Fall 2022
 
Resolution Number: 2022-1 (Academic Senate Resolution on Chemical Hygiene Safety)
 
Contact: Erin Brocker
 
Whereas, laboratory and activity courses utilizing chemicals and specialized equipment have a potential for injury due to exposure to corrosive and toxic materials, flammable solvents, high pressure gases, explosive chemicals, exposure risks, and other inherent dangers;

Whereas, State1 and Federal2 regulations require employers to appoint a chemical hygiene officer who is “qualified by training or experience, to provide technical guidance in the development and implementation […] of the Chemical Hygiene Plan.”

Whereas, Article 7.1 in the collective bargaining agreement3 between the Ventura County Community College District (VCCCD) and AFT Local 1828 states that “the District will provide a safe working environment for faculty members.”;

Whereas, faculty and staff within the Sciences Division at Ventura College have raised concerns regarding the Ventura College Chemical Hygiene and Laboratory Safety Plan, the lack of specific chemical health and safety training available to laboratory staff and faculty, and the lack of chemical safety and disposal and health expertise within the District.
 
Therefore Be It Resolved, that the Academic Senate of Ventura College supports providing an adequately trained health and safety department and offer current faculty and staff with annual training regarding the proper storage, handling, and disposal of chemical waste and other safety issues that may arise during a laboratory activity;

Resolved, that the Academic Senate of Ventura College supports additional training opportunities for faculty and staff who volunteer to serve as alternate Chemical Hygiene Officers; 

Resolved, that the Academic Senate of Ventura College supports the hiring of a District-level Chemical Hygiene Officer with the education and training needed to manage chemical safety issues within the District.

Resolved, that the Academic Senate of Ventura College formally endorse the following letter written by Chemistry Professor Hafez Alawdi in of Support of Hiring of a Chemical Hygiene/Safety Officer at Ventura College.

Citations
1. Cal/OSHA, 8 CCR, Subchapter 7, Group 16, Article 109 §5191
2. 29 CFR 1910.1450, Occupational Exposure To Hazardous Chemicals In Laboratories
3. 2019-2022 AFT Agreement
To: The Executive Team of Ventura Community College
From: Hafez Alawdi, Associate Professor of Chemistry, Ventura College
Date: February 12th, 2023
Subject: Support of Hiring of a Chemical Hygiene/Safety Officer at Ventura College

The Situation
Ventura College (VC) as well as the Ventura County Community College District (VCCCD) continue to operate and offer Chemistry laboratory courses without having a hired chemical hygiene and safety officer. The focus here is on Chemistry laboratory courses since such courses have a potential for injury due to exposure to corrosive and toxic materials, flammable solvents, ahigh pressure gases, explosive chemicals, and other inherent dangers. To that extent, State1 and Federal2 regulations require employers to appoint a chemical hygiene and safety officer who is “qualified by training or experience, to provide technical guidance in the development and implementation […] of the Chemical Hygiene Plan.”
According to article 7.1 of the collective bargaining agreement3 between VCCCD and the faculty union AFT Local 1828, “the District will provide a safe working environment for faculty members.” To this regard, VC has an established Chemical Hygiene and Laboratory Safety Plan (CH/LSP)4 that “sets forth procedures, equipment, personal protective equipment, and work practices to ensure that employees and students who work in a laboratory setting will be protected from any chemical exposures that exceed permissible exposure levels and that they will be educated as to the nature of the health hazards presented by hazardous chemicals used in the college laboratories.” Additionally, the VC CH/LSP states that in order “to achieve the goal of employee and student protection from the effects of hazardous chemicals this plan requires that each college appoint a Chemical Hygiene Officer to develop, implement and monitor the chemical hygiene plan.” 
Among the duties of the Chemical Hygiene and Safety Officer outlined in the VC CH/LSP are a) work with college administrators, other faculty and especially the college’s Hazardous Materials Consultant, to develop and implement acceptable, appropriate chemical hygiene policies and practices at their specific college. b) Monitor procurement and use of chemicals in the lab and determine that laboratory facilities and training levels are adequate for chemicals in use. c) Perform regular, formal chemical hygiene and housekeeping inspections that include inspections of emergency equipment. d) Investigate laboratory accidents, spills/releases, determine causes of accidents recommend corrective action, and forward investigation reports to supervisors. And e) Ensure that the appropriate training has been provided to employees and that laboratory workers/students know and follow chemical hygiene rules.
Despite the essential duties of the chemical hygiene and safety officer in creating a safe learning environment for chemistry laboratory students and chemistry faculty and staff, VC currently does not have a hired professional to perfume these duties and does not offer substitutive relevant training opportunities for the impacted faculty and staff members. As a result, faculty and staff within the Sciences Division at Ventura College have raised concerns regarding the Ventura College Chemical Hygiene and Laboratory Safety Plan, the lack of training available to laboratory staff and faculty, and the lack of chemical safety and disposal expertise within the District. Furthermore, they have raised concerns regarding emergency preparedness and levels of safety in our chemistry laboratories pertaining to the use/storage/disposal of chemicals, operationalities of safety equipment, such as fume hoods, eyewash stations, safety showers, etc., and keeping our operational procedures updated as per OSHA and other State and Federal regulations. Lastly, the faculty and staff within the Sciences Division at Ventura College have raised concerns regarding the active negligence from the part of the college in addressing the aforementioned grounded concerns and their implications in undermining the efforts of creating a safe learning environment for our students.

Legal Dimensions
As mentioned above, State1 and Federal2 regulations require employers to appoint a qualified chemical hygiene and safety officer to provide technical guidance and perform the necessary duties required for establishing a safe working/learning environment. But the question here is whether or not higher education institutions have a duty to use reasonable care to protect their students from foreseeable dangers in the classroom or during curricular activities? If yes, then continuing offering Chemistry laboratory courses in Ventura College in the absence of a qualified chemical hygiene and safety officer could be considered negligence and thus a breach to the college’s responsibility of creating a safe learning environment for its students. Accordingly, the college and its chemistry faculty/staff maybe liable for any related injuries. 
Generally, there is no duty to protect others from the conduct of third parties unless a special relationship exists, like the special relationship between a bank and its employees. This is known as the special relationship doctrine5. A special relationship is generally defined as having dependence on another party for partial or full protection against foreseeable harm. As shown in Regents of University of California v. Rosen6, the court held that universities do have a legal duty, under certain circumstances, to protect or warn students from foreseeable harm in the classroom or during curricular activities. In this case, the student was assaulted by another student during a chemistry laboratory session. The assaulting student was known to university to have mental health problems and had exhibited acts of disturbance during his classes prior to this incident. Rosen sued the university for failing to protect her and the Supreme Court concluded that “postsecondary schools do have a special relationship with students while they are engaged in activities that are part of the school’s curriculum or closely related to its delivery of educational services.”
Despite the legal requirement of a higher education institution to protect its students during class from foreseeable harm, one could argue that students assume the risk of injury when they enroll in such classes. This argument, known as the “assumption of risk”, has shown to have limited success, especially in the cases involved novice students, which is the case for the level of chemistry laboratories taught in Ventura College. For example, in the case of Loder v State of New York7, the student A. Loder got injured in a class related activity that involves grooming a horse. The court found the university liable for the student’s injury because the university did not exhaust much effort to provide protection and information for this novice student. Another example of a failed “assumption of risk” argument is seen in Drogaris v. Trustees of Columbia University8 where the student was injured after an instructor demonstration in a graduate course in kinesiology. According to Kaplin et al. (2020)9, “The court rejected the university’s argument that the student assumed the risk of injury by participating in the class” (p. 107).
Furthermore, injuries related to outdated safety protocols and malfunctioning equipment could result in the court finding the college “liable for negligence, even if it is in a state with a tort claims act” (Kaplin et al., 2020, p. 107). For example, in Texas State Technical College v. Beavers10, the court found the college liable for the student’s injury since the student was injured by using a tangible personal property of the institution. Additionally, injuries related to engaging in potentially dangerous activities without proper and informed supervision could also result in the liability of the college for negligence. For example, in Lei v. City University of New York11, the court found the university liable for the student’s injuries in a metal lab despite providing fire extinguishers and leather aprons. According to the court, to satisfy the duty it owned to the claimant, the university needed to go beyond providing general safety equipment. It needed to provide informed supervision and issue written, regularly updated, guidelines setting forth safety procedures for students to follow and not just leave the matter of safety entirely to the class instructor.

Conclusion
Ventura College has a “special relationship” with its students and thus has a legal duty to protected them against foreseeable harm in class and during curricular activities. Hiring a professional chemical hygiene and safety officer will ensure that the college’s operational procedures in regard to teaching chemistry laboratories and the use/storage/disposal of chemicals are continuously updated as per state and federal mandates. Furthermore, the chemical hygiene and safety officer will ensure that our laboratories and equipment within are safe for student use, thus helping the college maintain its legal duties by bolstering the efforts of creating a safe learning environment for our students and a safe working environment for our faculty and staff.

References
1. Cal/OSHA, 8 CCR, Subchapter 7, Group 16, Article 109 §5191
2. 29 CFR 1910.1450, Occupational Exposure To Hazardous Chemicals In Laboratories
3.  2019-2022 AFT Agreement
4. Ventura College Chemical Hygiene and Laboratory Safety Plan
5. Special Relationship Doctrine
6. Regents of University of California v. Rosen
7. Loder v State of New York
8. Drogaris v. Trustees of Columbia University
9. Kaplin, W., Lee, B., Hutchens, N., Rooksby, J. (2020). The Law of Higher Education (6th 
    edition). Jossey-Bass.
10. Texas State Technical College v. Beavers
11. Lei v. City University on New York