

MEMORANDUM FOR:	NATIONAL ADVISORY COMMITTEE ON OCCUPATIONAL
				SAFETY AND HEALTH (NACOSH)

FROM:			LAMONT BYRD and RICK INGRAM
				Subcommittee Co-Chairs

SUBJECT:			Report from NACOSH Subcommittee on Emergency Response
				and Preparedness 	
      
      
Please find attached for your consideration the NACOSH Emergency Response and Preparedness Subcommittee's recommendation on draft regulatory text for an Emergency Responder Preparedness Program standard (Attachment 1).

INTRODUCTION
      On September 11, 2001, the United States was attacked on an unprecedented magnitude, resulting in the death of nearly three thousand Americans, several hundred of whom were first responders.  In the aftermath, firefighters, emergency medical providers, and skilled support workers labored on one of the most toxic work sites at Ground Zero.  Today, the effects of that worksite, the Pentagon and Shanksville, PA, continue to claim the lives of all classes of first responders.  
      More than 50,000 people worked at sites related to the rescue and recovery efforts following 9/11.  Many of those have since died as a result of their related exposure to the toxins.  As of June 30, 2016, according to a Centers for Disease Control and Prevention (CDC) report, the following number of rescue/recovery workers are currently diagnosed with a 9/11-related illness or injury: respiratory/digestive illness, 27,613; mental health illness, 9,465; cancer, 4,692, musculoskeletal injury, 447.  (Some workers may be in multiple categories).  Since 9/11 and in the years that have followed, emergency and skilled support workers have experienced a rate of injuries and death that points to an unaddressed need in national safety regulations.  
      Firefighting is one of the most dangerous, yet largely unregulated, occupations in the United States.  From 2010 to 2014, the National Fire Protection Association (NFPA) reported an average of 68,119 firefighter injuries in the United States annually. In addition, the names of 439 firefighters who made the ultimate sacrifice while serving their communities during that same time period were added to the National Fallen Firefighters Memorial in Emmitsburg, Maryland.  While the true cost of firefighter injuries and line-of-duty deaths can never be fully quantified, the Nation has a moral obligation to protect those who protect our communities.  Consensus standards such as NFPA 1500: Standard on Fire Department Occupational Safety and Health Program, have increased awareness and served as the basis of programs designed to improve worker safety but they are voluntary and therefore lack the regulatory enforcement mechanisms that OSHA possesses.  Unfortunately, firefighters continue to become injured, ill and die at a rate far higher than many other industries.  
      The horrific extent of exposure to carcinogens and the large number of firefighter fatalities due to cardiovascular incidents underscores the unique dangers encountered in firefighting, adding urgency to the effort to improve worker safety in this industry.  Recent NIOSH studies have linked occupational cancer to firefighting (Study of Cancer among U.S. Fire Fighters).  In the field of Emergency Medical Services, the leading cause of responder death is motor vehicle collisions and the second leading cause of death is cardiovascular disease.  These are serious but not intractable or unsolvable causes of worker injury illness and death.  
      The Subcommittee has concluded that voluntary standards alone are insufficient to produce the action required to drive change in this industry.  We believe the draft regulatory language the Subcommittee developed reflects a national concerted and coordinated effort to ensure the safety of emergency responders and skilled support workers who place themselves between harm and the communities they are dedicated to protecting.  The Subcommittee strived to develop a performance-based rule consistent with the OSH Act.  Capturing the collective commitment of national stakeholders, tremendous effort has been applied to present draft regulatory text to protect those who respond to emergency incidents.  

BACKGROUND
      In 2007, OSHA published a Request for Information (RFI) which asked stakeholders to provide feedback on a number of issues regarding emergency response and whether there was a need for updated or new rules.  OSHA received nearly 85 responses from stakeholder agencies and organizations, with considerable support for moving forward to rulemaking.  Unfortunately, after two years of project development, limited resources and changing regulatory priorities caused the project to be moved to an inactive status.
      The death of 12 emergency responders in an ammonium nitrate explosion in West, Texas in April 2013 reaffirmed that emergency responder health and safety continues to be an area of ongoing need.  As a result President Obama issued Executive Order 13650 for Chemical Facility Safety and Security which included a component for improving emergency responder safety.  OSHA reactivated the project and in July 2014, convened two stakeholder meetings.  Forty-nine stakeholders provided additional feedback and supported the need for new or updated rules to protect emergency responders.
      Information and documentation from the 2007 RFI and the 2014 Stakeholder meetings is available at www.regulations.gov, docket number OSHA-2007-0073.

NACOSH SUBCOMMITTEE
      In 2015, OSHA, on behalf of the Secretary of Labor (Secretary), asked NACOSH to provide recommendations and draft regulatory text for an Emergency Responder Preparedness Program standard.  OSHA also established a NACOSH Emergency Response and Preparedness Subcommittee (Subcommittee) to develop the draft regulatory text for NACOSH's consideration.  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.  OSHA's charge to the Subcommittee was to develop recommendations, including draft regulatory text, to present to NACOSH for the full Committee to consider and make recommendations to the Secretary, through OSHA.  To assist the Subcommittee, OSHA provided the Subcommittee with some draft regulatory language for the purpose of initiating and facilitating discussion.  
      The primary focus of the draft regulatory text developed by the Subcommittee is to protect emergency responders, with secondary focus on protecting skilled support workers who are called to an emergency incident scene or a disaster site.  It is a separate issue from, and is not intended to focus on, the concepts of emergency preparedness and response as it relates to emergency management.
      The Subcommittee participants (Attachment 2) were subject matter experts from major stakeholder entities that represent a broad range of emergency response experts, who provided balance and a diversity of views.  The Subcommittee was co-chaired by NACOSH members Lamont Byrd, a labor representative, and Rick Ingram, a management representative.  The stakeholders represented on the Subcommittee are:
   * Arizona Division of Occupational Safety and Health
   * International Association of Fire Chiefs
   * International Association of Fire Fighters
   * International Union of Operating Engineers
   * National Association of State EMS Officials
   * National Fallen Firefighters Foundation
   * National Fire Protection Association
   * National Institute for Occupational Safety and Health
   * National Volunteer Fire Council
   * North America's Building Trade Unions
   * United States Fire Administration
   * Virginia Department of Labor and Industry
      
SUBCOMMITTEE ACTIVITIES
      The Subcommittee met in person for 12 days during six meetings beginning on September 9, 2015, with the final meeting convening from September 7-9, 2016.  During the meetings, Subcommittee members discussed, deliberated and developed draft regulatory text.  During deliberations, subjects were identified that required further discussion.  In response, several subgroups were formed to meet by email and teleconference and report back with recommendations at the following in-person meeting.  Subgroups were formed to address the following:
   * Scope of the proposed rule  -  Identify/specify the transition point from compliance with this rule under development to other OSHA rules (General Industry, Construction, and Maritime).
   * Skilled support  -  Clarify, consolidate and delineate requirements for employers who provide skilled support workers to work with emergency responders at emergency incident scenes.  Establish medical/fitness requirements and training requirements.
   * Risk/Vulnerability assessment and establishing service capabilities  -  Identify what emergency services are needed, and what each emergency services employer can provide, based on an assessment of the community served.
   * Tiers of responders  -  Develop an addendum guidance document of "tiers" of responder duties and capabilities to be able to establish different levels of training needed for each tier.
   * Responder medical requirements  -  Develop medical requirements for ESOs and responders.
      To obtain additional information about medical requirements and fitness evaluation and their costs and impacts on organizations, the Subcommittee requested input from other subject matter experts in those fields.  Based on recommendations from Subcommittee members, three experts were invited and spoke at the February 2016 meeting.
   A docket was opened to maintain the documents the Subcommittee created and the information they reviewed through the course of this project.  Documents presented at the face-to-face meetings were submitted as exhibits for each particular meeting.  The docket is available at www.regulations.gov, docket number OSHA-2015-0019.  (See Attachment 3 for exhibits available in the docket.)

OSHSPA
      A few days before the February meeting, the Occupational Safety and Health State Plan Association (OSHSPA) sent a letter to Assistant Secretary Michaels opposing OSHA's rulemaking efforts on Emergency Response and Preparedness (Attachment 4).  OSHSPA stated that Federal OSHA has no authority over State and local entities in non-State Plan states, therefore, the burden of this rule would fall most heavily on State Plan states.  Currently, only a few State Plan states have standards similar to the draft regulatory text developed by the Subcommittee.  The other State Plans states use NFPA standards and the General Duty Clause.  
      OSHSPA recommended that, instead of promulgating a mandatory standard, OSHA focus their emergency response and preparedness efforts at gathering information on hazards, consensus standards, best practices, cost and benefits.  OSHA could then use that information in a nationwide effort working with State Plan States to undertake rulemaking and partnering with emergency responders in states where OSHA has jurisdiction.  OSHSPA also concurred that, if OSHA goes forward with this rulemaking effort, it should include all emergency services employers, regardless of size or economics.  
      
POTENTIAL IMPACTS
      One of the major issues confronting the Subcommittee during its year of work has been the potential impact on regulated agencies, particularly in OSHA State Plan states.  Across this Country, more than 367,000 volunteer firefighters serve in communities with a population of fewer than 2,500 residents.  Such emergency service organizations are critical to the communities they protect.  The Subcommittee wants to ensure that OSHA does not, under any circumstances, promulgate rules that could result in such organizations being forced to close their doors.  Juxtaposed against this is the reality that a significant number of emergency responders who are killed, injured or become ill every year are from these same communities.  The Subcommittee could not reach consensus on a scoping decision with regards to whom, if anyone, should be potentially excluded from a proposed rule, or certain provisions of a rule.  
      The Subcommittee believes that a thorough economic analysis fully exploring the costs and benefits of a proposed rule should be undertaken prior to any final rulemaking.  Additionally, strong consideration should be given to identification of alternative mechanisms that small, rural and economically challenged emergency service organizations could employ to meet proposed rules with specific focus on flexible performance-based, rather than specification-based, solutions.  Several stakeholder organizations represented in the Subcommittee have expressed their desire to assist OSHA in identifying emergency service organizations that could participate in the economic impact analysis component of the process as well as provide input of identification of alternative mechanisms for compliance.  The Subcommittee is deeply committed to ensuring the safety of all responders, regardless of pay status, and asks that OSHA be particularly cognizant of the economic challenges surrounding a proposed rule. 

FINDINGS AND RECOMMENDATIONS
      The Emergency Response and Preparedness Subcommittee has recently completed a full year's work and thoughtful deliberation to develop draft regulatory language that, in our opinion, will serve to help protect some of our country's most valuable assets, our first responders.  These brave individuals, many of whom volunteer their time, place themselves in harm's way to protect our citizens and the public from danger each and every day. 
      The Subcommittee has taken its responsibility very seriously, carefully considering differing views, including those of OSHSPA, and we believe that the potential benefits of the draft regulatory text outweigh any concerns.  At the September 2016 meeting, there was consensus on the Subcommittee to recommend strongly to the full NACOSH that the Committee thoughtfully consider the draft regulatory language and recommend to the Secretary to proceed with rulemaking and adopt the NACOSH draft regulatory text for an Emergency Responder Preparedness Program standard.

Attachments:
1)  Draft regulatory language
2)  Subcommittee members
3)  Exhibits in docket OSHA-2015-0019
4)  OSHSPA letter to Dr. Michaels
5)  Draft addendum "Examples of various types and levels and tiers of responders"

