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Where We Were
In the spring of 2009, the Association of Fire Districts, FASNY, and the Verdoy
Fire Department joined with NYSAFC to seek judicial relief from what was then
an emergency (temporary) regulation on Bail Out Ropes and Emergency Escape
Systems. The case was started in Albany County Supreme Court where the New
York State Department of Labor was represented by the New York State Attorney
General’s Office. The purpose of the suit was to have the regulation thrown
out based on incorrect procedures used in its development.
Although none of the organizations questioned the need for protecting
firefighters working above grade during structure fires, all questioned the
ability to do so effectively with the existing law and regulation it created.
The purpose of the suit was to push the regulation back while we worked in
the halls of Albany
to have the law re-written. A new law was envisioned that would still require
that each department provide protection, but did not assume ropes, nor NFPA
1983, was the sole solution.
In May of 2009, we began to work with Assemblyman Marc Alessi and Senator
Craig Johnson on legislation to amend the existing law originally passed in
2007. Unfortunately, the legislative session in Albany ended before action could be taken.
In the fall of 2009, our initial court case was heard. The State sought to
have the case thrown out, arguing that NYSAFC and
the other associations could not sue on behalf of the fire service or our
members. Fortunately, the judge ruled in our favor and immediately following
Thanksgiving, the case was to proceed. This ruling also paved the way for our
organizations to fight for our members in court on any issue.
During the first week of December, the Department of Labor dropped the
emergency regulation and promulgated (established) a final rule that read the
same as the emergency rule. This action made the previous lawsuit useless,
since the emergency regulation no longer existed. Therefore, in late December
of 2009, the associations joined again to sue on the final regulation.
In January of 2010, we began anew our efforts to seek passage of
A.9000a/S.6045a. If enacted, this new law would still require departments to
perform assessments, but would allow any combination of SOPs, training, and
equipment, as long as it addressed the issue of firefighter safety on above
grade floors during structure fires.
Where We’re At
On Monday, March 22, 2010, the lawsuit began again with the opening of oral
arguments in Kingston, N.Y. at the Ulster County Courthouse in
front of Judge Gilpatric. The judge asked very direct questions of both the
Attorney General’s representative, as well as attorneys for the associations.
Interestingly, the attorney representing the Department of Labor, when asked
to provide a description of the regulation’s impact on fire departments,
stated, “Only where a risk assessment establishes a reasonable risk of
entrapment exists that cannot be addressed by a district’s existing standard
operating procedures (‘SOPs’), are employers required to provide employees
at-risk with NFPA compliant safety equipment and training.”
This statement indicates that not all departments need Bail Out Ropes or
Emergency Escape Systems if, based on the fire department’s assessment, their
SOPs, training, and equipment address entrapment above grade. However, this
statement conflicts with the regulation and the law. We remain hopeful that
this statement is an indication of the Department of Labor’s desire to see a
realistic resolution to this issue.
Progress continues to be made on the legislation. Leadership in both houses
recognizes the inconsistency between the law, the regulation, and the reality
in the field. Legislators also appreciate the desire of the associations to
provide solid, applicable safety enhancements to all firefighters of the
state.
On April 12, the New York State Senate will address S.6045a.
Where We’re Going
We will continue to fight the current regulation as an unachievable objective
in the courts. It is unclear how long a ruling will take. At the same time,
we continue to work with sponsors in the legislature and ask our members to
contact their Assembly and Senate representatives to encourage their support
of A.9000a/S.6045a. In the meantime, the regulation continues to be the law
of the land.
For a list of NYS Senate members and contact information, Click here
For a list of NYS Assembly members and contact information, Click here
What You Need to Do Now
The Nassau County Fire Academy recently compiled tips for how your department
can stay in compliance the current regulation. This is a slightly modified
version:
Step 1. Complete a Risk Assessment – The first step toward compliance
is to conduct a thorough risk assessment to determine if SOPs, training, and
equipment provide reasonable safety to your members.
If this is not the case and the assessment determines escape ropes might be
necessary, you must also determine what type of ropes and system components
will be needed. That risk assessment should put into writing the types of
structures firefighters may encounter, as well as the height of buildings in
the area and how many buildings there are at each height, and existing
procedures, training, and equipment. Each department is responsible for
providing appropriate escape equipment to interior firefighters, even when
those firefighters are working outside their own district. Therefore, you
must be ready with equipment that meets your own needs, as well as the needs
of districts to which you provide reasonable mutual aid.
Step 2. Review and Edit Your SOPs– Once a risk assessment is
completed, you will need to look closely at your standard operating
procedures to determine whether those procedures allow for effective rescue
of firefighters from elevations, or if changes are needed to address this
possibility.
Step 3. Purchase Equipment if Needed – The risk assessment and SOP
changes also provide a guide to the type of equipment each department will
need for its individual circumstances – and purchasing equipment, if it is
needed, is the next step to compliance. Appropriate equipment must be
provided for interior structural firefighters – those firefighters at risk of
entrapment at elevation.
Step 4. Train Your Firefighters. Once appropriate SOPs are in place
and equipment is available for all interior firefighters, the last step in
compliance is to train them thoroughly on any new procedures and equipment.
While becoming compliant may seem difficult or confusing, there are a few
pieces of advice that may help the process go more smoothly.
1. Consult Your Legal Counsel. Ask specifically how this regulation
directly affects your department and what steps you need to take. Get
clarification on anything you’ve heard from other sources.
2. Ask for Advice and Input. Ask departments bordering yours for their
risk assessments and consider working from those where appropriate.
3. Work Together. Get together with your mutual aid area and see if you
can save dollars and time by developing procedures, purchasing equipment, and
training together.
References:
The final NYS Department of Labor regulation can be found at the following
web site:
www.labor.state.ny.us/workerprotection/safetyhealth/DOSH_PESH.shtm
Click here to download a copy of Code Rule 800.7 Emergency Escape and
Self Rescue Ropes and System Components for Firefighters
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