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Jun 01
Love0

CURBING WORKPLACE DRUG AND ALCOHOL ABUSE

By Risk Management Bulletin

$100,000,000, 000 a year.

That’s how much the federal government estimates that drug and alcohol abuse costs American businesses. If you think your organization is immune, bear in mind that nearly three in four of adult abusers are employed — some of them perhaps by you. You might know these people by their absentee records: they’re likely to be gone at 2.5 times the rate of the average employee. Or perhaps by their Workers Comp claims: Three to five times those of non-abusers.

If nothing else, you’ll know them by how much they cost your health plan: 300% higher than no-abusers (not to mention the far greater human costs to co-workers, families — and the abusers themselves).

Despite its highly publicized war on drugs, there’s no overall federal drug-free workplace law for the private sector. Although a few states require drug-free workplaces, others take the voluntary approach. For example, some 13 states reduce Workers Comp premiums for businesses with a drug-free workplace program.

If you do create such a program, observe these guidelines:

  • Create a policy. Be sure to expressly ban illegal drugs and abuse of alcohol; to specifically state which drugs and related acts are banned; to explain the steps you will take to back these edicts; and to detail the consequences for their violation.
  • Develop a testing program. Decide whom to test, when to test (e.g. pre-employment, random, regular, reasonable suspicion, incident-related), who will do the test (a certified independent lab is preferred, with at least two tests showing positive), and what will happen after a positive finding.
  • Decide what to with abusers. While some organizations simply discipline or terminate, others see abusers as valued employees with a problem, who are well worth saving. For this reason, many set up Employee Assistance Programs (EAPs) to deal with drug and alcohol issues off site. Establishing an EAP shows respect for your employees and offers an alternative to dismissal.
  • Define the role of your supervisors. As the management level closest to employees, supervisors will probably be the first to notice the signs of abuse. They need to be tutored on what to look for, and how to document and deal with it. Most important is what supervisors should NOT do — attempt to diagnose what are essentially medical issues, or to counsel abusers. Their role is to report behavior and support what abuse experts decide are appropriate responses to individual situations.
  • Communicate to employees the details of your program, the effects of abuse, and the importance of understanding the problem and reacting in a supportive way.
Jun 01
Love0

WHO SHOULD PAY FOR EMPLOYEES’ UNHEALTHY HABITS?

By Employment Resources

With health plan costs a huge, and growing, part of companies’ compensation expense, employers increasing are looking at the impact that employees’ lifestyles and health habits have on health care spending — and considering doing something about it. Employees who smoke, are overweight, don’t exercise or have a chronic untreated health condition simply are likely to cost more — they’re apt to have higher health plan expenses, if not now then down the road, and also are at greater risk for more frequent absences and lower productivity. Consequently, employers have started to use an array of pocketbook-oriented “carrots” or “sticks” to motivate employees to get these health issues under control.

Basically, the message these employers are sending to employees is this: Lead a healthy lifestyle, and we’ll ask you to contribute less to your health plan premium. Continue with habits that are shown to lead to medical problems, and we’ll ask you to pay more.

“Carrots” loosely translate to incentives or rewards, while “sticks” take the form or surcharges or penalties:

  • Employees who smoke pay higher premiums for health care coverage. If they participate in a smoking cessation program, they don’t have to pay the surcharge.
  • Employees who register a body mass index (BMI) reading in the normal range receive a credit to apply to their health care premium. Those with a BMI outside of normal range pay a higher premium, but they can receive a credit to offset the increase by participating in nutrition counseling.
  • Employees who “pass” each in a series of health screenings (blood pressure, cholesterol, blood sugar, etc.) receive a discount on their health plan premium contribution for each screening passed.
  • Employees with a chronic condition such as asthma, diabetes or hypertension receive a cash incentive for participating in a disease management program.

What are the considerations in implementing any of these approaches? First, there are the potential legal issues. Guidance from the Department of Labor allows wellness programs that offer rewards, and considers them to not discriminate under the Health Insurance Portability and Accountability Act (HIPAA) based on health status, so long as certain requirements are met. In part, these requirements mandate that any reward provided must not exceed 20% of the cost of plan coverage, and the plan must offer a reasonable alternative for attaining the reward to people who, for reasons beyond their control, cannot meet the established health standards. Another discrimination issue could arise under the Americans With Disabilities Act (ADA), which in part limits medical inquiries of employees regarding any disability, unless job-related and for a business necessity.

Since the use of rewards and surcharges is a relatively new development, there is not much case law or legal precedent that employers can use to guide their design of these programs. In deciding how far to go in penalizing employees who pose a higher risk of incurring extensive health care costs, then, the second factor to consider is your company’s philosophy toward “pushing the envelope” when it comes to this type of issue. After consulting with legal counsel, would you feel comfortable in implementing a type of program that few companies, to date, have tried? Although an increasing number of employers are offering incentives for voluntary employee participation in health risk assessments or other programs that can enhance health, fewer have imposed outright penalties for lifestyle-related behaviors or failure to meet health standards such as BMI, cholesterol level, etc.

Next, look at your most recent health care cost and claims data, and at your employee population overall. You might be able to identify certain areas for which a voluntary wellness program could have an impact, and this could be a step to try before turning to penalties, which employees tend to perceive more negatively than incentives. Finally, assess how employees are likely to react to being penalized — or to seeing their co-workers penalized — for health-related factors, and how implementing a cutting-edge program could affect your recruitment and retention efforts. Our benefits specialists are here to help — please contact us for more information.

Jun 01
Love0

POPs OFFER BIG SAVINGS POTENTIAL FOR BOTH EMPLOYERS AND EMPLOYEES

By Employment Resources

Ever-rising health care costs can have a severe, negative impact on a company’s bottom line, and on employees’ pocketbooks. If you could find a simple and straightforward way for both your company and your employees to save a few dollars on the cost of health care — without changing carriers or plan design — chances are you’d want to learn more about it. That’s exactly what Sec. 125 premium only plans (POPs) offer: a way for both a business and its employees to spend less on health care without giving up any of their current benefits or coverage.

A POP is a version of a Sec. 125 cafeteria plan. It allows employees to reduce their salary to pay for health care premiums with dollars that are not subject to taxes (federal income, FICA and, in most cases, state and any local income taxes). In doing this, a POP enables employees to get more mileage from the dollars they use to pay for their health care benefits. Because any pre-tax dollars are not subject to FICA taxes, an employer also realizes savings because it does not pay its share of this tax on any premiums run through a POP.

Let’s look at exactly what these savings can amount to, both for an employer and its employees. Suppose an employee’s monthly contribution for employee-only coverage under the company health plan is $200. If this employee is in the 20% tax bracket and lives in a state with a 3% income tax, along with the 7.65% FICA tax the POP results in 30.65% tax savings on the $2,400 annual contribution, or $735.60 in annual savings. An employee in the same tax situation whose contribution for family coverage is $300 monthly will save $1,103.40 annually. If these employees’ company had 10 employees with employee-only coverage and 20 employees with family coverage, for a total annual employee pre-tax contribution of $96,000, the employer would save its 7.65% FICA contribution on this amount, reducing its cost by $7,344.

Though a POP is a very simple version of a Sec. 125 plan, it is subject to the compliance rules for cafeteria plans. This includes, in part, the requirement for a written plan document and nondiscrimination testing. Regulations for Sec. 125 plans provide a simplified safe harbor nondiscrimination test for POPs, which basically deems a plan as nondiscriminatory based on eligibility to participate. Under this safe harbor, if all employees are offered the opportunity to elect to salary reduce the same amount or same percentage of the premium for employee-only or family coverage, the plan will not be considered discriminatory, even if a disproportionate percentage of highly compensated or key employees actually elect salary reduction.

Any employer can implement a POP, though certain individuals are not considered “employees” under the Sec. 125 rules and could not participate in the plan. These include self-employed individuals, partners, and more-than-2% shareholders of a Subchapter S corporation.

In addition to Health insurance, POPs also could be used to pay for Dental, Vision, any Supplemental Medical, and Group Term Life insurance that does not exceed $50,000 in face value. Long-Term Disability (LTD) insurance premiums can also be paid for with pre-tax dollars, but if they are, any disability benefits that are paid will be considered taxable income to the employee. For this reason, many employers choose to keep LTD on an after-tax basis, even if they run other types of premiums through a POP.

Plan documents and administrative services are readily available to quickly put in a POP. If your employees currently pay their health plan premiums with taxed dollars, we can help you look into the potential savings that a POP could bring to them — and to your benefits budget. Call us.

Jun 01
Love0

EMPLOYEES EXPERIENCE HEALTH BENEFITS WHEN GIVEN CHALLENGING WORK

By Employment Resources

When employees make decisions about their daily activities and are presented with challenging tasks they enjoy, they are likely to experience better health. This conclusion is drawn from a study titled Creative Work and Health conducted by a research team at the Population Research Center at The University of Texas, and published in the December 2007 issue of the Journal of Health and Social Behavior.

The study’s lead author John Mirowsky, a sociology professor at the Population Research Center, defined creative tasks as non-routine, enjoyable and allowing the doer to learn new things and solve problems. He added that people involved in this kind of work, regardless of whether or not they receive a salary, feel healthier and experience fewer physical problems.

The researchers also discovered that employed people are generally healthier then the unemployed. This is true even if they don’t exercise complete control over their daily activities and aren’t necessarily involved in creative activity. The study further revealed that the daily activities of employed persons are more creative than those of unemployed persons of the same sex, age, and level of education.

After reviewing the data, researchers concluded that there were some important health advantages in having challenging work. Being involved in work that is considered somewhat above average in creativity, as opposed to being involved in work that is somewhat below average, is equal to being 6.7 years younger. It is also equal to having two additional years of education or 15 times more household income.

When examining various job categories, the researchers found that jobs that offer a high status within an organization, provide the incumbent managerial authority, or that require complex work with data, generally involve more creative tasks. Conversely, jobs that are further down on the organizational chart, and have little or no managerial authority are considered less creative. The example the researchers used of a job fitting this description is that of an assembly line worker.

However, even if someone works in an uncreative job, they can still find creative ways to approach their assigned tasks. The study uncovered the fact that people in a variety of jobs found ways to make their work more creative. It was also noted that people with higher levels of education enjoyed more creative activities in their lives, including both paid and volunteer.

Jun 01
Love0

UNDERSTAND AND PREVENT MRSA INFECTIONS ON THE JOB

By Workplace Safety

Americans have become increasingly aware of the “superbug” MRSA (methicillin-resistantstaphylococcus aureus) because of the number of outbreaks that have been reported among school children. However, most people don’t realize that adults are just as susceptible to getting a MRSA infection at work.

To avoid becoming infected, you need to understand what the disease is, and how to prevent it. MRSA is a type of “staph” infection. Staph is a bacterium commonly found on the skin or in the nose of healthy people; however, it can sometimes cause an infection. In fact, staph bacteria are among the most common causes of skin infections in the United States. When these infections are minor, they appear as pustules and boils, and can be easily treated without antibiotics. When the bacteria cause serious infections, such as surgical wound infections, bloodstream infections or pneumonia, they need to be treated with antibiotics.

MRSA is resistant to a type of antibiotic called methicillin and is often resistant to other antibiotics, too. According to the National Institute for Occupational Health and Safety (NIOSH), between 25% and 30% of the population have staph bacteria present on their bodies, but it isn’t causing disease, and about 1% of the population carry MRSA that is not causing an infection.

The most common way a MRSA infection is transmitted is by direct skin-to-skin contact. It also can be contracted by coming into contact with items or surfaces that have been touched by someone carrying the infection. Although a MRSA infection can happen anywhere, these five conditions can facilitate its transmission:

  1. Overcrowding—working in close surroundings in which there are frequent incidents of rubbing against or touching co-workers.
  2. Direct contact—coming into frequent skin-to-skin contact with co-workers.
  3. Compromised skin—having an open cut or abrasion in which the bacteria can settle.
  4. Contaminated surfaces—commonly used surfaces such as a cafeteria table that might have been infected by someone with the disease.
  5. Lack of cleanliness—failure to frequently disinfect commonly used areas in a facility.

You might not be able to control how much contact you have with co-workers, but you can take steps to protect yourself. Here is what NIOSH recommends:

  • Cover your wound. Keep wounds that are draining or have pus covered with clean, dry bandages. Pus from infected wounds can contain staph and MRSA, so keeping the infection covered also will help prevent the spread to others. Bandages or tape can be discarded with the regular trash.
  • Clean your hands. Wash your hands frequently with soap and warm water or use an alcohol-based hand sanitizer, especially after changing a bandage or touching an infected wound.
  • Do not share personal items. Avoid sharing personal items such as uniforms, personal protective equipment, clothing, towels, washcloths or razors that might have had contact with an infected wound or bandage.
  • Clean work clothing properly. Wash soiled uniforms and work clothing with water and laundry detergent. Dry clothes in a hot dryer, rather than by air-drying, to help kill bacteria in the clothes.
  • Clean contaminated equipment and surfaces with detergent-based cleaners or Environmental Protection Agency (EPA)-registered disinfectants. This is an effective way to remove MRSA from the environment. Because cleaners and disinfectants can be irritating and exposure has been associated with health problems such as asthma, it is important to read the instruction labels on all cleaners to make sure they are used safely and appropriately. The EPA provides a list of EPA-registered products effective against MRSA, which can be found by logging on to http://epa.gov/oppad001/chemregindex.htm.

Help bring MRSA under control in your workplace by following these precautions.

Jun 01
Love0

TAKE PROPER STEPS TO TAKE CARE OF YOUR HARD HAT

By Workplace Safety

Of all the pieces of personal protective equipment you wear, your hard hat is probably one of the most important. In order for it to protect you, it has to be properly worn and maintained.

The following tips will help you use your hard hat appropriately and keep it in optimal condition:

Inspect your hard hat before each use. Your hard hat is made up of the shell and the suspension. Begin your shell inspection by looking for cracks, nicks, dents, gouges and any damage caused by impact, penetration or abrasions. If your hard hat is made of thermoplastic materials, you should check the shell for stiffness, brittleness, fading, dullness of color or a chalky appearance. If any of these conditions are present, or if the shell is damaged, replace it immediately.

Ultraviolet light can cause deterioration to the hat’s shell over time. If your work is predominantly in sunlight, replace your hard hat every two years. The same is true if you work in an environment that has a high exposure to temperature extremes or chemicals. Most hard hats have date codes on the underside brim of the cap so you can readily determine a hat’s age.

Inspecting the suspension system is just as important as inspecting the shell, because the suspension absorbs the shock of a blow to the top of the hard hat. Look for cracks or tears, frayed or cut straps, or lack of pliability. All keys should fit tightly and securely into their respective slots. Any suspension that shows signs of damage should be removed from service and replaced immediately.

Limit the use of stickers. Stickers won’t necessarily interfere with the hat’s performance, but you should limit their use so you are able to thoroughly inspect the shell for signs of damage.

Replace a hat that has been struck by a forcible blow. Any impact can reduce a hard hat’s effectiveness, so a hat that has suffered a blow should be replaced, even if it is relatively new or shows no visible damage. A hard hat that has been dropped more than eight feet requires replacement.

Never modify the shell or suspension. Do not drill ventilation holes in the shell. Avoid having your hard hat come into contact with electrical wires. Never use a suspension that is not intended to be worn with a particular shell or use a shell made by one manufacturer with a suspension made by another. Never carry or wear anything inside of your hard hat between the suspension and the shell.

Don’t wear your hard hat backwards unless the manufacturer says you can. Before wearing the hat backwards, you should have written verification from the manufacturer that your hard hat has been tested and found to comply with the requirements of the American National Standards Institute when worn with the bill turned to the rear. The manufacturer may specify that the suspension must be reversed in the helmet, so that the brow pad is against the forehead and the extended nape strap is at the base of the skull, leaving only the shell of the helmet positioned backward on the head.

Following these tips can help to ensure that your hard hat can protect you as it was intended to do.

Jun 01
Love1

OSHA GUIDELINES FOR SAFETY AROUND POWER LINES

By Workplace Safety

In an article titled Alarming Statistics: Reducing Common Injuries and Maintaining Safety Practices that appeared in the May 2007 issue of Electrical Contractor, author Darlene Bremer noted that exposure to electricity remains a major cause of death among construction workers. So much so that it accounts for an average of 143 construction worker deaths each year.

Many workers are oblivious to the potential electrical hazards in their work environment, which makes them extremely vulnerable to the danger of electrocution. Sometimes it is a matter of not being familiar with the environment, and not knowing the location of all the energized power sources from overhead and underground power lines.

However, this isn’t always the case. Many instances of electrocution result from workers failing to follow proper safety procedures when working around power lines. The most common cause of electrocutions is when workers using cranes, metal ladders, scaffolds, conveyors, front-end loaders, dump trucks, or other equipment or materials come into contact with an overhead power line. It is not uncommon for workers to die while performing what appears to be an activity that isn’t normally associated with accidents, such as unloading supplies from a truck, or moving ladders from the side of a structure. The problem arises because of poor planning or temporary inattention to surroundings, which causes contact with high voltage.

OSHA has established the following guidelines to help keep you safe when you have to work near power lines:

  • Keep a distance of 10 feet or more between you, your equipment and any power lines.
  • Survey the site for overhead power lines before you begin working.
  • Keep a minimum distance of 10 feet plus 1/2 inch for each 1,000 volts over 50,000 volts between power lines and any part of a crane if the energized power lines are 50,000 volts or more.
  • Request an observer to assist you where it is difficult to maintain the desired clearance by visible means.
  • Be sure that the observer’s only job is to help you maintain the safe clearance.
  • Treat overhead power lines as if they were energized whenever you are working near them.
  • Call the electric company to find out what voltage is on the lines if you are not sure.
  • Ask the electric company to either de-energize and ground the lines or install insulation while you are working near them.
  • Make sure ladders and tools are nonconductive.
Jun 01
Love0

MANAGING CONSTRUCTION RISKS THROUGH NONINSURANCE METHODS

By Construction Insurance Bulletin

With construction, there is always a risk that something will go wrong. Whenever it does, the usual consequences are delay and additional cost — which can range in degree from minor to catastrophic.

Insurance is one method for dealing with potential risks. However, insurance is not often the most economical or efficient method. Some risk can be successfully handled by such methods as; risk avoidance, risk prevention, risk control, risk retention, risk sharing, and risk transfer. Each of these concepts is explored below.

Risk Avoidance. Some risks are simply better if avoided. If you have reason to believe that corners will be cut on a project that could lead to unsafe conditions or results, the best way to handle the risk might be to avoid becoming involved. Similarly, if a supplier offers you cheaper material, but you suspect it might be defective, avoiding the risk makes sense.

Risk Prevention and Risk Control. Because these two are often so closely related as a practical matter, we will discuss them together, although there is a technical distinction:

Risk prevention is action to prevent a negative event, such as keeping debris out of passageways to prevent someone from tripping and falling.

Risk control is action to reduce the amount of the loss should a negative event occur, such as having emergency phone numbers posted by the telephone so help can be quickly summoned if needed.

Entire books are devoted to the subject of how to prevent and control risk on construction projects of every kind, so the topic is far too large to be covered in this brief article, except for a few main points.

The first is that successful risk prevention must be lead from the top. Second, the responsibilities of supervisors, managers, and all other employees should include safety and risk prevention and control. Consequently, both supervisors and employees need loss prevention and loss control training on an ongoing basis.

Risk Retention. Every construction firm retains some risk. Minor risks, such as having to redo a few days worth of work due to errors, are always retained and funded out of the operating budget. Retaining risk is a sensible option only when you can quantify the risk and know how you would fund the risk should a loss occur. Insurance policy deductibles are one way of retaining risk.

Risk Sharing. In some cases, it’s possible to share risk through agreements with other parties involved in a construction project. Typically, with regard to liability, a clause in the contract would stipulate that each party would be liable for any loss to the extent his actions or omissions contributed to the cause of the loss.

Risk Transfer by Means Other than Insurance. Risk can be transferred to parties other than one’s own insurers.

One way to transfer risk is to be listed as a named insured on the other party’s insurance contract, which would effectively extend the other party’s coverage to you, as well. For example, as a general contractor, you may require an electrical contractor to add you to his liability insurance policy. If there were a loss covered by his policy, such portion of the loss that might otherwise fall on you would be covered by his insurance.

Express indemnification clauses in contracts — also known as hold harmless clauses — are a common way of transferring risk in the construction industry. There are three types of clauses each representing a different degree of risk transfer. In a typical Type Two clause, a general contractor agrees to hold the owner harmless from any and all claims arising from the project, provided the claim is caused in whole or in part by the negligent act or omission of the contractor and regardless of whether the claim is caused in part by the negligent act or omission of the owner.

As you can see, there are various methods of dealing with risk. Give us a call today to explore what combination of insurance and noninsurance ways of handling your company’s risks makes sense for your firm.

Jun 01
Love0

GUARD AGAINST SUBSTANCE ABUSE COSTS WITH ALCOHOL- AND DRUG-FREE PROGRAM

By Construction Insurance Bulletin

Drug and alcohol-dependent employees are hazardous to their workplace and a company’s bottom line. Up to 40% of industrial fatalities and 47% of individual injuries are linked to alcohol consumption and alcoholism according to the United States Department of Labor. The financial cost of alcohol and drugs in the workplace is staggering. The increased absences, accidents and errors created by alcohol and drug abuse cost American businesses $81 billion and 500 million lost workdays a year.

Employees in safety-sensitive positions who operate vehicles, machines and tools are not the only ones who can create a dangerous situation with their substance abuse. Today a high percentage of employees have access to security-sensitive information which, when handled improperly, can lead to costly mistakes and leave a company with huge liabilities.

Employees who have alcoholism and drug dependency can be found in every type and size of business. An estimated 14.8 million Americans are current illicit drug users and 77% of them are employed. Research shows, however, that they tend to seek out businesses that do not have formal programs in place to deal with the problem. The “employer-of-choice” for drug users are small and medium sized companies who are also the most likely to not have a formal program in place. Just 17% of full-time employed heavy drinkers work for very large companies with more than 500 employees.

Thus, the best way to guard against the heavy cost of substance abuse among employees is to establish a strong alcohol- and drug-free workplace program. Although each company has specific needs to consider, five components are common in effective programs: A drug-free workplace policy, supervisor training, employee education, employee assistance, and drug testing.

Clearly the foundation of a drug-free workplace program needs to be a written policy addressing the issue. Core components might include the rationale behind creating the policy such as to protect the safety and well-being of employees and customers; a clear description of prohibited behaviors including the use, possession or sale of illegal drugs; and an explanation of the consequences for policy violations.

Because supervisors most closely interact with the workforce, it is imperative that they receive special training in dealing with the issue. Supervisors should not be expected to diagnose substance abuse or counsel employees but rather be trained to monitor poor employee performance, identify potential symptoms of substance abuse and know how to refer employees for help.

For a program to be effective, employees not only need to be educated on the specifics of the company’s alcohol- and drug-free workplace policy, they also should be provided general information on addiction, its impact on their personal and professional lives and locally available treatment resources.

For certain companies, drug testing might be an appropriate component to a drug free workplace program. However, the specific local, state and federal laws regarding when, where and how testing is performed must be followed. The Department of Labor recommends that legal counsel be consulted before starting a drug-testing program.

Through its Working Partners for an Alcohol- and Drug-Free Workforce program, the Department of Labor has created a multitude of resources to help American businesses effectively combat alcohol and drug abuse in the workforce. Training and educational materials, links to treatment resources and guidelines for developing a program can all be accessed at www.dol.gov/workingpartners.

Jun 01
Love0

FOR HAZARDOUS SUBSTANCE REMOVAL, KNOW YOUR CERCLA LIABILITY

By Construction Insurance Bulletin

In 1980, Congress passed The Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) to address the issue of cleaning up hazardous substances at inactive or abandoned sites. The law is sometimes referred to as the “Superfund” because the cleanup program it established includes a Trust Fund used by the EPA and other agencies to clean up hazardous waste sites when the original polluter cannot be identified. CERCLA also requires the immediate reporting of any releases of hazardous substances at a construction site if the amount released meets or exceeds the level designated by the law as a reportable quantity.

The Emergency Planning and Community Right-to-Know Act (EPCRA), originated from CERCLA. This law requires the use of emergency planning, and provides citizens, local governments, and local response authorities with information regarding the potential hazards in their community. Before beginning the bidding process, the owner or developer needs to research the history of the construction site to find out if there was any hazardous substance use or disposal at the site. This review will give contractors a better understanding of potential risks and liabilities.

There is the likelihood that your project will be subject to Superfund or EPCRA requirements if hazardous substances are discovered during construction activities such as grading, digging or demolition. If your site was previously used for industrial or commercial activities that might have created hazardous substances, or there is the possibility that waste was disposed at the site, you should test the soil, surface water, and groundwater before beginning.

To determine if your construction site is subject to EPCRA emergency planning requirements, you need to determine if it meets both of the following criteria:

  • An extremely hazardous substance or any substance regulated by your state or local authority is stored on site.
  • A substance above the designated Threshold Planning Quantity is stored on site. The quantity varies by substance.

As for responsibility for meeting CERCLA requirements, if hazardous substances are discovered during construction, the contractor or subcontractor who first discovers it is responsible for notifying the general contractor, developer or owner. Because the hazardous substance was at the site before construction began, the developer or owner is responsible for seeing that the hazardous substances are handled and disposed of properly.

However, if you excavate or spread soils containing a hazardous substance, you might be responsible under CERCLA as an operator, arranger, or transporter:

  • You may be an operator if you spread soil that contains a hazardous substance on the land.
  • You may be an arranger if you dispose of a hazardous substance or arrange to have it removed from the construction site.
  • You may be a transporter if you move hazardous substance from one location to another.

If there is a hazardous substance release above the reportable quantity for CERCLA, you must immediately notify the National Response Center at 1-800-424-8802 and your State Emergency Response Commissions (SERC) and Local Emergency Planning Committees (LEPC). If there is an extremely hazardous substance release above the reportable quantity for EPCRA, you must immediately notify your SERC/LEPC. If no notification occurs, the owner, contractor and subcontractor may all be held responsible.

The penalties for non-compliance are stringent. EPA has the power to impose administrative, civil, and criminal sanctions on a property owner and/or contractor. Administrative penalties and civil penalties can reach $32,500 per violation per day. In addition to fines, you might need to cover legal fees. If legal action is taken against your construction site, you could also be the recipient of increased scrutiny by regulatory agencies at all the construction sites that you operate. Contact us. We can help you to identify and examine important developments in regulations.

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