Ideas, plans, and opinions are now formulating regarding the new 29 CFR 1910.134 Occupational Safety and Health Standards for Respiratory Protection. Fire chiefs whose departments are regulated by the Occupational Safety and Health Administration (OSHA) or by OSHA-type programs are gearing up to bring their fire department into compliance with this regulation. Organizations such as the International Association of Fire Chiefs (LAFC) are sending information to their members about the OSHA regulation and how it affects their fire departments. However, there still remain many fire departments that are not covered by OSHA – directly or indirectly. While some of these fire chiefs of such departments are stating that they do not have to worry about complying with 29 CFR 1910.134 because they are not an OSHA state, the concerned, progressive fire chiefs are questioning what will occur if they do not follow the OSHA rule. The scope of 29 CFR 1910.134 covers all private-sector and public-sector employers who have people that are expected to wear and use respirators during the course of their job. Federal employees are covered via a Presidential Executive Order, while state and local public-sector employees are covered by the twenty-five state plan programs. Other states such as Oklahoma or Florida apply the OSHA regulations to the state and local government employees even though no formal agreement exists between the state and federal OSHA. So where does this leave the fire chief in non-OSHA states or jurisdictions when trying to make a decision regarding compliance with 29 CFR 1910.134? The non-OSHA fire chief must weigh the following four issues carefully when contemplating compliance with this rule:

    The first issue is that 29 CFR 1910.134 can and will be cited as a "prevailing standard of care" by a court of law. The regulation will be used as law whether or not the standard is adopted or implemented by the Authority Having Jurisdiction (AHJ). In the event an accident giving rise to a negligence lawsuit were to occur, the test of whether the actions taken were appropriate would be whether those actions met the appropriate prevailing standard of care. A Jury would be asked to determine whether or not a "reasonable and prudent person" would have acted the same under the same circumstances. That is, if your firefighter were injured or killed as a result of not following the requirements of 29 CFR 1910.134 when this is the law throughout the rest of the country, then you could be held accountable by the court for not having followed the appropriate prevailing standard of care.

    The second point to be aware of is Environmental Protection Agency (EPA) regulations. There exists the possibility that the EPA could promulgate a regulation for respiratory protection as it did for hazardous materials emergencies. In response to 29 CFR 1910.120, Hazardous Waste Operations and Emergency Response (HAZWOPER), the EPA developed 40 CFR Part 311. In essence, the EPA took 29 CFR 1910.120 and repackaged it with a cover that said EPA instead of OSHA. This, in turn, placed the remaining states and territories of the United States under the rule.

The third issue concerns state regulatory agencies. For example, in Texas, the Texas Commission on Fire Protection (TCFP) is responsible for overseeing paid fire departments in Texas. TCFP regulations recommend that fire departments follow NFPA 1500, Standard on Fire Department Occupational Safety and Health Program. Additionally, the TCFP regulations require the fire departments provide protective equipment, which includes self-contained breathing apparatus, that meets the requirements of NFPA. In comparison, the new OSHA respiratory standard parallels the requirements of NFPA 1500. It was the intent of OSHA that fire departments that comply with NFPA 1500 would also be in compliance with 29 CFR 1910.134. While in Texas the TCFP currently only recommends that NFPA 1500 be followed, there exists a possibility that the "recommendation" could become a "requirement." You must look at your state regulatory agencies to see what, if anything, that they are doing.

    The fourth item has nothing to do with "because it is a law" reason. Following 29 CDT 1910.134 is the "right thing to do." One of the biggest concerns of many fire chiefs is the ‘two-in/two-out" requirement. However, this rule covers many other items besides this one requirement. In fact, the "two-in/two-out" requirement is just a small portion of the entire document. For example, 29 CFR 1910.134 requires that respiratory protective equipment be fit-tested; that medical evaluations be conducted for personnel expected to use the respiratory equipment; and that training be conducted on the use of respiratory equipment. By studying the entire document, you will see that many good, commonsense issues are now being required of the fire service.

    Unfortunately, there exists within the fire service a basic disagreement whether local fire chiefs can establish effective safety programs or whether national standards of care should be legislated to protect both the firefighter and the general public. Because of the poor track record of many fire departments and fire chiefs, these national standards of care should be legislated to protect both the firefighter and the general public. Because of the poor track record of many fire departments and fire chiefs, these national standards of care were developed. While many fire chiefs and local leaders believe that the delivery of fire protection is a local government issue, the fact is that the fire service is still killing and injuring an excessive number of firefighters. Fire chiefs and local leaders continue to state that the fire service cannot afford to put "safety" procedures into place. The fact is that we cannot afford not to put these procedures into place. We will not accept financial hardships as an excuse from the general public for not following fire codes or building standards and thus allowing unsafe conditions to exist. Therefore, it must not be an excuse for unsafe working conditions by the fire service.