrest system."

Take the net example, Rezac said. It would have to be engineered for each room and able to take the weight not only of the worker, but the materials above. "It's infeasible," Rezac said. "Completely infeasible."

There is also the potential of a worker falling from the structure outside the walls, which suggests the builder scaffold the whole thing.

These options should protect the employees, if they don't create new hazards. Alarmed manufacturers of roof trusses have warned home builders not to anchor the fall-arrest rig to the truss. It might pull the truss down.

But the changes in rules and enforcement also make new housing more expensive, perhaps by tens of thousands of dollars, depending on the building, according to builders. And they change the way the work gets done.

Take framing with a nail gun, for example. Up to now, the worker's been doing a lot of the work bent over around his feet and his hands, so if he screwed up, he hit himself in the hand or foot with a nail. "It hurts like hell, but in a few days you're OK," Rezac said.

The new rules push the framer into an upright position shooting at a right angle to the framer's body in a way that Rezac, among other builders, believes creates more of a safety hazard than it might solve.

"Now they're moving us to ladders and scaffolding, so instead of shooting yourself in the foot, you're ricocheting into our faces and bodies," he said. "We've created another danger zone." And that's with 1,500 to 2,000 nails a day.

"When I brought that up they (OSHA officials) did kind of sit back in their chairs," Rezac said.

The new regulations also push builders toward using exterior scaffolding on backfill soils that aren't yet stable, so the scaffolding might actually have to be erected and taken down more than once to accommodate insurers, according to Rezac.

Rezac isn't suggesting the residential home-building workplace should not have to pay attention to safety. "We want our people to be safe," he said. "I've got my sons working out there."

And he compliments the Omaha OSHA office for its cooperation and willingness to work through some of these issues, even to the possibility of site-specific variances that still protect the worker and allow the job to get done.

Rezac has been running his home-building company, spending additional time working with the state and national home-building trade associations and a state safety committee, traveling to Washington to huddle with OSHA senior executives at the office of U.S. Sen. Mike Johanns, who has helped immensely, according to Rezac.

It's wearing on him, visibly.

"We're working ourselves in and out of compliance all day long," he said. "We walk up to an excavated basement and we're out of compliance." So should he scaffold the entire interior of the excavation?

The cost of compliance is expensive. Rezac estimated $15,000 to $20,000 per home, at a time when some new homes are appraising at less than they cost to build. That's one way to go out of business.

The cost of not complying can be the same: OSHA fines stiff enough to do in a small builder or subcontractor.

"Either way, housing is going down a dark alley," Rezac said. "Most of these are two-, three-. four-man businesses. Residential construction is pretty safe. Can we do better? Give us systems we can comply with. Everybody's afraid of being fined out of business. At a time when they're trying to turn the economy around, you wonder what's next."

From July 2010 to July 2011, OSHA proposed fines of $1.5 million on Nebraska residential construction companies, but most of those fines would have been negotiated to lower figures.

As Lou Nigro, owner of LA Home Builders in Lincoln, pointed out, most Nebraska builders are small operations, not huge tract-builders listed on a stock exchange. They have a couple of people working on the job at any one time, they're invested in their tools and their truck, their margin is 5 to 15 percent. A single fine can ruin them, he said.

Nigro described the challenge: "Federal enforcement officers in plain clothes with high-power lenses with the intention of coming on your site unannounced, without showing any I.D."

In separate interviews, he and Rezac both told a story of an OSHA agent coming unannounced to a construction site where a stepladder is leaning against the house, and the OSHA guy asks a worker having lunch on a pile of lumber if the ladder was used that way. The guy says yeah, and no, he hadn't been trained on the stepladder. That's one $7,000 fine for not using the ladder properly, another for not training the guy. Then the general contractor got fined, too.

"My electrician was on a job," Nigro said. "It was in progress, wasn't completed and one circuit breaker wasn't labeled. They fined him $3,000 because that one circuit breaker was not labeled. He went in and contested it. And this is kind of a bargaining process. They start saying, 'Would you pay $1,000?' He said, 'I'd like to pay nothing.'

"'OK, we'll let his one go.' But he still has a black mark on his record for five years. If he gets hit again on anything, that fine will be increased 10-fold," Nigro said.

That's the kind of story builders use to demonstrate their prevailing attitude toward the power of the federal agency. They were wary and didn't make much public noise about these fall-safety standards for months.

In April, OSHA sent out a notice to its Kansas City region, including the Omaha office, that directed special attention to construction work sites, especially for fall hazards.

Background from that notice: 37 percent, or 377, of the 1,016 fatal and catastrophic Federal enforcement incidents in OSHA Region VII, which includes Nebraska, Oct. 1, 1995, through May 31, 2010, were in the construction industry. Of the 377 fatalities and catastrophic incidents, 42 percent were the result of falls.

So the scrutiny ratcheted up and builders talked among themselves, to OSHA, to Congress and finally, to reporters.

"We don't want to make 'em mad," Rezac acknowledged.

Some builders say they believe OSHA is doing this to make money, to pay its own way. Absolutely not true, says Scott Allen, a Department of Labor spokesman in Chicago.

In any case, the resentment among builders is obvious, raw and aggravated by economic circumstances and philosophical stances.

Nigro grew up in a family-owned residential housing business. "It's not much different from the family farm," he said. "To have the federal government come in and have you learn these new regulations, come up with a plan and a policy manual, and do it six months is pretty unreasonable. It's just another sign of where the federal government and cradle-to-grave coverage is going.

"Residential is so much different from commercial or industrial," Nigro continued. "It isn't as inherently dangerous as building Cowboys Stadium. To put us under the same umbrella doesn't make any sense. Where's the common sense?

"The public needs to know this is adding to the price of everything," Nigro said. "It's to our own advantage to be safe. The people who do this are safe by the fact that their own skin's on the line and we have to be careful. We don't need the federal government telling us how to walk on a ladder. It goes back to personal responsibility."

Wyoming, on the other hand, has its own safety agency, one that is more interested in getting people safe than fining people, the builders say.

"My biggest concern is the fines," said roofing contractor Terry Neeman. "We actually did get fined: $12,000 for a ladder extended two rungs above the gutter instead of three. We contested and we got it dropped to $6,000, I don't know why there is not more training and less fining.

"To fix one shingle, it's costing homeowners 10 times what it should," Neeman said. "It's just ridiculous, especially on a ranch house.

"The problem is people like me who do things right, they're targeting because we can pay the fines, Neeman said. "Good companies are taking a beating. Everybody else just goes out of business or changes their name."

The reality is," Rezac concluded, "there are no experts in residential construction fall protection. We are the experts."

Source, RICHARD PIERSOL, Lincoln Journal Star