Agency playing 'shell game,' lawyer charges

Charleston officials are accusing the state's workplace safety agency of making up rules as it goes along and stonewalling efforts to discover why the city's fire department was slammed for its handling of the fatal Sofa Super Store blaze.

City officials said the state Occupational Safety and Health Administration can't or won't answer basic questions about its findings that Charleston knowingly sent its firefighters into an unsafe situation during the June 18 fire. One attorney for the city accused OSHA of playing a "shell game" with the facts and trying to hold Charleston accountable for laws that don't exist.

"It appears this is a regulatory agency without regulations in place to do it," lawyer Sandra Senn said. "They seem like they are trying to cobble something together to fine the city."

OSHA officials on Wednesday declined to discuss specifics about their investigation into the fire. But the agency maintained that the process has been "open and transparent" and that the city has been furnished with a complete copy of the agency's investigative report, including findings, notes, documentation, photographs, videos, and other materials. The city has all the information it needs to decide whether it wants to formally contest the citations, agency officials stated.

"Rather than posture before the cameras and speak in sound bites, the city should file a formal protest with the South Carolina Occupational Health and Safety Review Board and let a hearing officer hear the evidence and decide the case as provided by law," OSHA officials said in a written statement.

Last month, OSHA cited the city for four violations stemming from the fire that killed nine Charleston firefighters. In one of the largest fines ever imposed on a public agency in South Carolina, the state slapped the city with $9,325 in fines. The citations deal with accusations that firefighters failed to wear full protective gear and air masks, did not recognize known hazards associated with the store's steel truss roof and lacked an adequate command system to coordinate firefighters on the ground and track their whereabouts.

Senn said the investigative file OSHA provided to the city leaves many questions unanswered, and the agency has not allowed Charleston officials to speak with the lead investigator to clarify how conclusions were reached. This leaves the city no choice but to formally challenge the findings, she said.

Among other things, OSHA can't or won't identify the nine firefighters who supposedly were inside the building without proper gear or the four firefighters who should have been wearing air masks, Senn said.

Documents in the state's case file appear to show that some of the investigator's findings and conclusions were altered by his superiors, Senn said. She said internal e-mails the city obtained from OSHA and the South Carolina Fire Academy also appear to show confusion on the part of state officials about their regulations and penalty structure. The interpretation of city officials is that the state was trying to "cobble together" a way to penalize Charleston for the fire, she said.

The city has questioned why OSHA cited broad regulations that don't specifically cover the violations in question. For example, the state has not adopted specific standards for incident command or fighting fires in buildings with steel truss roofs, Senn said. How then, the city asks, can it be held liable for standards not addressed in the state code?

OSHA maintains that it can hold employers liable for generally accepted standards within a particular profession. Both the importance of incident command and the dangers of truss roofs are widely recognized in the fire service. The National Fire Protection Association and other fire service organizations have published numerous fact sheets and guidelines on these topics for fire departments to follow.

OSHA officials said court rulings dating to the 1970s support their position. Those rulings hold that general standards apply "when a reasonably prudent man familiar with the circumstances" of an industry would recognize the need for protective measures, OSHA stated.

Adele L. Abrams, an attorney in Maryland specializing in regulatory litigation, said the burden of proof is on OSHA if it decides to use a consensus standard as the basis for a violation. If OSHA cannot show that these standards were used elsewhere, "that citation is probably going to go away," she said.

"The reason it's not a slam dunk is because OSHA sometimes overreaches," she said. "What they don't let you do is play ostrich and willfully ignore a consensus standard."

She said OSHA is in a tough spot because many of its regulations have not kept pace with technological advancements and evolving industry practices. As a result, federal and state OSHA agencies will look to industry standards to supplement existing regulations.

Where it gets dicey is when those standards are not specifically adopted into law. "I have argued that before, and I have gotten those citations vacated in court," Abrams said. "It comes down to can your lawyer beat up their lawyer."