IT IS TIME TO MOVE FORWARD WITH A WORKABLE OSHA 1910.156 REVISION
Dave Denniston, 1st VP AFDSNY
As the process to update OSHA 1910.156 continues, it is important that we understand where we have been, and options for the process moving forward. Since the proposed rule was published for review 18 months ago, there has been a significant amount of input and feedback from stakeholders addressing possible concerns about the economic and technical feasibility of the proposal. Stakeholders from across the country participated in the process and offered suggestions. One of the early possible solutions suggested was to simply exempt volunteers, and other parties, from the proposed rule as written. The mindset was that if it didn’t affect “us” it was not our problem. While this concept appeared to be a quick solution, it fell short of addressing the true needs or problems.
The real issue at hand is that the proposed rule as written had challenges for everyone and you would be hard pressed to find any department, career, combination, or volunteer, that could meet the intent of the standard. The proposed standard also took a one-size-fits-all approach. We know that the emergency service agencies across this country are very different. They have different resources, different exposures, different concerns, and different levels of risk. It is true that emergencies, fires, and hazards are the same regardless of the type of responder. What is different is the likeliness that a particular event will occur in any jurisdiction. Local jurisdictions must be required, and empowered, to address significant risk, and the needs of a community, at a local and state level with just enough federal oversight to give it teeth and ensure safety for all of our responders. The bottom line is that the current 1910.156 is outdated and needs significant revision to address the needs and safety concerns of today’s first responders. The proposed standard, as written, went too far in trying to address these needs. What we need is a middle ground solution that is designed to relieve significant risk and does so at a level that is economically and technically feasible for local communities, organizations, and the municipalities that govern and fund them.
Some are asking why simply exempting the volunteers is not in the best interest of volunteers across the country. First, by exempting the volunteers, we are failing to address the growing concerns and exposures facing this group of responders. Second, the largest growth area for most of our local fire departments is a move toward combination and career departments. How would it be possible to have one set of rules apply to part of an organization and not the other? Does it make sense to have volunteer responders face one set of rules, while career responders on the same truck follow another? Are we not all responding to the same emergencies with the same exposures? The approach of exempting volunteers would add both confusion and resentment moving forward. The third part of the issue is that the standard, as written, is just as problematic for the communities that have career departments as it is for those that only have volunteers. We need a standard that brings us all together, not one that drives us further apart.
So, what do the solutions look like? Where should OSHA and the Department of Labor go from here? After pouring through the thousands of comments brought forth during the process, an opportunity is right in front of us. There were a multitude of comments throughout the process that carried common themes. By using logical outgrowth of the process, OSHA now has the opportunity to massage the rule into one that we all can live with, and provide the level of safety they are tasked to provide the workers of this country.
It is now in OSHA’s hands to finalize the rule as proposed, make logical changes, scrap it, or go back to the drawing board. During the process, OSHA continuously asked for proposed solutions, and many excellent solutions were entered into the record from those that participated. We would suggest that OSHA and the Department of Labor use the extensive input from the process to make necessary changes to the document and work to finalize the rule. A rule that meets the intent of reducing significant risk in a manner that is reasonable and responsible for our first responders and communities.
Using logical outgrowth, OSHA now has the opportunity to remove the incorporated NFPA standards. Many of the participants and the NFPA itself asked for this to be done in their comments. The incorporation of those standards brought many of the pain points organizations were concerned about. The NFPA standards instead should be used as a tool for compliance, not a weapon of enforcement. By removing the incorporation of dozens of NFPA standards, the rule would also become far less confusing and economically infeasible. The next step is to transfer as much of the obligation of providing safety down to the local jurisdiction and state levels as possible. These are the people that know the nuances of the local responders and hazards in any given area. This, too, was supported by the comments throughout the process. The third opportunity is rather than exempting anyone, to build a baseline standard that applies and protects everyone, and then increase the requirements where the data shows increased exposure and risks. All of these changes are supported by the logical outgrowth requirements and would alleviate most of the pain points addressed by the participants of the process.
Regardless of the solution, we would be remiss if we failed to realize there will be opposition to any action taken moving forward. We also need to realize that any solution, or even no solution at all, will have pain points for some that it will affect. It has often been said that firefighters hate two things, change and the way things currently are. Hopefully, we realize that we are at a historic time, with an amazing opportunity to get this right. This process has been fair and offered plenty of opportunities for those interested in participating to make their opinions and feelings known. It is time to move the ball over the goal line and continue to work together for the betterment of emergency services in this country.
I encourage you to speak to your local elected officials. Let them know there is a workable solution right in front of us, and ask them to encourage the Department of Labor and OSHA to continue this opportunity and finalize a reasonable OSHA 1910.156 that applies to all fire departments, regardless of the composition of their staff.
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Here is a link to OSHA’s current position on the Emergency Response Standard.
https://www.osha.gov/emergency-response/rulemaking
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Joe Maruca’s Answer to FASNY
Joe is a member of the OSHA task force and a firefighter in Barnstable, MA
Thank you for providing detailed feedback on behalf of FASNY. Philosophically I agree with your position that volunteers should be exempt (from the OSHA Standard), however, I don’t believe that politically we can win that point. I think a more pragmatic and technocratic position is required (that volunteers be covered by the proposed standard). But I’d like to address different aspect of exempting volunteers regarding combination fire departments.
A fire department with one career firefighter (or a career chief) will fall within OSHA even if its volunteers are exempt. This means doing all the required administrative work, and spending the money, to comply with pre-plans, community risk analysis, SOPs, vehicle maintenance, facilities maintenance, risk management plans, emergency response plans, incident operations, and incident management. These areas simply can’t be run on dual tracks within the same department. The cost and effort to do these for one career firefighter is the same as doing them for the whole department, including the volunteers. So even with an exemption for volunteers, the result is still burdensome.
There are three areas where an exemption for volunteers might prove valuable for combination departments. They are training, PPE, and medical exams.
If volunteers are exempt and the career firefighter isn’t, then the department only has to provide one annual or bi-annual medical exam for its career firefighter. This saves a great deal of money and administrative effort, and it allows the department to provide medical exams for volunteers based upon its own determination of need.
Training presents a similar cost and administrative savings, but it might create a union-volunteer problem if the volunteers aren’t getting the same training as the career firefighters. As chief of a combination department (5 career & 45 volunteers) I have experienced this. For a combination to work and to help preserve the volunteers, everyone (career & volunteer) train together. If volunteers don’t get the same training as career firefighters, the union will declare them unfit and unsafe and drive them away. If career firefighters get extra training that the volunteers don’t get, then the volunteers get mad, feel like second-class members of the department, and quit.
Similarly, legally having to give compliant PPE to the career members and having the option of giving non-compliant or cheaper PPE (which will be viewed as substandard) to the volunteers may allow departments to save some money in the short-term, but the long-term effect is a morale killer and the volunteers quit.
Yes, this is a combination fire department problem. Why should we care about combination fire department problems? Combination departments are growing. They have increased by 26% over the past 20 years. Volunteer departments have decreased in those years, and the shift is from volunteer to combo. The number of volunteers in combination departments is growing, and they need our support and advocacy. I would love to hear from others on this. It would be useful to know how other state’s feel about this.
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July 28th Update from Chairman Denniston:
The NVFC OSHA Task Force has been hard at work trying to help with an OSHA 1910.156 standard that would protect our nation’s firefighters but do it in a way that is technically and economically feasible for all communities across the US. The NVFC also set up taskforce groups that looked at individual parts of the proposed standards and made suggestions on what may or may not work, especially for our volunteer departments. The efforts of all involved have been an extremely valuable resource for the NVFC, and nations fire service as a whole.
In June, Members of the task force met with representatives from the International Association of Fire Chiefs including Billy Goldfeder and the International Association of Firefighters including General President Ed Kelly. Our meeting was very cordial and productive. We reviewed the record including prehearing comments, written comments, “in-person” comments and post hearing comments. We identified areas of concern and common threads throughout those comments. The main consensus from all in attendance was that the ERS, as written, is a one-size fits all document and needs some refinement and clarification. We were all in agreement that the majority of neither the volunteer or career departments were currently, or could, meet the rule without significant changes that were either economically or technically feasible. We collaborated for three days and were able to recommend some potential solutions:
- We concluded that bulk of the safety concerns with significant risk could, and should, be addressed within a local Emergency Response Plan. The local ERP is key to identifying hazards and addressing solutions to keep responders safe. This approach removes the one-size fits all concerns echoed throughout the process.
- We recommend shifting many of the responsibilities for compliance to the respective States and Authorities Having Jurisdiction (AHJ) and away from federal jurisdiction.
- There was consensus to remove any reference to NFPA standards incorporated by reference (IBR) other than those that might be required by OSHA/Department of Labor such as the selection of turnout gear. We would also recommend that any reference to the life of serviceability of an item, such as 10-year turnout-gear life, be removed and instead inspection language be used to identify when an item should be removed from service.
- We have developed a proposed timeline for compliance for each section of the ERS that would account for time needed to stand up the solutions and the logistics required to implement it.
- We concluded that it is essential that additional working groups be formed to develop resources to be co-branded by all organizations (IAFF, NVFC, IAFC), to assist local AHJ’s in understanding and implementing the ERS. These would include templates for Emergency Response Plans (ERP), Risk Management Plans, Pre-Incident Plans. This would also include developing training resources and webinars to educate the fire service. The key here is to assist local jurisdictions with the requirements of any rule instead of burdening them with it.
- We discussed the recent personnel changes in both the OSHA Administration and the Department of Labor and how this may impact on the joint work we are doing.
- Our NVFC working group was grateful for the work of the NVFC Red Ribbon Panels and we used this information extensively during our discussions with the group. We agreed that the value of many of the suggestions of these groups would be instrumental in the building of compliance resources and the fewer details actually built into the rule itself the better. The majority of the recommendations belong in the hands of the local jurisdiction and states and not within federal oversight or details of the rule.
- We believe all of our suggestions are supported by logical outgrowth of the process and supported by the record and process to date.
Moving forward, we anticipate additional meetings to discuss the next steps for this important and unprecedented process in aligning our organizations with the goal of improved responder safety. Overall, we feel good about the working relationships that we are developing with the partner organizations to be continued for the good of the fire service at large.
Dave Denniston – NVFC Taskforce Chair