Public Risk July 2014 by Moire Marketing Partners

Published by the Public Risk Management Association

www.primacentral.org

JULY 2014

The Challenges of OSHA's New Hazardous Communications Standard for Public Entities RISK MANAGERS REFINE RISK IN LONG BEACH THE TRIVIAL DEFECT DOCTRINE HOW THE ANSI Z590.3—PREVENTION THROUGH DESIGN STANDARD CAN ENHANCE YOUR RISK MANAGEMENT PROGRAM

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PRIMA Institute 2014 is the premier education program for public risk managers, human resources professionals, employee benefits coordinators, those working in claims, underwriting or insurance departments and anyone looking to learn more about the public risk management industry. PI 14 brings together outstanding faculty and an intense, comprehensive risk management foundations program. The only education event of its kind, PI 14 has something for newer risk managers and the seasoned risk professional looking to learn about emerging trends and best practices.

November 3–7, 2014 • Louisville, KY

The Industry’s Premier Risk Management Training Program

Volume 30, No. 6 | July 2014 | www.primacentral.org

The Public Risk Management Association promotes effective risk management in the public interest as an essential component of public administration. PRESIDENT Regan Rychetsky, ABCP Director, HHS Enterprise Risk Management and Safety Texas Health and Human Services Commission Austin, TX

CONTENTS

PAST PRESIDENT Betty Coulter Director of Risk Management and Insurance University of North Carolina at Charlotte Charlotte, NC PRESIDENT-ELECT Dean Coughenour, ARM Risk Manager City of Flagstaff Flagstaff, AZ

6 THE CHALLENGES OF OSHA’S NEW HAZARDOUS COMMUNICATIONS STANDARD FOR PUBLIC ENTITIES

By Craig Richardson and Frank Westfall

DIRECTORS Ed Beecher Risk Manager City of Pompano Beach Pompano Beach, FL Scott Kramer Risk Manager Montgomery County Commission Montgomery, AL Terri Evans Risk Manager City of Kingsport Kingsport, TN Scott Moss, MPA, CPCU, ARM.ERM, ALCM Property /Casualty Manager City/County Insurance Services Salem, OR

10 RISK MANAGERS REFINE RISK IN LONG BEACH

By Jennifer Ackerman, CAE

12 THE TRIVIAL DEFECT DOCTRINE

How Municipalities Can Avoid Having Their Repair Criteria Used Against Them

By Caryn Siebert, Seymour B. Everett, and David L. Martin

15 HOW THE ANSI Z590.3—PREVENTION THROUGH DESIGN STANDARD CAN ENHANCE YOUR RISK MANAGEMENT PROGRAM

By Dan Hurley, CSP, ARM-P, MS

Amy Larson, Esq. Risk and Litigation Manager City of Bloomington Bloomington, MN Tracy Seiler Director of Risk Management Services Texas Association of Counties Austin, TX NON-VOTING DIRECTOR Marshall Davies, PhD Executive Director Public Rick Management Association Alexandria, VA EDITOR Jennifer Ackerman, CAE Deputy Executive Director 703.253.1267 • jackerman@primacentral.org ADVERTISING Donna Stigler 888.814.0022 • donna@ahi-services.com Public Risk is published 10 times per year by the Public Risk Management Association, 700 S. Washington St., #218, Alexandria, VA 22314 tel: 703.528.7701 • fax: 703.739.0200 email: info@primacentral.org • Web site: www.primacentral.org Opinions and ideas expressed are not necessarily representative of the policies of PRIMA. Subscription rate: $140 per year. Back issue copies for members available for $7 each ($13 each for non-PRIMA members). All back issues are subject to availability. Apply to the editor for permission to reprint any part of the magazine.

IN EVERY ISSUE 4 News Briefs | 19 Advertiser Index | 20 Member Spotlight

JULY 2014 | PUBLIC RISK

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Message from PRIMA President Regan Rychetsky, ABCP

CRUISING OUT FROM LONG BEACH

irst of all, thank you for attending PRIMA’s Annual Conference in Long Beach and making this conference one of the most successful in recent years. I want to thank our conference chair, Amy Larson and all the PRIMA staff for planning and executing a terrific educational event. We offered over 55 educational sessions during the three day conference and many opportunities expand your professional network. I also want to thank all of our sponsors for their support of PRIMA and helping make this conference a great learning experience for attendees. We would not be able to have a successful conference without their support. Much appreciation goes to the California Chapter PRIMA and The Claims Education Panel coordinating, planning and working the golf event. The night on the Queen Mary was special. The ship is magnificent and it is hard to believe the teak decking is still as solid as a rock. I met some great people on the ship and it felt great to relax and wind down a bit on such an historic vessel. Congratulations to the 2014 Public Risk Manager of the Year, Bill Kostner, risk manager, City of Lincoln, Neb., who is regarded as an outstanding professional who has been invaluable to the City of Lincoln’s risk management program. Also, congratulations to Michael Fann for receiving the Distinguished Service Award based on his outstanding contributions to public risk management and his continued involvement and leadership in public risk management. We recognized our Outstanding Achievement Award winners whose products and programs demonstrate the outstanding and innovative ways public risk management contributes to the effectiveness and efficiency of public administration; our Chapter Service Award recipients whose leadership and service within their local chapters warrant such an outstanding achievement; and the Washington Chapter of PRIMA for receiving the Chapter Recognition Award for its exceptional efforts in advancing and promoting the public risk management profession. I want PRIMA to realize its strategic goals over the next year. Education is the bedrock of PRIMA, and my mission is to lead PRIMA forward to achieving our goal of being the primary source for public risk management educational programs, products and services. I believe diversification of

educational programming to meet the needs of our current and future members will ensure long-term sustainability in a continuously its members, and I believe we can achieve this goal through educational offerings at the Annual Conference, PRIMA Institute, Webinars and podcasts. I want PRIMA to achieve the vision of being the recognized leader in public risk management; exercise the mission of advancing the knowledge and practice of public risk management; and to accomplish the goals set by the Board of Directors and PRIMA as set forth in the PRIMA Strategic Plan. This is essential for the continuity of a PRIMA that is visionary and relevant. PRIMA has a sound strategic plan, and my goal is to implement that plan. PRIMA has been entrusted to integrate the Public Entity Risk Institute’s (PERI’s) supporting organizational framework into our operational framework and we can do so by identifying unmet needs of the public risk management community as a whole. PERI is a tremendous responsibility, but also a fantastic opportunity for PRIMA to grow in the sense of meeting the needs of public risk management. In order for PRIMA to achieve these goals, we must remain up-to-date on the evolving role of the risk manager in cities, counties, school districts, tribal councils, state agencies and pools. Not all risk managers have the same responsibilities and PRIMA has to locate that balance to provide the best education and training opportunities for our members. PRIMA must stay abreast of legislation that impacts the public entity risk management and maintain strategic partnerships with organizations having cross-over members. PRIMA must monitor current events that bring hot topic educational opportunities to our members. We must be first in the field of public entity risk management education to stay viable to our members, and I promise, we will be. Regards,

I want PRIMA to realize its strategic goals over the next year. Education is the bedrock of PRIMA, and my mission is to lead PRIMA forward to achieving our goal of being the primary source for public risk management educational programs, products and services. I believe diversification of educational programming to meet the needs of our current and future members will ensure long-term sustainability in a continuously its members, and I believe we can achieve this goal through educational offerings at the Annual Conference, PRIMA

Regan J. Rychetsky, ABCP 2014–2015 PRIMA President Director, HHS Enterprise Risk Management and Safety Texas Health and Human Services Commission

Institute, Webinars and podcasts.

JULY 2014 | PUBLIC RISK

News Briefs

NEWS

BRIEFS NORTH DAKOTA IS THE DEADLIEST STATE TO WORK IN Fracking has done some incredible things for North Dakota: It has the fastest-growing economy and lowest unemployment in the nation, and it is second only to Texas in churning out oil. But as with any gold rush, the boom comes with a human cost for those involvedâ&#x20AC;&#x201D;illness, injury, and fatalities, reports Mother Jones. In fact, across all industries, North Dakota has the least-safe working conditions of any state in the country, according to federal data compiled in a new report from the AFL-CIO. The report ranked North Dakota dead last for workplace safety. (Massachusetts ranked the most safe.) North Dakota had by far the highest overall workplace fatality rate, 17.7 deaths per 100,000 workersâ&#x20AC;&#x201D;about five times higher than the national average. According to the report, that's one of the highest fatality rates ever reported in any state. The rise in fatality rates coincides with the state's oil and gas boom: In 2007, before the boom was really underway, the rate was 7 deaths per 100,000 workers, still on the high end but not exceptional. The chart below shows how that rate began to skyrocket in 2010-11, just as oil production began to surge as well. Of the 65 people killed on the job in North Dakota in 2012, 15 worked in the mining and oil and gas industry. Another 25 worked in construction. Some jobs that are classified as construction are in fact linked directly to oil and gas operations, like the workers who build well pad sites and roads before the actual drilling begins. (The Bureau of Labor Statistics records aren't granular enough to know exactly how many construction workers were killed doing jobs related to the oil and gas boom.) A spokesperson for the North Dakota Petroleum Council pointed to a slight drop in premium rates for the state's worker's comp program as evidence that "workplace safety has improved," but the BLS data compiled in the AFL-CIO report tell a different story. As blue-collar workers flooded the state for an essentially limitless number of high-paying, risky jobs driving trucks and working on fracking rigs at a breakneck pace, the energy industry's fatality rate in North Dakota climbed to unbelievable heights. According to the report, in 2012 the mining and oil and gas sector rate was 104 deaths per 100,000 workers, six times the national average; in the construction sector, the rate was 97.4 per 100,000, almost 10 times the national average.

PUBLIC RISK | JULY 2014

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Your heart is racing. Your vision is blurred. Your mind is in a fog.

MANY FLORIDA COUNTIES LACK HURRICANE SHELTERS

And you’re not the one in cardiac arrest.

The Naples Daily News reported that Southwest Florida has the highest shelter shortage and is especially vulnerable because of low-lying land and proximity to large water bodies.

According to a recent study, most Florida counties lack space in hurricane shelters for a major hurricane evacuation.

The 2014 study by Florida’s Division of Emergency Management found Lee County does not have room for any of the projected 64,000 residents that would evacuate in a Category 4 or 5 storm and Collier County could only accommodate 5,784 of the expected 25,568 evacuees in a major storm. Local officials say the study gauged worst-scenarios with the highest storm surges and winds that could hit their low-lying counties. They say each storm is different and they have contingency plans for various scenarios. “It’s not anything we’re afraid to mention or we hide. It’s OK. That’s our job to plan in the worst case,” said Dan Summers, director of Collier County’s Bureau of Emergency Services.

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Every hurricane is different, and that impacts shelter demand, said Sandra Tapfumaneyi, of Lee County Emergency Management. “It's hard to say (there’s a shortage) because it depends on how many people are seeking shelter during any given storm,” Tapfumaneyi said. Most of its shelters in Lee County lie below the 23-foot elevation deemed safe from flooding during a major event. Lee public safety officials recommend shelters a last resort. The best thing to do is to get to higher elevation, which might mean heading to another part of the state, Tapfumaneyi said.

JULY 2014 | PUBLIC RISK

The Challenges of OSHAâ&#x20AC;&#x2122;s New Hazardous Communications Standard for Public Entities By Craig Richardson and Frank Westfall

PUBLIC RISK | JULY 2014

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hether it is at a municipal garage or a high school chemistry lab, public entities routinely make use of a wide variety of hazardous chemicals and products that fall under new regulations that require significant changes in warning and safety information. The move, which brings the United States into line with the U.N.-developed global approach, is meant to improve workplace safety by providing workers with a greater level of understanding of the potential dangers of onsite chemicals and products. During the current transition to the “Globally Harmonized System” (GHS) adopted by the Occupational Safety and Health Administration (OSHA) in 2012, public entities should be aware of the requirements as well as the challenges.

Over the next two years, employers and workers will encounter chemicals and products with warning labels and safety information prepared under both the new and existing systems. To avoid confusion and potential accidents, as well as to ensure compliance, employees need to be trained to recognize the differing systems and understand what they mean. At the same time, public entities will need to ensure compliance with the regulations in terms of storing, handling and labeling chemicals and products. In addition, risk managers should use this transition period as an opportunity to review their policies and procedures for hazardous chemicals and products and to reassess their insurance programs to ensure they have adequate coverages in place for their environmental risks.

Training must be provided to any employee who regularly handles chemicals and products covered under the GHS regulations. The training should include education on the content of those materials, the new and existing labels, the new hazard classification standards and where workers can find information about the chemicals and the distributors.

UNRECOGNIZED RISKS

The GHS was adopted by OSHA as part of a 2012 update of its 1994 Hazardous Communications Standard (HazCom) in an effort to enhance health and environmental protection by providing clearer, more consistent information to people who may be exposed to chemicals. For workers, the GHS enshrines a “right to understand” the potential hazards rather than the “right to know” rationale embodied under the former regulations. The GHS also provides more consistent safety information for first aid and emergency personnel through a standardized format for safety data sheets, which replace the material safety data sheets (MSDS) required under the prior rules.

Public entities may face a range of exposures to chemicals and products stored or used at the workplace, some of which may not be readily recognized. For instance, workers in municipal maintenance bays may use potentially harmful solvents to clean machine parts. High school grounds keepers may use chemical turf treatments or blend a variety of products covered by the new rules in a way that changes the constitution of those materials. Wastewater treatment plants use chemicals covered by the regulations. High school chemistry and biology labs store and use chemicals, and the schools will need compliant policies and procedures for identifying the hazards of those substances as well as for handling them. The current transitional period is complicated by the fact that workers will be dealing with the new labels, warnings and safety information alongside the existing ones. For instance, the labeling defining chemical reactivity may differ from the former labeling system. If an employee misunderstands the new label and mixes the wrong substances together, it could lead to a fire or to injuries such as chemical burns.

To deal with the challenges of this transition, risk managers for public entities should become familiar with the new regulations, their requirements and deadlines, as well as the tools and resources that they can use to train their employees.

REDUCING INJURIES, INCREASING PRODUCTIVITY

Adoption of the new standard is expected to reduce injuries and increase productivity. OSHA estimates the GHS standard should prevent dozens of fatalities and hundreds of injuries and illnesses a year, bringing a combined net savings of $754 million a year from improved safety and increased productivity. Besides enhancing protection of human health and the environment, the GHS standard should help to reduce the complexity and the costs associated with the more than 100 hazard communication regulations and criteria that had been adopted over the years.

JULY 2014 | PUBLIC RISK

OSHA’s New Hazardous Communications Standard for Public Entities

The transition to the GHS is being phased in over the next two years. The initial deadline for training employees on the new classification, labeling and safety data sheets was December 1, 2013. Full implementation is slated for June 1, 2016. By June 1, 2015, all chemical manufacturers and distributors must reclassify their chemicals and produce GHS-formatted safety data sheets and labels. By December 2, 2015, only GHS-compliant products may be distributed. By June 1, 2016, all employers must be fully compliant. That includes completing any necessary updates to programs and labels, and training all affected employees on any new hazards that are identified during the chemical reclassification process. Because employees are likely to encounter older labels and safety information during the transition period that may differ significantly from the GHS compliant ones, training should remain a priority.

A SUMMARY OF CHANGES The major changes from the existing systems include standardized hazard classification and safety data sheets, along with the new labeling, and training requirements. Until now, two main systems have been in use: the National Fire Protection Association (NFPA) and the Hazardous Materials Identification System (HMIS) standards. The NFPA uses a color- and number-coded diamond hazard identification system, often seen on tanker trucks, that ranks health, flammability, and instability threats along with other special concerns on a zero (0)-to-four (4) rating, with four representing the highest hazard. The HMIS relies on color-coded bars and numbers to convey the same information, but also provides a personal protective equipment rating, such as for gloves and safety goggles. One of the key changes is that under the GHS the number rankings will be reversed, with the number 1 representing the highest hazard. The GHS numbering, however, will only be used on safety data sheets and not on labels.

PUBLIC RISK | JULY 2014

The GHS provides a consistent system for classifying chemicals according to their health, physical and environmental hazards and also for communicating the hazards through standardized labels and safety data sheets. The labels are designed to provide clear, consistent messages for workers who handle chemicals and for emergency first responders by the use of standard hazard statements, signal words and pictograms. That stands in contrast to the existing regulatory formats in the United States under which the signal word “caution” could have different meanings, and products with the same hazards might bear different signal words.

NEW LABELS AND SAFETY DATA SHEETS For labels, the GHS system features nine black pictograms within a red diamond to illustrate the hazards, such as the skull and crossbones for deadly poisons. Eight of the pictograms concern health, and the ninth identifies environmental hazards. The environmental pictogram, which shows a dead fish and a withered tree, is not mandatory under OSHA regulations. It is still valuable because it helps workers identify substances that may pose a threat to the environment and provides information on proper handling and storage that can reduce the risk of spills that may lead to expensive cleanups or bodily injury claims. GHS labels include six standard elements: a product name or identifier, the pictogram, a signal word ranking the hazard, a statement explaining the hazard, precautionary information such as protective gear to be worn during use and handling, and contact information for the supplier. The new labels feature one of two signal words, “danger” for more severe hazards and “warning” for lesser ones. That eliminates the use of “caution” as a signal word. The hazard statement identifies threats, such as “skin irritant” or “fatal if swallowed.” Precautionary statements may include basic first aid advice, protective equipment such as goggles, and

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By taking a proactive approach to the new system and reassessing their risk management strategies for hazardous chemicals and products, public entities will not only help to ensure that they comply with the regulations, they will also improve their workplaces and their communities.

actions to take or avoid while using the chemical such as not smoking. The label carries the name, address and telephone number of the supplier.

Employers should make sure that their product suppliers provide labels containing the required information.

The safety data sheet information remains essentially the same as before, but it is presented in a standardized, 16-section format. The safety information includes the identification of the chemical and its associated hazards, routes of entry into the body, such as inhalation, first aid and fire-fighting measures, and handling and storage procedures.

As they change over to the new system, public entities may want to consider working with outside experts to provide and develop effective training programs and to review the procedures in place for storing, handling and disposing of covered products. Those actions can help to mitigate the potential for bodily injury as well as leaks or spills that can cause property damage and necessitate expensive cleanup orÂ remediation.

MANAGING THE TRANSITION Because long-term employees may have become accustomed to the safety information provided under the prior rules, it is important to make sure that they understand the differences. There may be significant changes, for instance, in the safety data sheets for chemicals such as hydrogen peroxide. As new chemicals come into the workplace, employers will have to ensure that workers are trained on the use of those chemicals and on their safety information. If a school begins using a new corrosion preventer in its heating system, for instance, the boiler engineer will have to be trained on that chemical. Among the training tools that are available, OSHA has developed easy-to-use reference guides, or â&#x20AC;&#x153;QuickCardsâ&#x20AC;? that explain the new labels, pictograms and safety data sheets in a readily understandable fashion. Workplace training should include online resources as well as on-site instruction. In addition to training workers, employers have to update the safety data sheets for all chemicals that they use or store on-site. This entails an inventory of on-site chemicals and products, which can be a daunting task in workplaces where hundreds of different products may be in use. Within the workplace, labels and signs may need replacement.

FOOTNOTES 1 Facts on aligning the Hazard Communication Standard to GHS, OSHA, see, https:// www.osha.gov/as/opa/factshcs-ghs.html

TOWARD A SAFER WORKPLACE

Public entities should also use this transition process as an opportunity to review their insurance programs to make sure that they have appropriate coverage for the environmental exposures associated with the chemicals and products in their workplaces. This type of coverage is typically excluded from general liability policies, and cleanup costs can be significant. Environmental coverage should include the first-party costs of environmental cleanup and remediation, along with potential third-party liabilities. The move to the GHS standard presents challenges in the near term, but it should provide lasting benefits. The standardized approach should help to improve workplace safety, safeguard employee health and decrease injuries. By taking a proactive approach to the new system and reassessing their risk management strategies for hazardous chemicals and products, public entities will not only help to ensure that they comply with the regulations, they will also improve their workplaces and their communities. Craig Richardson is senior vice president for ACE Environmental Risk and Frank Westfall is vice president, ESIS Inc., Health, Safety & Environmental.

JULY 2014 | PUBLIC RISK

RISK MANAGERS

IN LONG BEACH By Jennifer Ackerman, CAE

Risk management is a broad term for many, but in Long Beach, risk managers gathered to hone their skills and truly refine risk management. On June 8, PRIMA welcomed more than 1,300 risk management practitioners to its 35th Annual Conference, which featured 55 educational sessions in eight tracks, as well as an exhibit hall filled with vendors who recognize the influence of risk management. The first full day of the conference kicked off with keynote speaker, Steven Gaffney, who taught attendees how to influence with or without authority. The interactive session got the crowd primed for three days of learning. After the morning general session, attendees joined nearly 100 exhibitors for the PRIMA trade show. Whether attendees were looking for a new broker, exploring online learning options, or simply wanted to know how to stop injuries caused by a buzz saw (!), the exhibit hall had something for everyone.

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2014 PUBLIC RISK MANAGER OF THE YEAR Bill Kostner, ARM-P, MBA Risk Manager City of Lincoln, Neb. 2014 DISTINGUISHED SERVICE AWARD Michael G. Fann, ARM-P, MBA Director of Loss Control Tennessee Municipal League Risk Management Pool PUBLIC SECTOR RISK MANAGEMENT ACHIEVEMENT AWARDS

Monday’s awards luncheon honored the best in risk management with the presentation of the coveted Public Risk Manager of the Year Award, as well as the Distinguished Service Award. Achievement awards in the product, program and pool categories were also handed out. On Tuesday, attendees were greeted by keynote speaker Rick Wakefield, who updated the crowd on the impacts of the Affordable Care Act. After a long day of learning, attendees headed to the iconic Queen Mary for PRIMA’s signature conference social event. While listening to the swinging sounds of a 13-piece band, attendees had the opportunity to network with others in the profession and make valuable connections that last long past the conference. On the conference’s final day, former FEMA Chief David Paulison talked to attendees about leading with resiliency. He chronicled some of the country’s most famous disasters and how his organization handled them. The PRIMA Membership Luncheon closed this year’s conference, with the installation of PRIMA’s new president, Regan Rychetsky, ABCP, as well as new directors, Scott Moss of the Montgomery (AL) County Commission, and Scott Moss of Citycounty Insurance Services.

PRODUCT Winner First Five (F5) Safety Training Program Charleston (SC) County School District PROGRAM Winner Hillsboro University – Annual Training Event City of Hillsboro, OR POOL Winner Step Wisely — Slip Trip and Fall Prevention Program Minnesota Counties Intergovernmental Trust (MCIT) CHAPTER RECOGNITION Washington PRIMA PUBLIC RISK MAGAZINE AWARDS 2014 Public Risk Author of the Year Steven E. Haynes, ARM City of Plano, TX 2014 PUBLIC RISK ARTICLE OF THE YEAR Risk Recipes from the City of Plano, Texas Steven E. Haynes, ARM City of Plano, TX

Terri Evans, 2015 conference planning chair, encouraged the crowd to start planning for next year’s conference in Houston, Texas. See y’all there!

THANK YOU PRIMA 2014 ANNUAL CONFERENCE SPONSORS FOR YOUR VERY GENEROUS SUPPORT. PLATINUM SPONSORS

GOLD SPONSORS

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BRONZE SPONSORS AIG • BICKMORE • CORVEL • IRONSHORE • MARSH PMA COMPANIES • STATES SELF-INSURERS RISK RETENTION GROUP, INC. TRIDENT INSURANCE SERVICES • YORK RISK SERVICES GROUP, INC. YOUR HOUSE COUNSEL

JULY 2014 | PUBLIC RISK

THE TRIVIAL DEFECT DOCTRINE How Municipalities Can Avoid Having Their Repair Criteria Used Against Them By Caryn Siebert, Seymour B. Everett, and David L. Martin

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he trivial defect doctrine is one of the main weapons a city can use when defending against claims of dangerous conditions on public property. Under this doctrine, trivial defects that do not

create a substantial risk of injury are not actionable. The underlying premise is that public entities are not insurers of public ways and cannot be expected to maintain them in perfect condition at all times. This doctrine frequently comes into play when pedestrians are injured on sidewalks maintained by the city. It can be raised in a motion for summary judgment, which if granted, permits the city to avoid a costly trial. Given the financial pressures under which many municipalities are operating, and especially in light of recent periods of recession and budget shortfalls, a quick primer on this critical topic seemed timely.

During the past several years, municipalities have been impacted by decreasing tax revenues, which have limited their ability to maintain and repair sidewalks. Some cities have responded by implementing cost-sharing programs that require neighboring land owners to bear a portion of the cost of any required repair. Still other cities have placed the onus of repair entirely on nearby landowners. The only exception is when parkway trees maintained by the city have damaged the sidewalks. Yet other cities have terminated their maintenance program for the time being. Although cities should explore a variety of methods to reduce costs, they should not abandon the programs altogether. As discussed below, taking such action could cause the city to lose the benefit of defenses provided by statute. One pitfall that municipalities should avoid is selecting repair criteria that can be used against them while defending themselves. A common tactic used by plaintiffs to overcome the trivial defect defense is to show that under the city's own guidelines, the defect was significant enough to warrant a repair. To hammer home this point, plaintiffs frequently depose city personnel, who sometimes admit that the condition should have been repaired or was dangerous. A notable example of this occurred in Laurenzi v. Vranizan, (1945) 25 Cal.2d 806, which is still cited today. In Laurenzi, a city sidewalk inspector admitted that if he had seen the condition complained of, he would have considered it hazardous and repaired it. As a result, the Court found that the defect could not be considered trivial as a matter of law. In order to avoid this result, cities should carefully evaluate their criteria for repair. Many cities set a threshold for repair at one-half inch of vertical displacement. This is a relatively strict standard that often requires a significant portion of a city's sidewalks to be repaired. This leads to lengthy delays in completing the repairs. In some cities, the average wait time is nearly three years. Rather than setting strict standards that create a large backlog of repairs, cities should set criteria that are more reasonable. This will permit them to address the most troublesome areas first. It will have the added benefit of reducing wait times and the overall repair cost. Moreover, there is significant support in the case law for finding cracks with more than one-half inch of displacement to be trivial. See Fielder v.

The city should proactively look for damaged sidewalks by completing a city-wide survey on a periodic basis. Additionally, the city should inspect areas complained of by its citizens soon after learning of the problem. By consistently employing these two methods, the city will be able to effectively identify troublesome areas that need to be repaired.

JULY 2014 | PUBLIC RISK

The Trivial Defect Doctrine

In order for an injured pedestrian to prevail on its claims against the city, it must show that the dangerous condition was created by the negligence of a public employee or that the city had actual or constructive notice of the conditionâ&#x20AC;Ś Because the negligence of a public employee is not the primary cause of most damage to sidewalks, plaintiffs will typically assert that the city had notice of the condition.

City of Glendale, (1977) 71 Cal.App.3d 719, 724 (citing decisions finding trivial defects ranging from three-fourths inch to one and one-half inches). As a result, cities should consider modifying their repair criteria for sidewalk maintenance programs. The seminal case on the trivial defect doctrine is Whiting v. National City, (1937) 9 Cal.2d 163. In Whiting, the plaintiff was injured while walking on a sidewalk that contained a vertical separation of three-quarters inch between two cement panels. Although the trial court found for plaintiff and awarded $2,000 in damages, the appellate court reversed the trial court's decision. It found that the defect was minor and that a person exercising ordinary care would not be harmed thereby. The Court reasoned that it was impossible to maintain a sidewalk in perfect condition and that minor defects were bound to exist. It also found that the city was not an insurer of its public ways. As adjusters and attorneys, we appreciate that although this case was decided more than 75 years ago, many trial and appellate courts continue to cite this decision today. In order for an injured pedestrian to prevail on its claims against the city, it must show that the dangerous condition was created by the negligence of a public employee or that the city had actual or constructive notice of the condition. See Government Code Sections 830(a), 835.2. Because the negligence of a public employee is not the primary cause of most damage to sidewalks, plaintiffs will typically assert that the city had notice of the condition. Actual notice is often difficult to demonstrate given that most cities have hundreds of miles of sidewalk. Instead, plaintiffs generally assert that the municipality had constructive notice of the problem. To make such a showing, plaintiffs must demonstrate that the condition

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was obvious enough and existed long enough to permit a public entity to discovery if it exercised due care. See Government Code Section 835.2(b). On this point, the city is permitted to introduce evidence that it operated an inspection system with due care and did not discover the condition. This generally requires the city to select appropriate criteria for repair, implement the program in a consistent manner, and provide adequate funding for inspections and repairs. The inspection program should have a proactive and reactive component. The city should proactively look for damaged sidewalks by completing a city-wide survey on a periodic basis. Additionally, the city should inspect areas complained of by its citizens soon after learning of the problem. By consistently employing these two methods, the city will be able to effectively identify troublesome areas that need to be repaired. Doing this, and repairing damaged sidewalk in a timely manner, will permit a city to demonstrate that its programs were operated with due care. By selecting the proper repair criteria, completing proactive and reactive inspections, and repairing problem areas in a timely manner, a city can prevent plaintiffs from using the city's own standards against it and will permit the city to defeat an essential element of plaintiff's claim. Caryn Siebert is president / CEO of Carl Warren & Company. Seymour B. Everett is the managing partner at the Newport Beach office of Wood, Smith, Henning & Berman LLP. David L. Martin is senior counsel at the Newport Beach office of Wood, Smith, Henning & Berman LLP.

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How the ANSI Z590.3—Prevention Through Design Standard Can Enhance YOUR Risk Management Program By Dan Hurley, CSP, ARM-P, MS

n 2011 the American National standards Institute ANSI created Standard 590.3, Prevention through Design Guidelines for Addressing Occupational Hazards and Risks in the Design and Redesign Processes, through the efforts of the American Society of Safety Engineers ASSE. This standard is unique in that it goes beyond occupational safety and includes protection of property, financial efficiency, protection of the environment and business continuity1. The standard primarily addresses design and redesign issues to not only create an occupationally safe environment but also to create an efficient project that is less affected by delays caused by retrofitting and change orders. Designing projects with occupational safety as the most critical element makes Z590.3 an effective process for risk managers to consider, either in whole or in part, for all of their organization’s design processes. The primary goals of Z590.3 are to2: • Achieve acceptable risk • Prevent/limit occupational injuries • Reduce retrofitting and its associated cost In addition, the standard is not static. It encourages a life cycle of assessment since processes or equipment may change or develop issues through wear and tear over time 3. Although the standard emphasizes the role of leadership “top management” to drive the success of design process, the standard takes into account the contributions of others, including occupational safety professionals, engineers, technical experts and supervisors, and very importantly the employees who do the work, who work within the new facility and operate the equipment. Without total participation at these multiple levels, particularly the operating employees, serious and costly errors can occur. I’ve personally seen what can happen when this partnership isn’t fully in place. A new two-story high pressure pump building was well-designed and attractive. However, while touring the new facility, which had four large HVAC units on the roof, it was observed that no roof access had been provided. The well-meaning construction company had utilized a temporary moveable stairwell to access the roof and had failed to install a roof hatch. Unfortunately, the roof installation and inspections had been completed and the roof warranty had taken effect. Due to the fact that the owners were afraid to violate or test the warranty, they decided to mount a tall fixed exterior ladder to access the roof, which seemed like a fix at the time, but obviously was not the best choice for employee safety. Instead of a short, eight-foot interior ladder, the employees now were required to use fall protection, travel a significantly greater distance requiring greater physical stress and be exposed to potentially challenging weather elements. Had the operating staff been included during the planning as well as during construction phases, this error might have been discovered by asking the simple question, “How are we going to get to the roof to perform maintenance?”

JULY 2014 | PUBLIC RISK

The ANSI Z590.3—Prevention Through Design Standard

The emphasis on including employees in the design process, particularly those employees with expert and ground level knowledge, is in my opinion a key to the success of the entire design process6. Inclusion allows operational employees to pose questions, such as how will they safely access equipment or ask if there is there a more efficient way to de-energize equipment.

In addressing design and redesign, the ANSI standard addresses occupational risk during four major stages4: • Preoperational Stage – initial planning • Operational Stage – involving redesign and mitigation of discovered hazards • Post Incident – post event exposure • Post Operational – demolition/decommission From an efficiency and risk management standpoint, the greatest opportunity to eliminate occupational hazards and limit the potential for costly change orders and retrofits is during the preoperational stage. Although oversights may be discovered in every operational stage, the goal is to reduce the possibility of a post-incident stage, where property damage, or even worse, an injury could occur. In order for the design process to succeed, the standard puts major responsibility for the success of a design program on top management. Under roles and responsibilities5, they will initiate and require that: • Hazards are anticipated, identified and evaluated • Hazards are reduced to an acceptable level hierarchy of controls • Knowledgeable employees familiar with the operational work are consulted and included • Monitoring is conducted by employees and management • Record keeping of planning and meetings are maintained The emphasis on including employees in the design process, particularly those employees with expert and ground level knowledge, is in my opinion a key to the success of the entire design process 6 . Inclusion allows operational employees to pose questions, such as how will they safely access equipment or ask if there is there a more efficient way to de-energize equipment. I once toured a sawmill that had a debarker machine that utilized three separate energy sources. Two of the energy sources, pneumatic and air, had disconnects that were on the same floor level in reasonable proximity to the machine. However, the third energy source, electric, had to be disconnected on a lower floor. Placing the electrical disconnect on a different floor could inadvertently create a risk situation due to the inconvenience, either encouraging an employee to not de-energize the electrical or to simply ask someone on the lower floor to shut the disconnect off without personally installing his own lock. As Scott Geller notes in his book, Working Safe, How to Help People Actively Care for Health and Safety, employees will sometimes take a calculated risk. Geller states that “with mistakes, the individual was well-intentioned regarding the ultimate outcome of getting the job done, but used poor judgment in getting there”7.

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As noted in the standard, management will direct prevention efforts through design or redesign when: • New facilities, equipment, technologies, equipment or process changes • Alterations are made to any of the above • Incident investigations where corrective actions must be made • Demolition/decommissioning 8 During these processes, managers emphasize that risk assessments must be conducted to achieve acceptable risks through the establishment of occupational safety and health goals during the design process. Where acceptable risks are identified but cannot be obtained, those original “risk targets” will now provide the basis for determining and designing risk control alternatives9. As a starting point, the standard includes two sample risk assessment processes appendixes A & B. Another key factor in the success at the operational level, noted in the standard, is the inclusion of individuals within the organization who have proficient knowledge and the ability to analyze hazards10. This may include engineers, safety professionals, risk managers and operation staff pertinent to the project. In addition, it also recognizes that specialists outside an entity or organization may be necessary, especially in technical areas. For example, a technical specialist would be a necessary part of the team in designing a public health building that would have unique ventilation requirements for specific clinics and laboratories. Additionally, such a building would have mixed requirements due to high powered laboratory hoods, while other areas such as lower floors, may require a positive pressure envelope to prevent untreated air from being pulled inside. These competing systems must be well balanced and in harmony. As noted in this section of the standard, the inclusion of a specialist may require contract relationships with suppliers of complex technical equipment to fulfill the design plan requirements. All of these parties will be included in meetings and communications to ensure proper coordination. A little work and investment on the front end of a project such as this could save many times greater time and money if something has to be corrected after construction. The standard also includes all suppliers in the design process by requiring them to not only follow the occupational hazard and risk design specifications but also to include safety and health specifications within their procurement documents the standard includes procurement guidelines, appendix C. Two strong points made in the supplier section for quality control are 1.) a requirement that in house staff who have knowledge of technical or high performance equipment to be installed visit the supplier to evaluate technical equipment and 2.) a requirement for inspection testing of equipment to determine that they meet performance specifications especially after installation on site11.

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In reference to required testing, I recall one instance where a new industrial facility was being commissioned, and there apparently was no evidence that the five ton jib cranes see photo attached to structural beams were tested in regard to their load capacity. When the third-party crane inspector evaluated the first jib crane, he had only attached 50 percent of the designated load when he observed the structural beam supporting the crane starting to deflect. The inspector immediately released the load and fortunately there was no serious structural damage other than cracks in the cinder block adjacent wall caused by the beam deflection. Apparently, the contract engineer for the project underestimated the structural support requirements for the crane. The testing did prevent a potential catastrophic loss since if a full load had been applied, the structural beam might have failed bringing the crane, load and part of the roof down not only causing sizeable property loss but possibly fatalities. Another example of a need for validity testing is a requirement for a third-party inspection and balance report for newly installed or modified HVAC ventilations systems. Although the balance report will determine if the airflow meets the specification requirements, a detailed physical inspection will also determine if the installation will actually be able to create the air changes as intended for the specific space. The accompanying photo of air ducts shows a ceiling level horizontal supply air duct facing a horizontal return duct merely five feet apart. Although the airflow from the supply diffuser may meet the air flow specifications, the installation short circuits the ability to ventilate the room and fails to support adequate room air changes.

techniques that may be applicable to the design project. Although it is beyond the scope of this review article to go into at great depth, some of the hazard analysis and risk assessment key elements include: • Selection of a risk matrix • Identification of hazards • Consideration of failure modes • Severity of consequences • Determination of occurrence probability • Hazard avoidance process selection and implementation • Documentation results and follow up actions Under identification of hazards, one of the critical items is management’s requirement that those charged with the responsibility of performing the analysis be trained in not only identifying hazards but also in how to mitigate them15. This section is quite detailed and offers several complex methods for performance evaluation. The process of identifying hazards provides a great opportunity for employee involvement since those who perform the work may not only see hazards more clearly such an unwanted energy releases, but they also may recognize opportunities for greater efficiencies in design. Additionally, by soliciting their input early in the process, these employees become more invested in their success when the systems become operational.

A key individual identified in the design/redesign process is the project design review manager12 . With the assistance of a design review team including affected employees, the review manager will ensure that all safety standards and specifications do not deviate from intended risk controls. The assignment of this individual and/or team is made by the top management, who in turn is constantly kept informed of the progress of the review team through this individual. This is particularly crucial if there are any potential deviations or conflicts with the original design specifications. With this reporting mechanism in place to executive management, compliance with specifications to remove or treat identifiable hazards will be assured; necessary modifications will be made with management support and again in the design phase, avoiding the potential for future retrofitting after the fact.

An example of what can happen from a lack of employee participation at the front end involved a chemical plant and the manual feeding of bagged chemicals into a hopper. Before the retrofit, employers manually poured bagged chemicals directly into a hopper from a floor opening. Due to a construction renovation which required the feed opening to move a few feet, a redesign called for building a three foot platform with a railing to a new hopper opening. This required the employees to carry the 40 pound bags three to four steps up the platform and manually hold the bag over the hopper. Prior to the retrofit, employees moved the chemical bags to the floor opening with the aid of a forklift and placed the pallet load next to the floor level hopper opening. By moving bags into position at the edge of the pallet, the employees opened the bag near the opening allowing the dry chemical to fall by gravity into the hopper opening. The redesign now required substantial physical effort and opportunity for physical strain. By not including employee input in the planning phase of the redesign, there was a missed opportunity to not only consider an ergonomically friendly process but the greater opportunity to consider a closed operation with less manual lifting or exposure to dust.

In order to properly execute an effective hazard analysis and risk assessment process, the standard provides a list of key elements necessary to achieve acceptable risk levels14. The standard also includes several examples of hazard analysis

As noted above, the standard also includes a variety of hazards and risk analysis techniques that are provided in the appendix appendix G. These techniques range from the simple “what if” analysis to the more complicated Hazard and Operational

JULY 2014 | PUBLIC RISK

The ANSI Z590.3—Prevention Through Design Standard

Analysis HAZOP16. One or more techniques may suit the specific needs of your project and the more complicated ones may require more familiarization and training for the team.

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The ultimate goal of limiting harmful exposures to employees is demonstrated by the hierarchy of controls exhibited in the standard, listed in descending order of preference17: • Risk avoidance • Elimination • Substitution • Engineering controls • Warning systems • Administrative controls • Personal protective equipment (PPE) The advantages of using risk avoidance, elimination, substitution and engineering controls make them preferable in protecting employees from exposures. PPE requires substantial efforts to make these programs effective, including hazard assessments, evaluations, inspections, health evaluations, and replacement costs, while still having the potential for serious misuse or error. In one of my first experiences in occupational safety, while I was reinvigorating a respirator program that had become lax, I began implementing regular fit testing for employees in a chemical facility. After the program was put back on track one of the employees commented to me that he “no longer had black stuff come out when he blew his nose.” Although this occurred sometime ago, it’s still pretty disconcerting. It is a perfect example of the limitations of PPE. The bottom line there is that when one has to resort to PPE, the hazard still exists. In conclusion, incorporating an effective and inclusive design review team can not only limit and identify hazards and mitigate them to the lowest risk feasible but can also create financial efficiency. From a budgeting standpoint, it can help capture true costs and limit retrofits and change orders. ANSI Z590.3 Prevention through Design is an excellent practice to follow within your organization, with its impact having many long term benefits, even beyond the critical benefit of employee safety. Dan Hurley, CSP, ARM-P, MS, is an education sector practice leader for Midwest Employers Casualty Company, A W.R. Berkley Company. FOOTNOTES: 1 ANSI/ASSE Z590.3-2011 Prevention through Design Guidelines for Addressing Occupational Hazards and Risks in Design and Redesign Processes, page 10 2 Ibid, page 10 3 Ibid, page 10 4 Ibid, page 10-11 5 Ibid, page 14 6 Ibid, page 14 7 Working Safe: How to Help People Actively Care for Health and Safety, Second Edition, E. Scott Geller. 2001 by CRC Press LLC, page 49 8 Ibid, page 14 9 Ibid, page 15 10 Ibid, page 15 11 Ibid, page 16 12 Ibid, page 16 13 Ibid, page 17 14 Ibid, page 17 15 Ibid, page 19 16 Ibid, page 23 17 Ibid, page 24

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Member Spotlight

S.C. SCHOOL DISTRICT’S FIRST FIVE MAKES TRAINING FAST AND EFFECTIVE features a member who has gone above and beyond in a feature column titled “Member Spotlight.” Do you know someone who deserves recognition, has made a contribution or excelled in their profession? If so, we’d like to hear from you for this exciting column, as PRIMA shines the spotlight on its members. To be considered for the Member Spotlight column, contact Jennifer Ackerman at jackerman@primacentral.org

“Research shows that safety cultures are not created by things, such as locks or cameras, but by people and the culture they create,” said Dana Enck, director of risk, safety and environmental management for the district. “We decided to create a training program that is designed to direct personnel to consider what actions they would take in common risk situations.” The district’s risk management department created First Five (F5) in 2013. F5 is a series of monthly, five-minute training modules delivered remotely to schools and offices. The module is placed first on each department’s weekly staff meeting agenda, hence the name First Five. “Training has always been a core element of our department,” said Enck, “but challenges always existed: how could 1-2 staff members possibly consult with 90 campuses, conduct drills, and improve safety? While large-scale exercises involving multiple agencies have their place, the feasibility of conducting monthly safety training at every site would take years. With F5, we are able to train thousands in five minutes.”

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The first F5 was titled SCAN: See. Contact. Ask. Notify, which outlined the standards for identification and visitor management. Topics that have followed include medical emergencies, lockdown and behavior interruptions. The team in Charleston wanted to convey to its audience that safety and security is not always extraordinary and heroic, but rather about engaging slight changes in the way people go about their daily activities. Enck said that the F5 program is easily transferrable to any public entity. Charleston County School District relies upon its own community, schools, students and people for the videos. However, it is certainly not necessary. “A five-minute video can be created with a cell phone, edited in an app, uploaded to YouTube and used across any entity type,” she said. Enck said that the district’s approach is unique because it simplifies critical safety issues and provides the instructional tools in a format that is accessible to everyone. “There are no materials to send and lose, a trainer to schedule or a large outline to deliver,” she said. “These are the building blocks that create safety cultures that become nearly impenetrable to major crises.” For more information on the F5 program, contact Dana Enck at dana_enck@charleston.k12.sc.us.

Training has always been a core element of our department,” said Enck… “With F5, we are able to train thousands in five minutes.

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ollowing the Sandy Hook tragedy of 2012, the Charleston (SC) County School District, like many others, evaluated its safety and security weaknesses. With its physical plants as models for other districts, the Charleston County’s risk managers realized their largest threat of security failure was behavior-related.

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