LEGAL LIMBO, PART 4: THE STATUS OF VOLUNTEER FIRE DEPARTMENTS UNDER THE FEDERAL OSHA LAW
BY JOHN T. BENTIVOGLIO
Editor`s note: This is the fourth and final article in a series on the coverage of volunteer fire and rescue departments under federal employment and safety laws. Parts 1, 2, and 3 appeared in the March, April, and July 1996 issues.
The third article in this series examined whether volunteer fire departments must comply with OSHA regulations. This article discusses the next step and examines which OSHA standards are most relevant to the fire departments, what these standards require, and what basic steps fire departments can take to comply with OSHA standards.1
OSHA ENFORCEMENT PROCESS
It is important to understand that state OSHA agencies enforce OSHA standards for state, county, and municipal fire departments. Not surprisingly, there is significant variation among state agencies as to how these standards are enforced. Some state OSHA agencies are quite aggressive about fire department compliance,2 whereas in other states OSHA agencies take a less aggressive approach, with inspections generally limited to an in-house review of SOPs, equipment, training programs, and record keeping.3
The primary means of enforcement for state OSHA agencies is the workplace inspection, in which OSHA inspectors arrive unannounced and inspect the work site. Employers that violate OSHA standards can be cited. In some state-plan jurisdictions, OSHA inspectors can fine public-sector employers (including fire departments) for violations. These fines can run into the tens of thousands of dollars. Generally, public fire departments have no legal right to refuse entry to state OSHA inspectors. Even private volunteer departments, which could–in theory–refuse entry to an OSHA inspector without a warrant, are well advised to cooperate fully with OSHA inspectors.
OSHA STANDARDS FOR THE FIRE SERVICE
Although OSHA has issued thousands of pages of standards, only a handful of them are directly relevant to most local fire departments: the fire brigade, personal protective equipment, hazardous waste operations and emergency response (HAZWOPER or haz-mat standard), and bloodborne pathogens. Departments providing specialized hazardous materials, confined-space, or trench/collapse rescue must comply with additional OSHA requirements.
Most fire departments are organized along well-recognized functional lines–for example, into operations and training divisions. Accordingly, this article analyzes the primary OSHA standards for their impact in three major functional areas: operations, equipment, and training.4
Fire Brigade Standard
Under the fire brigade standard,5 fire departments must develop a written organizational plan or mission statement that identifies the type of service the agency will perform. The purpose of the plan is to force departments to decide what services they will provide (e.g., fire suppression, EMS, or specialized rescue) and to ensure that adequate operational procedures are in place and proper equipment and training are provided.
Operations. The primary operational requirement in the fire brigade standard is that fire departments mandate and enforce the use of personal protective equipment (PPE), including SCBA, during interior firefighting and other times when hazardous atmospheres are present.
Equipment. The fire brigade standard imposes mandatory, minimum equipment standards for fire departments. The standard addresses two types of equipment: firefighter protective clothing and respiratory protection (SCBA). Fire departments must provide at no cost to the firefighter a full complement of firefighter protective clothing, including helmet, turnout coat, boots, gloves, and foot protection. Although compliance with applicable NFPA standards is sufficient to meet the fire brigade standard, compliance with NFPA standards is not mandatory.
Training. Although the fire brigade standard does not specify a minimum number of hours for basic firefighter training, it requires fire departments to provide training commensurate with the firefighter`s responsibilities. The standard cites several state and regional fire schools as providing adequate basic training. Beyond the initial training, the fire brigade standard provides that firefighters must receive some type of training or education session at least quarterly and live, hands-on practical training at least annually (live burns are encouraged but not required).
Personal Protective Equipment
OSHA has issued six separate standards addressing specific types of personal protective equipment: respiratory protection, eye and face protection, head protection, foot protection, electrical protective equipment, and hand protection, along with a general standard imposing requirements applicable to all forms of PPE. Given the unique requirements in the respiratory protection standard and its importance to the fire service, it is treated separately below.
General PPE requirements. Under the PPE standards, fire departments–like all general industry employers–must conduct a hazard assessment to determine what hazards personnel may encounter and what types of PPE are necessary to protect against these hazards. A written certification that identifies who conducted the assessment and the date of the assessment must be completed. OSHA has prepared nonmandatory guidelines for conducting hazard assessments.6 Perhaps the most important requirement under the PPE standards is the employer`s obligation to ensure PPE is available and used by all personnel. It is not sufficient for employers to issue a policy requiring PPE use; rather, employers must ensure that employees actually use PPE whenever hazards are present. Defective or damaged equipment must be removed from service. Personnel must be trained in the proper use of PPE, and fire departments must document the training through written certifications.
Respiratory protection. The respiratory protection standard is one of the most important OSHA standards for the fire service because it imposes direct limitations and requirements on fireground operations, equipment, and training. Frequently overlooked, fire departments must develop a written respiratory protection program. The written program must at a minimum address the following: written standard operating procedures for respirator selection and use; instruction and training in the use and limitations of respirators; and proper procedures for inspection, maintenance, and storage.
Operations. OSHA`s respiratory protection standard imposes significant requirements on fireground operations. Whenever personnel are operating with SCBA in a hazardous atmosphere (such as during interior structural firefighting), properly equipped standby personnel must be present should rescue become necessary. Personnel operating in toxic atmospheres also must maintain communication (visual, voice, or signal line) between themselves. Relying in part on the respiratory protection standard, in part on the Temporary Interim Amendment to NFPA 1500, Standard on Fire Department Occupational Safety and Health Program–1992,7 and in part on the General Duty Clause (discussed below), a senior OSHA official recently issued a memorandum (the “IDLH Memorandum”) stating that at least four firefighters must be assembled and on the fireground before interior structural firefighting operations can be initiated.8
Equipment. The respiratory protection standard imposes a number of specific requirements on all types of respiratory protection equipment, including SCBA, supplied air respirators, and air cylinders.9 Respirators may not be worn unless the wearer can obtain a good seal. As a result, personnel may not wear beards, sideburns, or skull caps if such items interfere with a proper seal. Personnel may not wear glasses when using respirators if the glasses do not fit properly with the face piece. Although the standard prohibits persons using respirators from wearing contact lenses, this requirement has been applied in practice to prohibit only hard contact lenses. Generally, personnel may wear soft contact lenses when using respiratory protection.
Training. Fire departments must train personnel in the proper use of respiratory protection. The training must include an opportunity to handle the respirator, have it properly fitted, and wear it in normal and test atmospheres.
Hazardous Materials
OSHA`s haz-mat standard, 29 CFR 1910.120, contains separate and distinct provisions for fire departments and other emergency response agencies.10 The standard imposes requirements on virtually all fire departments–not just those operating haz-mat teams. In addition, the standard applies to all fire department personnel in all states–including volunteers in state-plan and nonstate-plan jurisdictions.11
Operations. The haz-mat standard governs virtually every major aspect of emergency haz-mat operations. For example, departments must use the incident command system to manage haz-mat incidents. The incident commander must perform a size-up and ensure that personnel at the scene have adequate equipment and training. The haz-mat standard also dictates minimum staffing levels and tactics for offensive operations by haz-mat teams.
Training. The haz-mat standard establishes five basic levels of training for emergency response personnel, ranging from awareness-level first responder to on-scene incident commander.12 Generally, fire departments without haz-mat teams must train some personnel to the operations level, since personnel running as first responders need to know how to take defensive actions (e.g., requesting additional resources, securing the perimeter) at such incidents. Personnel on haz-mat teams or those assigned to offensive operations (e.g., rescue of trapped patients, plugging a leaking chemical tank) must receive additional training, as must incident commanders in charge of an incident where offensive action will be taken. All personnel must receive annual refresher training.
Equipment. Although the haz-mat standard does not state so specifically, it appears that a fire department engaged in defensive haz-mat operations (such as diking and assisting with decontamination outside the hot zone) would need to provide only structural firefighting gear (turnout gear) and standard SCBA. The haz-mat standard imposes detailed equipment requirements on specialized haz-mat teams; a discussion of these requirements is beyond the scope of this article.
Bloodborne Pathogens (BBP)
According to OSHA, more than 340,000 firefighters, paramedics, EMTs, and other fire/rescue personnel face occupational exposure to blood, body fluids, and other potentially infectious materials that contain bloodborne pathogens (such as the human immunodeficiency virus and hepatitis B virus)–and, therefore, are covered under OSHA`s bloodborne pathogens standard.13
Operations. All fire departments must develop a written exposure control plan, including procedures to be followed in the event of an exposure incident. Departments also must develop engineering and work practice controls intended to reduce exposures without the need for PPE. Mandatory work practice controls include hand washing, decontamination of equipment and work surfaces, a prohibition on eating or drinking in the patient compartment of ambulances, use of safety syringes, and a prohibition on the “recapping” of needles.
Equipment. Fire departments must provide appropriate PPE, including gloves, masks, goggles, respirators, and gowns. Personnel must be trained in use, inspection, and cleaning (or disposal) of PPE. Departments also must provide equipment necessary for proper work practice controls, including disposable sharps containers, properly labeled bags for regulated waste, and other equipment.
Training. Fire/rescue personnel must be trained as to the hazards they may en-counter, proper means of reducing such exposure through work practices and use of PPE, and the department`s exposure control plan (including postexposure incident procedures). Personnel must receive annual refresher training. Trainers must be knowledgeable in occupational exposure to BBP and in the employer`s exposure control plan.
Specialized Rescue
Although a complete discussion of OSHA standards applicable to confined space and collapse rescue is beyond the scope of a basic article on OSHA compliance, a brief word about these specialized areas is appropriate.
Confined-space rescue. OSHA`s confined-space standard14 is directed primarily at general industry employers who perform routine, nonrescue confined-space entries. However, the standard contains separate and distinct provisions that apply to rescue services (including fire departments). The most important requirement for rescue services is in the area of training: personnel responsible for confined-space entry. These personnel must be trained in rescue procedures and are required to make entry and rescue actual persons or manikins from “representative” spaces (i.e., spaces similar in configuration and hazards to those to which rescuers might be called). Contrary to statements in many fire service journals, this standard does not necessarily require rescue services to use permits prior to entering a space nor does it require rescue agencies to have specific types of equipment15 (although entry permits can improve safety and should be used whenever feasible).
Collapse rescue. OSHA has issued a separate set of standards for the construction industry.16 These standards include safety requirements relating to trenches and excavation sites. The trench/excavation standards prohibit employers from allowing employees to enter unshored trenches. The standards also require employers to maintain certain rescue equipment on-site, including a rescue basket, first-aid equipment, breathing apparatus, and lifelines. Departments must prohibit untrained or unequipped personnel from entering un-shored trenches.
General Duty Clause. In addition to complying with specific OSHA standards, federal law provides that all employers–including fire departments–are under a duty to provide a workplace free of recognized health and safety hazards. This provision is referred to as the “General Duty Clause.” It is a catchall provision under which fire departments can be cited for violating “consensus industry standard” health and safety practices–even if the violation was not of a specific OSHA standard or requirement. What constitutes a “consensus industry standard” is a complicated question. OSHA believes some–if not most–NFPA standards are consensus industry standards. As a result, while NFPA standards are deemed “voluntary,” many NFPA standards–particularly those that have gained widespread acceptance in the fire service–may be mandatory under the General Duty Clause.17
COMPLIANCE TIPS
Although a complete guide to OSHA compliance would run into hundreds of pages, volunteer and career fire departments and rescue squads can take some practical steps to comply with the most important OSHA standards and, more importantly, to increase firefighter health and safety.
Appoint a senior-level department safety officer. Designating a senior officer as safety officer for your department is the first step in developing an effective occupational health and safety program. Preferably, this person should be a senior officer who reports directly to the chief of department.
Institute an incident command system. The incident command system is recognized as a safe and effective tool for managing multiunit fire/rescue incidents, from auto accidents to multiagency fires or mass-casualty incidents.
Appoint a safety officer at all working incidents. A senior officer should be appointed as the on-scene safety officer at all working fires and other incidents where the IC cannot effectively monitor the incident from a safety standpoint. As under the ICS, the safety officer should have authority to halt any unsafe practice on the fireground, subject only to the authority of the IC.
Develop an accountability system. The lack of an effective system for firefighter accountability has contributed to several recent firefighter deaths and resulted in state OSHA agencies` fining agencies tens of thousands of dollars. Accountability systems vary in terms of complexity, cost, and effectiveness. Every department should implement an effective accountability system based on local needs and operations.
Develop written SOPs in several key areas. Written SOPs must be developed. They at least must address the following: the requirements that personnel use SCBA and PASS devices when performing interior firefighting or salvage and overhaul when hazardous atmospheres are present; personnel operate in pairs when performing interior firefighting; universal precautions be taken on all EMS incidents; and untrained personnel be prohibited from entering unshored trenches or confined spaces.
Provide necessary training. At the very least, personnel should be trained in basic firefighting tactics, along with proper use of PPE. Officers should receive additional training, particularly in company-level and incident management.
Make the fire station safe. Actions speak louder than words, and a fire department that does not take safety seriously within the station is less likely to take it seriously on the fireground. A substantial percentage (in some departments, the vast majority) of on-the-job injuries in the fire service occur in the station. Departments would be well advised to set an example to the public and their employees or volunteers by complying with OSHA requirements relating to fire station safety.18
Copyright, John T. Bentivoglio, 1996.
Endnotes
1. Unless otherwise noted, the term “fire department” includes career and volunteer departments providing fire suppression, EMS, and basic rescue services.
2. The Washington state Department of Labor and Industry has earned a reputation for aggressive enforcement against fire departments. The agency has fined the Seattle Fire Department tens of thousands of dollars in separate incidents involving firefighter fatalities.
3. New York`s OSHA agency generally focuses on whether fire departments are in compliance with requirements for training, equipment, written SOPs, and record keeping and reporting. Except in unusual circumstances, New York OSHA does not send inspectors to monitor fireground operations and does not cite fire departments for fireground safety practices.
4. OSHA standards contain more than operational, training, and equipment requirements. For example, many OSHA standards contain requirements relating to personnel, record keeping, and administration. Since a comprehensive review of all OSHA standards applicable to fire departments is beyond the scope of any single article, this article focuses on those requirements with the most direct impact on firefighter health and safety.
5. 29 CFR 1910.156.
6. 29 CFR 1910.132, Appendix B.
7. Tentative Interim Amendment to NFPA 1500, Fire Department Occupational Safety and Health–1992.
8. Memorandum from James W. Stanley, deputy assistant secretary, U.S. Department of Labor, “Response to IDLH or Potential IDLH Atmospheres,” May 1, 1995.
9. The requirements for respiratory protection equipment, including air cylinders, are contained in 30 CFR Part 11.
10. See 29 CFR 1910.120(q).
11. Personnel (volunteer and career) in nonstate-plan jurisdictions are required to comply with OSHA`s haz-mat standard pursuant to an EPA regulation, 40 CFR part 311. The EPA regulation was published in the Federal Register on June 23, 1989.
12. The training levels in the haz-mat standard correspond with those established in NFPA 472, Standard for Professional Competence of Responders to Hazardous Materials Incidents. The only major difference is that the 1992 revision to NFPA 472 deleted the “hazardous materials specialist” level. The haz-mat standard retains this level.
13. 29 CFR 1910.1200.
14. 29 CFR 1910.146.
15. The entry permit and equipment requirements are not included in subparagraph (k)(l)–the section dealing with rescue services. Moreover, the only provisions that rescue services must comply with other than those in subparagraph (k)(l) are the training requirements for authorized entrants under paragraph (g).
16. 29 CFR 1926.650-.652.
17. OSHA`s May 1, 1995, memorandum requiring four firefighters to be on the fireground, for example, cited a provision in NFPA 1500 TIA to impose this requirement under the General Duty Clause.
18. For more on fire station safety, see “How Safe Is Your Fire Station?” by Tom Thorpe (Fire Engineering, April 1994, p. 79).
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–JOHN T. BENTIVOGLIO
JOHN T. BENTIVOGLIO is an attorney in Washington, D.C., and a volunteer fire/rescue sergeant and paramedic with the Bethesda-Chevy Chase Rescue Squad in Bethesda, Maryland. He is currently working on a book on OSHA compliance for fire/rescue departments. The views ex-pressed are solely those of the author.
