Proposed Rule2023-28203
Emergency Response Standard
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
February 5, 2024
Issuing agencies
Labor DepartmentOccupational Safety and Health Administration
Abstract
OSHA is proposing through this notice of proposed rulemaking (NPRM) to issue a new safety and health standard, titled Emergency Response, to replace the existing Fire Brigades Standard. The new standard would address a broader scope of emergency responders and would include programmatic elements to protect emergency responders from a variety of occupational hazards. The agency requests comments on all aspects of the proposed rule.
Full Text
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[Federal Register Volume 89, Number 24 (Monday, February 5, 2024)]
[Proposed Rules]
[Pages 7774-8023]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-28203]
[[Page 7773]]
Vol. 89
Monday,
No. 24
February 5, 2024
Part II
Department of Labor
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Occupational Safety and Health Administration
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29 CFR Part 1910
Emergency Response Standard; Proposed Rule
Federal Register / Vol. 89 , No. 24 / Monday, February 5, 2024 /
Proposed Rules
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1910
[Docket No. OSHA-2007-0073]
RIN 1218-AC91
Emergency Response Standard
AGENCY: Occupational Safety and Health Administration (OSHA), Labor.
ACTION: Proposed rule; request for comments.
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SUMMARY: OSHA is proposing through this notice of proposed rulemaking
(NPRM) to issue a new safety and health standard, titled Emergency
Response, to replace the existing Fire Brigades Standard. The new
standard would address a broader scope of emergency responders and
would include programmatic elements to protect emergency responders
from a variety of occupational hazards. The agency requests comments on
all aspects of the proposed rule.
DATES: Comments on this NPRM (including requests for a hearing) and
other information must be submitted by May 6, 2024.
Informal public hearing: OSHA will schedule an informal public
hearing on the proposed rule if requested during the comment period. If
a hearing is requested, the location and date of the hearing,
procedures for interested parties to notify the agency of their
intention to participate, and procedures for participants to submit
their testimony and documentary evidence will be announced in the
Federal Register.
ADDRESSES:
Written comments: You may submit comments and attachments,
identified by Docket No. OSHA-2007-0073, electronically at <a href="https://www.regulations.gov">https://www.regulations.gov</a>, which is the Federal e-Rulemaking Portal. Follow
the instructions online for making electronic submissions. After
accessing ``all documents and comments'' in the docket (Docket No.
OSHA-2007-0073), check the ``proposed rule'' box in the column headed
``Document Type,'' find the document posted on the date of publication
of this document, and click the ``Comment Now'' link. When uploading
multiple attachments to <a href="http://regulations.gov">regulations.gov</a>, please number all of your
attachments because <a href="http://regulations.gov">regulations.gov</a> will not automatically number the
attachments. This will be very useful in identifying all attachments in
the preamble. For example, Attachment 1--title of your document,
Attachment 2--title of your document, Attachment 3--title of your
document. For assistance with commenting and uploading documents,
please see the Frequently Asked Questions on <a href="http://regulations.gov">regulations.gov</a>.
Instructions: All submissions must include the agency's name and
the docket number for this rulemaking (Docket No. OSHA-2007-0073). All
comments, including any personal information you provide, are placed in
the public docket without change and may be made available online at
<a href="http://www.regulations.gov">http://www.regulations.gov</a>. Therefore, OSHA cautions commenters about
submitting information they do not want made available to the public,
or submitting materials that contain personal information (either about
themselves or others), such as Social Security Numbers and birthdates.
Docket citations: This Federal Register document references
materials in Docket ID OSHA-2007-0073, which is the docket for this
rulemaking. OSHA also references documents in the following dockets
which the agency adopts by reference into this rulemaking:
<bullet> 2016, National Advisory Committee on Occupational Safety
and Health (NACOSH)--Docket ID OSHA-2016-0001; and
<bullet> 2015, NACOSH Emergency Responder Preparedness
Subcommittee--Docket ID OSHA-2015-0019.
All of these dockets are available for viewing at <a href="https://www.regulations.gov">https://www.regulations.gov</a>, the Federal eRulemaking Portal.
Citations to documents: The docket referenced most frequently in
this document is the docket for this rulemaking, docket number OSHA-
2007-0073, cited as Docket ID OSHA-2007-0073. Documents in the docket
get an individual document identification number, for example ``OSHA-
2007-0073-0044.'' Because this is the most frequently cited docket, the
citation is shortened to indicate only the document number. The example
is cited in the NPRM as ``Document ID 0044.''
Citations to documents in other dockets include the full document
identification number, cited as, for example ``Document ID OSHA-2015-
0019-0014.'' The citation may also include page numbers. The NACOSH
subcommittee meetings were transcribed. Citations to the transcripts,
and the referenced page(s), are cited as, for example, ``Document ID
OSHA-2015-0019-0015, Tr. 53.''
Documents cited in this NPRM are available in the rulemaking docket
(Docket ID OSHA-2015-0073) or in the dockets OSHA is adopting in this
rulemaking. They are available to read and download by searching the
docket number or document ID number at <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Each docket index lists all documents in that docket, including public
comments, supporting materials, meeting transcripts, and other
documents. However, some documents (e.g., copyrighted material) in the
dockets are not available to read or download from that website. All
documents in the dockets are available for inspection at the OSHA
Docket Office. This information can be used to search for a supporting
document in the docket at <a href="http://www.regulations.gov">www.regulations.gov</a>. Contact the OSHA Docket
Office at (202) 693-2350 (TTY number: 877-889-5627) for assistance in
locating docket submissions.
Consensus standards: Throughout this NPRM, OSHA makes numerous
references to the consensus standards published by the National Fire
Protection Association (NFPA). The NFPA standards are available to be
viewed without cost at <a href="https://www.nfpa.org/for-professionals/codes-and-standards/list-of-codes-and-standards/free-access">https://www.nfpa.org/for-professionals/codes-and-standards/list-of-codes-and-standards/free-access</a>.
FOR FURTHER INFORMATION CONTACT:
For press inquiries: Contact Frank Meilinger, Director, Office of
Communications, Occupational Safety and Health Administration, U.S.
Department of Labor; telephone: (202) 693-1999; email:
<a href="/cdn-cgi/l/email-protection#87eae2eeebeee9e0e2f5a9e1f5e6e9e4eef4b5c7e3e8eba9e0e8f1"><span class="__cf_email__" data-cfemail="79141c101510171e1c0b571f0b18171a100a4b391d1615571e160f">[email protected]</span></a>.
For general information and technical inquiries: Contact Mark
Hagemann, Director, Office of Safety Systems, Directorate of Standards
and Guidance, Occupational Safety and Health Administration, U.S.
Department of Labor; telephone (202) 693-2222 or fax (202) 693-1678;
email: <a href="/cdn-cgi/l/email-protection#20484147454d414e4e0e4d41524b60444f4c0e474f56"><span class="__cf_email__" data-cfemail="8ae2ebedefe7ebe4e4a4e7ebf8e1caeee5e6a4ede5fc">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Executive Summary
II. Background
A. Need for the Standard
B. Events Leading to the Proposed Rule
C. National Consensus Standards
III. Pertinent Legal Authority
A. Introduction
B. Coverage
C. General Requirements for Occupational Safety and Health
Standards
D. Special Considerations for Health Standards
E. Significant Risk
F. Best Available Evidence
G. Feasibility
IV. Issues and Questions
A. Scope
B. State Plans
C. Questions in the Summary and Explanation
[[Page 7775]]
D. Additional Issues
V. Summary and Explanation of the Proposed Rule
A. Section 1910.120 Hazardous Waste Operations and Emergency
Response
B. Section 1910.134 Respiratory Protection
C. Section 1910.155 Scope, Application, and Definitions
Applicable to This Subpart
D. Section 1910.156 Emergency Response
E. Section 1910.157 Portable Fire Extinguishers
F. Section 1910.158 Standpipe Hose Systems
G. Section 1910.159 Automatic Sprinkler Systems
VI. Technological Feasibility
VII. Preliminary Economic Analysis
A. Market Failure and Need for Regulation
B. Profile of Affected Industries
C. Costs of Compliance
D. Benefits
E. Economic Feasibility Analysis
F. Initial Regulatory Flexibility Analysis
VIII. Additional Requirements
A. Unfunded Mandates Reform Act
B. Consultation and Coordination With Indian Tribal Governments/
Executive Order 13175
C. Environmental Impacts/National Environmental Policy Act
D. Consensus Standards
E. Executive Order 13045 (Protecting Children From Environmental
Health and Safety Risks)
F. Federalism
G. Requirements for States With OSHA Approved State Plans
H. OMB Review Under the Paperwork Reduction Act of 1995
I. Executive Summary
A ``100-word summary'' is available on <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Elements of emergency responder (firefighters, emergency medical
service providers, and technical search and rescuers) health and safety
are currently regulated by OSHA primarily under a patchwork of hazard-
specific standards, and by state regulations in states with OSHA-
approved State plan programs. (While OSHA standards do not apply to
volunteers, some volunteers are covered in states with OSHA-approved
State plan programs.) All of the OSHA standards referred to above were
promulgated decades ago, and none was designed as a comprehensive
emergency response standard. Consequently, they do not address the full
range of hazards currently facing emergency responders, nor do they
reflect major changes in performance specifications for protective
clothing and equipment or major improvements in safety and health
practices that have already been accepted by the emergency response
community and incorporated into industry consensus standards. Notably,
the OSHA standards do not align with the Department of Homeland
Security's National Incident Management System (NIMS), which guides all
levels of government, nongovernmental organizations, and the private
sector to work together to prevent, protect against, mitigate, respond
to, and recover from emergency incidents.
In the aftermath of the terrorist attacks on September 11, 2001,
all government agencies, including OSHA, were directed to strengthen
their preparedness to respond to terrorist attacks, major disasters,
and other emergencies. In response to this direction, the agency
reviewed its standards applicable to the safe conduct of emergency
response and disaster recovery activities and identified gaps in the
protections for emergency responders and disaster recovery workers. The
agency subsequently published a Request for Information (RFI), using
the Fire Brigades standard (29 CFR 1910.156) as a baseline for
emergency response activities, to determine if it should proceed with
updating and expanding the standard.
Responses to the RFI generally supported the need for continued
rulemaking; therefore, the agency worked with the National Advisory
Committee for Occupational Safety and Health (NACOSH) to assemble a
subcommittee of emergency response community representatives to develop
draft regulatory language through a process akin to negotiated
rulemaking. To ensure a draft standard would incorporate best practices
and the latest advances in technology, OSHA invited emergency response
stakeholder organizations to provide subject matter experts to consult
with and participate on the Subcommittee. The Subcommittee comprised a
balanced group of subject matter experts representing labor and
management, career and volunteer emergency service management
associations, other Federal agencies and State plans, a national
consensus standard organization, and general industry skilled support
workers. NACOSH unanimously recommended that OSHA proceed with the
rulemaking to update its emergency response standard and endorsed the
draft regulatory language developed by the Subcommittee.
In accordance with the requirements of the Small Business
Regulatory Enforcement Fairness Act (SBREFA), OSHA convened a Small
Business Advocacy Review (SBAR) panel in the fall of 2021. The panel,
comprising members from the Small Business Administration's (SBA)
Office of Advocacy, OSHA, and OMB's Office of Information and
Regulatory Affairs, listened to and reported on what Small Entity
Representatives (SERs) from entities that would potentially be affected
by the proposed rule had to say. OSHA provided SERs with the draft
regulatory language developed by the NACOSH subcommittee for their
review and comment. The Panel received advice and recommendations from
the SERs and reported its findings and recommendations to OSHA. OSHA
has taken the SERs' comments and the Panel's findings and
recommendations into consideration in the development of the proposed
rule.
The proposed rule updates by replacing the existing Fire Brigades
standard and would expand the scope of OSHA's standard to include a
broad range of hazards emergency responders encounter during emergency
response activities and would bring the standard in line with the
Federal Emergency Management Agency's (FEMA) National Response
Framework and modernize the standard to align with the current industry
consensus standards issued by the National Fire Protection Association
(NFPA) on the safe conduct of emergency response activities.
As noted in the first paragraph above, and discussed in detail
below, OSHA standards do not apply to volunteer emergency responders.
However, in States with OSHA-approved State Plans, volunteers may be
treated as employees under state law. OSHA has no authority over how
individual states regulate volunteers. See section III.B, Pertinent
Legal Authority, and section VIII.G, Requirements for States with OSHA-
Approved State Plans, for further discussion. Throughout this document,
the agency seeks input on alternatives and potential exclusions for
economically at-risk small and volunteer organizations that will be
shared with State Plans as they determine how to proceed with their
subsequent individual state-level rulemaking efforts.
Organizations that provide emergency services vary significantly in
size and the type(s) of service(s) they provide. They are often not
well suited for ``one-size-fits-all'' prescriptive standards.
Accordingly, the proposed rule is a ``performance-based'' standard,
which provides flexibility for affected employers to establish the
specific criteria that best suits their organization. The proposed rule
focuses on the achievement of desired results--improving emergency
responder health and safety and reducing injuries and fatalities--while
providing flexibility as to the precise methods used to achieve those
results. The performance-based nature of the proposed rule is
particularly beneficial to small and
[[Page 7776]]
volunteer organizations with limited resources.
Additionally, in accordance with Executive Orders 12866 and 13563,
the Regulatory Flexibility Act (RFA), and the Unfunded Mandates Reform
Act (2 U.S.C. 1501 et seq.), OSHA has prepared a Preliminary Economic
Analysis (PEA), including an Initial Regulatory Flexibility Analysis,
for the replacement of the existing Fire Brigades standard. Supporting
materials prepared by OSHA are available in the public docket for this
rulemaking, Docket ID OSHA-2007-0073, through <a href="http://www.regulations.gov">www.regulations.gov</a>.
II. Background
A. Need for the Standard
I. Fatality and Injury Analysis
On April 17, 2013, while engaged in fire suppression activities at
a fertilizer plant in West, Texas, ten firefighters died after
approximately 40 to 60 tons of ammonium nitrate unexpectedly detonated.
Five civilians, two of whom were providing support for firefighting
activities, were also killed, and five firefighters were injured.
Victims of the blast included both volunteer and career firefighters,
ranging in age from 26 to 52 years, each with 1 to 31 years of
firefighting experience. A subsequent investigation into the incident
performed by the National Institute for Occupational Safety and Health
(NIOSH) revealed numerous contributing factors in the incidents that
led to the fatalities, including limited responder knowledge and
recognition of the hazards created by ammonium nitrate, inadequate pre-
incident emergency response planning for the fertilizer plant, and the
fact that response personnel performed fire suppression activities from
a location that was within the blast radius of the explosion (NIOSH
2014, Document ID 0331). As part of its investigation report, NIOSH
made several recommendations for how fire departments could prevent
fatalities and injuries, including the development of a written risk
management plan, the conducting of pre-incident planning inspections
for the buildings located within a fire department's jurisdiction, the
development and implementation of a written incident management system
for all emergency incident operations, the mandated use of turnout
clothing and other personal protective equipment (PPE) that has been
determined to be appropriate for each task, and a minimum standard of
training for every firefighter.
Every day, the duties of an emergency responder may require making
life and death decisions. The typical workday of an emergency responder
could include tasks that range from responding to a minor medical
emergency to addressing a more severe incident such as a multi-building
fire or assisting in the rescue and helicopter medical evacuation of an
injured rock climber trapped on the side of a cliff. In performing
their assigned tasks associated with the protection of the public,
personal and real property, and the environment, emergency responders
face numerous safety and health hazards which may lead to injury,
illness, and death. After conducting a review of the fatalities and
injuries sustained during regular work activities by emergency response
personnel operating within the current regulatory framework, OSHA has
determined that existing safety and health standards do not adequately
protect the emergency response workforce from these hazards.
As explained in the Preliminary Economic Analysis, OSHA estimates
that approximately 1,054,611 individuals are exposed on an annual basis
to the workplace hazards associated with the emergency response
activities falling within the scope of the proposed rule, including
public-sector employees in States with OSHA-approved State Plans.\1\
Workers performing emergency response activities can be assigned to a
wide variety of tasks, including firefighting, medical assistance, and
search and rescue. The hazards associated with emergency response
activities are not limited to emergency situations; OSHA has also
identified safety and health risks present during training exercises
and other routine tasks. While some individuals are employed full-time
as emergency response workers, a substantial number of personnel are
categorized as volunteers. OSHA estimates that, of the 1,054,611
emergency responders anticipated to fall within the scope of the
proposed rule, 331,472 will be self-identified as volunteers.
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\1\ The proposed rule defines two types of emergency response
workers: responders and team members. For purposes of the discussion
in this section and the Health Effects of Emergency Response
Activities section that follows, both types of workers are referred
to as ``emergency responders'' or ``emergency response personnel.''
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A. Fatalities
To determine the frequency and nature of workplace fatalities for
emergency responders, OSHA reviewed the datasets of published summary
reports available from a variety of sources, including reports
published by the United States Fire Administration (USFA), FEMA, the
NFPA, NIOSH, the National Wildfire Coordinating Group (NWCG), the OSHA
Information System (OIS), and the Bureau of Labor Statistics (BLS).
Review of the overall rate of reported workplace-related deaths for
emergency response personnel contained within these reports revealed
substantial variation among reporting agencies (Table VII-A-1). Some
organizations reported higher rates of fatal injuries as compared to
other, non-emergency response professions, while other organizations
reported lower rates of fatal injuries. OSHA also determined that each
reporting agency varied significantly in the number of deaths reported
annually, the number and date of the years examined, the inclusion or
exclusion of certain victims (volunteer, non-firefighter job
categories), and their definition of an `on-duty' fatality.
Additionally, although each study provided summary numbers for the
causes of death, the extent of the investigations performed to identify
the root cause of each fatality varied among reports. Table VII-A-1,
below, shows a summary of the reports reviewed by OSHA in consideration
of the annual fatality rates for emergency response personnel.
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From the information in Table VII-A-1, OSHA concluded that a
conservative estimate of workplace deaths for emergency response
personnel falling within the scope of the proposed rule would include
those firefighter deaths reported by NFPA (an average of 72.4 deaths
annually, including career and volunteer firefighters), combined with
BLS information on the number of non-firefighter emergency responder
deaths (an average of 11.3 deaths, annually), which produces an
estimate of 83.7 emergency responder deaths annually, on average. The
agency believes that the majority of technical search and rescue job
activities are performed by firefighters, EMS providers, and law
enforcement officers (such as park rangers, conservation officers, and
natural resource police), who are cross trained to perform technical
search and rescue. As such, OSHA believes that most injuries and
fatalities that occur during technical search and rescue activities are
attributed to firefighters, EMS personnel, and law enforcement officers
in data sources. This assumption is supported by the information
available in the OSHA Information System (OIS) database; of the 273
emergency response-related fatalities in the OIS database, 19 occurred
while the victim was engaged in non-fire-related technical search and
rescue activities. Among these victims, each was identified by the OSHA
investigator as employed within one of the job categories of
firefighter, EMS provider, or law enforcement, and not as a technical
search and rescuer.
Listed below are examples of fatalities from the OIS database that
occurred while the rescuer (victim) was engaged in activities that were
determined to be technical search and rescue related.
Inspection #343188371--At 8:15 p.m. on May 28, 2018, an employee
was working as a firefighter and diver for a big city fire department.
A man fell into the South Branch of the Chicago River. The firefighter
and a coworker, his diving partner, had been deployed from a helicopter
into the river to conduct dive rescue operations. During the attempt,
the firefighter surfaced with his partner. Then he subsequently sank to
the bottom of the river. At that time, he lost communication with the
fire department. Divers from the department's marine unit searched for
firefighter. After several minutes, they located the firefighter and
pulled him out of the water with his diving equipment intact. Despite
resuscitation attempts by paramedics on the scene and at the hospital,
he was pronounced dead at 10:02 p.m. that same day.
Inspection #334815610--At approximately 5:00 p.m. on June 21, 2012,
during a mountain rescue, an employee was preparing to place rescue
victim in a stokes litter to be hoisted on to a helicopter at
approximately 13,800 foot level of Emmons Glacier on Mt. Rainier. The
helicopter was lowering a litter to the employee. The employee reached
up and unhooked the litter when he apparently lost his footing and slid
approximately 3,7000 feet down the face of the glacier. The employee
was killed.
Inspection #315597187--At approximately 9:45 p.m. on May 23, 2011,
Employee #1 and a firefighter crew were standing in the driveway of the
fire hall. They had completed a rope rescue-training course using a
rope and pulley system, which was hooked to the bucket of a ladder
truck. The bucket was 20 ft above the pavement. Employee #1 placed his
foot in the loop of the rope and pulled himself up by pulling down on
the other end of the rope. When his feet were approximately 4.5 ft
above the ground, the two ends of the rope spread apart, so his feet
went in one direction and his hands went in the other. This caused his
body to be positioned horizontally. He fell backwards to the ground and
struck his back and head on the pavement below. Employee #1 sustained
head trauma that killed him.
The information in the OIS dataset, while limited, supports OSHA's
inclusion of technical search and rescue-related job activities within
the scope of the proposed rule. However, as fully discussed in section
VII.D. Benefits, the number of fatalities in the OIS dataset is likely
a significant underestimation of the total emergency responder
fatalities occurring annually in the United States. Moreover, in
contrast to firefighters, publicly available injury and fatality data
specific to technical search and rescue is difficult to obtain, in part
because it may be included with non-technical rescue data, as in this
article titled ``Injuries to Search and Rescue Volunteers; A 30-year
Study,'' in which there is no differentiation between technical and
non-technical rescuers. <a href="https://www.researchgate.net/publication/20566794_Injuries_to_search_and_rescue_volunteers_A_30-year_experience">https://www.researchgate.net/publication/20566794_Injuries_to_search_and_rescue_volunteers_A_30-year_experience</a>.
Similarly, as noted above, OSHA believes that many
[[Page 7778]]
injuries arising from technical search and rescue activities are
categorized generally as firefighting or EMS injuries, making them
difficult to disaggregate from other firefighter and EMS data.
In addition to the lack of peer-reviewed publications focusing
exclusively on technical search and rescue, a review of publicly
available information from the professional associations devoted to
providing support for technical search and rescue employees on a
national level identified no readily available summary reports of
technical search and rescue-related accidents, injuries, or fatalities
for victims falling within the scope of OSHA's proposed rule. Further
examination of available BLS data is infeasible because BLS does not
have an occupational code for Technical Search/Rescue.
Despite the limited availability of data specific to technical
search and rescue, the hazards posed by these activities are recognized
in the industry. The NACOSH subcommittee, comprised of subject matter
experts representing labor and management, career and volunteer
emergency service management associations, other Federal agencies and
State plans, a national consensus standard organization, and general
industry skilled support workers, recommended coverage for technical
search and rescue activities by including it in its proposed draft
standard (Docket ID OSHA-2015-0019-0002, Ex. 5). Similarly, NFPA has
standards specific to technical search and rescue; NFPA 1670,
Operations and Training for Technical Search and Rescue Activities; and
NFPA 1006, Rescue Technician Professional Qualifications.
Based on the available data and industry recognition, OSHA
preliminarily concludes that technical search and rescue emergency
response activities involve risks to employee safety and health
comparable to those in other types of emergency response such as
firefighting and EMS. OSHA requests comment on this conclusion and
specifically invites additional data and information on the risks posed
by technical search and rescue activities.
OSHA believes that the fatalities present in the OSHA OIS dataset
are likely a significant underestimation of the fatalities occurring
annually within the emergency response community. This is likely
because the OIS database contains information about fatality
investigations performed by OSHA field investigators, but does not
contain information about deaths not reported to OSHA, which includes
many volunteer firefighter deaths. The total number of fatalities may
also be underestimated as there is no blanket mandatory reporting
requirement for emergency responder deaths. This is also likely due in
part to varying methodology among reporting organizations for
categorizing a heart attack as work-related. The differences observed
between the OIS dataset and the NFPA dataset in these two categories of
fatalities are summarized in Table VII-A-2. Although the NFPA dataset
contained more victims in each of these fatality characteristics, when
OSHA compared the manner and cause of deaths in the OIS dataset with
those in the NFPA summary reports, observable similarities were present
(Table VII-A-2).
[[Page 7779]]
[GRAPHIC] [TIFF OMITTED] TP05FE24.001
For example, both datasets show that a majority of emergency
responder deaths occurred while the responder was responding to
emergencies or fighting fires (58% for NFPA, 62% for OIS). A
substantial number of fatalities also occurred while engaged in
training activities (12% and 14% for the NFPA and OIS datasets,
respectively). The leading cause of death for both the NFPA (19%) and
the OIS (26%) datasets was being struck by an object, and a similar
percentage of deaths fell into the striking/crushing/collision category
(32% in the NFPA dataset, 26% in the OIS dataset). Important
distinctions between the NFPA and OIS datasets include both scope and
level of detail. Specifically, NFPA reports are limited to deaths
occurring among firefighters. The OIS dataset includes deaths of all
emergency response personnel determined to fall within the scope of the
proposed rule, including other, non-firefighter individuals.
Additionally, the NFPA dataset contains little to no information
regarding identified workplace hazards associated with the reported
deaths, while the OIS dataset includes summary information for
contributory hazards, as identified by the standards cited by the OSHA
investigator and the information contained in each accident's summary
abstract. For these reasons, while OSHA determined that the overall
number of firefighter deaths annually is more accurately reflected by
the NFPA annual summary reports, OSHA determined that the descriptive
information available in the OIS dataset regarding task at time of
death, cause of death, and workplace hazards identified by the OSHA
inspector while investigating an individual's death is a representative
sample of the characteristics of emergency response fatalities across
the larger dataset. OSHA reviewed all 273 fatalities in the OIS dataset
to identify the causes of death and any contributory safety or health
hazards. Table VII-A-3 shows a summary of the reported cause of death
and the assigned task at the time of death for each of the fatalities
in the OIS dataset.
A review of the available literature identifying common causes of
death for emergency responders supports OSHA's analysis of the
fatalities available in the OIS dataset. From this review, OSHA
determined that some of the most common safety and health hazards
encountered by emergency responders include vehicle collisions; falls
from heights to lower levels due to structural or building collapses;
being struck by, caught in between, or crushed by vehicles; falling
objects or debris; burns; and entrapments (FEMA, 2022, Document ID
0341; NWCG, 2017,
[[Page 7780]]
Document ID 0265; NFPA, 2022, Document ID 0122).
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[GRAPHIC] [TIFF OMITTED] TP05FE24.002
BILLING CODE 4510-26-C
Among these 273 fatalities, hazards identified by OSHA
investigators as present on-site at the time of death included hazards
involving the incorrect use of PPE and other equipment, inadequate
vehicle preparedness and operation, lack of effective implementation of
standard operating procedures in various emergency scenarios, failure
to adhere to practices for Immediately Dangerous to Life and Health
(IDLH) situations, failure to meet medical evaluation requirements,
failure to meet minimum training requirements, lack of or ineffective
implementation of an Emergency Response Plan (ERP), and the lack of an
effective Risk Management Plan (RMP). These hazards were identified by
reviews of the citations issued at the time of the inspection and of
the summary abstracts for each investigation. A summary of the number
of hazards found at each of the OIS fatalities can be found in Table
VII-A-4, below.
[[Page 7781]]
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From these 273 fatalities, OSHA identified 212 (77.7%) in which at
least one of the safety hazards addressed by the proposed rule was
determined to be present at the time of the emergency responder's
death.
Heart attacks were identified in both the NFPA (43%) and OIS (20%)
datasets as one of the most commonly occurring means by which an
emergency responder will die while at work. Among the 212 fatalities in
the OIS dataset determined to have at least one of the safety hazards
addressed by the proposed rule present in the workplace at the time of
death, eight were classified as heart attack fatalities, approximately
15% of the total number of heart attacks observed in the dataset.
Cardiovascular health and the reduction of heart attacks is further
discussed in the Health Effects of Emergency Response Activities
section, below.
B. Nonfatal Injuries
OSHA reviewed the available literature to examine the extent and
nature of workplace injuries occurring among emergency response
personnel. From this review, OSHA determined that, overall, emergency
responders are at higher risk of injury than the general population.
Workplace hazards identified in the literature as leading to injury
among emergency response personnel include exposure to toxic chemicals,
falls, environmental hypoxia, exposure to excessive noise, over-
exertion due to lifting heavy objects, wearing heavy protective
equipment, repetitive motion, and other similar activities (Gentzler,
2010, Document ID 0337; Neitzel et. al, 2013, Document ID 0333; Neitzel
et. al, 2016, Document ID 0338; Campbell, 2017, Document ID 0342).
Estimations of the increased risk as compared to all private industries
varied by the type of emergency service provided, ranging from 1.7
times for private ambulance service workers to 4 times for EMS
responders (Reichard, 2017, Document ID 0339; Reichard et al, 2018,
Document ID 0335). For the purposes of this analysis, OSHA focused on
lost-time injuries; expected lost-time injuries for the hazards
identified above include fractures, sprains, internal bodily trauma,
dislocations, chemical burns, and chemical pneumonia.
OSHA determined that the most common cause of injury among
emergency medical services providers was overexertion or strain.
Multiple studies identified overexertion or strain as the leading
causes of injury, with reported proportions of injury ranging from 23%
to 60% and body motion injuries (e.g., lifting, carrying, or
transferring a patient and/or equipment) commonly serving as the
leading event (Campbell, 2017, Document ID 0342; Campbell and Hall,
2022, Document ID 0336; Campbell and Molis, 2020, Document ID 0343;
Butry et al., 2019, Document ID 0334; Reichard et al., 2018, Document
ID 0335; Dworsky et al., 2021, Document ID 0332). In addition to
reviewing the available literature, OSHA conducted an analysis of the
injury statistics available from the BLS for the EMT and Paramedic
categories of emergency response professions, from the years 2007
through 2020. In total, 107,720 non-fatal incidents requiring days away
from work were reported, an average of 7,694 injuries annually. In
addition to the common sources of injury as identified by the
literature review, the BLS injury statistics revealed further causes of
frequent injury among emergency response professionals, summarized in
Table VII-A-5, below.
BILLING CODE 4310-26-P
[[Page 7782]]
[GRAPHIC] [TIFF OMITTED] TP05FE24.004
To determine the number of injuries occurring annually among
firefighters, OSHA reviewed the annual NFPA injury summary reports from
2007 to 2020 (Docket Nos. 0362-0376). These reports show that, on
average, 67,964 injuries occurred among firefighters annually, with an
average of 14,172 of those classified as a lost time injury, 21% of
total injuries (see Table VII-A-6).
[GRAPHIC] [TIFF OMITTED] TP05FE24.005
[[Page 7783]]
Review of the reported tasks that injured firefighters were engaged
in at the time of injury revealed persistent trends, both among the
injury task categories, and when compared to the task categories of the
fatality victims (Table VII-A-7). Specifically, each year, the work
associated with firefighting activities results in an average of 42.4%
of all injuries, while non-fire emergency tasks result in 20.4% of all
injuries. The activities associated with responding to or returning
from an emergency result in an average of 6.6% of annual injuries.
Training activities result in 11.6% of all firefighter injuries, and
duties not associated with emergencies, emergency response, or training
result in, on average, 19% of injuries. Examples of injuries in this
last category could include things like a responder slipping on an icy
walkway at the fire station, dropping an old tire on their foot while
doing a changeout at the fire station, having their foot run over while
directing a fire truck back into the station after a fire, and sliding
down the fire pole and landing poorly, spraining an ankle. The
proportion of total injuries for each assigned job category was similar
to the proportions observed in each of the fatality categories (see
Table VII-A-2).
[GRAPHIC] [TIFF OMITTED] TP05FE24.006
The most common source of injury among firefighters was
overexertion or strain (27.0% of injuries, on average). While
overexertion was also the leading source of injury among emergency
response personnel not classified as firefighters, the proportion of
these injuries varied significantly among the professional categories,
27.0% of firefighter injuries compared to 53.6% of injuries for non-
firefighter personnel. Other significant causes of injury among
firefighters included fall, jump, slip injuries (22.8% of injuries, on
average) exposure to fire products (11.5% of injuries, on average),
contact with objects (10.8%), and being struck by a moving object
(6.0%). (see Table VII-A-8).
[[Page 7784]]
[GRAPHIC] [TIFF OMITTED] TP05FE24.007
BILLING CODE 4510-26-C
II. Health Effects of Emergency Response Activities
In addition to the traumatic injuries discussed above, emergency
response activities are associated with exposure to hazards that can
cause both chronic physical health and adverse psychological health
effects for responders, including but not limited to adverse
cardiovascular and respiratory effects, cancers, post-traumatic stress
disorder (PTSD), and suicide. Exposure to combustion products is a
major factor behind physical illnesses associated with emergency
response activities; however, factors such as exposure to infectious
diseases, heat, physical exertion, physical stress reactions to alarms
and sirens, shift work, and other exposures also play a role.
Psychological health effects have been attributed to exposure to
trauma, stressful situations, and threats to life and health, including
due to workplace violence.
This section presents a summary of OSHA's review of the health
effects literature for emergency response activities, including the
workplace exposures that contribute to these health effects, and the
agency's preliminary conclusions based on that review. OSHA's full
analysis is contained in the background document entitled ``Emergency
Response Health Effects Literature Review,'' which has been placed in
the rulemaking docket (Document ID 0361).
OSHA conducted a literature search to collect relevant information,
studies, reports, and materials related to the occupational safety and
health of emergency responders such as firefighters, search and rescue
personnel, and emergency medical service providers. OSHA sought
literature that evaluated workplace exposures and health effects for
emergency responders including:
<bullet> Exposures to combustion products, other contaminants and
substances, and infectious diseases
<bullet> Acute and chronic health conditions (e.g., cancer,
cardiovascular disease, respiratory disease)
<bullet> Behavioral health issues (e.g., mental health, substance
use disorders, suicide)
<bullet> Workplace violence
OSHA searched the National Library of Medicine (NLM) (<a href="https://pubmed.ncbi.nlm.nih.gov/">https://pubmed.ncbi.nlm.nih.gov/</a>) and (<a href="https://www2a.cdc.gov/nioshtic-2/advsearch2.asp">https://www2a.cdc.gov/nioshtic-2/advsearch2.asp</a>) in 2020 and again in 2022. The search was date limited
to 2010 and included several occupational and risk key words to target
relevant search results. OSHA obtained and reviewed the full text of
relevant articles. OSHA also searched several key organizations'
websites for relevant reports and information. This section summarizes
the results of this search.
A. Exposures
Emergency responders are exposed to a variety of health hazards in
the workplace. OSHA focused its literature review on three areas:
combustion products, other contaminants and substances, and infectious
diseases. The combustion products review covers substances released
during fires. The other contaminants and substances review examines
specific situations where emergency responders were exposed to harmful
chemicals (e.g., vinyl chloride, phosphine, opioids) while responding
to emergency situations in the field or when participating in training
exercises that involved simulated smoke. It also includes studies that
assessed contaminants inside firehouses and substances off-gassing from
emergency
[[Page 7785]]
response gear. The infectious diseases review summarizes research on a
variety of diseases, including hepatitis B, Clostridiodes difficile,
Methicillin-resistant Staphylococcus aureus (MRSA), and COVID-19.
Many of the studies identified under these three topics focused
solely on examining the likelihood or the extent of exposures among
emergency responder populations. In some cases, the studies also
provided information about the health effects observed among exposed
groups. More detailed information about health effects is presented in
section 2, Acute and Chronic Health Conditions and section 3,
Behavioral Health.
(i) Combustion Products
Combustion products, many of which are considered respiratory
hazards, are released when materials burn. The combustion product
studies identified during OSHA's literature review addressed
firefighters, including both structural and wildland firefighters.
Firefighters may be exposed to a wide variety of combustion products,
even when wearing protective gear, and exposures can occur during a
broad range of activities. Emergency responders can be exposed to
combustion products during live training exercises as well as when
responding to actual events; while performing exterior operations and
during interior fire attack operations; during the early phase of
operations as they delay donning self-contained breathing apparatus to
conserve vital air supply, through leaks while wearing respiratory
protection, or during post-fire clean-up activities. Emergency
responders can also be exposed to combustion products through off-
gassing from contaminated protective clothing and equipment or while
cleaning such items after fire operations. (Geer Wallace et al., 2019a,
Document ID 0204; Poutasse et al., 2020, Document ID 0259; Fent et al.,
2010, Document ID 0213; Fent et al., 2022, Document ID 0207; Levasseur
et al., 2022, Document ID 0253).
The literature provides evidence of firefighters being exposed to a
variety of different combustion products, including carbon monoxide
(McCleery et al., 2011, Document ID 0281; Semmens et al., 2021,
Document ID 0291; Navarro et al., 2021a, Document ID 0252; Reinhardt
and Broyles, 2019, Document ID 0278); particulate matter (Baxter et
al., 2010, Document ID 0179; Horn et al., 2017, Document ID 0243);
dioxins (Shaw et al., 2013, Document ID 0218); radionuclides (Carvalho
et al., 2014, Document ID 0180); and a variety of volatile organic
compounds (VOCs) and semi-volatile organic compounds (SVOCs), including
polycyclic aromatic hydrocarbons (PAHs) (Hwang et al., 2021, Document
ID 0155; Hwang et al., 2022, Document ID 0156; Pleil et al., 2014,
Document ID 0158; Rossbach et al., 2020, Document ID 0289; Fent et al.
2013, Document ID 0206; Fent et al., 2022, Document ID 0207; Alharbi et
al., 2021, Document ID 0171; Kirk et al., 2021, Document ID 0240;
Cherry et al., 2019, Document ID 0188; Poutasse et al., 2020, Document
ID 0259; Adetona et al., 2015, Document ID 0167). A 2022 report by the
National Academies, ``The Chemistry of Fires at the Wildland-Urban
Interface'', provides additional detailed information on fire emissions
from a variety of household components, vehicles, and biomass (NASEM
2022, Document ID 0395). These studies show that firefighters can be
exposed to combustion products through inhalation and dermal routes
during both live fires and training exercises. It is difficult to
provide estimates of how many firefighters are exposed and at what
level because of the variables involved in firefighting. For example,
the number of firefighters exposed varies depending on the size of the
fire, with fewer firefighters exposed in response to a car fire than at
a large industrial fire. The quantity and type of combustion products
that firefighters are exposed to also varies depending on what is
burning. Since fires are generally not planned events, the
instrumentation that would be required to quantify firefighter
exposures is not present at most fires. The frequency of firefighter
exposures can also vary greatly, from very few exposures annually in
rural areas to many exposures annually in metropolitan areas.
Nonetheless, the literature is clear that firefighters are exposed to
combustion products at harmful levels.
The specific types and concentration of combustion products
released during a fire vary depending on which types of materials are
burning and whether the fire is a wildfire, residential fire,
industrial fire, or vehicle fire. It is not uncommon for residential
fires to involve hazardous materials stored in paint cabinets,
workshops, or garages; or buildings that still contain lead paint or
asbestos. As a result, emergency responders' exposures to combustion
products vary broadly (Alharbi et al., 2021, Document ID 0171; Kirk et
al., 2021, Document ID 0240; Fent et al., 2010, Document ID 0213). For
example, one study reported that residential fires release more VOCs
than industrial fires but lower levels of inorganic gases (Alharbi et
al., 2021, Document ID 0171). Another study, which involved controlled
fires in a simulated house structure, showed that hydrogen cyanide was
detected at concentrations exceeding occupational exposure limits, and
at times, at levels regarded as immediately dangerous to life and
health (Horn et al., 2017, Document ID 0243). A training exercise
focused on vehicle fires suggested that firefighters might encounter
acute overexposures to formaldehyde, carbon monoxide, and isocyanates
(Fent et al., 2010, Document ID 0213).
Multiple studies found that firefighters are exposed to VOCs,
especially PAH compounds, through the dermal and inhalation routes; the
studies conducted personal air sampling on the exterior of firefighter
gear and compared urinary metabolites from before and after firefighter
trainings. For firefighters wearing self-contained breathing apparatus
(SCBA), the dermal route appears to be the main route of exposure
(Hwang et al., 2021, Document ID 0155; Hwang et al. 2022, Document ID
0156; Pleil et al., 2014, Document ID 0158; Rossbach et al., 2020,
Document ID 0289; Fent et al., 2022, Document ID 0207). Firefighter PAH
levels were correlated with estimated exposures (based on combustion
products identified in environmental samples), length of exposure, and
number of fire suppressions (Cherry et al., 2019, Document ID 0188;
Cherry et al., 2021, Document ID 0192; Poutasse et al., 2020, Document
ID 0259). Also, elevated VOC and PAH levels were associated with
certain job positions, including overhaul, attack, search, and outside
ventilation positions (Baxter et al., 2014, Document ID 0157; Geer
Wallace et al., 2019b, Document ID 0202). Some studies examined ways to
reduce VOC and PAH exposures, including enhanced skin hygiene. One
study found that the transitional attack method (which involves
applying water to the fire from outside of a structure through windows
or openings) could lower firefighters' exposures to PAHs compared to
the interior attack method (which involves entering the structure for
water application) (Fent et al., 2020, Document ID 0205).
Many of the articles identified in the combustion product
literature review focused on wildland firefighters, who have much
longer fire suppression shifts (8 to 13 hours) compared to structural
firefighters (typically 30 minutes) and are more likely to be exposed
to combustion products through inhalation since they often wear no
respiratory protection or sometimes only a bandana or an N95 respirator
rather than an
[[Page 7786]]
SCBA like structural firefighters do (Hwang et al., 2022, Document ID
0156; Navarro, 2021, Document ID 0257). It is important to note that an
N95 respirator or bandana can only filter out particulate matter and
cannot reduce or prevent exposure to toxic gasses and vapors from
combustion products. Among wildland firefighters, certain job tasks
were associated with higher exposures to different combustion products:
for particulate matter, mop-up, direct suppression, and holding tasks
had the highest exposures; for carbon monoxide, direct suppression,
fireline construction, and holding job tasks had the highest exposures
(Navarro, 2021, Document ID 0257; Reinhardt and Broyles, 2019, Document
ID 0278). Prescribed burns were found to produce higher exposures of
particulate matter and carbon monoxide than wildfires. Time spent on
the fireline increased carbon monoxide exposure, and VOC levels were
highest for Type 1 crews, which typically have the most experienced
firefighters performing the most complex tasks (Navarro et al., 2021a,
Document ID 0252). Simultaneous carbon monoxide and noise exposure from
chain saws and woodchippers have been found to result in greater
hearing loss than if carbon monoxide was not a co-exposure in wildland
fire fighters (Ramsey et al. 2019, Document ID 0256). Additionally,
wildland firefighters are at risk of radionuclide exposure due to
incineration of vegetation that contains naturally occurring
radionuclides (Carvalho et al., 2014, Document ID 0180). Studies about
wildland firefighters identified multiple negative health effects due
to exposures to combustion products, including decline in lung
function, oxidative and inflammatory stress response, and increased
cardiovascular health effects and mortality (Navarro, 2021, Document ID
0257; Ferguson et al., 2016, Document ID 0197; Main et al., 2019,
Document ID 0258; Adetona et al., 2013, Document ID 0165; Wu et al.,
2019, Document ID 0318; Navarro et al., 2019, Document ID 0247).
Based on the evidence described above, OSHA has preliminarily
determined that emergency responders, specifically both structural and
wildland firefighters performing firefighting activities, are exposed
to combustion products. These combustion products contain components
that are known to cause cardiovascular and pulmonary illness and to be
carcinogenic to humans. OSHA therefore preliminarily finds
justification to promulgate a standard which requires protective
equipment and practices to limit exposure to combustion products. In
addition, since exposure cannot be completely eliminated due to the
nature of firefighting activities, OSHA has preliminarily determined
that medical surveillance is necessary for these responders to detect
and respond to health conditions as soon as possible in order to
mitigate the long-term health impact of such exposures on emergency
responders.
(ii) Other Contaminants and Substances
In addition to the combustion products reviewed in section A.(i),
emergency responders may be exposed to varied, unpredictable, and often
unknown contaminants and substances while performing their duties.
(Hall et al., 2018, Document ID 0220; Melnikova et al., 2018, Document
ID 0246). Overall, OSHA's literature review found evidence of adverse
health effects among emergency responders who encountered contaminants
and other potentially harmful substances on the job, with the most
injuries seen among firefighters. As an example of the sources of these
contaminants, in 2022 the U.S. Department of Transportation's Pipeline
and Hazardous Materials Safety Administration recorded 23,178 highway
incidents involving hazardous materials (hazmat) and 355 railway spill
hazmat incidents. Additionally, the U.S. Chemical Safety Board reported
102 reportable chemical release events in 2022. Studies also show that
emergency responders can be exposed to hazardous substances through
equipment contamination and inside their workplaces even when they are
not responding to emergencies.
Studies show that emergency responders are exposed to a variety of
chemicals in the field, including vinyl chloride, phosphine, ammonia,
and hydrochloric acid (Hall et al., 2018, Document ID 0220; Melnikova
et al., 2018, Document ID 0246; Brinker et al., 2013, Document ID 0177;
Brinker et al., 2015, Document ID 0175). Examples of emergency response
activities that can involve such exposures include attending to drug
overdose victims (Chiu et al., 2018a, Document ID 0191; Chiu et al.,
2018b, Document ID 0182; Chiu et al., 2018c, Document ID 0186), putting
out a fire at a chemical manufacturing facility (Eisenberg et al.,
2019, Document ID 0203), working with chainsaws that released carbon
monoxide and generate wood dust (Ramsey et al., 2019, Document ID
0256), and participating in training that exposed them to a variety of
chemicals and potential irritants in simulated smoke such as mineral
oil, diethylene glycol, aldehydes, PAHs, VOCs, and carbonaceous
particles (Fent et al., 2013, Document ID 0206). The literature review
also captured studies that examined diesel exhaust particulate matter
and PAH concentrations inside firehouses (Sparer et al., 2018, Document
ID 0292; Baxter et al., 2014, Document ID 0157), as well as
contaminants associated with firefighting gear, including residual
combustion products that adhere to the gear, and substances used to
make the gear, such as organophosphorus flame retardants, per-and
polyfluoroalkyl substances (PFAS) chemicals, and plasticizers
(Alexander and Baxter, 2014, Document ID 0164; Banks et al., 2021b,
Document ID 0168; Fent et al., 2018, Document ID 0210; Kirk and Logan,
2015, Document ID 0232; and Muensterman et al., 2022, Document ID
0282).
Respiratory effects (e.g., cough, asthma-like symptoms) were the
most frequently reported symptoms among the emergency responders who
were assessed (Melnikova et al., 2018, Document ID 0246; Chiu et al.,
2018a, Document ID 0191, Chiu et al., 2018c, Document ID 0186; Fent et
al., 2013, Document ID 0206; Eisenberg et al., 2019, Document ID 0203;
Brinker et al., 2013, Document ID 0177; Brinker et al., 2015, Document
ID 0175). Melnikova et al. (2018, Document ID 0246) examined 566 acute
chemical exposures among 1,460 emergency responders and found that
respiratory system problems were the most common adverse health effect,
constituting 56.3 percent of all adverse effects. Other adverse health
effects included trauma (11.3 percent), eye irritation (10.5 percent),
headache (9.9 percent), and dizziness/other non-head-related central
nervous system symptoms (9.9 percent). The chemicals most likely to
cause adverse health effects were respiratory irritants, including
ammonia (12.4 percent); unspecified, illegal methamphetamine-related
chemicals (7.4 percent); carbon monoxide (6.2 percent); propane (6.0
percent); and hydrochloric acid (4.8 percent). Given the prominence of
respiratory symptoms in responders exposed to these chemicals, several
articles emphasized the importance of wearing respiratory PPE to
protect emergency responders from negative health effects (Hall et al.,
2018, Document ID 0220; Chiu et al., 2018a, Document ID 0191; Chiu et
al., 2018c, Document ID 0186).
A few NIOSH Health Hazard Evaluations (HHEs) investigated health
impacts among emergency responders who assisted drug overdose victims.
In
[[Page 7787]]
a 2018 opioid-related exposure, eight of nine emergency responders
reported adverse health effects that were consistent with drug
exposure: weakness, confusion, palpitations, lightheadedness, headache,
nausea, numbness, double vision, chest discomfort, and stomach
discomfort (Chiu et al., 2018a, Document ID 0191; Chiu et al., 2018c,
Document ID 0186). Overall, wearing appropriate PPE during responses to
drug overdoses was deemed important, especially for preventing eye and
mouth exposure.
Multiple studies identified contaminants inside fire stations and
on firefighting gear and equipment that firefighters may be exposed to.
In studies that examined separate rooms within fire stations, truck
bays had the highest contaminant concentrations (Sparer et al., 2018,
Document ID 0292; Baxter et al., 2014, Document ID 0157). Banks et al.
(2021b, Document ID 0168) found that off-gassing of SVOCs from uniforms
stored in private vehicles could be a source of dermal or inhalation
exposure for firefighters. Therefore, laundering of firefighters'
protective gear (Kirk and Logan, 2015, Document ID 0232), field
decontamination, and dermal wipes (Fent et al., 2018, Document ID 0210)
were recommended methods to prevent exposures. PFAS (Muensterman et
al., 2022, Document ID 0282) and di(2-ethylhexyl)phthalate (Alexander
and Baxter, 2014, Document ID 0164) were highlighted as contaminants
that need further research due to their presence in and/or persistence
on firefighter gear.
Based on the evidence described above, OSHA has preliminarily
determined that in the course of their duties, firefighters, emergency
medical service providers and technical rescuers are exposed to
hazardous substances in the workplace. OSHA therefore preliminarily
finds justification to promulgate a standard which requires protective
equipment and practices to limit exposure to hazardous substances. In
addition, since exposure cannot be completely eliminated due to the
nature of emergency response activities, OSHA has preliminarily
determined that medical surveillance is also necessary for these
responders to detect and respond to health conditions as soon as
possible in order to mitigate long-term health impacts.
(iii) Infectious Diseases
When responding to community needs, emergency responders come in
direct contact with people who have infectious diseases. OSHA's
literature review identified multiple infectious diseases that
firefighters, technical rescue responders, and emergency medical
service providers are exposed to, including hepatitis B, Clostridiodes
difficile, Methicillin-resistant Staphylococcus aureus (MRSA), and
COVID-19. The studies covered a range of topics, such as the incidence
rate or prevalence of infectious disease among emergency responders,
the likelihood of emergency equipment being contaminated, and the
impact of other variables (e.g., wildfire smoke, social vulnerability
index) on emergency responders' occupational risks.
Generally, bloodborne diseases (e.g., hepatitis B, hepatitis C, and
human immunodeficiency virus) pose low risk to emergency responders,
whereas infectious diseases spread through airborne pathways (e.g.,
meningococcal meningitis, severe acute respiratory syndrome (SARS),
influenza, and tuberculosis) and direct contact transmission (e.g.,
MRSA) pose higher risk (Thomas et al., 2017, Document ID 0307).
However, EMS providers' exposure to infectious diseases declined
between 1993 and 2011 and remains generally low except during pandemics
(Thomas et al., 2017, Document ID 0307).
MRSA and Staphylococcus aureus prevalence was generally high among
emergency responders. Miramonti et al. (2012, Document ID 0274) found
that EMTs and paramedics have a significantly higher nasal colonization
rate of MRSA compared to the general population (4.5% vs. 0.084%).
Elie-Turenne et al., (2010, Document ID 0195) found that paramedics had
the highest rate of Staphylococcus aureus nasal colonization (57.7%),
but the lowest rate of MRSA compared to other health care professionals
(i.e., nurses, clerical workers, and physicians). The authors suggested
that the lower relative rate of MRSA may be due to paramedics spending
more time in the field compared to other health care professionals.
However, two studies examining the contamination of environmental
surfaces that emergency responders contact found MRSA in fire stations
(Sexton and Reynolds, 2010, Document ID 0284) and Clostridiodes
difficile on EMS monitoring equipment (Gibson et al., 2021, Document ID
0199).
COVID-19 can serve as a proxy for both epidemic and pandemic
exposures for emergency responders. Inconsistent results were found for
COVID-19 prevalence among emergency responders. Two studies that
examined seroprevalence rates found that first responders had a higher
risk of contracting COVID-19 than other health care professionals (Sami
et al., 2021, Document ID 0290; Zhang et al., 2022, Document ID 0319).
In contrast, other studies found that the prevalence of COVID-19 was
not elevated in first responders compared to the general public (Shukla
et al., 2020, Document ID 0285; Vieira et al., 2021, Document ID 0302)
or to other medical professionals (Akinbami et al., 2020, Document ID
0170; MacDonald et al., 2021, Document ID 0251). Some of these studies
suggested that increased PPE usage and the strict infection control
measures that emergency responders instituted during the COVID-19
pandemic helped prevent elevated rates among this population (Akinbami
et al., 2020, Document ID 0170; Zhang et al., 2022, Document ID 0319;
Newberry et al., 2021, Document ID 0261; Vieira et al., 2021, Document
ID 0302). Additionally, two studies showed that vaccination may
mitigate occupational risks (Grunau et al., 2022, Document ID 0211;
Caban-Martinez et al., 2022, Document ID 0178). Other variables also
affected first responders' occupational risk of contracting COVID-19 or
developing severe COVID-19. Sami et al. (2021, Document ID 0290) and
Akinbami et al. (2020, Document ID 0170) both found that community
levels of COVID-19 correlated with seroprevalence rates of SARS-CoV-2
in first responders. Moreover, emergency responders who resided in more
socially vulnerable response areas (gauged using the CDC's Social
Vulnerability Index) were found to have increased exposure to COVID-19
(Haas et al., 2021, Document ID 0230). Additionally, increased levels
of wildfire smoke inhalation may increase occupational risk for
developing severe COVID-19 among wildland firefighters (Navarro et al.,
2021b, Document ID 0279).
Based on the above, OSHA has preliminarily determined that
emergency responders are exposed to infectious diseases in the course
of their work. Exposures occur due to contact with victims of
emergencies (e.g., traumatic injuries) and the treatment and transport
of emergency medical patients suffering from either traumatic injuries
or illness (e.g., viral meningitis). Infectious agents can contaminate
emergency response vehicles and response equipment; protective clothing
and equipment; or station uniforms and be brought back to communal
quarters such as a fire stations or wildfire basecamps. OSHA therefore
preliminarily finds justification to promulgate a standard which
requires protective equipment and practices to address exposures to
infectious disease.
B. Acute and Chronic Health Conditions
OSHA has identified evidence suggesting that the hazardous
exposures
[[Page 7788]]
that emergency responders encounter, as described above, put them at
elevated risk for certain acute and chronic health conditions. OSHA's
literature review on acute and chronic health conditions among
emergency responders covered cancer, cardiovascular disease, and
respiratory disease.
(i) Cancer
Emergency responders, particularly firefighters, are exposed to
known and suspected carcinogens when performing their work (see
Sections A.(i) and A.(ii) above), which places them at a 12-19% greater
risk of dying from cancer (Muegge et al., 2018, Document ID 0269;
Daniels et al., 2014, Document ID 0187; Pinkerton et al., 2020,
Document ID 0245) and a 9% greater risk of developing cancer (Daniels
et al., 2014, Document ID 0187) than the general population. Studies
show that firefighters are at higher risk for multiple cancers compared
to the general U.S. population. In fact, the International Association
for Research on Cancer (IARC) has concluded that occupational exposure
as a firefighter is itself carcinogenic to humans (Group 1) (Demers et
al. 2022, Document ID 0194; IARC 2023, Document ID 0236; NASEM 2022,
Document ID 0395).
Researchers found that, compared to the general population, male
firefighters are at increased risk for melanoma and prostate cancer
(Lee et al., 2020, Document ID 0250; Tsai et al., 2015, Document ID
0311); testicular cancer, thyroid cancer, late-stage colon cancer (Lee
et al., 2020, Document ID 0250); multiple myeloma, acute myeloid
leukemia, esophageal cancer, kidney cancer, and brain cancer (Tsai et
al., 2015, Document ID 0311). Researchers found that female
firefighters are at increased risk compared to the general population
for brain cancer and thyroid cancer (Lee et al., 2020, Document ID
0250) and increased risk of death from bladder cancer (Daniels et al.,
2014, Document ID 0187; Pinkerton et al., 2020, Document ID 0245).
For males and females combined, researchers found that firefighters
are at increased risk compared to the general population for all-cancer
mortality (Muegge et al., 2018, Document ID 0269; Daniels et al., 2014,
Document ID 0187; Pinkerton et al., 2020, Document ID 0245); all-cancer
incidence (Daniels et al., 2014, Document ID 0187); buccal cavity and
pharynx cancer mortality (Muegge et al., 2018, Document ID 0269;
Pinkerton et al., 2020, Document ID 0245); other parts of the buccal
cavity cancer mortality, pancreatic cancer mortality, kidney cancer
mortality, connective tissues cancer mortality, brain and other parts
of the nervous system cancer mortality (Muegge et al., 2018, Document
ID 0269); digestive cancer incidence and mortality (Daniels et al.,
2014, Document ID 0187); respiratory cancer incidence and mortality
(Daniels et al., 2014, Document ID 0187); malignant mesothelioma
incidence and mortality (Daniels et al., 2014, Document ID 0187;
Pinkerton et al., 2020, Document ID 0245); non-Hodgkins lymphoma
mortality; esophageal cancer mortality; intestine cancer mortality;
rectal cancer mortality; lung cancer mortality; biliary, liver, and
gall bladder cancer; and other digestive cancer mortality (Pinkerton et
al., 2020, Document ID 0245). Systematic reviews and meta-analyses
corroborate many of these results (IARC, 2023, Document ID 0236;
Jalilian et al., 2019, Document ID 0233; Sritharan et al., 2017,
Document ID 0299; LeMasters et al., 2006, Document ID 0268; Demers et
al., 2022, Document ID 0194). Additionally, researchers have studied
whether dose-response relationships exist between firefighting
exposures and developing cancer. In these dose-response studies,
researchers found associations between increased firefighting exposures
and increased lung cancer incidence and mortality (Daniels et al.,
2015, Document ID 0184; Pinkerton et al., 2020, Document ID 0245) and
leukemia mortality (Daniels et al., 2015, Document ID 0184). In a risk
assessment, Navarro et al. (2019, Document ID 0247) found that wildland
firefighters were at an 8 to 43 percent increased risk of lung cancer
mortality.
All 50 states have adopted some form of firefighter cancer
legislation that provides benefits to firefighters who develop or die
from cancer. In 80% of those, the cancers are presumed to have been the
result of firefighting duties. It is also noteworthy that Congress
recently passed the Fiscal Year 2023 National Defense Authorization Act
(<a href="https://www.dol.gov/agencies/owcp/FECA/NDAA2023">https://www.dol.gov/agencies/owcp/FECA/NDAA2023</a>). Section 5305 of this
Act, titled ``Fairness for Federal Firefighters,'' determined that
certain conditions, including various cancers, will be presumed to be
work-related for Federal employees who perform fire protection
activities and modified the Federal Employees' Compensation Act (FECA)
accordingly.
OSHA has preliminarily determined that the exposures discussed in
sections A.(i) and A.(ii) lead emergency responders who perform
firefighting duties to have an increased risk of developing cancer.
OSHA therefore preliminarily finds justification to promulgate a
standard which requires protective equipment and practices to limit
exposure to known and suspected carcinogens. In addition, since
exposure cannot be completely eliminated due to the nature of emergency
response activities, OSHA has preliminarily determined that medical
surveillance is necessary for these responders to detect and respond to
health conditions as soon as possible in order to mitigate long-term
health impacts.
(ii) Cardiovascular Disease
Emergency responders, especially firefighters, may be called on to
engage in physically strenuous activities while wearing heavy,
insulated, and restrictive PPE ensembles that pose physiological
burden, exacerbate heat stress hazards, and raise core temperatures to
dangerous levels (Horn et al., 2013, Document ID 0219; West et al.,
2020, Document ID 0314). In combination, these factors strain the
body's cardiovascular system and increase the risk of sudden cardiac
events (Soteriades et al., 2011, Document ID 0121).
Many studies assessed cardiovascular disease prevalence among
firefighters. They revealed that cardiac events are the leading cause
of on-duty death among U.S. structural and wildland firefighters, with
cardiovascular disease causing 45 to 50 percent of on-duty firefighter
deaths each year (Smith et al., 2016, Document ID 0120; Soteriades et
al., 2011, Document ID 0121; NWCG, 2017, Document ID 0265; NASEM 2022,
Document ID 0396). Navarro et al. (2019, Document ID 0247) estimated
that wildland firefighters had an increased cardiovascular disease
mortality of 16 to 30 percent compared to the general population.
Soteriades et al. (2011, Document ID 0121) reported that firefighting
causes considerable cardiovascular strain, which may trigger a sudden
cardiac event. However, Muegge et al. (2018, Document ID 0269), in a
study that reviewed death certificates in Indiana, found that the odds
of dying from cardiovascular disease overall were no different between
current and retired firefighters and non-firefighters, possibly due to
the healthy worker effect. OSHA does not view this study as
determinative of the cardiovascular risks facing firefighters; rather
it must be viewed in the larger context of the weight of evidence
discussed here on the association between emergency response work and
cardiovascular events. Several studies identified factors and
activities in firefighter populations that are associated with
increased risks for cardiovascular disease and mortality. Factors that
resulted in increased risks of cardiac fatalities included volunteer
[[Page 7789]]
status and stress or overexertion (Sen et al., 2016, Document ID 0300);
participation in fire suppression activities (Smith et al., 2019,
Document ID 0303); and hypertension, a history of cardiovascular
disease, and smoking (Yang et al., 2013, Document ID 0309). Martin et
al. (2019, Document ID 0271) found that 68 percent of the firefighters
in one study population had two or more cardiovascular risk factors.
Obesity (Smith et al., 2022, Document ID 0294; Khaya et al., 2021,
Document ID 0242), reduced cardiorespiratory fitness (Smith et al.,
2022, Document ID 0294), metabolic syndrome or abnormal metabolic
syndrome components (Li et al., 2017, Document ID 0260), and elevated
blood pressures and/or hypertension (Lan et al., 2021, Document ID
0226; Bond et al., 2022, Document ID 0176; Khaja et al., 2021, Document
ID 0242) were highly prevalent among firefighters and could serve as
markers for cardiac dysfunction. Observed elevated blood pressures and/
or hypertension among firefighters was attributed to increased
psychological stress (Lan et al., 2021, Document ID 0226; Bond et al.,
2022, Document ID 0176; Khaja et al., 2021, Document ID 0242) and
increased frequency of work shifts (Choi et al., 2016, Document ID
0181).
A few studies examined methods that improved cardiovascular health.
Horn et al. (2013, Document ID 0219) and Mani et al. (2013, Document ID
0270) measured cardiovascular responses during specific workplace tasks
and activities and found that systolic blood pressures were
significantly lower during rest periods. Cash et al. (2021, Document ID
0190) found that firefighters who slept for recommended durations
(seven to nine hours) nearly doubled their likelihood of having ideal
cardiovascular health. OSHA has preliminarily determined that emergency
response activities can produce physiological and psychological strain
that is sufficient to trigger a cardiovascular event up to and
including sudden cardiac death. In addition, elevated core body
temperature, disrupted sleep patterns, noise from alarms and sirens,
circadian rhythm disruptions, overexertion, and stress associated with
emergency response occupations can contribute to the development of
cardiovascular disease. OSHA therefore preliminarily finds
justification to promulgate a standard which requires medical screening
and prevention programming for these responders. OSHA seeks additional
information and data on how emergency response activities contribute to
cardiovascular disease.
(iii) Respiratory Diseases and Other Respiratory Effects
Emergency responders, especially firefighters, can encounter a wide
variety of airborne respiratory hazards on the job, including gases,
fumes, and particulates. In addition, many emergency responders are
regularly exposed to diesel exhaust particulates in the course of their
jobs, both responding to emergency incidents and while in ESO
facilities where vehicle engines are started and run, such as in fire
stations (Sparer et al., 2018, Document ID 0292; Couch et al. 2016,
Document ID 0324). Emergency response equipment is commonly powered by
diesel fuel, a known respiratory irritant and carcinogen. Unless
adequate protective measures are taken, these exposures can impair
pulmonary function and may cause respiratory diseases such as chronic
obstructive pulmonary disease (COPD), bronchitis, and asthma (Barbosa
et al., 2022, Document ID 0173). OSHA reviewed several studies on
pulmonary function in firefighter populations. The studies identified
respiratory protection as crucial for preventing lung function decline
in responders.
First, as explained above, several evaluations, reports, and
studies that looked at emergency responder exposures to a variety of
hazardous chemicals indicated that respiratory effects (e.g., cough,
asthma-like symptoms) were the most frequently reported symptoms among
the emergency responders who were assessed (Melnikova et al., 2018,
Document ID 0246; Chiu et al., 2018a, Document ID 0191; Chiu et al.,
2018c, Document ID 0186; Fent et al., 2013, Document ID 0206; Eisenberg
et al., 2019, Document ID 0203; Brinker et al., 2013, Document ID 0177;
Brinker et al., 2015, Document ID 0175). Melnikova et al. (2018,
Document ID 0246) examined 566 acute chemical exposures among 1,460
emergency responders and found that respiratory system problems were
the most common adverse health effect, constituting 56.3 percent of all
adverse effects.
Studies also show that firefighters experience declines in lung
function after acute exposure events such as the World Trade Center
disaster response and wildland firefighting activities. Two studies,
both of which were reviews, reported accelerated pulmonary function
declines after the World Trade Center disaster (Slattery et al., 2018,
Document ID 0301; Rajnoveanu et al., 2022, Document ID 0273). A meta-
analysis of 32 articles identified small but statistically significant
short-term declines in lung function in response to occupational
exposure to wildland fires (Groot et al., 2019, Document ID 0212).
Rajnoveanu et al. (2022, Document ID 0273) included studies reporting
cross-season declines in wildland firefighter lung function. Similarly,
biomarker levels for oxidative stress were marginally higher following
exposure to wildland fire smoke in Wu et al. (2019, Document ID 0318),
suggesting that wildland fire smoke exposure can cause mild pulmonary
responses. Another study found that forced expiratory volume in one
second (FEV<INF>1</INF>) levels decreased (but non-significantly) after
wildland firefighting shifts and that cross-shift FEV<INF>1</INF>
declines were more pronounced in firefighters who were exposed to
higher levels of wood smoke (Gaughan et al., 2014, Document ID 0198).
The more general relationship between emergency responder exposure to
smoke and other harmful substances and lung function decline is less
clear. For example, COPD diagnosis among firefighters was not
significantly increased as compared to the general population in the
majority of the 43 studies assessed in the Rajnoveanu et al. (2022,
Document ID 0273) meta-analysis. Similarly, lung function was not
significantly different among firefighters in a meta-analysis of 24
studies (Barbosa et al., 2022, Document ID 0173). Researchers have
suggested that this could be explained by a number of factors,
including the ``healthy worker effect'' and the fact that many
emergency responders wear respiratory protection on the job (Rajnoveanu
et al., 2022, Document ID 0273; McCluskey et al., 2014, Document ID
0262). OSHA welcomes comments and evidence about emergency responders'
relative risk for COPD and other respiratory diseases.
OSHA has preliminarily determined that emergency responders are
exposed to combustion products and diesel exhaust that have been shown
to acutely affect lung function and may lead to chronic lung
conditions. OSHA therefore preliminarily finds justification to
promulgate a standard which requires protective equipment and practices
to limit exposure to these substances. In addition, since exposure
cannot be completely eliminated due to the nature of emergency response
activities, OSHA has preliminarily determined that a baseline
spirometry measurement and repeated measurement as deemed medically
appropriate is necessary for these responders to detect and respond to
[[Page 7790]]
lung-related health conditions as soon as possible in order to mitigate
long-term health impacts.
C. Behavioral Health
The intense and stressful (both physically and mentally) situations
that emergency responders encounter on the job place them at risk for a
range of behavioral health impacts. OSHA's review of the literature on
behavioral health among emergency responders covered general mental
health issues, substance use disorders, and suicide.
(i) General Mental Health
Emergency responders are exposed to traumatic, emotionally charged
events, and they may work long shifts, hold multiple jobs, and get
inadequate rest (Alexander and Klein, 2001, Document ID 0166; Patterson
et al., 2012, Document ID 0266; Weaver et al., 2015, Document ID 0298).
Lack of sleep, long working hours, working in isolated locations, and
repeated exposure to stressful scenarios are all risk factors for
developing mental health problems (Carey et al., 2011, Document ID
0183; Kshtriya et al., 2020, Document ID 0231; Donnelly, 2012, Document
ID 0201; Cash et al., 2020, Document ID 0193). OSHA's literature review
on mental health focused on depression, anxiety, stress, post-traumatic
stress symptoms, PTSD, and burnout.
Compared with the general population, emergency responders have
elevated rates of depression (Petrie et al., 2018, Document ID 0275;
SAMHSA, 2018, Document ID 0286; Jahnke et al., 2012, Document ID 0235),
stress (SAMHSA, 2018, Document ID 0286), PTSD (Jones et al., 2018,
Document ID 0229; Petrie et al., 2018, Document ID 0275; SAMHSA, 2018,
Document ID 0286), anxiety (Petrie et al., 2018, Document ID 0275), and
poor sleep (Cash et al., 2020, Document ID 0193). Some articles found
significant relationships between emergency response activities and
PTSD, emotion regulation difficulties, and thwarted belongingness
(Leonard and Vujanovic, 2021, Document ID 0255); alcohol use disorder,
PTSD, trauma load, depression, and anxiety (Lebeaut et al., 2021,
Document ID 0244; Lebeaut et al., 2020, Document ID 0276; Zegel et al.,
2021, Document ID 0320); tinnitus and occupational stress (Odes et al.,
2023, Document ID 0267); and stress and burnout on diminished safety
behaviors (Smith et al., 2020, Document ID 0306).
Multiple articles described healthy coping strategies and
techniques that improve mental health outcomes. These included:
exercise, having a strong interpersonal network, leadership support
(DeMoulin et al., 2022, Document ID 0196), and finding mental
fulfillment and enjoyment from the day's challenges and recovery
activities (Hruska and Barduhn, 2021, Document ID 0223). Obstacles to
improving mental health included: lack of resources (DeMoulin et al.,
2022, Document ID 0196), an absence of medical professionals who
understand situations unique to emergency responder occupations
(DeMoulin et al., 2022, Document ID 0196), occupational stressors
(Hruska and Barduhn, 2021, Document ID 0223), social conflict (Hruska
and Barduhn, 2021, Document ID 0223), and stigmatization (DeMoulin et
al., 2022, Document ID 0196).
Based on this review, OSHA has preliminarily determined that
emergency responders are exposed to traumatic events and psychological
stress that place them at increased risk of mental health issues such
as PTSD, depression, anxiety, and burnout. OSHA therefore preliminarily
finds justification to promulgate a standard which requires behavioral
health screening and prevention programming for these responders.
(ii) Suicide
According to the Firefighter Behavioral Health Alliance (FBHA), at
least 1,399 suicides occurred between 2011 and 2022 among firefighters,
emergency responders, and communication specialists (i.e., emergency
response dispatchers). The actual number may well be higher, as many
suicides are not reported or appropriately identified as work-related
(FBHA, 2023). OSHA found evidence that emergency responders are at
higher risk for suicidal ideation, plans, and attempts. One literature
review (Stanley et al., 2016, Document ID 0310) and several studies
(Abbott et al., 2015, Document ID 0169; Stanley et al., 2015, Document
ID 0312; Tiesman et al., 2015, Document ID 0295; Vigil et al., 2019,
Document ID 0296; Vigil et al., 2021, Document ID 0297) reported
approximately three and a half times higher rates of suicide ideation
and suicide attempts and approximately five times higher rates of
suicide plans among emergency responders when compared to the general
public. Stanley et al. (2017b, Document ID 0305) found that volunteer
firefighters reported elevated levels of suicide plans and attempts
compared to career firefighters. Hom et al. (2018, Document ID 0323)
concluded that women firefighters exposed to suicide during their
careers (either in professional or personal settings) are themselves at
increased suicide risk. Stanley et al. (2017a, Document ID 0304)
reported higher rates of suicidal ideation, suicide plans, and non-
suicidal self-injury among women firefighters compared to the general
U.S. population. Problematic alcohol use (Gallyer et al., 2018,
Document ID 0209), occupational stress (Stanley et al., 2018, Document
ID 0316), PTSD (Bing-Canar et al., 2019, Document ID 0174; Boffa et
al., 2017, Document ID 0189; Martin et al., 2017, Document ID 0254;
Stanley et al., 2019, Document ID 0308; Pennington et al., 2021,
Document ID 0263), depression (Martin et al., 2017, Document ID 0254),
and past physical and sexual abuse (Hom et al., 2017, Document ID 0217)
were contributors to suicide risk over the course of the responder's
career.
The issue of suicide in the emergency response community has become
so prevalent that in 2022, Congress passed and President Biden signed
into law, House Resolution 6943, the Public Safety Officer Support Act,
which added death by suicide to the causes of death that are eligible
for benefits under the U.S. Department of Justice, Bureau of Justice
Assistance's Public Safety Officers Benefits Program (PSOB).
OSHA has preliminarily determined that the traumatic events and
psychological stress that emergency responders are exposed to places
them at increased risk for death by suicide. OSHA therefore
preliminarily finds justification to promulgate a standard which
requires behavioral health resources for these responders.
(iii) Substance Use Disorders
Studies suggest that repeated exposure to traumatic situations can
lead to mental health strain and post-traumatic stress (Murphy et al.,
1999, Document ID 0280) coupled with substance use disorders (Hruska et
al., 2011, Document ID 0227) and resorting to substance use as a coping
mechanism (Vujanovic et al., 2011, Document ID 0317). During its
literature review, OSHA sought articles that examined whether emergency
responders have elevated rates of substance use. OSHA identified
multiple articles that focused on alcohol consumption among emergency
responders, two that addressed tobacco use, and one that spoke about
substance use disorders more broadly during the COVID-19 pandemic.
Overall, there is evidence that emergency responders are at
increased risk for problematic alcohol consumption. Several studies
observed a high prevalence of increased alcohol use and at-risk
drinking episodes for both male and female firefighters (Carey et al.,
2011, Document ID 0183; Gallyer
[[Page 7791]]
et al., 2018, Document ID 0209; Haddock et al., 2012, Document ID 0214,
Haddock et al., 2015, Document ID 0215, Haddock et al., 2017, Document
ID 0218; Meyer et al., 2012, Document ID 0272). A few studies indicated
higher rates of alcohol consumption during the first few years of fire
fighter/EMS service (Haddock et al., 2015, Document ID 0215; Piazza-
Gardner et al., 2014, Document ID 0248; Gulliver et al., 2019, Document
ID 0216) compared with fire fighters/EMS personnel with more years of
service. There is also some evidence that firefighters use alcohol as a
coping mechanism (Haddock et al., 2017, Document ID 0218; Rogers et
al., 2020, Document ID 0287; Tomaka et al., 2017, Document ID 0293).
Literature on tobacco use among emergency responders was limited.
Poston et al. (2012, Document ID 0277) indicated that smoking rates
among firefighters have generally declined, whereas smokeless tobacco
use has increased. Smoking regulations were cited as the primary reason
for declining smoking rates, but other common reasons included fire
service culture changes, impacts of smoking on job performance, and
smoking costs. Jitnarin et al. (2019, Document ID 0224) found that age-
adjusted smoking prevalence was lower among female firefighters (1.9
percent) than the prevalence observed for male firefighters (13.2
percent) and for adult women in the U.S. (13.5 percent). As for
smokeless tobacco, age-adjusted use in female firefighters (0.5
percent) was comparable with U.S. adult women (0.3 percent), but well
below rates observed for male firefighters (10.5 percent).
OSHA did not identify any published research that addresses the
prevalence of opioid use among emergency responders. An online article
(Jahnke, 2020, Document ID 0237) confirmed the absence of published
research, stating ``there is no available published research on the
rates of opioid use among first responder groups, so quantifying the
risk is not possible.'' That author did note, however, that ``it is
important to recognize that first responders are at a high risk for
opioid use disorder for several reasons,'' which were identified as
high risk of injury, risky health behavior, exposure to stressors,
behavioral health concerns, and sleep issues.
OSHA has preliminarily determined that the traumatic events and
psychological stress that emergency responders are exposed to places
them at increased risk of substance abuse. OSHA therefore preliminarily
finds justification to promulgate a standard which requires behavioral
health resources for these responders.
D. Exposure to Violence
At times, emergency responders encounter belligerent behaviors
because the people they are trying to help, their family members, or
nearby bystanders are not receptive to assistance. This can lead to
conflict and may result in emergency responders being subjected to
verbal aggression and/or physical violence, which can be a contributing
factor to mental health problems or cause injuries. Additionally,
emergency responders are sometimes called to respond to situations that
have a law enforcement aspect that has not been fully resolved or
contained by police (e.g., active shooter situations). Exposure to
violence incidents can result in both observable traumatic injuries as
well as significant mental health impacts. OSHA found multiple studies
that document workplace violence against emergency responders. Only one
study addressed emergency responders who were injured from violent
interactions. Taylor et al. found that male and female paramedics were
at increased likelihood of patient-initiated violent injury compared to
male and female firefighters (Taylor et al., 2016, Document ID 0313).
In the Murray et al. 2020 review (Document ID 0249), the authors found
violence to be the leading cause of stress and that stress was the most
frequent injury reported by EMS survey respondents. Violence exposure
was found to be associated with increased levels of stress, fear, and
anxiety in EMS responders. The review found that exposures to workplace
violence, especially cumulative exposures, in concert with other job
stressors, were associated with adverse mental health outcomes such as
anxiety, depression, and PTSD. Most other studies did not indicate
whether the violence actually led to adverse health effects, such as
mental health issues or physical injuries. The studies provide insight
on the types of violence occurring among emergency response populations
and the prevalence between different groups (e.g., men versus women).
Estimates of the proportion of emergency responders who reported
experiencing at least one type of violence on the job ranged from 57 to
93 percent (Gormley et al., 2016, Document ID 0208; Murray et al.,
2020, Document ID 0249). Survey-based results in Gormley et al. (2016,
Document ID 0208) found that verbal aggression was the most common form
experienced (67.0 percent), but physical violence was reported by 43.6
percent of respondents. These findings fell in line with the review-
based results (from 104 studies) provided in Murray et al. (2020,
Document ID 0249), which indicated that 21 to 88 percent of emergency
responders reported experiencing verbal aggression and 23 to 90 percent
reported experiencing physical violence. Additionally, multiple studies
assessed risks for occupational violence among different types of
emergency responders. Paramedics were found to be at significantly
higher risk for occupational violence compared to both firefighters
(Taylor et al., 2016, Document ID 0313; Murray et al., 2020, Document
ID 0249) and emergency medical technicians (Gormley et al., 2016,
Document ID 0208; NAEMT, 2019, Document ID 0264). In general,
responders who provided more direct patient care were at a higher risk
for violence (Murray et al., 2020, Document ID 0249).
Three studies investigated differences in workplace violence risks
between male and female emergency responders, with mixed results. NAEMT
(2019, Document ID 0264) found that percentages of reported physical
and verbal assaults among National Association of Emergency Medical
Technicians members were higher for males than females. In contrast,
Taylor et al. (2016, Document ID 0313) found that female responders had
increased odds (though not statistically significant) of suffering
patient-initiated violent injuries compared to male responders, and
Gormley et al. (2016) reported increased odds of experiencing physical
violence among female personnel compared to male personnel. The studies
do not break down violence exposure by race or ethnicity.
OSHA has preliminarily determined that emergency responders are
exposed to verbal aggression and physical violence at their workplaces
that may lead both to physical injury and to adverse behavioral health
outcomes.
B. Events Leading to the Proposed Rule
The existing 29 CFR 1910.156, Fire Brigades standard was
promulgated in 1980 (45 FR 60656 (Sept. 12, 1980)). In the time since,
there have been significant improvements in PPE and the guidance
provided by national consensus standards. In the aftermath of the
terrorist attacks on September 11, 2001, all government agencies,
including OSHA, were directed to strengthen their preparedness to
respond to terrorist attacks, major disasters, and other emergencies.
In response to this direction, the agency reviewed its standards
applicable to the safe conduct of emergency response and
[[Page 7792]]
identified gaps in the protections for emergency responders. The agency
determined that it should proceed in the process for potentially
updating its standard for Fire Brigades and consider including other
emergency responders.
In 2007, OSHA published a 41-question Request for Information (RFI)
for the public to evaluate what action, if any, the agency should take
to further address emergency response and preparedness (72 FR 51735
(Sept. 11, 2007)). The RFI encouraged commenters to provide input
covering the scope of emergency response operations, personal
protective clothing and equipment, training and qualifications, medical
evaluation and health monitoring, safety, and economic impacts related
to potential regulatory action. The agency received 85 responses
largely in support of updating the existing rule.
On July 30 and 31, 2014, OSHA hosted stakeholder meetings that
attracted 49 participants and approximately the same number of
observers (Document ID 0087). Participants represented a broad range of
emergency responders as well as allied stakeholders such as State plan
representatives, skilled support workers, and law enforcement. Broad
support for a comprehensive standard was evident in both days of
stakeholder meetings. Participants favored OSHA proceeding with
comprehensive rulemaking that covered a broad scope of emergency
preparedness and response workers rather than the agency's historical
perspective covering industrial fire brigades.
In September 2015, OSHA convened a NACOSH subcommittee to develop
recommendations, including regulatory text for a proposed rule, for
NACOSH to consider (Docket ID OSHA-2015-0019-0001). To assist the
Subcommittee, OSHA provided draft regulatory language for the purpose
of initiating and facilitating discussion (Docket ID OSHA-2015-0019-
0002, Ex. 5). The Subcommittee participants were subject matter experts
from major stakeholder entities that represented a broad range of
emergency response experts, who provided balance and a diversity of
views. The Subcommittee was co-chaired by two NACOSH members, a labor
representative, and a management representative.
The Subcommittee met for 12 days in six in-person meetings and held
numerous sub-group teleconferences from September 9, 2015, to September
9, 2016 (Docket ID OSHA-2015-0019). The members heard and discussed
reports from the subgroups, and deliberated on various issues, as they
developed their recommendations and proposed regulatory text. The
Subcommittee completed its recommendations for a proposed rule and
transmitted the documents to the full NACOSH in October 2016 (Docket ID
OSHA-2015-0019-0035).
NACOSH met on December 14, 2016, and after hearing some public
support for the project and deliberating over the draft document
developed by the Subcommittee, voted unanimously to recommend to the
Secretary of Labor that OSHA proceed with rulemaking using the draft
language as the basis for developing a proposed rule.
On October 4, 2021, OSHA convened a SBAR Panel for a potential
Emergency Response draft proposed standard (Document ID 0094). OSHA
convened this panel under section 609(b) of the RFA, 5 U.S.C. 601 et
seq., as amended by SBREFA. 5 U.S.C. 609(b).
The panel included representatives from OSHA, the Office of
Advocacy within the SBA, and the Office of Information and Regulatory
Affairs of the Office of Management and Budget. SERs made oral and
written comments on the draft regulatory framework and submitted them
to the panel. The Panel received advice and recommendations from the
SERs and reported its findings and recommendations to OSHA. OSHA has
taken SERs' comments and the Panel's findings and recommendations into
consideration in the development of the proposed rule.
The SBREFA Panel issued a report on December 2, 2021, which
included the SERs' comments. SERs expressed concerns about the impact
of the proposed rule on small and volunteer fire departments. Their
comments addressed potential costs associated with compliance with the
proposed rule's medical screening, physical fitness, and training
requirements. In addition, many SERs were concerned with OSHA's
extensive use of NFPA consensus standards in the development of the
draft regulation. They were concerned about the costs associated with
compliance with the proposed rule if OSHA incorporated by reference
certain NFPA standards (Document ID 0115).
I. Preliminary Determination of Significant Risk and Material
Impairment
As explained in section III, Pertinent Legal Authority, the OSH Act
and Supreme Court precedent require OSHA to determine, prior to issuing
a safety or health standard, that employees are being subjected to a
significant risk of serious injury or material impairment of health or
functional capacity by the hazards being targeted. OSHA has reviewed
the evidence currently in the record, including the data and scientific
studies discussed above; the comments received in response to the 2007
Emergency Response RFI, from SERs during the SBREFA process, and from
NACOSH; and industry consensus as evidenced in the various NFPA
consensus standards, and preliminarily determined that emergency
response activities place team members and responders at significant
risk of personal injury, several acute and chronic health conditions,
and death.
As identified above, the documented serious injuries suffered by
emergency responders are numerous, including fractures, sprains,
internal bodily trauma, dislocations, chemical burns, and chemical
pneumonia. There can also be little doubt that the morbidity and
mortality risks posed by cancer, cardiovascular disease, and lung
disease represent material impairments of health and functional
capacity. In addition, the adverse mental health outcomes resulting
from emergency response activities, including substance use disorder,
PTSD, depression, anxiety, burnout, and suicidality, can significantly
impair responders' quality of life and limit their ability to function
in daily life, can cause or exacerbate other physical conditions, and,
in the worst cases, can lead to death. Accordingly, OSHA preliminarily
finds these behavioral health effects represent a serious impairment of
health.
C. National Consensus Standards
In development of the proposed rule, OSHA extensively examined
numerous relevant consensus standards. The NFPA standards are available
to be viewed without cost at <a href="https://www.nfpa.org/for-professionals/codes-and-standards/list-of-codes-and-standards/free-access">https://www.nfpa.org/for-professionals/codes-and-standards/list-of-codes-and-standards/free-access</a>. ANSI/ISEA
standards are available for purchase at <a href="https://webstore.ansi.org">https://webstore.ansi.org</a>. Many
of the provisions in the proposed rule are based on or consistent with
provisions in these standards. Additionally, OSHA is proposing to
incorporate by reference (IBR) several consensus standards.\2\
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\2\ In addition to revising 29 CFR 1910.6, Incorporation by
Reference, to include the consensus standards incorporated in this
proposal, OSHA is also taking this opportunity to make a number of
non-substantive revisions to align Sec. 1910.6 with updated Federal
Register requirements.
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In certain provisions of the proposed rule, OSHA would require
compliance with the relevant portions of the NFPA and ANSI/ISEA
standards incorporated by reference. In certain other provisions, OSHA
is proposing to require
[[Page 7793]]
Workplace Emergency Response Employers (WEREs) and Emergency Service
Organizations (ESOs) to provide protections at least equivalent to
various aspects of some of the NFPA standards listed below, such as
training job performance requirements being equivalent to those in the
consensus standard. In the latter case, compliance with the NFPA
standard would satisfy the requirement, but the ESOs and WEREs retain
flexibility to utilize alternative measures, so long as those measures
provide equivalent protection. Below is a list and description of the
national consensus standards that OSHA is proposing to IBR in whole or
in part.
NFPA 1001, Standard for Structural Fire Fighter Professional
Qualifications, 2019 ed. (Document ID 0138)--This standard contains the
minimum job performance requirements including the requisite knowledge
and skills to perform structural firefighting duties for career and
volunteer fire fighters through two progressive levels of
qualification.
NFPA 1002, Standard for Fire Apparatus Driver/Operator Professional
Qualifications, 2017 ed. (Document ID 0140)--This standard contains the
minimum job performance requirements including the requisite knowledge
and skills to drive and operate fire apparatus for career and volunteer
fire fighters and fire brigade personnel. The standard differentiates
requirements based on the type of apparatus driven such as pumper,
aerial, aerial with tiller, water tender, and others.
NFPA 1005, Standard for Professional Qualifications for Marine Fire
Fighting for Land-Based Fire Fighters, 2019 ed. (Document ID 0136)--
This standard contains the minimum job performance requirements
including the requisite knowledge and skills to perform marine fire
fighting for land-based fire fighters.
NFPA 1006, Standard for Technical Rescue Personnel Professional
Qualifications, 2021 ed. (Document ID 0149)--This standard contains the
minimum job performance requirements including the requisite knowledge
and skills to perform technical rescue operations for twenty different
rescue scenarios for fire service and other emergency responders who
perform these operations.
NFPA 1021, Standard for Fire Officer Professional Qualifications,
2020 ed. (Document ID 0144)--This standard contains the minimum job
performance requirements including the requisite knowledge and skills
to perform fire officer duties through four progressive levels of
qualification.
NFPA 1081, Standard for Facility Fire Brigade Member Professional
Qualifications, 2018 ed. (Document ID 0134)--This standard contains the
minimum job performance requirements including the requisite knowledge
and skills to perform fire brigade operations from incipient facility
fire brigade member through fire brigade leader, and also fire brigade
training coordinator, and support member.
NFPA 1140, Standard for Wildland Fire Protection, 2022 ed.
(Document ID 0153)--This standard contains requirements for wildland
fire management as well as the job performance requirements including
the requisite knowledge and skills to perform wildland fire positions.
Included in the standard are requirements for fighting wildland/urban
interface fires.
NFPA 1407, Standard for Training Fire Service Rapid Intervention
Crews, 2020 ed. (Document ID 0143)--This standard contains requirements
for training fire service personnel to safely perform rapid
intervention operations to rescue firefighters who become lost,
injured, trapped, incapacitated, or disoriented at an emergency scene
or during training operations.
NFPA 1582, Standard on Comprehensive Occupational Medical Program
for Fire Departments, 2022 ed. (Document ID 0118)--This standard
contains provisions for an occupational medical program that is
designed to reduce risks and provide for the health, safety, and
effectiveness of fire fighters while performing emergency operations.
NFPA 1910, Standard for the Inspection, Maintenance, Refurbishment,
Testing, and Retirement of In-Service Emergency Vehicles and Marine
Firefighting Vessels, 2024 ed. (Document ID 0151)--This standard
contains requirements for establishing an inspection, maintenance,
refurbishment, retirement, and testing program for emergency service
vehicles and marine firefighting vessels and provides the minimum job
performance requirements including the requisite knowledge and skills
for emergency vehicle technicians.
NFPA 1951, Standard on Protective Ensembles for Technical Rescue
Incidents, 2020 ed. (Document ID 0347)--This standard specifies the
minimum design, performance, testing, and certification requirements
for utility technical rescue, rescue and recovery technical rescue, and
chemical, biological, radiological, and nuclear (CBRN) technical rescue
protective ensembles including garments, helmets, gloves, footwear,
interface, and eye and face protection.
NFPA 1952, Standard on Surface Water Operations Protective Clothing
and Equipment, 2021 ed. (Document ID 0348)--This standard specifies the
minimum design, performance, testing, and certification requirements
for protective clothing and equipment items, including full body suits,
helmets, gloves, footwear, and personal flotation devices designed to
provide limited protection from physical, environmental, thermal, and
certain common chemical and biological hazards for emergency services
personnel during surface water, swift water, tidal water, surf, and ice
operations.
NFPA 1953, Standard on Protective Ensembles for Contaminated Water
Diving, 2021 ed. (Document ID 0349)--This standard specifies the
minimum design, performance, testing, and certification requirements
for protective clothing and protective equipment used during operations
in contaminated water dive operations.
NFPA 1971, Standard on Protective Ensembles for Structural Fire
Fighting and Proximity Fire Fighting, 2018 ed. (Document ID 0350)--This
standard specifies the minimum design, performance, testing, and
certification requirements for structural and proximity firefighting
protective ensembles and ensemble elements.
NFPA 1977, Standard on Protective Clothing and Equipment for
Wildland Fire Fighting and Urban Interface Fire Fighting, 2022 ed.
(Document ID 0351)--This standard specifies the minimum design,
performance, testing, and certification requirements for items of
wildland fire fighting and wildland-urban interface firefighting
protective clothing and equipment including protective garments,
helmets, gloves, footwear, goggles, chain saw protectors, and load-
carrying equipment.
NFPA 1981, Standard on Open-Circuit Self-Contained Breathing
Apparatus (SCBA) for Emergency Services, 2019 ed. (Document ID 0139)--
This standard contains requirements for the design, performance,
testing, and certification of new SCBA used by emergency service
personnel.
NFPA 1982, Standard on Personal Alert Safety Systems (PASS), 2018
ed. (Document ID 0352)--This standard specifies the minimum
requirements for the design, performance, testing, and certification
for all personal alert safety systems (PASS) for emergency services
personnel.
NFPA 1984, Standards on Respirators for Wildland Fire-Fighting
Operations and Wildland Urban Interface Operations, 2022 ed. (Document
ID
[[Page 7794]]
0353)--This standard specifies the minimum design, performance,
testing, and certification requirements for respirators to provide
protection from inhalation hazards for personnel conducting wildland
firefighting operations for use in non-immediately dangerous to life or
health (IDLH) wildland environments during wildland firefighting
operations and/or wildland urban interface operations.
NFPA 1986, Standard on Respiratory Protection Equipment for
Tactical and Technical Operations, 2023 ed. (Document ID 0354)--This
standard specifies the minimum requirements for the design,
performance, testing, and certification of new compressed breathing air
open-circuit SCBA and compressed breathing air combination open-circuit
SCBA and supplied air respirators and replacement parts, components,
and accessories for the respirators for use by emergency services
personnel in non-firefighting operations where the atmosphere is
categorized as IDLH.
NFPA 1987, Standard on Combination Unit Respirator Systems for
Tactical and Technical Operations, 2023 ed. (Document ID 0355)--This
standard specifies the minimum requirements for the design,
performance, testing, and certification of new combination unit
respirator systems and for the replacement parts, components, and
accessories for such respirators for emergency services personnel in
non-firefighting operations and in atmospheres that are categorized as
entry into and escape from IDLH atmospheres in open-circuit SCBA mode
and entry into non-IDLH and escape from IDLH and non-IDLH atmospheres
when in air-purifying respirator (APR) mode or powered air-purifying
respirator (PAPR) mode.
NFPA 1990, Standard for Protective Ensembles for Hazardous
Materials and CBRN Operations, 2022 ed. (Document ID 0356)--This
standard specifies the minimum design, performance, testing,
documentation, and certification requirements for new ensembles and new
ensemble elements that are used by emergency responders during
hazardous materials emergencies and CBRN (chemical, biological,
radiological and nuclear) terrorism incidents.
NFPA 1999, Standard on Protective Clothing and Ensembles for
Emergency Medical Operations, 2018 ed. (Document ID 0357)--This
standard specifies the minimum design, performance, testing,
documentation, and certification requirements for new single-use and
new multiple-use emergency medical operations protective clothing
including garments, helmets, gloves, footwear, and face protection
devices used by emergency medical responders prior to arrival at
medical care facilities and used by medical first receivers at medical
care facilities during emergency medical operations. The standard also
applies to health care workers providing medical and supportive care;
however these workers are not covered by the proposed rule.
ANSI/ISEA 207, American National Standard for High-Visibility
Public Safety Vests, 2011 ed. (Document ID 0358)--This standard
specifies performance requirements for high-visibility vests for use by
public safety workers which are intended to provide conspicuity of the
user in hazardous situations under any light conditions by day and
under illumination by vehicle headlights in the dark. Performance
requirements are included for color, retroreflection, and minimum
areas, as well as the suggested configuration of highly visible
materials used in the construction of high-visibility public safety
vests. Test methods are provided in the standard to ensure that a
minimum level of visibility is maintained when items are subjected to
ongoing care procedures.
The following NFPA standards, although not being formally
incorporated into the proposed standard, were extensively examined and
many of the provisions in the proposed rule are based on or are
consistent with provisions in them:
NFPA 10, Standard for Portable Fire Extinguishers, 2022 ed.
(Document ID 0345)--This standard contains requirements for the
selection, installation, inspection, maintenance, recharging, and
testing of portable fire extinguishers and Class D extinguishing
agents.
NFPA 600, Standard on Facility Fire Brigades, 2020 ed. (Document ID
0133)--This standard contains requirements for organizing, operating,
training, and equipping facility fire brigades for response to fires in
industrial, commercial, institutional, and similar properties; and for
the occupational safety and health of brigade members while performing
their duties.
NFPA 1201, Standard for Providing Fire and Emergency Services to
the Public, 2020 ed. (Document ID 0141)--This standard contains
requirements on the structure and operations of fire emergency service
organizations that provide a wide range of services to the community.
The standard serves as guidance for organizations that provide services
to protect lives, property, infrastructure, and the environment from
the effects of hazards.
NFPA 1451, Standard for a Fire and Emergency Service Vehicle
Operations Training Program, 2018 ed. (Document ID 0137)--This standard
contains the requirements for a fire and emergency service vehicle
operations training program including the knowledge and skills required
of safety, training, maintenance, and administrative officers assigned
to develop and implement the program.
NFPA 1500, Standard on Fire Department Occupational Safety, Health,
and Wellness Program, 2021 ed. (Document ID 0135)--This standard
contains requirements for occupational safety, health, and wellness
programs for fire departments.
NFPA 1521, Standard for Fire Department Safety Officer Professional
Qualifications, 2020 ed. (Document ID 0147)--This standard contains job
performance requirements for the assignment of a health and safety
officer and an incident safety officer for a fire department to ensure
responders holding these positions are qualified for the jobs.
NFPA 1561, Standard on Emergency Services Incident Management
System and Command Safety, 2020 ed. (Document ID 0145)--This standard
contains requirements for the development and implementation of an
incident management system that is intended to be used by emergency
services and apply to operations conducted at the scene of all types of
emergency incidents. The standard is intended to integrate with systems
that apply to multiple agencies and large-scale incidents.
NFPA 1581, Standard on Fire Department Infection Control Program,
2022 ed. (Document ID 0148)--This standard contains requirements for a
fire department infection control program that includes infection
control in the fire station, in fire apparatus, at incident scenes, and
any other routine or emergency operations.
NFPA 1660, Standard for Emergency, Continuity, and Crisis
Management: Preparedness, Response, and Recovery, 2024 ed. (Document ID
0359)--This standard establishes a common set of criteria for emergency
management and business continuity programs; mass evacuations,
sheltering, and re-entry programs; and development of pre-incident
plans for personnel responding to emergencies.
NFPA 1700, Guide for Structural Fire Fighting, 2021 ed. (Document
ID 0150)--This guide addresses research in fire dynamics that have led
to alterations in fire behavior models that
[[Page 7795]]
have been taught in the fire service for decades and that support
changes needed in structural fire-fighting strategy, tactics, and
tasks.
NFPA 1710, Standard for the Organization and Deployment of Fire
Suppression Operations, Emergency Medical Operations, and Special
Operations to the Public by Career Fire Departments, 2020 ed. (Document
ID 0146)--This standard contains requirements for the organization and
deployment of fire suppression operations, emergency medical
operations, and special operations to the served community by career
fire departments. The standard also contains system requirements for
health and safety, incident management, training, communications, and
pre-incident planning.
NFPA 1720, Standard for the Organization and Deployment of Fire
Suppression Operations, Emergency Medical Operations, and Special
Operations to the Public by Volunteer Fire Departments, 2020 ed.
(Document ID 0142)--This standard contains requirements for the
organization and deployment of fire suppression operations, emergency
medical operations, and special operations to the served community by
volunteer and combination fire departments. The standard also contains
system requirements for health and safety, incident management,
training, communications, and pre-incident planning.
NFPA 1851, Standard on Selection, Care, and Maintenance of
Protective Ensembles for Structural Fire Fighting and Proximity Fire
Fighting, 2020 ed. (Document ID 0346)--This standard contains
requirements for the selection, care, and maintenance structural and
proximity fire fighter protective ensembles and the individual ensemble
elements that include garments, helmets, gloves, footwear, and
interface components.
NFPA 2500, Standard for Operations and Training for Technical
Search and Rescue Incidents and Life Safety Rope and Equipment for
Emergency Services, 2022 ed. (Document ID 0152)--This standard contains
requirements for conducting operations at a wide range of technical
search and rescue incidents; for the design, performance, testing, and
certification of life safety rope and other search and rescue
equipment; and for the selection, care, and maintenance of rope and
search and rescue equipment for emergency services.
As noted in the SBAR Panel Report, during the teleconferences and
in written public comments several SERs expressed concern with the
potential expense of time and money in having to comply with the
provisions in NFPA standards (Document ID 0115, pp. 16-17/370; 18/370;
21/370; 33/370; 57-58/370). In Question II. C, OSHA is seeking input on
the potential impacts of incorporating by reference of various NFPA
standards, and how equivalency or consistency could be achieved if the
NFPA standards were not incorporated by reference. NFPA makes their
standards available to be viewed without cost at <a href="https://www.nfpa.org/Codes-and-Standards/All-Codes-and-Standards/Free-access">https://www.nfpa.org/Codes-and-Standards/All-Codes-and-Standards/Free-access</a> or for purchase
at <a href="https://catalog.nfpa.org/Codes-and-Standards-C3322.aspx">https://catalog.nfpa.org/Codes-and-Standards-C3322.aspx</a>.
The agency is aware that the NFPA is currently in the process of
combining many of their standards into larger consolidated standards
(see <a href="https://www.nfpa.org/Codes-and-Standards/Resources/Standards-in-action/Emergency-Response-and-Responder-Safety-Project">https://www.nfpa.org/Codes-and-Standards/Resources/Standards-in-action/Emergency-Response-and-Responder-Safety-Project</a>). OSHA will
review the consolidated standards during development of a potential
final rule. The referenced standards that will be affected by the
consolidation project are the following:
NFPA 1001, NFPA 1002, NFPA 1003, and NFPA 1005 will become NFPA
1010, Standard for Firefighter, Fire Apparatus Driver/Operator, Airport
Firefighter, and Marine Firefighting for Land-Based Firefighters
Professional Qualifications, scheduled for 2024.
NFPA 1021 and other standards will become NFPA 1020, Standard for
Fire Officer and Emergency Services Instructor Professional
Qualifications, scheduled for 2025.
NFPA 1407, NFPA 1451 and other standards will become NFPA 1400,
Standard on Fire Service Training, scheduled for 2026.
NFPA 1581, NFPA 1582 and other standards will become NFPA 1580,
Standard for Emergency Responder Occupational Health and Wellness,
scheduled for 2025.
NFPA 1201, NFPA 1710, NFPA 1720, and other standards will become
NFPA 1750, Standard for the Organization and Deployment of Fire
Suppression Operations, Emergency Medical Operations, and Providing
Fire and Emergency Services to the Public, scheduled for 2026.
NFPA 1981, NFPA 1982 and other standards will become NFPA 1970,
Standard on Protective Ensembles for Structural and Proximity
Firefighting, Work Apparel and Open-Circuit Self-Contained Breathing
Apparatus (SCBA) for Emergency Services, and Personal Alert Safety
Systems (PASS), scheduled for 2024.
NFPA 1951, NFPA 1977, and NFPA 1999 will become NFPA 1950, Standard
on Protective Clothing, Ensembles, and Equipment for Technical Rescue
Incidents, Emergency Medical Operations, and Wildland Firefighting, and
Urban Interface Firefighting, scheduled for 2025.
NFPA 1952 and NFPA 1953 will become NFPA 1955, Standard on Surface
Water Operations Protective Clothing and Equipment and Protective
Ensembles for Contaminated Water Diving, scheduled for 2025.
NFPA 1984 and NFPA 1989 will become NFPA 1985, Standard on
Breathing Air Quality for Emergency Services Respiratory Protection and
Respirators for Wildland Firefighting and Wildland Urban Interface
Operations, scheduled for 2026.
III. Pertinent Legal Authority
A. Introduction
The purpose of the Occupational Safety and Health Act, 29 U.S.C.
651 et seq. (``the Act'' or ``the OSH Act''), is ``to assure so far as
possible every working man and woman in the Nation safe and healthful
working conditions and to preserve our human resources'' (29 U.S.C.
651(b)). To achieve this goal, Congress authorized the Secretary of
Labor (``the Secretary'') ``to set mandatory occupational safety and
health standards applicable to businesses affecting interstate
commerce'' (29 U.S.C. 651(b)(3); see also 29 U.S.C. 654(a) (requiring
employers to comply with OSHA standards)). Section 6(b) of the Act
authorizes the promulgation, modification or revocation of occupational
safety or health standards pursuant to detailed notice and comment
procedures (29 U.S.C. 655(b)).
B. Coverage
I. Volunteers
The OSH Act requires ``[e]ach employer'' to ``comply with
occupational safety and health standards promulgated under this Act''
(29 U.S.C. 654(a)(2)). The term ``employer'' is defined as ``a person
engaged in a business affecting commerce who has employees, but does
not include the United States (not including the United States Postal
Service) or any State or political subdivision of a State'' (29 U.S.C.
652(5) (emphasis added)). This proposed standard would cover some
emergency service organizations (ESOs) whose responders may be referred
to as volunteers rather than employees. However, whether an emergency
response worker is an employee, and
[[Page 7796]]
therefore whether the standard would apply to that worker's ESO, does
not depend on the label assigned by the ESO. The following discussion
lays out the relevant legal principles governing employment status
under the OSH Act. For a more detailed discussion of how OSHA expects
these principles to apply in the context of this proposed standard, see
the Summary and Explanation for paragraph (a), Scope, under the heading
Coverage for Volunteers.
The Act defines an ``employee'' as ``an employee of an employer who
is employed in a business of his employer which affects commerce'' (29
U.S.C. 652(6)). Because this definition is circular, courts apply the
test for employee status enunciated in Nationwide Mut. Ins. Co. v.
Darden, 503 U.S. 318, 322-23 (1992) (see Quinlan v. Secretary, U.S.
Dep't of Labor, 812 F.3d 832, 836 (11th Cir. 2016); Slingluff v.
Occupational Safety and Health Review Comm'n, 425 F.3d 861, 867-68
(10th Cir. 2005)). In Darden the Supreme Court set forth the following
test for employee status: ``In determining whether a hired party is an
employee under the general common law of agency, we consider the hiring
party's right to control the manner and means by which the product is
accomplished'' (Id. at 323) (internal quotation marks omitted). The
Court went on to list a number of factors which relate to the right to
control (Id.).
The Darden Court's use of the phrase ``hired party'' indicates that
an essential prerequisite for employee status is that the worker
receive some form of compensation for services performed (see also
N.L.R.B. v. Town & Country Elec., Inc., 516 U.S. 85, 90 (1995) (``The
ordinary dictionary definition of `employee' includes any `person who
works for another in return for financial or other compensation.'
American Heritage Dictionary 604 (3d ed. 1992).'') (emphasis added).
Accordingly, seven Federal courts of appeals have adopted the so-called
threshold remuneration test (Acosta v. Cathedral Buffet, Inc., 887 F.3d
761, 766-67 (6th Cir. 2018); Juino v. Livingston Parish Fire Dist. No.
5, 717 F.3d 431, 435-40 (5th Cir. 2013); Pietras v. Bd. of Fire Comm'rs
of Farmingville Fire Dist., 180 F.3d 468 (2d Cir. 1999) (firefighter
regarded as employee despite being called a volunteer because of
benefits received); McGuinness v. Univ. of N.M. Sch. of Med., 170 F.3d
974, 979 (10th Cir. 1998); Llampallas v. Mini-Circuits Lab, Inc., 163
F.3d 1236, 1243-44 (11th Cir. 1998); Haavistola v. Cmty. Fire Co. of
Rising Sun, Inc., 6 F.3d 211, 220-21 (4th Cir. 1993); Graves v. Women's
Prof'l Rodeo Ass'n, Inc., 907 F.2d 71, 73 (8th Cir. 1990)). Only one
Federal court of appeals does not require a showing of compensation to
find employee status (Fichman v. Media Center, 512 F.3d 1157, 110 (9th
Cir. 2008)).
Remuneration may be direct remuneration, i.e., salary or wages, or
significant indirect benefits that are not incidental to the service
performed, i.e., job-related benefits (Juino, 717 F.3d at 437; Pietras,
180 F.3d at 473; Haavistola, 6 F.3d at 221-22). For example,
significant indirect benefits may consist of a retirement pension, life
insurance, death benefits, disability insurance, and some medical
benefits (Pietras, 180 F.3d at 471). Similarly, the provision of food,
clothing, shelter, and other in-kind benefits may be significant
remuneration (see Tony and Susan Alamo Foundation v. Secretary of
Labor, 471 U.S. 290, 292, 299-303 (interpreting ``employee'' under the
Fair Labor Standards Act); but see Fichman, 512 F.3d at 1160 (travel
reimbursements and food at board meetings insufficient to render board
member of nonprofit organization an employee under related test for
determining employee status of directors)). Minor incidental benefits
do not suffice to meet the threshold remuneration test (see Juino, 717
F.3d at 339-440 (receipt of $78 for 39 service calls, life insurance,
uniform, badge, and emergency/first responders training do not
suffice)).
In addition to these principles, volunteer emergency responders may
be deemed employees under State law in States with occupational safety
and health plans approved by OSHA under section 18 of the Act (29
U.S.C. 667). See the Summary and Explanation of paragraph (a), Scope,
for further discussion on this issue.
II. Private-Sector Coverage
With the exception of the United States Postal Service,
occupational safety and health standards issued under section 6 of the
OSH Act apply only to private-sector employers.\3\ They do not apply to
any ``State or a political subdivision of a State'' \4\ (29 U.S.C.
652(5)). Accordingly, this proposed standard would not apply to any
State or local government entities determined to be a political
subdivision of a State. Note, however, that States with OSHA-approved
State Plans pursuant to section 18 of the OSH Act, 29 U.S.C. 667, would
be required to treat public-sector employees the same as they do
private-sector employees when adopting and enforcing a standard at
least as effective as any final standard which may result from this
rulemaking. This issue is discussed separately in section VIII.G,
Requirements for States with OSHA Approved State Plans.
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\3\ Pursuant to section 19 of the OSH Act (29 U.S.C. 668) and
Executive Order 12196, Federal agency occupational safety and health
programs are established by each agency head and must be consistent
with the standards promulgated under section 6 of the Act.
Accordingly, Federal agencies must comply with all applicable
section 6 standards unless an alternative standard is approved by
the Secretary (see 29 CFR 1960.16 and 1960.17).
\4\ Under the Act the term ``State'' includes a State of the
United States, the District of Columbia, Puerto Rico, the Virgin
Islands, American Samoa, and Guam (29 U.S.C. 652(7)). The
Commonwealth of the Northern Mariana Islands is also a State because
the covenant establishing the Commonwealth provides that generally
applicable Federal laws which apply to Guam also apply to the
Commonwealth as they do to Guam. Article V, section 502(a), Covenant
to Establish a Commonwealth of the Northern Mariana Islands in
Political Union with the United States of America. Public Law 94-24,
90 Stat. 263 (Mar. 24, 1976). Thus, because Guam is a State under
the OSH Act so is the Commonwealth.
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Under OSHA's regulations, an entity is a ``State or political
subdivision of a State'' if (1) it has been ``created directly by the
State, so as to constitute a department or administrative arm of the
government,'' or (2) it is ``administered by individuals who are
controlled by public officials and responsible to such officials or to
the general electorate'' (29 CFR 1975.5(b); cf. N.L.R.B. v. Natural Gas
Util. Dist. of Hawkins County, Tenn., 402 U.S. 600 (1971)). Any such
entity shall be deemed outside the Act's definition of employer, and,
consequently, not subject to the Act as an employer (29 CFR 1975.5(b)).
Paragraph (c) of 29 CFR 1975.5 lists a number of factors used to
determine whether one or both of these tests has been met. One
important factor under the second test is whether the individuals who
administer the entity are appointed by a public official or elected by
the general electorate. Other issues relate to the terms and conditions
of the appointment, to the identity of the person who may dismiss such
individuals, and to the procedures for dismissal. For example, in
StarTran, Inc. v. Occupational Safety and Health Review Comm'n, 608
F.3d 312 (5th Cir. 2010), the court held that a nonprofit corporation
established by a transit district to supply bus drivers and mechanics
was a political subdivision under the second test because all the
members of StarTran's board were appointed and subject to removal by
the transit district. In contrast, in Brock v. Chicago Zoological
Society, 820 F.2d 909 (7th Cir. 1987), only one member of the Society's
thirty-five member board of trustees was a public official; the other
board members were chosen by 240 governing members, only four of whom
were public officials. Thus, the
[[Page 7797]]
court found that the Society was not a political subdivision within the
meaning of the OSH Act, despite its contract with a local forest
preserve district, a governmental entity. Similarly, in Tricil
Resources v. Brock, 842 F.2d 141 (6th Cir. 1988), a private for-profit
corporation which had a contract with a city and none of whose board
members were appointed or subject to removal by the city was not a
political subdivision within the meaning of the Act. Thus, as a general
rule, if a majority of the board of directors of an entity are not
subject to selection or removal by public officials or the general
electorate, the entity for that reason fails the second test for being
a political subdivision (see StarTran, 608 F.3d at 323). OSHA will
consider these factors in determining whether the proposed standard
applies to a particular entity.
C. General Requirements for Occupational Safety and Health Standards
A safety or health standard is a standard which requires
conditions, or the adoption or use of one or more practices, means,
methods, operations, or processes ``reasonably necessary or
appropriate'' to provide safe or healthful employment and places of
employment (29 U.S.C. 652(8)). A standard is reasonably necessary or
appropriate within the meaning of section 652(8) when a significant
risk of material harm exists in the workplace and the standard would
substantially reduce or eliminate that workplace risk (see Indus. Union
Dep't, AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607 (1980)
(``Benzene'')).
The Supreme Court in Benzene clarified that ``[i]t is the agency's
responsibility to determine, in the first instance, what it considers
to be a `significant' risk'' (Benzene, 448 U.S. at 655). The Court
declined to ``express any opinion on the . . . difficult question of
what factual determinations would warrant a conclusion that significant
risks are present which make promulgation of a new standard reasonably
necessary or appropriate'' (Id. at 659). The Court stated, however,
that the substantial evidence standard applicable to OSHA's significant
risk determination (see 29 U.S.C. 655(b)(f)) does not require the
agency ``to support its finding that a significant risk exists with
anything approaching scientific certainty'' (Benzene, 448 U.S. at 656).
Rather, OSHA may rely on ``a body of reputable scientific thought'' to
which ``conservative assumptions in interpreting the data'' may be
applied, ``risking error on the side of overprotection'' (Id.). The
D.C. Circuit has further explained that OSHA may thus act with a
pronounced bias towards worker safety in making its risk determinations
(Bldg & Constr. Trades Dep't v. Brock, 838 F.2d 1258, 1266 (D.C. Cir.
1988) (``Asbestos II'')).
The Supreme Court further recognized that the determination of what
constitutes ``significant risk'' is ``not a mathematical straitjacket''
and will be ``based largely on policy considerations'' (Benzene, 448
U.S. at 655 & n.62). The Court gave the following example: ``If . . .
the odds are one in a billion that a person will die from cancer by
taking a drink of chlorinated water, the risk clearly could not be
considered significant. On the other hand, if the odds are one in a
thousand that regular inhalation of gasoline vapors that are 2% benzene
will be fatal, a reasonable person might well consider the risk
significant[.]'' (Id. at 655).
In addition to the requirement that each standard address a
significant risk, standards must also be technologically feasible (see
UAW v. OSHA, 37 F.3d 665, 668 (D.C. Cir. 1994)). A standard is
technologically feasible when the protective measures it requires
already exist, when available technology can bring the protective
measures into existence, or when that technology is reasonably likely
to develop (see Am. Iron and Steel Inst. v. OSHA, 939 F.2d 975, 980
(D.C. Cir. 1991)).
Finally, a standard must be economically feasible (see Forging
Indus. Ass'n v. Secretary of Labor, 773 F.2d 1436, 1453 (4th Cir.
1985)). A standard is economically feasible if industry can absorb or
pass on the costs of compliance without threatening its long-term
profitability or competitive structure (see American Textile Mfrs.
Inst., Inc., 452 U.S. 490, 530 n. 55 (``Cotton Dust'')). Each of these
requirements is discussed further below.
D. Special Considerations for Health Standards
The proposed standard deals in part with the exposure of
firefighters, emergency medical service providers, and technical
rescuers to toxic substances. Section 6(b)(5) of the Act provides that
in promulgating standards dealing with ``toxic materials or harmful
physical agents,'' the Secretary ``shall set the standard which most
adequately assures, to the extent feasible, on the basis of the best
available evidence, that no employee will suffer material impairment of
health or functional capacity even if such employee has regular
exposure to the hazard dealt with by such standard for the period of
his working life'' (29 U.S.C. 655(b)(5)). Thus, ``[w]hen Congress
passed the [OSH] Act in 1970, it chose to place pre-eminent value on
assuring employees a safe and healthful working environment, limited
only by the feasibility of achieving such an environment'' (Cotton
Dust, 452 U.S. at 541). ``OSHA is not required to state with scientific
certainty or precision the exact point at which each type of [harm]
becomes a material impairment'' (AFL-CIO v. OSHA, 965 F.2d 962, 975
(11th Cir. 1992)). Courts have also noted that OSHA should consider all
forms and degrees of material impairment--not just death or serious
physical harm (AFL-CIO, 965 F.2d at 975).
In acting to protect workers from health hazards the Secretary is
authorized to require employers to offer medical examinations. Section
6(b)(7) of the Act provides that ``where appropriate, any such standard
shall prescribe the type and frequency of medical examinations or other
tests which shall be made available, by the employer or at his cost, to
employees exposed to such hazards in order to most effectively
determine whether the health of such employees is adversely affected by
such exposure'' (29 U.S.C. 655(b)(7)).
E. Significant Risk
As explained above, OSHA's workplace safety and health standards
must address a significant risk of material harm that exists in the
workplace (see Indus. Union Dep't, AFL-CIO v. Am. Petroleum Inst., 448
U.S. 607 (1980) (``Benzene'')). The agency's risk assessments are based
on the best available evidence, and its final conclusions are made only
after considering all information in the rulemaking record. Reviewing
courts have upheld the Secretary's significant risk determinations
where supported by substantial evidence and ``a reasoned explanation
for his policy assumptions and conclusions'' (Asbestos II, 838 F.2d at
1266).
Once OSHA makes its significant risk finding, the standard it
promulgates must be ``reasonably necessary or appropriate'' to reduce
or eliminate that risk. In choosing among regulatory alternatives,
however, ``[t]he determination that [one standard] is appropriate, as
opposed to a marginally [more or less protective] standard, is a
technical decision entrusted to the expertise of the agency'' (Nat'l
Mining Ass'n v. Mine Safety and Health Admin., 116 F.3d 520, 528 (D.C.
Cir. 1997) (analyzing a Mine Safety and Health Administration standard
under the Benzene significant risk standard)). In making its choice,
OSHA may
[[Page 7798]]
incorporate a margin of safety even if it theoretically regulates below
the lower limit of significant risk (Nat'l Mining Ass'n, 116 F.3d at
528 (citing American Petroleum Inst. v. Costle, 665 F.2d 1176, 1186
(D.C. Cir. 1982))).
F. Best Available Evidence
Section 6(b)(5) of the Act requires OSHA to set standards ``on the
basis of the best available evidence'' and to consider the ``latest
available scientific data in the field'' (29 U.S.C. 655(b)(5)). As
noted above, the Supreme Court has explained that OSHA must look to ``a
body of reputable scientific thought'' in making its material harm and
significant risk determinations, while noting that a reviewing court
must ``give OSHA some leeway where its findings must be made on the
frontiers of scientific knowledge'' (Benzene, 448 U.S. at 656). In
upholding the vinyl chloride standard, the Second Circuit stated:
``[T]he ultimate facts here in dispute are `on the frontiers of
scientific knowledge,' and, though the factual finger points, it does
not conclude. Under the command of OSHA, it remains the duty of the
Secretary to act to protect the workingman, and to act even in
circumstances where existing methodology or research is deficient''
(Society of the Plastics Industry, Inc. v. OSHA, 509 F.2d 1301, 1308
(2d Cir. 1975) (quoting Indus. Union Dep't, AFL-CIO v. Hodgson, 499
F.2d 467, 474 (D.C. Cir. 1974) (``Asbestos I''))). Similarly, the D.C.
Circuit has stated that when there is disputed scientific evidence in
the record, OSHA must review the evidence on both sides and
``reasonably resolve'' the dispute (Pub. Citizen Health Research Grp.
v. Tyson, 796 F.2d 1479, 1500 (D.C. Cir. 1986)).
G. Feasibility
The statutory mandate to consider the feasibility of the standard
encompasses both technological and economic feasibility; these analyses
have been done primarily on an industry-by-industry basis (Lead I, 647
F.2d at 1264, 1301). The agency has also used application groups,
defined by common tasks, as the structure for its feasibility analyses
(Pub. Citizen Health Research Grp. v. OSHA, 557 F.3d 165, 177-79 (3d
Cir. 2009)). The Supreme Court has broadly defined feasible as
``capable of being done'' (Cotton Dust, 452 U.S. at 509-10).
I. Technological Feasibility
A standard is technologically feasible if the protective measures
it requires already exist, can be brought into existence with available
technology, or can be created with technology that can reasonably be
expected to be developed (Lead I, 647 F.2d at 1272; Amer. Iron & Steel
Inst. v. OSHA, 939 F.2d 975, 980 (D.C. Cir. 1991) (``Lead II'')).
Courts have also interpreted technological feasibility to mean that a
typical firm in each affected industry or application group will
reasonably be able to implement the requirements of the standard in
most operations most of the time (see Public Citizen v. OSHA, 557 F.3d
165, 170-71 (3d Cir. 2009); Lead I, 647 F.2d at 1272; Lead II, 939 F.2d
at 990)). OSHA's standards may be ``technology forcing,'' i.e., where
the agency gives an industry a reasonable amount of time to develop new
technologies, OSHA is not bound by the ``technological status quo''
(Lead I, 647 F.2d at 1264).
II. Economic Feasibility
In addition to technological feasibility, OSHA is required to
demonstrate that its standards are economically feasible. A reviewing
court will examine the cost of compliance with an OSHA standard ``in
relation to the financial health and profitability of the industry and
the likely effect of such costs on unit consumer prices'' (Lead I, 647
F.2d at 1265 (omitting citation)). As articulated by the D.C. Circuit
in Lead I, ``OSHA must construct a reasonable estimate of compliance
costs and demonstrate a reasonable likelihood that these costs will not
threaten the existence or competitive structure of an industry, even if
it does portend disaster for some marginal firms'' (647 F.2d at 1272).
A reasonable estimate entails assessing ``the likely range of costs and
the likely effects of those costs on the industry'' (Lead I, 647 F.2d
at 1266). OSHA standards satisfy the economic feasibility criterion
even if they impose significant costs on regulated industries so long
as they do not cause massive economic dislocations within a particular
industry or imperil the very existence of the industry (Lead II, 939
F.2d at 980; see also Lead I, 647 F.2d at 1272; Asbestos I, 499 F.2d.
at 478).
IV. Issues and Questions
OSHA is providing this issues and questions section to solicit
stakeholder input on various issues associated with the proposed rule.
While OSHA invites stakeholders to comment on all aspects of this
proposal, this section identifies specific areas of interest to the
agency. OSHA is including certain issues and questions in this section
to assist stakeholders as they review the proposal and consider the
comments they plan to submit. However, to fully understand the
questions, and to provide substantive input and feedback in response to
them, the agency suggests commenters review the other sections of the
preamble that address these issues in detail. Some issues and options
that have cost implications are discussed more thoroughly in the
Preliminary Economic Analysis and Initial Regulatory Flexibility
Analysis (Section VII.).
It should be noted that the proposed regulatory text provided at
the end of this document would completely replace the existing
regulatory text for 29 CFR 1910.156, Fire Brigades. Comments addressing
more than one section or paragraph should include all relevant
references. Submitting comments in an organized manner with clear
reference to the issue(s) raised will enable the agency and all
participants to better understand the issues the commenter addressed
and how they addressed them. Some commenters may confine their interest
(and comments) to the issues that specifically affect them;
correspondingly they will benefit from being able to quickly identify
comments on these issues in others' submissions. While the agency
welcomes relevant comments on any aspect of this proposal, OSHA is
interested in responses, supported by evidence and explanations, to the
following issues and questions, and to other issues and questions
raised in this document.
A. Scope
OSHA recognizes that many emergency responders, particularly
firefighters, emergency medical service providers, and technical search
and rescuers, are referred to as ``volunteers.'' The OSH Act applies to
employers, as defined in 29 U.S.C. 652(5), who have employees, 29
U.S.C. 652(6), and does not cover true volunteers. However, some
workers labeled as volunteers may actually be considered employees
under Federal law because they receive a certain level of compensation,
which may include the direct payment of money or other types of
remuneration (see Pertinent Legal Authority, section III of this
preamble). Therefore, any emergency responders who are referred to as
volunteers but receive ``significant remuneration'' within the meaning
of Federal law would be included within the scope of this proposed rule
as employees. OSHA believes that volunteer emergency responders rarely
receive compensation substantial enough to render them employees under
this ``significant remuneration'' legal test and thus OSHA does not
expect that many emergency responders will fall into this category.
Additionally, OSHA notes that this rulemaking will not in any way alter
the existing legal
[[Page 7799]]
requirements under Federal law on this issue. Accordingly, all
volunteer emergency responders who are currently excluded from coverage
under the OSH Act should expect that they will continue to be excluded
from the scope of this rulemaking.
B. State Plans
OSHA also recognizes that among the States with OSHA-approved State
Plans there is variability as to whether volunteer emergency responders
are classified as employees under state law. Regardless of state law,
should there be any ``volunteers'' who receive ``significant
remuneration'' such that they would be considered employees under
Federal law (see Section III. Pertinent Legal Authority, B. Coverage),
State Plans would be required to cover those employees as part of their
obligation to promulgate a standard that is ``at least as effective''
as the Federal standard. 29 U.S.C. 667(c)(2). As noted above, OSHA
believes this would be rare.
In addition, some States with OSHA-approved State Plans regard
volunteer firefighters and other volunteers as employees under State
law. See, e.g., A.R.S. 23-901(6)(d) (2021) (in Arizona, firefighters,
police, and other emergency management personnel who are volunteers are
deemed to be employees). Regardless of whether these volunteers are
considered employees under Federal law, such States must treat them as
it does other emergency response workers under its analogue to any
final standard resulting from this rulemaking. Cf. Letter from John A.
Pendergrass, Assistant Secretary of Labor for Occupational Safety and
Health, to Rep. Hamilton Fish, May 4, 1988 (if a State with an OSHA-
approved State Plan regards volunteer firefighters as employees, it
must apply its fire brigade standard to them) available at <a href="https://www.osha.gov/laws-regs/standardinterpretations/1988-05-04">https://www.osha.gov/laws-regs/standardinterpretations/1988-05-04</a>.
In States with OSHA-approved State Plans, each state determines
what types of volunteer emergency responders it covers, and to what
extent they are covered, based upon state definitions of who
constitutes an employee and whether or not volunteer organizations are
covered by state legislation. While the proposed rule does not directly
apply to volunteers because OSHA does not have regulatory authority
over volunteers, the agency is concerned with the potential
``downstream'' economic impact the proposed rule may have on
organizations with volunteer responders. OSHA encourages stakeholders
to engage with local and state officials about reducing potential
impacts of the proposed rule.
Additionally, the agency seeks input on what it could do in the
final rule to reduce undesirable impacts on volunteer organizations.
OSHA understands that negative financial impacts on volunteer emergency
response entities could have undesirable public safety implications.
When drafting this NPRM, OSHA considered the possibility of excluding
certain categories of emergency response organizations from certain
provisions of the proposed rule based on organization size, funding
source, and/or the number of emergencies responded to each year, but
was unable to determine any appropriate exclusions in light of the
agency's obligation to ameliorate significant risks to employees where
economically feasible. OSHA welcomes public comment on these issues.
C. Questions in the Summary and Explanation
Throughout the summary and explanation of this proposed rule, OSHA
has requested information or asked questions similar to those in this
section. For more information on these topics, refer to the Summary and
Explanation discussion for each respective topic.
(a)-1. OSHA is seeking information about how many private-sector
emergency response organizations in States without State Plans (Federal
OSHA States) have workers who are called volunteers but who receive
substantial benefits, such as a retirement pension, life and/or
disability insurance, death benefits, or medical benefits. How many
such workers do these organizations have and of what type(s) (fire,
EMS, technical rescue)?
(a)-2. OSHA is seeking information about which States with OSHA-
approved State Plans expressly cover volunteer emergency responders. In
those States, how many emergency response organizations have
volunteers? How many volunteers do they have and of what type(s) (fire,
EMS, technical rescue)?
(a)-3. OSHA is seeking information from States with OSHA-approved
State Plans that do not expressly cover volunteer emergency responders.
In those States, how many emergency response organizations have workers
who are called volunteers but receive substantial benefits, such as a
retirement pension, life and/or disability insurance, death benefits,
or medical benefits; and as such may be considered employees within the
meaning of Federal law? How many such workers do these organizations
have and of what type(s) (fire, EMS, technical rescue)? Additionally,
OSHA seeks similar input regarding inmate/incarcerated workers.
(a)-4. OSHA is seeking input regarding what types and levels of
search and rescue services and technical search and rescue services
should be included or excluded from the rule, and the extent to which
those inclusions or exclusions should be specifically listed.
(a)-5. OSHA is seeking input whether the agency should consider
developing a separate rule for protecting workers involved in the
clean-up of disaster sites, and associated recovery efforts? Why or why
not?
(a)-6. OSHA is seeking input on whether the agency should consider
excluding other activities besides those in 29 CFR 1910.120 (Hazardous
Waste Operations and Emergency Response (HAZWOPER)), 29 CFR 1910.146
(Permit-Required Confined Spaces in General Industry.
(b)-1. OSHA is seeking information and data from commenters on
whether WEREs have living areas for team members, and if so, whether
WEREs should be included in the definition for Living area.
(e)-1. OSHA is considering adding to both paragraphs (e)(1) and (2)
a requirement to permit employee representatives to be involved in the
development and implementation of an ERP, and to paragraph (e)(4) a
requirement to allow employee representatives to participate in
walkaround inspections, along with team members and responders, and is
seeking input from stakeholders on whether employee representative
involvement should be added to paragraph (e).
(f)-1. OSHA is seeking input on whether other activities or
subjects should be specifically included in the list of minimum
requirements for the risk management plan.
(f)-2. OSHA is proposing to have a performance-based infection
control program provision in the risk management plan. OSHA is seeking
comment on this approach including whether a final standard should
incorporate a particular consensus standard or other guidance, or
otherwise include specific requirements regarding infection control.
(g)-1. OSHA is seeking input and data on whether the proposed
rule's requirements for medical evaluations are an appropriate minimum
screening. Should the minimum screening include more or fewer elements,
and if so, what elements? Provide supporting documentation and data
that might establish the appropriate minimum
[[Page 7800]]
screening. OSHA is also seeking additional data and information on the
feasibility of the proposed medical evaluation and surveillance
requirements for WEREs and ESOs.
(g)-2. OSHA is seeking input on whether an action level of 15
exposures to combustion products within a year is too high, too low, or
an appropriate threshold. OSHA is also considering action levels of 5,
10, or 30 exposures a year as alternatives and is seeking public input
on what action level would be appropriate. Provide supporting
documentation and data that would help with identifying an appropriate
action level.
(g)-3. OSHA is seeking input on whether the additional medical
surveillance proposed in paragraph (g)(3) should be extended to include
WEREs and team members.
(g)-4. OSHA is seeking input and data on whether stakeholders
support the proposed fitness for duty requirements or whether the
requirements pose a burden on or raise concerns for team members,
responders, WEREs or ESOs. Commenters should provide explanation and
supporting information for their position.
(g)-5. OSHA is seeking input on whether the health and fitness
program in proposed paragraph (g)(6) should be extended to include
WEREs and team members.
(g)-6. OSHA is seeking input on whether every three years is an
appropriate length of time for fitness re-evaluation, and if not, what
period of time would be appropriate. The agency is seeking any
available data to support an alternative length of time between
evaluations.
(h)-1. OSHA is seeking stakeholder input and data regarding the
appropriate methods and interval(s) for skills checks, as it relates to
proposed paragraph (h)(3).
(i)-1. OSHA is seeking input regarding what WEREs are currently
doing for decontamination, disinfection, cleaning, and storage of PPE
and equipment, and whether OSHA should include any additional
requirements for these processes in a final standard.
(j)-1. OSHA is seeking input on whether the agency should consider
prohibiting the installation of fire poles in new ESO facilities.
(j)-2. OSHA is seeking input on whether ESO facilities with
sleeping facilities should be protected by automatic sprinkler systems,
as proposed in paragraph (j)(2)(ii).
(k)-1. OSHA is seeking input on whether the agency should specify
retirement age(s) for PPE.
(k)-2. OSHA is seeking input regarding whether and how WEREs and
ESOs currently provide separation and distinction of PPE and non-PPE
equipment that have not undergone gross decontamination.
(k)-3. OSHA is seeking information on whether there is evidence of
per- and polyfluoroalkyl substances (PFAS) in PPE causing health issues
for team members and responders.
(k)-4. OSHA is seeking input on whether the scheduled updates to
NFPA 1971 will address or alleviate stakeholder's concerns about PFAS
in PPE.
(l)-1. OSHA is seeking information on whether there are any other
situations or vehicles where OSHA should require, or exclude, the use
of seat belts and vehicle harnesses. If so, please explain.
(l)-2. OSHA is seeking input on how compliance with (l)(2)(iii)
would be achieved in situations where PPE must be donned enroute to an
incident. Would the team members or responders stop enroute or wait
until arrival at the scene?
(l)-3. OSHA is seeking input on whether it should also require that
patients be restrained during transport to prevent an unrestrained
patient from being thrown into a team member or responder in the event
of a vehicle collision or an evasive driving maneuver.
(o)-1. OSHA is seeking input about WERE and ESO current use of an
IMS, whether the NIMS and NRF were used as guidance for the IMS, and if
there are any concerns with being compatible with NIMS.
(o)-2. OSHA is seeking input on which aspects of an IMS are the
most effective and the least effective in protecting the safety and
health of team members and responders. Commenters should explain how
and why certain IMS components are or are not effective.
(p)-1. OSHA is seeking stakeholder input on current practices for
identifying and communicating the various control zone boundaries. What
marking methods are used? How are they communicated to team members and
responders? Do the marking methods help or hinder on-scene operations?
(q)-1. OSHA seeks input on whether the agency should include
requirements for Standard Operating Procedures (SOPs) regarding
protections against workplace violence for team members and responders,
and for any data or documentation to support or refute potential
requirements. OSHA notes that its regulatory agenda includes a separate
rulemaking addressing workplace violence against health care workers.
While OSHA has not published a proposed rule in that rulemaking, OSHA
welcomes comments on whether violence against emergency responders
should be addressed in a potential Emergency Response final rule in
addition to that Workplace Violence rulemaking, instead of in that
rulemaking, or primarily in that other rulemaking.
(r)-1. OSHA is considering adding a requirement to permit team
members, responders, and their representative to be involved in the
review and evaluation of the relevant plans as part of the Post-
Incident Analysis and would like stakeholder input on whether to add
this requirement.
D. Additional Issues
I. Aligned Organizations
The scope of the proposed rule focuses on employers whose employees
respond to emergency incidents to mitigate the incidents. OSHA believes
that some employees of aligned employers face similar hazards to those
who mitigate incidents. For instance, while some jurisdictions have
their own fire investigators as part of the fire department, many more
depend on State Fire Marshal's office employees to respond to incident
scenes to conduct fire investigations. However, these agencies may not
provide a firefighting service. Similarly, many jurisdictions have
instructors and training facilities directly within the emergency
service organization. However, many more depend on other organizations
for training such private entities or State-run training centers that
do not perform incident mitigation. Nonetheless, these employees face
similar hazards while providing training such as exposure to combustion
products, and technical rescue scenarios such as confined spaces,
trenches, high angle rope rescue, and swift water. OSHA seeks input and
supporting arguments on whether these types of aligned employers should
be included within the scope of this rulemaking.
II. Portable Fire Extinguishers
OSHA's current standard, 29 CFR 1910.157, Portable Fire
Extinguishers, is based on the 1978 edition of NFPA 10, Standard for
Portable Fire Extinguisher, and was last updated more than 20 years
ago. OSHA's current standard does not include Class K extinguishers or
wet chemical agents. Because Class K extinguishers are provided by
employers, and the proposed rule would require employers to provide
training for team members and responders on all portable fire
extinguishers in the
[[Page 7801]]
workplace, OSHA is proposing to update the standard to include Class K
portable extinguishers and wet chemical agents. OSHA is seeking
stakeholder input and data regarding whether the agency should consider
updating the standard to improve consistency with a version of the
national consensus standard, NFPA 10, Standard for Portable Fire
Extinguishers, that is current when the final rule is being developed.
III. Heat
OSHA is in the preliminary stages of developing a proposed rule for
Heat Illness Prevention in Outdoor and Indoor Work Settings (for
additional information, see <a href="https://www.osha.gov/heat-exposure/rulemaking">https://www.osha.gov/heat-exposure/rulemaking</a>). OSHA recognizes that emergency response workers must
perform their duties regardless of the outdoor environmental
conditions. However, some activities, such as exercising for physical
fitness and vocational training could be modified based on external
temperatures. OSHA is seeking stakeholder input and supporting
documentation on whether it should include requirements for operating
in external environments with elevated temperature in situations that
are not emergency incidents.
IV. Consensus Standards
OSHA is seeking input on the potential impacts of incorporating by
reference of various NFPA standards, and how equivalency or consistency
could be achieved if the NFPA standards were not incorporated by
reference.
OSHA recognizes that organizations such as the National Wildfire
Coordinating Group (NCWG) develop standards applicable to their member
organizations, and other organizations who perform wildland
firefighting services. OSHA seeks input on whether standards such as
those developed by NWCG should be considered equivalent to various
provisions in the proposed rule; particularly those related to policies
and procedures, personal protective equipment, and medical evaluation
and surveillance requirements. Are there standards for other
``specialty or non-structural'' types of firefighting that OSHA should
consider? Commenters should provide supporting data, documents, and
side-by-side comparison.
V. Timeline for Compliance
OSHA expects that some stakeholders may have concerns about the
timeline for compliance when the final rule is published. Unless the
agency delays compliance, compliance obligations begin on the effective
date of a final rule: 60 days after publication of the final rule.
However, OSHA often allows regulated parties additional time to come
into compliance with certain provisions of a standard that would
require additional resources. Many of the provisions in the proposed
rule are based on or consistent with current NFPA standards, which are
considered to be the industry best practices for emergency services. As
such, OSHA believes that most WEREs and ESOs that already meet the NFPA
standards are likely to be close to complying with, or already
compliant with, many provisions of the proposed rule.
OSHA recognizes that some provisions can be implemented quickly,
while others might take more time to phase in. So, the agency is
proposing the following timelines for compliance with the specified
paragraphs (the time period indicates the number of months past the
rule's effective date when compliance would be required):
--(c) and (d)--6 months
--(e)--2 months
--(f)--6 months
--(g)(1), (4)--6 months
--(g)(2), (3), (5), (6)--12 months
--(h)(1)--12 months
--(h)(2) (3)--24 months
--(i) and (j)--24 months
--(k)(1)--12 months
--(k)(2)(i), (vii) through (x), (k)(3)--6 months
--(k)(2)(ii) through (vi)--24 months
--(l) through (q), and (s)--12 months
--(r)--6 months
OSHA is open to considering alternative compliance dates for the
proposed standard and seeks input on what reasonable implementation
periods would be for specific provisions and why. The agency is also
interested if extended compliance timelines would be particularly
helpful to small and/or volunteer organizations as a way of mitigating
the impact of the rulemaking.
V. Summary and Explanation of the Proposed Rule
The following discussion, which tracks the proposed rule paragraph
by paragraph, summarizes the proposed rule's requirements and explains
how and why OSHA determined what those requirements would be. This
section covers the comments received in response to the 2007 RFI,
public input from the stakeholder meetings held in 2014, comments from
the NACOSH subcommittee members, small entity representative comments
as part of the 2021 SBREFA process, and research conducted by OSHA.
References in parentheses are to exhibits in the rulemaking record, as
noted in the Docket paragraph above in Addresses. These references are
not meant to be exhaustive but are examples of sources that are
relevant to the statements made in the preamble discussion.
As noted in section II., Background, earlier in this preamble,
section 6(b)(8) of the OSH Act requires OSHA to adopt existing
consensus standards or explain why a rule which deviates substantially
from a pertinent national consensus standard better effectuates the
purposes of the Act. In most cases the proposed standard is aligned
with the language of a national consensus standard, and the Summary and
Explanation so indicates. While OSHA intends to incorporate by
reference some portions of several different consensus standards, it
has preliminarily determined that in some cases deviating from
pertinent consensus standards will better effectuate the purposes of
the Act.
In the RFI, OSHA solicited input regarding the types of emergency
response activities, emergency responders (called team members and
responders in the proposed rule), and organizations that should be
covered by a potential rule. Firefighting, pre-hospital emergency
medical service, and technical rescue were offered in the RFI as
examples of activities for discussion.
Team members and responders deal with a wide range of emergency
events. To them, some events are routine or commonly encountered, while
others are rarely seen. OSHA recognizes that team members and
responders encounter ``routine'' emergencies to the extent that they
become commonplace occurrences. Many fewer team members and responders
encounter rare events. The broad range of emergency events is
overwhelming, and it would be a daunting, if not impossible, task to
list them all. Several respondents to the RFI offered examples of
common events, while others questioned what constitutes a rare event.
Given the vast differences in emergency response organizations across
the country, a rare event for a small community or small plant or
facility might be a common occurrence in a larger one.
There were 39 respondents to the RFI who offered an opinion on the
range of emergency events that should be regulated by OSHA. For
example, the Texas Industrial Emergency Services Board (Document ID
0044) wrote that ``all types of emergency incidents (an `all hazards'
approach) should be considered by OSHA for appropriate agency action.''
The International Association of Fire Fighters (Document ID 0060)
stated that ``no incident types
[[Page 7802]]
or responding activities should be excluded. Emergency response
agencies must not only be prepared for mitigating emergency incidents
in their jurisdictions, but must be prepared, before and during the
event to ensure the health and safety of their employees is
protected.'' Overall, many of the respondents were in favor of an
``all-hazards'' approach (Document ID 0011; 0018; 0024; 0027; 0028;
0037; 0039; 0040; 0041; 0044; 0046; 0047; 0048; 0049; 0050; 0052; 0053;
0059; 0060; 0063; 0065; 0069; 0071; 0072; 0073; 0074; 0078; 0080; 0082;
0083; 0085). The agency agrees with these commenters and has
preliminarily determined that the safety and health of emergency
responders needs to be protected in all types of emergency events.
Accordingly, the proposed rule takes an all-hazards approach.
A. Section 1910.120 Hazardous Waste Operations and Emergency Response
OSHA is proposing to update 29 CFR 1910.120(q)(3)(iii) to reflect
the revised paragraph for PPE requirements in the proposed rule. The
proposed rule would also revise appendix B to Sec. 1910.120 to replace
the existing reference to three outdated consensus standards in the
Note to Part B, section IV, with the current national consensus
standard, NFPA 1990--Standard for Protective Ensembles for Hazardous
Materials and CBRN Operations, 2022 ed.
B. Section 1910.134 Respiratory Protection
The proposed rulemaking essentially moves the Respiratory
Protection for Structural Firefighting requirements from 29 CFR
1910.134(g)(4) to proposed Sec. 1910.156. This move will help
stakeholders by incorporating these requirements related to
firefighting into one standard; the proposed rule. The proposed
revision would delete the requirement and replace it with a referral to
the proposed rule.
C. Section 1910.155 Scope, Application and Definitions Applicable to
This Subpart
Definitions for terms in subpart L-Fire Protection are provided in
29 CFR 1910.155. Terms used in the proposed rule are defined therein.
The new terms proposed coincide with the updates to other subpart L
standards proposed herein and are consistent with those recognized
within the industry. OSHA is proposing to add the following
definitions:
Class K fire means a fire in a cooking appliance involving animal
oils, vegetable oils, or fats.
Clean agent means an extinguishing agent that is odorless,
colorless, electrically non-conducive, and leaves no residue.
Halogenated agent means a liquified gas extinguishing agent that
chemically interrupts the combustion reaction between the fuel and
oxygen to extinguish fires.
Wet chemical means an aqueous solution of organic or inorganic
salts, or a combination thereof, that forms an extinguishing agent.
Wetting agent means a concentrate mixed with water that reduces the
surface tension of the water which increases its ability to spread and
penetrate, thus extending the efficiency of the watering extinguishing
fires.
OSHA is also proposing to delete from 29 CFR 1910.155 definitions
needed for terms used in the current Fire Brigades standard but not
used in the proposed rule. The definitions proposed to be removed are
those for Afterflame, Buddy-breathing device, Enclosed structure, Fire
brigade, Flame resistance, Helmet, Lining, Outer shell, Positive-
pressure breathing apparatus, Quick disconnect valve, and Vapor
barrier. These terms are not used in any other subpart L standards.
D. Section 1910.156 Emergency Response
Paragraph (a) Scope
Proposed paragraph (a) establishes the scope of general industry
employers that would be covered by the proposed rule. The proposed rule
would not include employers engaged in activities and operations
regulated by OSHA's construction, maritime, and agriculture standards.
The existing Fire Brigades standard, 29 CFR 1910.156, applies to
employers in general industry that have or establish ``fire brigades,
industrial fire departments, and private or contractual type fire
departments'' (29 CFR 1910.156 (a)(2)). The scope of the proposed rule
is larger, expanding beyond employers who provide only firefighting
services to include employers that provide other emergency services,
such as pre-hospital EMS and technical search and rescue services. In
addition, the proposed rule would impact public and municipal fire
departments and other emergency response employers in States with OSHA-
approved State Plans, as explained in section VIII.G., Requirements for
States with OSHA Approved State Plans.
Proposed paragraph (a)(1)(i) provides that the proposed rule would
apply to employers that have a workplace emergency response team as
defined in paragraph (b) of this section. The employees on the team, as
a collateral duty to their regular daily work assignments, respond to
emergency incidents to provide services such as firefighting, emergency
medical service, and technical search and rescue. For the purposes of
this section, this type of employer is called a Workplace Emergency
Response Employer (WERE), the team is called a Workplace Emergency
Response Team (WERT), and the employees assigned to the team are called
team members.
Proposed paragraph (a)(1)(ii) provides that the proposed rule would
also apply to employers that are emergency service organizations as
defined in paragraph (b) of this section, namely those that provide one
or more of the following emergency services as a primary function:
firefighting, EMS, and technical search and rescue; or the employees
perform emergency service(s) as a primary duty for the employer. For
the purposes of this section, this type of employer is called an
Emergency Service Organization (ESO), and the employees and members are
called responders. The term ESO encompasses entities who pay their
employees, entities with volunteers, and entities whose members are a
combination of paid and volunteer. Similarly, OSHA uses the term
responders to encompass both those who are paid employees of an ESO and
those who are volunteer members of an ESO.
I. Coverage of Volunteers
OSHA recognizes that many emergency responders, particularly
firefighters and EMTs, are referred to as ``volunteers.'' The OSH Act
applies to employers who have employees, 29 U.S.C. 652(5), and does not
cover true volunteers. However, workers who are labeled as volunteers
actually are occasionally considered employees under Federal law
because they receive a certain amount of compensation, which may be
money or other types of remuneration (see Section III. Pertinent Legal
Authority). Therefore, any emergency responders who are referred to as
volunteers but receive ``significant remuneration'' within the meaning
of Federal law would be included within the scope of this proposed rule
as employees. OSHA believes that volunteer emergency responders rarely
receive compensation substantial enough to render them employees under
this ``significant remuneration'' test and thus OSHA does not expect
that many emergency responders will fall into this category.
Additionally, OSHA notes that nothing in this rulemaking will in any
way alter the existing requirements of
[[Page 7803]]
Federal law on this issue. Accordingly, all volunteer emergency
responders who are currently excluded from coverage under the OSH Act
should expect that they will continue to be excluded from the scope of
this rulemaking.
OSHA also recognizes that among the States with OSHA-approved State
Plans there is variability as to whether volunteer emergency responders
are classified as employees under state law. Regardless of state law,
should there be any ``volunteers'' who receive ``significant
remuneration'' such that they would be considered employees under
Federal law (see Section III. Pertinent Legal Authority, B. Coverage),
State Plans would be required to cover those employees as part of their
obligation to promulgate a standard ``at least as effective'' as the
Federal standard. 29 U.S.C. 667(c)(2).
In addition, some States with OSHA-approved State Plans regard
volunteer firefighters and other volunteers as employees under state
law. See, e.g., A.R.S. 23-901(6)(d)(2021) (in Arizona, firefighters,
police, and other emergency management personnel who are volunteers are
regarded as employees). Regardless of whether these volunteers are
considered employees under Federal law, such States must treat them as
it does other emergency response workers under its analogue to any
final standard resulting from this rulemaking. Cf. Letter from John A.
Pendergrass, Assistant Secretary of Labor for Occupational Safety and
Health, to Rep. Hamilton Fish, May 4, 1988 (if a State with an OSHA-
approved State Plan regards volunteer firefighters as employees, it
must apply its fire brigade standard to them).
In Question (a)-1, OSHA seeks information about how many private-
sector emergency response organizations in States without State Plans
(Federal OSHA States) have workers who are called volunteers but who
receive substantial benefits, such as a retirement pension, life and/or
disability insurance, death benefits, or medical benefits. How many
such workers do these organizations have and of what type(s) (fire,
EMS, technical rescue)?
In Question (a)-2, OSHA seeks information about which States with
OSHA-approved State Plans expressly cover volunteer emergency
responders. In those States, how many emergency response organizations
have volunteers? How many volunteers do they have and of what type(s)
(fire, EMS, technical rescue)?
In Question (a)-3, OSHA seeks information from States with OSHA-
approved State Plans that do not expressly cover volunteer emergency
responders. In those States, how many emergency response organizations
have workers who are called volunteers but who receive substantial
benefits, such as a retirement pension, life and/or disability
insurance, death benefits, or medical benefits; and as such may be
considered employees within the meaning of Federal law? How many such
workers do these organizations have and of what type(s) (fire, EMS,
technical rescue)? Additionally, OSHA seeks similar input regarding
inmate/incarcerated workers.
II. Coverage of Employees Who Perform Emergency Services as a
Collateral Duty
The existing Fire Brigades standard, 29 CFR 1910.156, does not
differentiate between employers whose workers perform emergency
services as their primary duty and employers whose primary business
operation is not an emergency service but who have workers who perform
emergency service as a collateral duty, and not as their primary duty.
Likewise, the existing standard does not differentiate between primary
duty emergency service employees and collateral duty emergency service
employees.
While they are an important component in the overall community of
emergency and first responders, the proposed rule would not apply to
employees while engaged in law enforcement/crime prevention activities.
The proposed rule would, however, apply to employers whose employees,
in addition to performing law enforcement duties, also provide services
such as firefighting, emergency medical service, or technical search
and rescue. Employees engaged in these dual roles are sometimes known
as Public Safety Officers, and the proposed rule would apply only with
respect to when those employees provide services that do not qualify as
law enforcement. For example, OSHA understands that many law
enforcement employers have employees who are trained in some aspects of
emergency medical care to attend to the public and fellow employees.
They are excluded from the proposed rule when they arrive at an
emergency scene to provide law enforcement duties such as traffic
control or securing an area, but they would be covered by the rule if
they then transport an injured person to a medical facility via a
dedicated medical transport vehicle such as an ambulance or helicopter.
Additionally, some employers have employees who are trained in the use
of ropes for law enforcement, such as a tactical response team using
rope for tactical access to above- or below-grade locations as part of
a hostage rescue operation. These employees would not be covered by the
proposed rule during the hostage rescue. They would, however, be
covered when they are designated to provide rope rescue during non-law
enforcement activities, such as helping to secure a person who is
trapped on a scaffold.
III. WEREs and ESOs
During the SBREFA teleconferences, SERs commented that the
employees of employers whose primary business is emergency response are
exposed to more hazards more frequently than the employees of employers
that are not in the business of providing emergency services but
require their workers to perform emergency response activities as a
collateral duty to their primary work assignments. There was consensus
from the SERs that OSHA should have fewer and/or less stringent
requirements for the latter employers because of the less frequent
exposure of their employees to emergency response-related hazards and
should clearly differentiate between the requirements for the two types
of employers (Document ID 0115, p. 27). OSHA agrees and, to the extent
appropriate, has provided separate requirements in the proposed rule.
To clearly distinguish between the two types of employers and
employees, OSHA proposes to use different terms to refer to each type.
The first term is ``Workplace Emergency Response Employer (WERE).''
This term applies to employers engaged in industries such as
manufacturing, processing, and warehousing that have, or establish, a
workplace emergency response team. As noted earlier, the employees on
the team, as a collateral duty to their regular daily work assignments,
respond to emergency incidents to provide service(s) such as
firefighting, EMS, and technical search and rescue at the employer's
facility. The team is called a ``Workplace Emergency Response Team
(WERT),'' and the employees assigned to the team are called ``team
members.''
The second term is ``Emergency Service Organization (ESO).'' This
term applies to employers that provide emergency service(s) as a
primary function of the organization, or the employees perform
emergency service(s) as a primary duty for the employer. Examples
include providers of emergency services such as firefighting, emergency
medical service, and technical search and rescue. In the proposed rule,
the employees and members of an ESO are called ``responders.''
[[Page 7804]]
IV. Search and Rescue: Technical v. Non-Technical
The proposed rule defines technical search and rescue as a type of
service that utilizes special knowledge and skills and specialized
equipment to resolve unique or complex search and rescue situations,
such as rope rescue, vehicle/machinery rescue, structural collapse,
trenches, and technical water rescue. OSHA anticipates the proposed
rule would apply to WEREs and ESOs that provide such service, utilizing
team members and responders who have the technical knowledge, skills,
and abilities and are trained to perform and direct the designated
technical rescue.
OSHA believes that technical level search and rescue means the WERT
or ESO has specialized equipment and team members and responders who
are trained to use the equipment and perform specialized tasks. OSHA
consulted NFPA 2500, 2022 ed., Standard on Operations and Training for
Technical Search and Rescue Incidents and Life Safety Rope and
Equipment for Emergency Services, for guidance in using the technical
level as the determining point for what types of search and rescue
activities should be covered by the proposed rule. The scope of this
proposed rule does not extend to employers that perform search and
rescue at a lower-than-technical level. There is little evidence that
the provisions of the proposed rule would reduce injuries and
fatalities in organizations that only provide rescue services below the
technical level.
OSHA is seeking input from the regulated community about how and
where to draw the line between technical and non-technical search and
rescue activities. As drafted, for example, the proposed rule
encompasses rescue services such as swift water and underwater rescue
as technical. On the other hand, while the agency is in no way
demeaning the valuable services provided by emergency service providers
such as pool lifeguards, OSHA preliminarily deems this type of service
to be non-technical rescue and therefore is not intending to cover it
under this proposed rule. This same distinction can be drawn with
regard to other types of search and rescue which may be technical or
non-technical, such as, for example, mountain and wilderness search and
rescue, which could include ski patrols at recreational snow skiing and
snowboarding facilities. Some mountain and wilderness search and rescue
organizations may provide services that qualify as being technical, so
are within the scope of the proposed rule, while those who do not
provide a technical service are not within the scope. In Question (a)-
4, OSHA is seeking input regarding what types and levels of search and
rescue services and technical search and rescue services should be
included or excluded from the rule, and the extent to which those
inclusions or exclusions should be specifically listed.
V. Skilled Support Workers
As noted above, proposed paragraphs (a)(1)(i) and (ii) indicate
that this section applies to WEREs and ESOs. There are no proposed
provisions for other employers. There are, however, some provisions
related to skilled support workers who work for other employers.
Proposed paragraph (b) defines skilled support worker as an employee of
an employer whose primary function is not as an emergency service
provider and who is skilled in certain tasks or disciplines that can
support a WERT or ESO. The proposed rule would require WEREs and ESOs
to provide protection for skilled support workers who work for other
employers but are performing duties in support of the WERE and ESO
activities on the emergency incident scene. These skilled support
workers would operate under the direction of the Incident Commander
(IC) or the Unified Command (UC) as provided in proposed paragraph
(p)(10) of this section.
For example, a WERT or ESO needs a backhoe and operator to dig
through the rubble of a collapsed structure to complete extinguishment
of fire but does not have a backhoe or operator. The WERT or ESO could
arrange to use a backhoe and operator belonging to another employer.
The backhoe operator would be considered a skilled support worker under
the direction of the WERT's or ESO's IC, and thus within the scope of
the proposed rule. But once the IC or the UC terminates the incident or
the WERT or ESO leaves the location of the incident, the operator's
activities would no longer fall under the scope of the proposed rule.
Note that other standards might apply to the operator's work during
this period; for example, if the operator were operating a crane, the
crane standard would apply.
On a larger scale such as a disaster site, skilled support workers
who operated under the direction and control of the WERE's or ESO's IC
or the UC might remain at the location to participate in disaster site
clean-up and recovery efforts. Once the emergency nature of the
incident has ended, however, skilled support workers would no longer be
working under the direction of the WERE or ESO and the proposed rule
would no longer apply to them.
VI. Exclusions
Proposed paragraph (a)(2) ensures that employers are aware of
activities that are not covered by the proposed rule. Paragraph
(a)(2)(i) of the proposed rule explains that employers performing
disaster site clean-up or recovery duties following natural disasters
such as earthquakes, hurricanes, tornados, and floods and human-made
disasters such as explosions and transportation incidents would be
excluded from the requirements of this section after emergency response
activities have terminated. OSHA intends it to be clear that the
proposed rule would not apply to clean-up and recovery operations once
the emergency nature of an incident has ended. OSHA is seeking input in
Question (a)-5 whether or not the agency should consider developing a
separate rule for protecting workers involved in the clean-up of
disaster sites, and associated recovery efforts? Why or why not?
Proposed paragraph (a)(2)(ii) would specifically exclude activities
covered by 29 CFR 1910.120 (Hazardous Waste Operations and Emergency
Response (HAZWOPER)) and 29 CFR 1910.146 (Permit-Required Confined
Spaces in General Industry). In addition, OSHA notes that there are a
number of other general industry OSHA standards that impose
requirements on employers concerning emergency-type or related
services. These include 29 CFR 1910.38, Emergency action plans; 29 CFR
1910.157, Portable fire extinguishers; 29 CFR 1910.151, Medical
services and first aid; 29 CFR 1910.119, Process safety management of
highly hazardous chemicals; and 29 CFR 1910.272, Grain handling
facilities. While employees are engaged solely in activities subject to
one or more of these other OSHA standards, OSHA intends that the
protections of those standards apply instead of the protections of the
proposed rule. So, if an emergency response employer limits its
activities exclusively to activities covered by those other standards,
it may not be subject to any provisions of this proposed rule. OSHA
notes, however, that most employers engaged in activities covered by
those other standards are likely to also engage in other emergency
response activities and would therefore need to comply with the
proposed standard in order to prepare for and respond to covered
emergency incidents.
OSHA's intent is to avoid additional burden or inflicting
overlapping or conflicting requirements on an
[[Page 7805]]
employer who only performs the activities identified in this proposed
provision. In Question (a)-6, OSHA is seeking input on whether the
agency should consider excluding other activities besides those listed
in paragraph (a)(2)(ii).
Paragraph (b) Definitions
Proposed paragraph (b) defines terms that are applicable to
proposed 29 CFR 1910.156. OSHA drew from or based these definitions on
other OSHA standards (e.g., 29 CFR 1910.120 and 1910.134), FEMA's
guidance ``National Incident Management System'' (NIMS), and NFPA
national consensus standards. To facilitate compliance, OSHA is using
terms that are familiar to the emergency response community, and thus
relies heavily on definitions already in use in the community. However,
some terms currently in use have multiple interpretations. OSHA is
providing definitions in its proposed rule to clearly provide the
agency's intended meaning of these terms. Additionally, OSHA is
proposing to delete some definitions from existing 29 CFR 1910.155
because the terms are only used in existing 29 CFR 1910.156, which
would be replaced by the proposed rule. Specific changes to 29 CFR
1910.155 are listed in the Proposed Amendments.
OSHA based several definitions in this paragraph on the following
NFPA standards:
<bullet> NFPA 600, Standard on Facility Fire Brigades. 2020 Ed. (NFPA
600)
<bullet> NFPA 1500, Standard on Fire Department Occupational Safety,
Health, and Wellness Program. 2021 Ed. (NFPA 1500)
<bullet> NFPA 1561, Standard on Emergency Service Incident Management
System and Command Safety. 2020 Ed. (NFPA 1561)
<bullet> NFPA 1660, Standard for Emergency, Continuity, and Crisis
Management: Preparedness, Response, and Recovery. 2024 Ed. (NFPA 1660)
<bullet> NFPA 2500, Standard on Operations and Training for Technical
Search and Rescue Incidents and Life Safety Rope and Equipment for
Emergency Services. 2022 Ed. (NFPA 2500)
<bullet> NFPA 1700, Guide for Structural Fire Fighting. 2021 Ed. (NFPA
1700)
<bullet> NFPA 1710, Standard for the Organization and Deployment of
Fire Suppression Operations, Emergency Medical Operations, and Special
Operations to the Public by Career Fire Departments. 2020 Ed. (NFPA
1710).
The following definitions apply to 29 CFR 1910.156:
Combustion product. The proposed rule defines this term as the
heat, volatized liquids and solids, particulate matter (microscopic and
small unburned particles), ash, and toxic gases released as a result of
combustion (fire). OSHA based the definition on the term in NFPA 1700.
Smoke is a visible indicator of the presence of combustion products;
however, combustion products may be present without visible smoke. OSHA
believes exposure to combustion products is a leading cause for many
illnesses among team members and responders. Exposure to combustion
products is a significant factor for Workplace Emergency Response
Employers (WEREs) and Emergency Service Organizations (ESOs) in
developing their Risk Management Plan and when determining what medical
evaluation and surveillance is needed for team members and responders.
Community. The proposed rule defines this term as a state, region,
municipality or portion thereof, such as a village, town, township,
borough, city, county, or parish. This term and definition are used in
conjunction with the term community vulnerability assessment. Community
is a general term that is meant to encompass the geographic area where
the ESO has a primary responsibility to provide emergency service(s);
sometimes referred to as the first due area. OSHA recognizes that many
ESOs are not limited by specific political boundaries to define their
service community and that the community boundary between ESO
facilities is often determined as the geographic midpoint between the
ESO facilities, based on response times.
Community vulnerability assessment. The proposed rule defines this
term as the process of identifying, quantifying, and prioritizing the
potential and known vulnerabilities of the overall community that may
require emergency service from the ESO, including the community's
structures, inhabitants, infrastructure, organizations, and hazardous
conditions or processes. The definition also indicates that the
assessment is intended to include both human-created vulnerabilities
and natural disasters. OSHA intends the assessment to be a systematic
evaluation of the community to determine the impact that could be
caused by potential emergency incidents, the severity of the impact,
and the available or needed resources for mitigation. It would include
risks and vulnerabilities associated with the prevailing residential
structures and principal structures such as schools, colleges, and
universities; hospitals and medical centers; large residential
structures and hotels; transportation, manufacturing, processing, and
warehousing facilities; and retail. It would also include an assessment
of the community's critical infrastructure such as available water
supply, electric power generation and transmission, routine and
emergency communication, and highways and railways.
Control zone. The proposed rule defines this term as an area at an
incident that is designated based upon safety and the degree of hazard
to team members and responders. The definition also states that a
control zone may be designated as cold, warm, hot, or no-entry. OSHA
based the definitions on the terms in NFPA 1500. Control zones are used
to establish what activities take place, what resources are available,
and what PPE is required based on the zone. OSHA notes that control
zones are not permanent areas for the duration of an incident. Zone
boundaries are expected to change as the incident and environmental
conditions dictate.
Cold zone. The proposed rule defines this term as the area
immediately outside the boundary of the established warm zone where
team members and responders are not exposed to dangerous areas or
contaminants from fire, toxic chemicals, and carcinogens. The
definition indicates that the cold zone typically contains the command
post and suc
[…truncated; see source link]Indexed from Federal Register on February 5, 2024.
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