If marijuana is now “Medical”, does this mean that municipalities must allow employees to use marijuana on or off duty as a Reasonable Accommodation under the Federal Americans with Disabilities Act (ADA) and/or the Oklahoma Anti-Discrimination Act?
In an instant and without notice, an unsupported trench can give way and a worker can be buried alive. “Even though small amounts of dirt may not seem treacherous, a single cubic yard of dirt can weigh more than 3,000 pounds, which can fatally crush or suffocate workers,” NIOSH states. OSHA notes that excavation and trenching are among the most hazardous construction operations, with cave-ins being perhaps the most feared trenching hazard. Other hazards in this line of operation include: falls, hazardous atmospheres, and falling loads.
How can employers help keep workers safe? NIOSH recommends that employers do the following before beginning a trenching or excavation project:
· Designate a trained “competent person” to check that all safety precautions are in place. In relation to trenching, OSHA defines a competent person as “an individual who is capable of identifying existing and predictable hazards or working conditions that are hazardous, unsanitary, or dangerous to workers, soil types and protective systems required, and who is authorized to take prompt corrective measures to eliminate these hazards and conditions.”
· Call 8-1-1 to ensure no utility lines are in the job area and to mark any existing lines.
· Locate safe places away from the trench to place spoil piles and heavy equipment paths.
· Ask the competent person to determine what kinds of protective systems will be needed for the job and have the systems in place before workers are allowed in the trench or excavation.
· Enforce the rule that workers who are younger than 18 are not allowed in the trench or excavation.
· Assign workers to the job only if they have been trained about hazards and work practices in a language and at a literacy level they understand.
· Have a written emergency action plan in place that details the steps to take in the event of a trench incident and do hands-on training of that emergency action plan.
· Make sure all workers know to never enter an unprotected trench.
· Teach workers to immediately exit a trench and call for the competent person if they find any evidence of problems with the protective system.
A dispatch call for a trench emergency rescue is not common for EMS and fire departments. But when a call like this comes, is your department prepared to respond to a trench rescue incident? Are your providers trained in what to do? This article provides some awareness-level information for responding to a technical rescue in a trench.
While trench rescues may not be common, trenches in municipal public works are. Often at construction sites, trenches are dug for workers to install or repair underground utilities, including water pipes, sewer pipes, and electric lines. These types of trenches are often narrow and deep, descending anywhere from four to 20- plus feet. These excavations differ from other trenches that are wide and deep, often used for repairs of streets, gas lines, or water main repairs. At times workers operating in excavations will be using a protective trench box or shoring.
If an emergency occurs in a trench, it could be a cave-in or a non-cave-in situation. Cave-ins are generally due to changing weather conditions, machinery, or vibrations that cause the walls to collapse, or removed dirt from the spoil pile falling back into the trench. A non-cave-in situation may be a medical emergency in the trench, entrapment of a worker under a pipe or machinery, flooding, or equipment failure.
It is crucial that first-arriving emergency units establish command, contain the incident, and request the appropriate resources. To establish command, follow your written “incident command guidelines.”
· Notify dispatch
· Size up the situation and determine if it is a cave-in or non-cave-in
· Determine the number and types of victims
· Determine the nature of the emergency
· Determine the hazards on the scene (utilities, weather, water, hazmat, machinery)
· Determine the approximate depth of the trench
· Determine if it is a rescue or recovery operation
· Establish “hot, warm, and cold” zones (hot= only trained rescuers, warm= trained support staff, and cold = non-trained personnel are not allowed within a 10-foot radius around the trench)
· Make sure no first responders endanger themselves by urging them not to play hero and enter the “hot” zone without the proper training and technical equipment
· Establish a staging area for equipment and personnel coming to the scene
A trench rescue incident requires a technical rescue team. A minimum of 20-30 rescue technicians are needed for the operation. Since most municipalities don’t have the personnel or the training to perform a trench rescue, it is much more feasible to thoroughly and effectively plan out your trenching jobs and use the appropriate techniques to protect your workers prior to sending them into a trenching situation.
Specialized equipment will need to be brought in by rescue teams, such as airbags, struts, shoring, hand tools, buckets, ladders, ground pads or plywood to stabilize the area around the trench, ropes and rigging, generators, and lighting. For extended incidents consider additional resources such as food, water, and warming equipment for rescuers. Rescues are not generally done in a few minutes. Often they take hours and many times result in a recovery rather than a rescue.
Two feet of soil covering a victim can be the equivalent of 600-1000 pounds on their body. Clearly, crushing and airway compromises are strong possibilities. Once an EMS can assess a victim, the following should be treatment priorities:
· Airway access and control
· Oxygenation
· Maintain body temperature
· Intravenous access before removal of victim
· Head, eye, and ear protection
· Pain management
· Fracture management and immobilization
It is highly recommended that all responders take a trench rescue awareness and operation course that meets NFPA standards. While trench rescues are rare, they are technical operations requiring a great deal of personnel, resources, and logistics. The best way to prevent a trench rescue situation is to follow strict safety procedures in setting up your municipal trenching and excavation situations before you put workers at risk in the trenches!
OMAG offers online safety courses through LocalGovU. This is a free online training service provided to our member cities and towns. All you have to do is go to our website at www.omag.org and click on the “I want to…” tab at the top right of the page, then click on “train online” and select LocalGovU. Follow the instructions on how to access training and registration. If you have questions or issues, contact the LocalGovU staff with the phone number provided on the page. They will be able to walk you through the process.
Employees can go through the training programs individually or a supervisor/manager can hold a departmental training by connecting a computer with internet access to a TV or projector and hold a class at a location convenient to their staff and facilities. Just remember to have your staff sign a training roster and keep it in your training files. The best part of training this way is your employees will get safety training relating to their specific jobs. There are dozens of topics to choose from, and a course list is provided on the LocalGovU link.
OMAG’s partnership with LocalGovU is just another Value-Added-Service we provide to your municipality to assist you in your Risk Management program.
CMOM programs are a best practice for sewer line collection system owners and operators. Both comprehensive and holistic, a CMOM provides an information- based plan to effectively run a sewer collection system and help lower the risk of National Pollutant Discharge Elimination System (NPDES) permit violations and discharge violations. The EPA notes in their Asset Management for Sewer Collection Systems fact sheet: “Lacking adequate focus on operations and maintenance, many collection system utilities have slipped into a reactive mode, with most of their operational resources allocated to emergency response and rehabilitation or replacement of failed systems.” Instead, a proactive and even predictive approach is encouraged by following the CMOM program.
In 2005, the EPA published a guide to evaluating and structuring a Capacity, Management, Operation, and Maintenance program. The CMOM approach is not enforced by regulatory authorities, nor is it legally binding, but can be mandated as a response to consent decrees. CMOM program documentation and subsequent audits may also be required when submitting applications for an NPDES permit. The goal of the CMOM process is to assure that discharge from treatment facilities is free from pollutants. Therefore, preventing sanitary sewer overflows, which are illegal under the Clean Water Act, is a priority.
In a CMOM program, emphasizing all four segments equally will reap the most benefits, but the backbone of the program is the management portion. Utility optimization through CMOM programming aims to be adaptable, changeable, and frequently updated, moving away from the traditional long-interval master plans. Therefore, it is difficult to implement a CMOM program without reviewing the internal components of managing a collection system – things like organizational structure and staffing, training and budgeting. An effective management system helps ensure the operations and maintenance portions of the program can fully be addressed.
Collection system operation also supports review, standardization, and transcription of activities and procedures within a department. Proper documentation allows for increased accessibility and accountability with a collection system’s organization. Operators and administrators thus identify and reflect best practices and ensure processes are kept consistent. This information, time and again, proves valuable in the event of an emergency.
The EPA notes some of these responsibilities may include “monitoring discharges into the collections system for individual users; monitoring to determine the effects of sanitary sewer overflows on receiving waters; and recording any sampling that is done, according to the Guide for Evaluating CMOM Programs at Sanitary Sewer Collections Systems. Other operational activities include safety procedures and emergency preparedness and response programs. The EPA guide also lists modeling and mapping under the operations umbrella. New technologies, like tracking with flow rate monitors, are making it easier to create and structure managerial and operational tasks and even automate some maintenance activities.
Operation and maintenance are often grouped together because their activities are so interrelated. The goal is to keep maintenance planned, as opposed to unplanned. Efficient assets have a longer useful life and reduce the likelihood of failure, decreasing emergency response costs. Like other aspects of a CMOM program, establishing written protocols helps standardize procedures and provides data that can be analyzed for patterns and trends.
Ensuring pipelines are prepared to carry the necessary capacity is a complex task. The capacity of a collection systems relies on a number of variables, including the population being served, total system size, and location of house lateral lines. A routine evaluation of capacity can be coordinated in conjunction with the other operations and maintenance activities to round out a CMOM program. Determining capacity requires both testing and inspecting, which largely focus on finding sources of inflow and infiltration (I&I). I&I is a significant contributor to SSOs and CSOs during wet-weather events. Inspections are moving away from confined-space entry methods for the safety of inspection personnel, instead opting for qualitative testing and methods that utilize CCTV inspection technology and collect comprehensive data. Rehabilitation programs are also essential to CMOM and the goals of avoiding emergency situations and staying preventive and predictive.
Implementing a CMOM program is not an easy task. It is both comprehensive and complex but worth the investment of time and resources because the benefits can be felt in both the short and the long term. In the pursuit of increasing efficiency, a CMOM program helps collection system owners and operators identify where the system and the organization as a whole are thriving and what areas need improvement.
Thankfully, the bulk of the work in putting together a CMOM program is to codify and fine-tune existing processes within a collection system. The EPA and other government sources have released numerous resources to assist owners and operators in putting a CMOM program into action.
Hiring the best qualified candidate:
Prepare all questions in advance and ensure they are job-related
Establish benchmarks for desired responses
Take notes of each candidate’s responses
Consider having the candidates “audition” for the job by utilizing practical exercises that simulate the job they are seeking
Listen to the candidate talk about an issue that is important to them personally
Have a team member take them on an interview of the office and get the team member’s feedback about the interaction
Check references!!!
Essentially our goal is to work safe, all day, everyday:
Stop long enough to think about what you are about to do
Think about how you are going to do it. Is it the safest way? If not, how can you do it better?
Act in the safest way possible
If you can get yourself and your coworkers to think for only a few seconds before doing anything, you can prevent a lot of injuries.
Apply Stop, Think and Act:
These suggestions take only moments to implement, but offer lifelong benefits:
Start with yourself. Develop your own Stop, Think, Act habit so you are keeping yourself safe and constantly demonstrating the desired safe behavior.
Build it into orientation training, so that everyone hears the message from the beginning.
Reinforce it during your weekly or daily meetings. These meetings are an ideal opportunity for everyone to discuss hazards and how to stay safe.
Coach workers one on one. Before someone starts a new task, work through the Stop, Think, Act process together. Watch for people acting impulsively, they may not take into account what could go wrong. They start at point “A” and don’t think of consequences that may occur at points “B” and “C”.
Remember: Safety is everybody’s job, all day, every day.
Directional drilling is a fast and efficient way to install underground pipe and conduit, but when a gas line is bored through a sewer line, disaster can ensue.
Cross Bores – when a line bores through a sewer line – have been the cause of catastrophic events in the past. To combat this issue, municipalities, utilities, contractors, and the trenchless industry must join forces to ensure proper pre- and post-inspections are conducted and avoid disaster.
There are almost always more connections than what surface observation suggests. The reality is that subsurface most likely there are more connections than marked after an 811 call. Municipal utilities must learn to spatially map out subsurface infrastructure during routine maintenance to improve accuracy for 811 locator requests.
Auditory systems with GPS capabilities (SL-Rat) and CCTV Camera systems have made an incredible positive impact on finding the missing conditions. By using an auditory inspection system like the SL-Rat (OMAG has several to loan to municipalities) a municipality can map their sewer system. Then they can use a CCTV camera (OMAG has grants available for these) through sewer mains. In this way, line taps can be identified and recorded to inform utilities or system owners, and potential hazards can be addressed prior to drilling. Equally important is to make post-drill inspections to confirm lines have not been breached during installation of a utility.
While gas or communication lines are typically what we think of when we hear the term cross bore, directional drilling of other utilities can negatively impact the integrity of our sewer systems as well.
Developing a partnership between utility owners and municipalities is critical if cross boring events are to be identified and addressed to keep communities safe. Developing a comprehensive prevention program between the municipality and utility owners where they share the costs and get cross bore inspection work done economically and responsibly is a win-win for the municipality, utility, and the customers.
NASSCO, whose mission it is to set standards for the assessment, maintenance, and rehabilitation of underground infrastructure, identified the need to set standards for proper cross bore prevention and detection. The worst thing that can happen is if an operator finds a cross bore and does nothing about it. Standard assessment and cleaning of mainlines could also potentially uncover cross bores masked by roots. If a cross bore is hiding behind roots that have infiltrated a pipe and the roots are cut, disaster could occur. A significant benefit of a regular chemical root control maintenance program is the ability to kill the roots without cutting or damaging pipes (OMAG has a root control grant with Duke’s Roots).
In addition to municipalities and utilities working closely together, the relationship between utilities and contractors is extremely important for the implementation of a successful cross bore program. Developing a relationship with contractors laying pipe or conduits and working with them to identify hazards or challenges and working to develop unique solutions, provides better quality data and a higher level of confidence that we are keeping our communities, homes and businesses protected.
The most common question pertaining to cross bore inspection and remediation is always “Who is responsible?” The answer: “When is comes to keeping our community safe, we all are.”
Have you ever been asked to create a presentation but didn’t know where to start? Do you feel like your presentations are a little lackluster?
OMAG has developed a short guideline of best practices to help in making your presentations the best they can be. Look for more in the future, but for now this should help to get you started. If you have any questions or would like to learn more, please contact Matthew Burleson.
This Loss Bulletin is intended to help municipalities reduce their risk of civil liability in connection with offering alcoholic beverages at Municipal Golf courses, Country Club or Marinas. Understanding current case law and the changes in state regulation of alcoholic beverage sales and acting accordingly should greatly reduce the risk to cities and towns.
On November 8, 2016 the voters of the State of Oklahoma approved a State Question 792 that modified the regulation of alcohol sales throughout the state. The law was not effective until October 1, 2018 to allow time for transition. For the most part Article 28 of the Oklahoma Constitution was repealed and Article 28A was put in its place to govern Alcoholic Beverage Laws and Enforcement. Under the prior regulations, beer or beverages containing 3.2% or less alcohol by volume were not considered to be alcoholic beverages. Under the new regulations “alcoholic beverages” are defined as “All beverages that contain alcohol, unless otherwise defined by law, shall be considered alcoholic beverages by this state and therefore governed by this Article and all other applicable laws.”[1]
How does this change affect cities and towns across the state? While municipal golf courses, Country Clubs, or Marinas in the past have been licensed by a county or a city to sell non-alcoholic beverages (3.2% or lower in alcohol by volume) several have asked how the new law might impact beer sales with a greater volume of alcohol in those beverages.
Implementing statutes to this Constitutional provision can be found in Title 37 and 37A Okla. Stat. Section 1-101 et seq. During its second session, the 55th Oklahoma Legislature enacted substantial amendments to Title 37 (Intoxicating Liquors) of the Oklahoma Statutes and added a new Title 37A (Alcoholic Beverages). The enactments from the 2016 Session affected over 400 sections in the Oklahoma Statutes relating to alcoholic beverages, including about 370 sections in Titles 37 and 37A. Most of these amendments from the 2016 Session were effective on October 1, 2018.[2]
During the 2019 legislative session additional clarifications to the law were made by the passage of Senate Bill 728 which passed with an emergency clause becoming effective upon its signing by the Governor on April 10, 2019. Among other things, SB 728 provided that an alcohol beverage “licensee may sell beer and wine for off-premises consumption if it meets the classification of a golf course, country club, or marina” [3]
First, it is important to know that cities, as political subdivisions of the State, are prohibited from the retail distribution of alcoholic beverages. [4] If cities and towns are determined to serve alcoholic beverages at golf courses and other qualifying recreational facilities, then one approach is to consider contracting with an independent contractor to provide that service. An independent contractor would need to apply with the ABLE Commission for the appropriate license(s) to sell both on premises and off premises if the desire is to sell beer that can then be consumed on the golf course. The licensing process is somewhat detailed and can be accessed on the ABLE website.[5] Some of the advantages of using an independent contractor to provide wine and beer on the public golf course or another qualifying recreational facility are: 1) requires the independent contractor to navigate the applicable ABLE regulations; 2) requires the independent contractor to properly train and supervise their own employees to ensure proper handling of risks associated with serving alcoholic beverages to patrons[6]; 3) minimizes a town or city’s investment needed to provide this amenity for its patrons.
Another option for a city or town that would like to serve alcoholic beverages at a city golf course or qualifying recreational facility may be to utilize a public trust of which the city or town is a beneficiary. A public trust is a separate legal entity than a city or town and thus would not fall within the prohibition of selling alcoholic beverages that applies to a city as a political subdivision. The license from the ABLE Commission could be held by a Public Works Authority, a Municipal Authority, or other public trust organized under the Oklahoma Public Trust Act. [7] The licensing process through the ABLE Commission would need to be followed. (see footnote #5). The land or property upon which the alcoholic beverage dispensing would occur would need to be under ownership, lease or control by the Public Trust and all Trustees of the Public Trust will need to execute the appropriate background investigation documents. In addition, for OMAG member towns and cities who carry General Liability or Property Damage Policies, under Section VI, Exclusion 14 there is no coverage under those policies for serving or furnishing alcoholic beverages for a charge.[8]
Should a City or town desire to extend coverage to its public trust that would be involved in the sale of alcoholic beverages at our municipal golf courses or other qualifying recreational facilities, then a special rider or waiver of this exemption would need to be considered.[9] Please contact OMAG if you need additional information or guidance. The information provided in this bulletin is not intended to be legal advice. Specific facts and circumstances unique to your town or city should be discussed with your City Attorney for legal guidance.
[1]Okla. Const. Article 28A, Section 1
[2] OSCN has prepared a table that lists all sections in Titles 37 and 37A affected by the 2016 enactments. This table shows the disposition of all affected sections in Title 37 (amendments, repeals, and renumberings), and it shows the source of all sections added to the new Title 37A. This table should help OSCN users to determine which sections in Titles 37 and 37A have been affected. OSCN Dispositional Table – 2016 Acts Affecting Titles 37 and 37A (PDF, 21 pages)
[3] Golf course, Country Club or marina pursuant to the most recently adopted North American Industry Classification System (NAICS). 37A Okla. Stat, sections 2-110 (2), 2-128(2).
[4] Okla. Const Art. 28A § 8. State and other governing entities prohibited from engaging in alcoholic beverage business
The State of Oklahoma, or any political subdivision thereof, or any board, commission or agency thereof, is hereby prohibited from engaging in any phase of the alcoholic beverage business, including the manufacture, sale, transportation or distribution thereof, at wholesale or retail, and the maintenance, ownership or operation of warehouses or alcoholic beverage stores; except that if the voters of a county in which a state lodge is located approve retail sale of alcoholic beverages by the individual drink for on-premise consumption, and if the State Legislature enacts legislation approving such sales in any such lodges located in any such counties, then such sales are authorized. The Legislature may enact laws restricting the involvement of officers and employees of the state and political subdivisions thereof in the alcoholic beverage business.
Provided, that nothing herein shall prohibit the sale of alcoholic beverages legally confiscated as provided by law.
[5] https://www.ok.gov/able/documents/ABLE%20Form-Beer%20%20Wine%20Application.pdf
[6] Brigance v. Velvet Dove Restaurant, Inc. 1986 OK 41, 725 P.2d 300 “At common law a tavern owner who furnishes alcoholic beverages to another is not civilly liable for a third person's injuries that are caused by the acts of an intoxicated patron. Such rule is principally based upon concepts of causation that, as a matter of law, it is not the sale of liquor by the tavern owner, but the voluntary consumption by the intoxicated person, which is the proximate cause of resulting injuries, so that the tavern owner is therefore not liable for negligence in selling the liquor.” @301 “We hold today that public policy is better served by holding that the common law principles of negligence are applicable where a commercial vendor for on the premises consumption is shown to have sold or furnished intoxicating beverages to a person who was noticeably intoxicated from which a jury could determine that such conduct creates an unreasonable risk of harm to others who may be injured by the person's impaired ability to operate a motor vehicle. Based upon compelling reasons we, thus, reject the common law doctrine of tavern owner nonliability in Oklahoma.” @305-306. Oklahoma Courts, since Brigance, have declined to extend the common law modification beyond the factual circumstances of that case, i.e. an innocent third party injured as the proximate cause of the negligence of the commercial server who knew or should have known by their observation that the person being served was too intoxicated to safely operate a motor vehicle. See BATTLES v. COUGH, 1997 OK CIV APP 62, 947 P.2d 600, Wrongful death action was brought against alleged social host and restaurant for serving alcoholic beverages to motorcyclist subsequently involved in collision that killed passenger. The Court of Civil Appeals, held that the alleged social host was not liable for serving alcoholic beverages to motorcyclist under the facts of that case including there is no duty on vendor to deny service of alcoholic beverages to persons who will or might become intoxicated thereby; evidence that motorcyclist drank three beers and two mixed drinks in one hour and five minutes did not permit inference that restaurant served him alcohol when he was noticeably intoxicated; evidence of loud talking in restaurant by member of group that included motorcyclist also did not permit such an inference. See OHIO CASUALTY INSURANCE COMPANY v. Todd's Tavern et al., 1991 OK 54, 813 P.2d 508. Question was certified from Federal District Court regarding possible cause of action intoxicated driver had against tavern owner. The Supreme Court held that tavern owner has no liability to intoxicated adult who voluntarily consumes alcoholic beverages to excess and sustains injury as result of his intoxication. See TEEL v. WARREN, III, et al., 2001 OK CIV APP 46, 22 P.3d 234. Guest brought action against fraternity for personal injuries he allegedly sustained when he was assaulted by fraternity member while attending a party at the fraternity house. The Court of Appeals held that any action by fraternity which violated statute barring the furnishing of alcohol to a person under the age of 21 could not be proximate cause of injuries suffered by guest at fraternity house when 19-year-old fraternity member became intoxicated and assaulted him; fraternity was not commercial seller of alcoholic beverages, but a social host. 37 Okl.St.Ann. § 537; See also SMITH v. TEEL, et al, 2008 OK CIV APP 7, 175 P.3d 960. Spouse of car passenger killed in collision with vehicle driven by intoxicated patron of restaurant and dance club brought wrongful death action against restaurant, which was a limited liability company, and two of its alleged managers and owners. The Court of Civil Appeals held that alleged managers and owners could not be personally liable for death of passenger.
[7] See Oklahoma Public Trust Statutes - Title 60 Okla. Stat. Section 176 et seq
[8] OMAG MPPP & MLPP Policies – “VI. EXCLUSIONS. We have no obligation to pay nor do we have any obligation to defend any claim against a plan member on account of: . . . 14. Loss for which any plan member, if serving or furnishing alcoholic beverages for a charge, may be held liable by reason of: a. causing or contributing to the intoxication of any person; or b. the furnishing of alcoholic beverages to a person under the legal drinking age or under the influence of alcohol.”
[9] Thirty-five OMAG members cities have been identified as having properties described as golf courses in the MPPP. Those members in the MPPP using that criteria are: Altus, Ardmore, Blackwell, Boise City, Buffalo, Cedar Valley, Clinton, Edmond, Enid, Fairview, Guymon, Hobart, Hooker, Kingfisher, Lindsay, Medford, Midwest City, Okeene, Owasso, Pawnee, Ponca City, Prague, Pryor Creek, Purcell, Sand Springs, Sapulpa, Sayre, Seminole, Shattuck, Stroud, Tahlequah, Walters, Watonga, Wewoka and Woodward. In addition, any city or town that OMAG provides general liability coverage (MLPP) to that are not afforded property coverage by OMAG has the same exclusions contained in that policy. That portion of the reported expenditures on the forms provided by our members to the State Auditor report expenditures for Culture & Recreation could include expenditures for parks, playgrounds, golf courses, swimming pools, museums, marinas, community music, Drama, celebrations, and zoos. So, some additional effort would be needed to poll other cities to see if they are anticipating selling alcoholic beverages at golf courses or other qualifying recreational facilities.
