The National Advisory Committee on Occupational Safety and Health has unanimously recommended to Dr. David Michaels, Assistant Secretary of Labor for Occupational Safety and Health, to move the draft Emergency Response and Preparedness Standard (ERPP) forward for rulemaking in OSHA.
This action paves the way for consideration of the most comprehensive improvement in firefighter health and safety since OSHA’s creation in 1971. The proposed standard represents a completely new document, replacing the existing 29 CFR 1910.156, Fire Brigades standard.
In the wake of 9/11, the OSHA Directorate of Standards and Guidance began working with stakeholders to identify strategies to more effectively ensure the health, safety and wellness of emergency responders and, for the first time, skilled support workers called to the scenes of incidents by emergency responders.
In 2007, fire service stakeholder organizations, including the IAFC, were asked to provide input into critical safety issues facing emergency responders.
In 2013, in the wake of several catastrophic incidents including West, Texas, OSHA convened a national meeting of all of the major fire service organizations to form a national strategy for improving emergency responder safety. From that effort, Dr. Michaels directed NACOSH to form a national workgroup of representative organizations to form a draft standard focused on substantially improving emergency responder and skilled support worker safety.
In 2015, the workgroup was empaneled and thereafter undertook a year-long effort to develop the requested standard. Staff from OSHA’s Directorate provided a framework standard as a starting point for the effort. Over the course of the past year, the ERPP workgroup engaged in tremendously laborious, serious and thoughtful deliberations culminating in the Standard endorsed by NACOSH.
The Standard is fundamentally predicated on a performance model, as opposed to a prescriptive model. Emergency service organizations (ESOs) will be able to define for themselves the scope and breadth of services they intend to provide based on a comprehensive risk analysis of their own community, or primary response district.
Thereafter, training requirements, medical evaluations, PPE, apparatus and equipment and other essential components would be predicated on a tiered approach to the provision of such services.
By taking this approach, the workgroup recognized that not all ESOs are identical in size, shape and mission. Instead of requiring all members of all ESOs to complete an annual NFPA 1582 physical, the standard looks more specifically at the performance duties that each responder is required to perform and then tailors the requirements to that individual.
Responders could be categorized as awareness, operations, and technician similar to the world of technical rescue or hazardous materials response. Individuals operating at the awareness level would not have to meet the same medical evaluation requirements as those at the technician level.
The standard would fully empower the ESO to determine for itself at what level individuals would be expected to function at and then comply with corresponding expectations for training, etc. The standard elevates the critically important issue of critical incident stress and the unambiguous need for appropriate behavioral support. It also recognizes that emergency responders continue to be affected by occupational illnesses including cancer and cardiovascular disease.
The IAFC has been an active participant in the development of the ERPP standard. By participating in the development of the standard, the IAFC is in a unique position to ensure that the concerns of its member organizations are clearly communicated.
Secretary Michael’s next step would be to direct OSHA to undertake formal rule-making. The first step in that process would be to engage stakeholders, organizations most directly affected by proposed the proposed standard, to assess the potential economic impact any new requirements might produce.
The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 provides new avenues for small entities to participate in and have access to the federal regulatory arena.
Under SBREFA, covered agencies including OSHA, must conduct a Small Business Advocacy Review panel before publishing a proposed rule. This panel meets with representatives of directly regulated small entities and offers an opportunity to provide advice and recommendations on regulatory alternatives to minimize the burden on small entities.
Staff at OSHA have steadfastly indicated their commitment to ensure that no ESO is forced to close its doors as a result of the ERPP and the IAFC has consistently required OSHA to reiterate its commitment in this area. Further, the IAFC will be asked to provide the names and contact information of current ESOs that would be willing to participate in the SBREFA process.
Clearly, the future of new rule-making efforts has been placed under considerable uncertainty as result of the national election and at this moment it is difficult to predict the next course of action for the proposed rules.
OSHA could receive direction to halt all rule-making efforts until the next Secretary of Labor takes office and has an opportunity to evaluate each project independently. Direction could also be given to proceed with rule-making for all projects currently in the pipeline but hold all new efforts until a comprehensive review takes places.
Assuming that the proposed rules are permitted to proceed, the first step would be the SBREFA process as outlined. Thereafter, revisions would be made to any proposed rules before publication.
Upon publication, an extensive opportunity for stakeholder input would be provided during which time all individuals and agencies will be permitted to provide feedback on the impact of the proposed rules. Final rulemaking and issuance of OSHA guidance concerning adoption of new rules is likely several years away.
Assuming final rulemaking occurs, OSHA would provide extensive guidance on the implementation timetables as well as safe harbors, i.e., interpreted equivalent actions meeting the intent of the rule.
The IAFC will continue to communicate regularly with its members concerning the progress of this standard, which represents a watershed moment in the effort to improve firefighter health, safety and wellness.
If you have questions about the ERPP, please email me.