TO ALL NC FIREFIGHTERS REFERENCE OSHA TESTIMONY
Tim Bradley, Executive Director
A recent Newsletter (November 11 – 15, 2024) published by the Professional Fire Fighters and Paramedics Association of North Carolina has incorrectly characterized my testimony for the National Volunteer Fire Council on the proposed revision to OSHA’s 1910.156 Emergency Response Standard. A very similar criticism was issued in a previous Newsletter on my testimony to Congress. I’m not sure why their editor finds it necessary to attack my participation, but if he is going to criticize, it would be considerate to do it honestly instead of misrepresentations and half-truths.
If you’d like to read my entire testimony, which would provide you with actual information, it’s at the end of this brief note.
However, here are a few highlights:
- My entire presentation dealt with the effect the proposed rule would have on volunteer and smaller combination departments. I did not mention the absence of training in North Carolina.
- I did not speak against reform or training. I’ve spent most of my career preparing training and certification programs for NC. The NCSFA would never allow me to speak against training.
- There is general support within the NVFC, as well as the NCSFA, to update the standard in a way that is not one size, fits all manner.
- The primary content of my testimony was the inclusion, by reference, of over 20 entire NFPA and ANSI standards, which in fact, are linked to many more NFPA standards, many of which are under revision. I’m not an opponent of NFPA standards, and in fact chaired an NFPA Technical Committee on Professional Qualifications for 15 years, but NFPA Standards were written with the expected review and analysis of a local Authority Having Jurisdiction (AHJ), who would and could determine what sections are applicable to their department. The AHJ would be OSHA if the proposed rule passes as written.
- NFPA, themselves, has written OSHA and asked them NOT to adopt these standards by reference, which could and would create confusion, and potentially have a negative impact on their standards making process.
- I would add that NFPA standards are consensus standards, but they are only consensus to those who participated and voted in the standards making process.
- As to ignoring firefighter injuries and death statistics, this was in my closing comments:
Write prescriptive requirements for their (OSHA’s) own revised Emergency Response Standard, based on conclusive facts and statistics, to prevent injury and death to emergency responders.
In a time when the fire service faces numerous challenges from recruitment and retention, inconsistent benefits, as well as health and safety issues, take the time to read and listen for yourselves.
Here is the text of my submitted testimony given during the hearing November 12th, 2024.
Impact of Incorporating Industry Consensus Standards by Reference into OSHA’s Proposed Emergency Response Standard
Statement of
Tim Bradley
Director, National Volunteer Fire Council
presented to the
Occupational Safety and Health Administration
REGARDING
DOCKET NO. OSHA-2007-0073
November 12, 2024
My name is Tim Bradley, and I am the North Carolina Director for the National Volunteer Fire Council (NVFC). The NVFC appreciates the Occupational Safety and Health Administration’s (OSHA) attempt to keep emergency responders safe through the proposed Emergency Response Standard. Safety for our emergency responders is, and always will be, our highest priority. However, we believe if this document is implemented as written, it may in fact have a negative impact on firefighter safety by reducing the number of available responders and response agencies.
While there are many great initiatives in the proposed document, we feel that as written, this document is neither technically nor economically feasible for volunteer emergency response agencies. The document fails to demonstrate a significant need and fails to prove that each of the new requirements would have a significant positive effect on reducing responder injuries and deaths. We feel that OSHA crafted this standard without taking into full account the abilities and resources of the volunteer departments responsible for the safety of their members.
My comments center around the proposal to incorporate industry consensus standards specifically, 20 or more National Fire Protection Association (NFPA) consensus standards, by reference and how inappropriate and damaging an effect that may have. We are asking OSHA to remove these standards and place the language of the mandate directly into the proposed rule. We also are asking OSHA to include representatives of volunteer department responders and representatives from the Authorities Having Jurisdiction (AHJ) in this process moving forward. This process should include clear communication on further in-person and written comment periods and in-person discussions. This process should also lead to a new approach that is technically and economically feasible, uses solid data and scientific theories that will reduce responder injuries and deaths, and is clear on exactly what is required.
With voluntary NFPA standards, the fire service is already one of the most voluntarily regulated occupations, simply because of these consensus standards. Equipment, training, vehicle, and response standards already exist and, to the extent capable, are being used in most departments. The fire service promotes safety to its constituents or those it protects, as well as internally. Workers’ Compensation statistics show that the majority of accidental incidents involve industrial based standards such as lifting, slip, trip, and fall issues, not emergency fire response standards.
Recruitment and retention are already key challenges for volunteer departments. The simple burden of paperwork, records, monitoring, training, reporting, etc., even absent the costs, is exhausting and will drive away volunteers, especially those willing to take roles as volunteer Fire Chiefs or department leadership. Despite the best of intentions, this hampering of recruitment and retention could have a negative impact on our members’ health and safety.
The addition of making consensus standards mandatory, even in larger municipal departments, will significantly increase costs. In the volunteer world, it could be devastating.
The NVFC proudly participates in the NFPA’s standards development process and believes it benefits public safety and taxpayers through the creation of high-quality, consensus-oriented standards which respond quickly to technological change and new safety information. However, these standards tend to take a “one-size-fits-all” approach and the development of these standards tends to be dominated by large, well-financed fire departments and interested parties (manufacturers, users, etc.) that are able to have an outsized presence in the development process. A look at the NFPA Technical Committees will show that fire departments serving 3000 residents or fewer are barely represented on Technical Committees, despite these departments making up half of the departments in the country. While the NFPA standards are excellent best practices, their literal use or required use is beyond the capabilities and resources of the majority of volunteer fire departments.
The Small Business Administration’s (SBA) Office of Advocacy share these concerns in their comments, stating: “While the materials do reflect “consensus,” that consensus is only among those who participated in the standard development process, which were generally large, well-funded organizations (who are able to voluntarily follow them) and others with an interest in the outcome. They do not reflect what most small entities can do, and most small entities were not included in the process.
In their comments regarding the proposed Emergency Response Standard, the National League of Cities and National Association of Counties also stated they “are particularly concerned that the implementation of OSHA’s regulations, especially the adoption of NFPA standards, could disproportionately affect smaller municipalities with limited resources.”
NFPA Standards are consensus standards and have been widely used by the Fire Service since the early 1900’s as a guide. However, the defining principle of these standards has always been they are consensus, meaning: a varied group of interested parties (manufacturers, users, etc.) developed the standard and they include the opinions of this varied group.
The most important thing to note is these standards are written, evaluated, adopted, managed, and applied based on the understanding and application of the agency having jurisdiction (AHJ). They were never written, evaluated, and adopted to be managed or applied on a whole scale basis.
Even NFPA defines and states that the AHJ determines if this standard is applicable to its fire department. They further define that the term AHJ is used in NFPA documents in a broad manner, since jurisdictions and approval agencies vary, as do their responsibilities. Where public safety is primary, the AHJ may be a federal, state, local, or other regional department or an individual such as a fire chief; fire marshal; chief of a fire prevention bureau, labor department, or health department; building official; electrical inspector; or others having statutory authority.
If NFPA Standards are adopted by reference in OSHA’s proposed standard, they become rules rather than consensus standards, effectively taking the AHJ out of the picture. as to how and where to best apply the consensus standard to their department. The AHJ understands the difference between a fire truck that responds to 200 calls a year, versus one that responds to 3000. The AHJ also understands the difference in personal protective equipment for a member who simply drives the truck versus an interior firefighter, or the difference between an individual who is very active, versus one that is not very active. The incorporation by reference method does not consider these differences.
The adoption by reference of over 20 NFPA and American National Standards Institute (ANSI) industry consensus standards utilizes these valuable tools for the fire service in a way they were not intended or developed to be utilized, and will without question create numerous negative impacts, particularly for volunteer departments. While the statement is made in the notice of proposed rulemaking for the Emergency Response Standard “that most fire departments currently comply with NFPA Standards”, the truth is most, but not all, departments currently use NFPA Standards as a guide where appropriate, needed, and achievable financially. Compliance is rarely achieved in full.
NFPA standards are guidelines to be considered in the context of a department’s operations, risks, size, etc. They are written to be the gold standard in the industry and a goal for emergency response agencies to try to meet. We would challenge you to find an emergency response agency that is 100 percent compliant with all the standards, let alone expecting this of most or all agencies that will be affected by this new rule. NFPA standards were not designed for 100% applicability by everyone. Putting them in an OSHA regulation gives them the force and effect of the law, with no optionality available, no matter what the proponents may say.
In addition, the incorporated NFPA standards are not free for the volunteer fire service to use in a format that is helpful. They are expensive to purchase, and although available online currently, rural departments may not have reliable internet access. Adoption by OSHA would force these consensus standards on fire departments in their entirety and create an unimaginable administrative burden and financial constraints many departments could not possibly meet. The North American Fire Training Directors (NAFTD) also stated in their comments regarding the proposed Emergency Response Standard: “When Standards are listed as IBR [incorporated by reference], they must be easily accessible to those falling under the impact of the OSHA regulation. NAFTD members interact with NFPA Standards on a routine basis and still are challenged trying to implement the latest version into everyday use. NFPA Standards are available in a free access, read a page at a time, mode. The complexity of the NFPA Standards coupled with the lack of free access to a working copy of each Standard, that is IBR will cost each emergency response organization more manhours and money to achieve a basic understanding of the IBR documents.”
OSHA must explicitly state the requirements it would like fire departments to comply with in the text of its proposed standard if it intends to meet its goal of improving firefighter without financially devastating fire departments. Additionally, these requirements must be tailored to the capabilities of different sized fire departments and not written in a one-size fits all manner.
An example of a particularly burdensome standard incorporated into the proposed emergency response standard is NFPA 1021. This standard would require first line officers to have Fire Officer 1 training, Assistant Chiefs to have Fire Officer 2 training, and Chief Officers to have Fire Officer 3 training, regardless of department size. As you move up in these courses, you must meet the requirements of the lower courses and have additional coursework as a prerequisite. Many states do not even offer Fire Officer 1 and 2, and those that do currently have limited availability.
Some states also have different constraints as to what is required. For example, several states require you to meet Fire Instructor qualifications, where others do not. Fire Officer 3 covers a lot of material that is designed for career chiefs and subject matter that is not required for volunteer chiefs such as contract negotiations, employment practices, and Public Information Officer guidelines. How do these impact responder safety at a volunteer department? We cannot ask our volunteer officers to take time off from their full-time careers so they can sit through classes which may never apply to them.
The International Association of Firefighters (IAFF) also stated in their comment on the proposed Emergency Response Standard that: “NFPA standards do not fully consider the staffing requirements to run a training division or the time demand on all responders. Regarding training leadership and supervisors (e.g., company, line, and command officers), we suggest that minimum qualifications for specific jobs or ranks should be determined through labor-management discussions based on the department’s and community’s needs.” The NVFC agrees that training requirements a better developed based on a department and community’s needs, as opposed to a one size fits all standard that requires training that is not available in every state.
To be clear, every aspect of every NFPA standard adopted by reference does not meet the needs of every department, yet if they become law, they must be applied in a way which doesn’t work. Take for example the NFPA 1000 series, or professional qualifications standards. A smaller rural department may have personnel that meet various aspects of those standards, based on the duties they perform, but not the entire standard. To require every driver to meet NFPA 1002 Apparatus Driver/Operator when they may drive and operate just one limited vehicle is not technologically or economically feasible and will create retention issues.
The incorporation of these standards by reference would lock many departments into out-of-date standards. Many NFPA standards are revised every three to five years with input from emergency responders and other stakeholders. Given that the previous 1910.156 Rule has been in effect for 40 years, incorporation of a static standard would freeze the progression that has effectuated critical development of standards that includes ongoing changes in technology, best practices, and needs in affected communities. This will soon be particularly problematic because the NFPA is currently undergoing a consolidation of many of its current standards. By the time the proposed rule is enacted, it likely will refer to many standards which no longer exist. The NFPA also expresses this concern in their own public comments., stating “governmental bodies are less nimble than NFPA and other organizations and would be slower to respond to a need to revise standards or create new ones in light of changed circumstances.”
Incorporating by reference these specific NFPA Standards, OSHA could place fire departments in a situation where they could be in compliance with the OSHA Rule, while the specific referenced standard has been revised and they aren’t, in fact, taking advantage of improved safety standards, and may have civil concerns with personnel and public protection. If the AHJ adopts and/or updates to the new NFPA version of a standard(s), the entity would be in compliance with the latest standard, but potentially out of compliance with the OSHA Rule.
Another issue with incorporating industry consensus standards by reference is the complexity of linked standards. The proposed rule does not explain how OSHA will interpret linked requirements between standards. One example, which has a potentially significant cost impact is requirements for tire replacement contained in NFPA 1911. This standard is not one of the standards incorporated by reference into the proposed rule, however, both NFPA 1451 and 1500 are incorporated by reference. Both standards include a general provision under paragraph 2.1: that states: “The documents or portions of the list in this chapter are references within this standard and shall be considered part of the requirements of this document” NFPA 1911 is then listed as referenced publications. NFPA 1500 includes states in paragraph 6.4, that all fire apparatus shall be inspected, maintained, and tested in accordance with the applicable requirements of NFPA 1911. NFPA 1911 paragraph 8.3.6 states tires shall be replaced at least every 7 years or more frequently when the tread wear exceeds state or federal standards as determined by measuring with a tread depth gauge.
This example is provided to demonstrate a nested requirements trace, which is imposed by the proposed rule. Although NFPA 1911 is not included as a reference document or as part of the chapters used in making the rule, there is a clear path to this standard in the proposed rule. This would have a significant impact on many departments as tires that pass inspection and have low miles are not replaced. That is simply one example. As NFPA standards evolve, reference links become out of date and may refer to something that is no longer applicable.
Imagine a section of a standard being linked or referenced, that provides a critical personal protective item, whose number is changed, or the item removed and placed in another standard.
NPFA standards are too complex, too evolved, and too intermingled to simply include some by reference as they are a complete system. By picking and choosing which standards are adopted, even with the inclusion of links, you are adopting an incomplete system. There is no justification for adoption by reference of these 20 or more NFPA standards. It is incumbent upon OSHA to determine the requirements for occupational safety and health for emergency responders, and write the standard themselves, prescriptively, with ample justification towards personnel safety for the requirements they include.
The NFPA, itself has urged OSHA not to adopt their standards by reference for many of the reasons I’ve previously discussed. In its public comments within this docket, the NFPA says it: “does not request incorporation by reference of any of our codes and standards. While NFPA has been involved with OSHA over the course of many years, and through several administrations considering rulemakings, NFPA had no specific recent role in putting this Notice of Proposed Rulemaking together, and NFPA does not suggest to OSHA that is should undertake this activity”
In further comments the NFPA “requests that OSHA not incorporate by reference its standards in the proposed rule. Instead, NFPA requests OSHA refer to its standards in the text of the proposed rule as one benchmark of compliance with the regulations and expressly provide in the Rule that NFPA’s standards are guidance and not binding.”
The SBA’s Office of Advocacy also recommends that “OSHA reconsider the proposed incorporations by reference and include all necessary provisions in the regulatory text.”
With so many departments, agencies, and the NFPA themselves reporting the problems associated with incorporating industry consensus standards by reference, the NVFC recommends that OSHA: remove the adoption by reference of industry consensus standards from the proposed Emergency Response Standard, including the 20 plus NFPA standards. In addition, we recommend OSHA:
- Write prescriptive requirements for their own revised Emergency Response Standard, based on conclusive facts and statistics, to prevent injury and death to emergency responders
- Use NFPA standards as a guide for how a department could comply with a requirement.
- Exclude volunteer firefighters from the proposed Emergency Response Standard if it is adopted as written.
- Work with the NVFC to develop a safety enforcement approach for volunteer firefighters that is appropriately scalable according to the types of risks faced by volunteer fire departments and takes into greater account factors like call volume, population protected, square miles protected, and annual budgets.
Thank you for the opportunity to express these opinions. I’ll be happy to answer questions.
