Let's not fight over risk. Let's appreciate risk.

I never thought that I would get the type of response that I received on my post on LEED job safety. From my perspective, the study was simply a well-resourced point of view (and perhaps a very important one) worth the eyes of the legal community. But to most of the building world, the study was an undeserved black eye on green building. Perhaps we are both right, or perhaps we are not truly appreciating the word “risk.”

 

For those of you that have not had a chance to read my prior post on this issue, please follow this link.  The article discusses an empirical analysis of a sample of LEED construction projects in Colorado, comparing incident reports from those jobs to incident reports on non-LEED projects. The study was performed by University of Colorado Boulder professors and students.

My prior article received a number of negative responses. One reader even called it “sensational journalism.” While the posting of the article and my comments about its importance for the green building legal community were not intended to flat-out sponsor the study’s findings, I have since decided to dig deeper. Over the past two weeks, I had some time to mull over the study and even have a conversation with  Prof. Matthew Hallowell, who headed the study.

My final thought – the study is not as powerful as it could be, but it certainly provides justifiable bases for concern in those who are building green construction projects. That in itself should catch the eyes of attorneys. Let me explain further.

 

The Study’s Perceived Weaknesses

I spoke with Prof. Hallowell on the strengths and weaknesses of the study and found him to be extremely honest about some drawbacks. Most importantly, the resulting risk values associated with building something LEED v. building something traditionally (i.e. living roof v. torch-down/rubber roof) are not empirical. These risk values are “based on perceptions of experienced designers and contractors,” considering the empirical data that was obtained from job sites and reports. Therefore, the study’s risk value associated with installing green roofs (41% more risk) does not mean that their sample found 41% more injuries on LEED roofs. It simply means that the empirical data retrieved substantiates a perceived 41% increase of risk.

Prof. Hallowell advised that the perceived risk values were determined by experienced designers and contractors with roughly twenty years of experience in the industry and significant on-site LEED leadership. This is very important, as most of the detractors to this study noted that it was performed by an educational institution who probably lacked on-site experience. As with most studies, this educational team leaned on the most experienced professionals to provide analysis. The fact that the study’s authors did not lean on limited empirical data to publish highly questionable risk values is perhaps a strength to the study. Many in the building industry, and certainly in a court room, may place higher weight on the perceptions of green building experts than on limited empirical data. This weakness could, in many ways, be considered a strength.

Another limitation was the sample, which consisted purely of Colorado projects performed over the past two years. A limited sample can sometimes drive trends unfairly in either direction. But, Colorado is probably a perfect state to use for a sample. The state has a wonderful blend of urban and rural construction, and a still active residential construction construction industry. On top of that, anyone questioning their commitment and experience with green building should check out the USGBC’s recently-released per capita rankings. Colorado is the top state, trailing only DC.  Finally, Colorado has a good reputation for being safe. The 2010 OSHA reports show that Colorado had only 10 construction fatalities, significantly below numbers in CA, TX, NY and IL (though their size is taken into consideration) and right on par with similarly sized and green-focused Washington and Virginia. So, while they lack a more substantial and diverse sample, the use of Colorado is far from a weakness.

Other potential weaknesses might include the sample time frame, subjectivity in determining green tasks and analyst bias. The time frame is perhaps actually helpful, as we are only talking about the past few years, when green building has become the most routine and safe. The analyst issues are probably less concerning, as these are proponents working in the green field.

It is clear that the study could utilize better qualitative methods to quell questions of its veracity. But the perceived weaknesses above could also be argued as strengths both during your next contracting negotiation or your next law suit. That objective argument is cause for concern, as I will discuss below.

 

The Study’s Strengths

Prof. Hallowell also expounded on what he believes are the study’s strengths. The biggest thing to consider here is that the data used to identify the risks were in fact empirical. The authors and analysts pulled data from direct observations, injury and job reports and from talking directly with the workers. So detractors concerned that this was a lab study can rest assured that the examination happened on the job site.

This type of examination allows the authors to get a first hand point of view of where the risks of injury are more prevalent and why. Though the risk values themselves are not empirical, the analysis used to predict those values was based on all levels of data – raw statistics, subjective opinion and first-hand observation. In my opinion, this makes the study stronger and would have a heavy bearing on the decision-making of a judge or neutral.

Secondly, the suggestions made to reduce the associated risks have already been implemented. Prof. Hallowell has pointed out that traction pads are used on TPO roofing and that builders are using cellophane covering on ducts. I actually thought that the practical suggestions were the best part of the study. Anyone can dispute the accuracy of risk magnitude, but how can you say no to specific safety features that objectively are more safe and affordable. This part of the study makes it even more valuable to owners, builders and attorneys, who are faced with offsetting the arguable additional risk that comes with building green. Some of these suggestions are exactly what most of the readers are suggesting makes green building less risky. Unfortunately, just because your own business utilizes these measures does not mean that other builders are doing the same. It will be up to owners, designers, engineers and builders who are contracting this work to ensure that appropriate safety measures are in place in specifications and job scopes to ensure that these risks are mitigated.

Perhaps the most compelling reason to give a listen – the academia behind it. According to Prof. Hallowell, the authors followed a “very strict protocol in all of our studies that is supported by a very wide body of literature and scientific theory.” Academic studies use a variety of methodology to successfully quantify risks. Before even proceeding with an analysis of what might be a cause for concern, the team deeply analyzed how construction practices are carried on throughout the project and where there might be cause for concern. When you determine those areas of concern – no matter how small they might be – it is much easier to evaluate them against control data.

Getting to the root of the potential LEED-specific risks was important to these authors. A great example provided by Prof. Hallowell was dumpster injuries. The risk of harm relative to LEED is not the cuts and scrapes associated with recycling or dumping material – that can happen on any job. The act that elevates the risk of harm is the fact that is material is accidentally deposited in the wrong container on a LEED project, someone has to dive in, sort it and remove it. This causes additional harm – or a higher rate of risk. This deep analysis is strong point for the study.

Finally, this study has been published by the American Society of Engineers (ASCE). This means that one of the most respected construction organizations in the world has put a stamp of approval on it. While you can debate that the body of members of the ASCE did not vote to approve it (I am sure they did not), it bears mention that this renowned organization has stamped its name on the copyright and has published it for sale at its website.

 

The Conclusion 

The UC-Boulder study presents the most well-publicized and complete evaluation of green building (focused on LEED) safety risk. I will put a hefty bet on it becoming the centerpiece of a plaintiff’s evidence in a lawsuit somewhere in the US, in the near future. Studies like these are bound expert opinion, ready to use for the benefit of any litigant. This means that owners, designers, contractors and attorneys must pay it respect.

On the plus side, the study’s findings were conceived by expert-level experienced green building personnel, using a diverse pallet of empirical data from a sample that represents unquestionable experience in green building and success in safety. On the other side of the argument, detractors can argue that the sample is not wholly representative and that analyst subjectivity calls question to risk factors. But all of us can agree that there are specific features in LEED and other green building projects that come with additional risks – and that the study’s suggested safety features can help reduce the magnitude of those risks.

A lawyers intrigue with this study is in its teaching of objectivity in risk. If objectively the study’s findings on risk can be appreciated by a judge or opposing counsel, then you have to take notice for your client’s benefit. Some of the measures that many readers mentioned in their comments are precisely what should be used to help reduce risk. Some risks require even more safeguarding, like the ones set forth in the study. And there are some risks that will not evaporate with less exposure, more safeguarding, more check-up and more inspection. Some risks will prevail regardless; reporting, medical procedures and insurance are the only ways of mitigating those risks. This study points out all of these risks.

In sum, take notice. Grab a copy of the report and mull this over:

  • Owners – Can I afford additional safety? Can my contract shift this risk to the contractor? Can our specifications better prepare our contractor for our safety expectations?
  • Designers – Can I afford not to require additional safety when safety is my obligation? Can I better craft specifications to put the onus of safety on the contractor?
  • Contractors – Can I use my contract to require my subcontractors and employees to use better safety technique? Can I adjust my bidding methodology to employ better safety mechanisms?
  • Attorneys – Can my client really afford to ignore these risks? Can they manage the risks easily through their contract? Can they teach better safety technique through their safety manuals?

As always, I invite your comments below.