Dispute over state's fire citations must have full and fair hearing

Saturday, September 22, 2007

The S.C. Occupational Safety and Health Administration's allegations of violations by the city of Charleston in connection with the deadly June 18 Sofa Super Store fire are being challenged by Mayor Joseph P. Riley Jr. as flat wrong. There is a process for sorting out who has the best case. Let it take its course.

The most egregious OSHA charge leveled against the city is the allegation of a "willful" disregard of the safety of firefighters due to an inadequate command system. A "willful" violation is defined by OSHA as one committed with "conscious or voluntary disregard" of its requirements or "plain indifference to employee safety or health." The city has filed a "vehement" protest against that allegation, along with some questions about how OSHA has handled the matter.

The OSHA citation — one of four — contends that the city knew or should have known that the command system "does not provide for the overall safety of emergency personnel and their activities." In a letter sent to OSHA within hours of receiving its report, the city's attorney, Charlton deSaussure Jr., wrote:

"The city has never been cited by OSHA for any problem with regard to its written command system policies nor is there any evidence we acted with indifference to the safety of our firefighters in adopting the standards that were in force on June 18. The city has not and would not willfully put the lives of our brave firefighters at risk."

Mayor Riley noted in a later press conference that the city did have a written incident command policy that was followed the night of the fire. After the fire, the department followed a review team's recommendations and adopted the National Fire Protection Association's command policy, according to the mayor.

OSHA also has cited as a "serious" violation the fact that there were no standard operating procedures to cover "the special hazards associated with fighting and attacking a fire involving a metal truss roof." While the city responded that a written policy has been adopted since the fire, Mayor Riley says he knows of no other such policy in the state and only a few in the nation. Mr. deSaussure's letter stated: "We would be very interested to know if this regulation has ever been interpreted before in the way you are interpreting it here. It seems that OSHA is imposing requirements in hindsight that did not exist at the time you allege the city violated them."

More specifically, OSHA contended that four firefighters did not wear self-contained breathing apparatuses at all times as required while fighting the fire and that "body protection was not required to be worn by nine firemen involved in interior structural fire fighting" that night. The latter allegation was of particular concern to the mayor, who immediately sought and received confirmation from OSHA that the reference wasn't to the nine men who died in the fire that night. "We are concerned," the city wrote OSHA, "that your citations may be related to some fire fighters who were fully in compliance with the regulations in question because they were either outside the building or not actively engaged in direct fire fighting at the time." The city contends that the citation on the breathing gear "also seems to be inconsistent with the regulation in which it is based."

The city is taking the next step, which is to request an informal OSHA conference while making it clear it isn't waiving its rights to a formal hearing. The mayor also pointed out that OSHA "did not conduct a closing conference with the city, contrary to their normal operational procedure."

As our report noted, the OSHA investigation is one of several under way. The conclusions of an independent six-member panel of outside experts appointed by the city are expected within the next few weeks. The National Institute for Occupational Safety and Health also is examining the circumstances that led to the firefighters' deaths.

Mayor Riley has acknowledged that the tragedy pinpointed the need for improvement in various aspects of the fire department and notes that 19 of 27 preliminary recommendations already have been implemented. But at issue is the extremely serious questions of whether the city was in violation of safety rules and regulations that contributed to the deaths of nine of its brave men.

The city's requested hearings and the other pending reports should help finally determine whether the city is right that OSHA got it wrong, particularly on the issue of willfully putting lives at risk. If OSHA's right, then clearly there have to be consequences greater than the monetary fines OSHA has imposed. Until then, the accused — the city — deserves the benefit of the doubt.