ALBANY COUNTY — Will the Supreme Court’s decision to upend 40 years of legal precedent ease firefighter fears over proposed substantial changes to the federal statute governing their training and safety? 

Because many statutes are silent or ambiguous when it comes to the detail necessary to practically deal with, for example, workplace law issues, courts have often deferred to the relevant agency’s regulations and other interpretations. 

In June’s Loper Bright Enterprises v. Raimondo decision, the United States Supreme Court overturned this doctrine, known as Chevron for the 1984 case from which it originated, which gave federal agencies the flexibility to interpret broad statutes to implement regulations. 

The 6-to-3 decision narrowed the ability of federal agencies to set these regulations, in turn shifting interpretive power from agencies to the courts.

For federal agencies in general and in particular the Occupational Safety and Health Administration, the agency proposing the fire brigade changes, the ruling means:

— Courts may be less likely to defer to OSHA’s interpretation of its statutory authority;

 — Stakeholders could challenge more OSHA rules in court; and 

— OSHA might need to provide more extensive justification for new rules, slowing down its rule-making process.

Proposed changes

The proposed changes to OSHA’s fire-brigade standard aim to significantly update and expand existing regulations. The current standard, 1910.156, primarily focuses on fire departments and their operational protocols. The new proposal seeks to broaden the scope to include emergency medical services (EMS) and search-and-rescue operations.

Some of the proposed changes include: 

— Alignment with National Incident Management System (NIMS)

 Current claim: Existing OSHA standards don’t align with NIMS, which governs emergency response coordination across various sectors.

 Proposal: Ensure the new standards are in line with NIMS, which would facilitate collaboration among government, non-governmental organizations, and the private sector during emergencies;

— Enhanced medical surveillance requirements

 Current claim: There are limited medical surveillance protocols for assessing health conditions related to firefighting.

 Proposal: Introduce mandatory medical surveillance for emergency responders, monitoring exposure to hazardous substances and detecting health issues early;

— Training and skill development

 Current claim: Training requirements vary widely, which can lead to inconsistent preparedness among first responders.

 Proposal: Establish clear minimum training standards based on the type of service being provided;

— Risk-management plans

 Current claim: Emergency agencies can lack formalized risk-management strategies.

 Proposal: Require workplace emergency response employers (WEREs) to develop risk-management plans identifying potential hazards and outlining safety measures for responders;

— Behavioral health programs

 Current claim: Mental health issues among emergency responders are not systematically addressed.

 Proposal: Mandate the establishment of behavioral health programs to support responders dealing with stress, substance abuse, and mental-health challenges;

— Personal protective equipment (PPE) standards

 Current claim: Existing PPE standards are outdated and may not provide adequate protection against hazards.

 Proposal: Adopt updated consensus standards for PPE, ensuring that all protective gear used by firefighters meets rigorous design and performance criteria;

— Incident command system (ICS) training

 Current claim: There’s a lack of standardized training regarding ICS roles and responsibilities.

 Proposal: Implement training programs to ensure all responders understand their roles within the system; and

— On-scene safety protocols

 Current claim: Safety measures during emergencies can be inconsistent.

 Proposal: Establish protocols for on-scene safety, including maintaining adequate staffing levels and ensuring that responders operate within safe parameters based on the nature of the incident.

Firefighters, volunteers in particular, have pushed back hard on the proposal, claiming implementation would, among other things, be too expensive and cost departments many volunteer members.

That pushback, likely combined with the Chevron decision, appears to have had its desired effect as OSHA in mid-September effectively admitted it was willing to exempt volunteer organizations from the new standard. 

Chevron 

For decades, court deference to the Chevron decision had been a cornerstone of OSHA’s authority, allowing the agency to interpret and enforce safety standards with considerable latitude, backed by the notion that its expertise justified its regulatory reach.

The case resulting in the Supreme Court’s 1984 landmark decision had pitted fuel manufacturer Chevron U.S.A. Inc. against the environmental advocacy group, Natural Resources Defence Council Inc. At play was the interpretation of the word “source” in the 1963 Clean Air Act.

The federal Environmental Protection Agency had, in 1981, changed its definition so that companies could increase emissions in one part of a plant if an equal portion were reduced elsewhere in the facility.

The environmental group won in a federal court but that decision was overturned by the Supreme Court, which ruled in favor of Chevron, 6-0, because, the high court said, the courts should defer to federal agencies like the EPA in the interpretation of a statute or law.

But with Chevron now resigned to the regulatory dustbin, OSHA’s interpretations of safety regulations, including those related to fire-brigade standards, will be subject to heightened judicial scrutiny, meaning courts will no longer automatically defer to OSHA’s expertise and will instead more closely scrutinize the agency’s interpretations.

The absence of Chevron deference introduces a number of challenges for OSHA. 

To begin, the agency has to cross every ‘t’ and dot every ‘i’ in its proposed rule changes, ensuring they are meticulously aligned with the statutory language of the Occupational Safety and Health Act (OSH Act), which is a heightened level of scrutiny that could slow down OSHA’s ability to respond to emerging safety challenges. For example, if OSHA attempts to enhance training requirements or establish new operational protocols for fire brigades without explicit statutory backing, it may face significant pushback and legal challenges.

The recent decision from the Supreme Court means the practical functionality of OSHA as a regulatory body could also be reduced. The need for clear statutory language could deter OSHA from pursuing innovative or proactive measures in fire-brigade standards, leading the agency to shift towards more conservative interpretations of existing standards to comply with judicial expectations.

The risk of litigation from industries and/or other governmental organizations feeling constrained by OSHA’s fire-brigade standards could escalate, overwhelming OSHA’s already limited resources and diverting attention from safety initiatives as well as placing both proposed and existing standards on the chopping block. 

For example, if OSHA revises its fire-brigade standards to incorporate new safety technologies or practices without clear statutory justification, court challenges could emerge, arguing that these regulations exceed OSHA’s authority under the OSH Act.

And without judicial deference, one of OSHA’s only paths to regulatory implementation would be a direct mandate from Congress, unlikely at any time in the agency’s history.