SC Administrative Law Court Decisions

This matter comes before me pursuant to S.C. Code Ann. § 1-23-111 (Supp. 1997) for the purposes of conducting a public hearing regarding the promulgation of a proposed regulation and determining the need and reasonableness of the proposed regulation. The proposed regulation is an amendment to the provisions of Chapter 71 of the State regulations governing occupational safety and health respiratory protection standards (specifically interior structural firefighting) authorized by

S.C. Code Ann. § 41-15-210 (Supp. 1997). The public hearing was conducted on November 10, 1998, at the Administrative Law Judge Division, in Columbia, South Carolina, and was attended by agency representatives and members of the public. The agency and interested persons presented testimony and written materials relating to the proposed regulation, all of which were incorporated into the record of the hearing. In addition, the Court allowed written comments, filed with the Court no later than ten days after the hearing, to also be incorporated into the hearing record.

The following persons participated in the public hearing:

Sharon Dantzler, Esquire, Deputy General Counsel for South Carolina Department of Labor, Licensing and Regulation

Mr. Randy Carter, President of the South Carolina Professional Firefighters Association

Mr. Dominick Barbera, Vice President of the International Association of Fire Fighters

Mr. Richard Duffy, Director of Occupational Health and Safety for the International Association of Fire Fighters

Mr. Michael Parrotta, President of the Myrtle Beach Firefighters Association

Mr. Joe McNeece, Assistant Chief of the Horry County Fire Department

The Honorable Thomas Alexander, South Carolina State Senator, District # 1, on behalf of Oconee County Firefighters

Mr. Steve Chapman, on behalf of the City of Goose Creek Fire Department

Mr. Terry Strange, on behalf of the Greenwood City Fire Department

Mr. Jim Bowie, Legislative Agent for the South Carolina State Firemen's Association

Mr. Boyd Johnson, City Administrator for the City of Georgetown

Mr. Lewis Lee, on behalf of the State Fire Marshall's Office

Mr. Dennis Cole, Chief of the Lancaster Fire Department

Upon review and analysis of the proposed regulation and the comments of the agency and interested persons, I conclude that the Department of Labor, Licensing and Regulations is within its general authority to promulgate this regulation and that the overall purpose of the proposed regulation is reasonable and needed; however, the proposed regulation as drafted is not as effective as the federal standard as intended by the Department. Accordingly, I recommend that the Department make modifications to the text of the proposed regulation, as described below, before it is submitted to the legislature for approval.

S.C. Code Ann. § 41-15-210 (Supp. 1997) authorizes the Department to adopt and revise regulations necessary for the purpose of attaining the highest degree of health and safety protection for any and all employees working within the State of South Carolina, whether employed in the public or private sector.

The Department is the designated administrator of the federal Occupational Health and Safety Act ("OSHA") program for the State of South Carolina and it has developed a state plan for the development of federal safety and health standards promulgated under OSHA. Pursuant to 29 U.S.C.A. § 667(c)(2), state safety and health standards must be at least as effective in providing safe and healthful employment and places of employment as the federal standards promulgated under OSHA relating to the same issues.

The United States Department of Labor, Occupational Safety and Health Administration has promulgated a revised safety standard on respiratory protection. 63 Fed.Reg. 1152-01 (1998) (to be codified at 29 C.F.R. Sections 1910, 1926). This standard includes provisions concerning procedures for interior structural firefighting, which read, in pertinent part, as follows:

... in interior structural fires, the employer shall insure that:

(i) At least two employees enter the IDLH atmosphere and remain in visual or voice contact with one another at all times;⁽¹⁾

(ii) At least two employees are located outside the IDLH atmosphere; and

(iii) All employees engaged in interior structural firefighting use SCBA's.⁽²⁾

29 C.F.R. § 1910.134(g)(4). This standard is commonly referred to as the "two-in/two-out" regulation.

The explanatory notes accompanying these provisions state that one of the two individuals located outside the IDLH atmosphere may be assigned to an additional role, such as incident commander in charge of the emergency or safety officer, so long as this individual is able to perform assistance or rescue activities without jeopardizing the safety or health of any firefighter working at the incident. The explanatory notes further state that firefighters are not precluded from performing emergency rescue activities before an entire team has assembled.

The Department seeks to modify only the "two-out" requirement of the federal standard. According to Sharon Dantzler, the Department's Deputy General Counsel, all other requirements of 29 C.F.R. § 1910.134 have been adopted by the Department and re-promulgated as Regulation 71-I-1910.134. The Department has drafted proposed regulation 71-I-1910.134(g)(4)(ii) to modify the federal "two-out" requirement as follows:

At least two employees are located outside the IDLH atmosphere, or in the alternative the incident commander has completed the Incident Command Course or its equivalent as certified by the South Carolina Fire Academy and the employees who enter the IDLH atmosphere have completed the Basic Firefighter Course or its equivalent as certified by the South Carolina Fire Academy and the incident commander has determined that the standard staffing pattern is not feasible and that the entry can be made safely with the personnel on-site.

PURPOSE OF THE PROPOSED REGULATION

As stated in the preamble to the proposed regulation, contained in Document No. 2343 of the State Register, Vol. 22, Issue 9, dated September 25, 1998, the proposed regulation is intended to provide protection to firefighters equally effective as that provided by the federal standard while recognizing the special needs of public sector firefighters in urban and rural settings. The Department states that the proposed regulation is needed to provide flexibility for the wide variety of staffing patterns of public fire service providers in South Carolina, many of whom depend on trained volunteers to supplement paid staff. The Department further states that the proposed regulation will not result in any additional cost.

The role of the administrative law judge ("ALJ") in these proceedings is strictly limited to determining the reasonableness and need of the proposed regulation. It is not to question the professional judgment or political wisdom of the Department. Neither is it the ALJ's role to mediate between competing factions of the Department or the firefighting community over policy decisions. To determine the reasonableness and need of a proposed regulation, an ALJ must consider a litany of factors, as provided by S.C. Code Ann. §§ 1-23-111(B) and 1-23-115(C)(1) through (11), [excepting items (4) through (8)] (Supp. 1997).

Several persons testified in opposition to the proposed regulation, questioning the adequacy of its protection to the safety of firefighters compared with the more stringent federal standard. Opposition came from professional firefighter associations as well as representatives of certain public fire departments. In addition to safety concerns, those in opposition cited possible confusion over liability due to the existence of conflicting federal and state standards. Additionally, clarification was sought on the meaning of the following terms in the proposed regulation: "incident commander," "certified," and the phrase "entry can be made safely." Representatives of other public fire departments, individual firefighters, and the State Fire Marshal's Office testified in support of the proposed regulation, citing the need for flexibility in light of many fire departments' dependency on volunteers. Representatives of certain fire departments indicated that rigid compliance with the federal "two-in/two-out" standard would require them to cut existing staff positions and close down some fire stations due to limited economic resources.

The Department's position is that most of the fire departments in South Carolina depend on trained volunteer firefighters to supplement their paid full-time staffs, and that in many rural areas, the majority of firefighters are trained volunteers who arrive at the fire scene separately. The Department explained that this regulation allows a trained incident commander to begin interior structural firefighting in certain situations before a full crew has reported to the scene, and that rigid compliance with the two-in/two-out requirement may in fact create a more hazardous fire scene.

The Department further noted that incident commander training provided by the South Carolina Fire Academy includes evaluation of the type of support outside the structure necessary to allow safe entry, taking into account the type of structure and the extent of the fire, as well as anticipated arrival of additional back-up personnel. The Department has identified the South Carolina Fire Academy's sixteen-hour course entitled "Incident Command System," as developed by the National Fire Academy, as the requisite training for incident commanders exercising discretion pursuant to the proposed regulation. The Department explained that under the proposed regulation, a qualified incident commander must exercise his or her professional judgment to determine whether "entry can be made safely," based on those factors emphasized in his or her training.

The Department emphasized that under the proposed regulation, no fire department in this State may plan a "two-in/one-out" staffing pattern; the proposed regulation assumes that at some point there will be sufficient personnel arriving at the fire scene to meet the "two-in/two-out" rule; the proposed regulation is designed to address firefighting activities before an entire team has assembled at the fire scene.

I find that the Department's proposed regulation as drafted is unreasonable in that it allows less than two employees to be stationed outside the structure for the duration of the firefighting operation. I find that such a result renders the proposed regulation less effective in protecting the health and safety of employees than the federal standard. Further, based on the Department's representations at the hearing, such a result was not intended by the Department. Therefore, it is reasonable and necessary to modify proposed Regulation 71-I-1910.134(g)(4)(ii) to read, inter alia, as follows:

At least two employees are located outside the IDLH atmosphere; however, prior to the assembly of the entire firefighting team, a qualified incident commander may allow two or more employees to enter the IDLH atmosphere with one employee located outside the IDLH atmosphere until the arrival of additional employees, provided that the following conditions are met:

1. the incident commander has completed the Incident Command System course or its equivalent as certified by the South Carolina Fire Academy;

2. the employees who enter the IDLH atmosphere have completed the Basic Firefighter Course or its equivalent as certified by the South Carolina Fire Academy;

3. the incident commander has determined that the standard staffing pattern is not feasible;

4. the entry can be made safely with the personnel on-site; and

5. arrival of additional employees to complete the standard staffing pattern is imminent.

(new language underlined).

Based upon the statements, testimony, exhibits, written comments, and applicable law, I find and conclude the following:

Pursuant to S.C. Code Ann. § 1-23-111(B) (Supp. 1997), this Court must make findings as to the need and reasonableness of the proposed regulation and may include modifications to the proposed regulation in the absence of either.

By Document No. 2343 of the State Register, Vol. 22, Issue 9, dated September 25, 1998, the South Carolina Department of Labor, Licensing and Regulation, Office of Occupational Safety and Health Compliance, seeks to provide protection to firefighters equally effective as that provided by the federal standard while providing flexibility to meet the special needs of public sector firefighters in urban and rural settings.

The Notice of Drafting of the proposed regulation was published in the State Register on March 27, 1998.

The Department filed an Agency Transmittal Form with the Administrative Law Judge Division on August 25, 1998, for the purpose of having a public hearing conducted on the proposed regulation.

The Notice of Proposed Regulation was published in the State Register on September 25, 1998, which included a synopsis of the proposed regulation and the Notice of Public Hearing and Opportunity for Public Comment.

The Department filed its Statement of Need and Reasonableness with the ALJD on October 30, 1998, in compliance with S.C. Code Ann. § 1-23-111 (Supp. 1997) and ALJD Rule 45; the promulgating agency is required to file with the Court its Statement of Need and Reasonableness and other documents at least ten (10) days prior to the public hearing.

The Department complied with all applicable procedures for publication of notice of proposed promulgation of regulations and public participation set forth in § 1-23-110 (Supp. 1997).

A public hearing to allow agency presentation and public comment was conducted before the Administrative Law Judge Division in Columbia, South Carolina, on November 10, 1998, pursuant to S.C. Code Ann. § 1-23-111 (Supp. 1997).

Oral testimony and exhibits were received by the Court from the agency and interested persons at the November 10, 1998 hearing.

Subsequent written comments and responses were received by the Court no later than ten days after the hearing, at which time the record of the hearing was officially closed, with all materials received by the Court incorporated into the record.

At the regulation hearing before an administrative law judge, the agency shall submit into the record the jurisdictional documents, including the statement of need and reasonableness as determined by the agency based on an analysis of the factors listed in § 1-23-115(C)(1) through (11), except items (4) through (8), and any written exhibits in support of the proposed regulation. S.C. Code Ann. § 1-23-111(A) (Supp. 1997).

Pursuant to S.C. Code Ann. § 1-23-111(B) (Supp. 1997), this Court must make findings as to the need and reasonableness of the proposed regulation and may include modifications to the proposed regulation in the absence of either.

Pursuant to S.C. Code Ann. §§ 1-23-111(B) and 1-23-115(C) (Supp. 1997), the following factors must be considered in the need and reasonableness analysis [listed in S.C. Code Ann. § 1-23-115(C)(1) through (11), except items (4) through (8)]:

(1) a description of the regulation, the purpose of the regulation, the legal authority for the regulation, and the plan for implementing the regulation;

(2) a determination of the need for and reasonableness of the regulation as determined by the agency based on an analysis of the factors listed in this subsection and the expected benefit of the regulation;

(3) a determination of the costs and benefits associated with the regulation and an explanation of why the regulation is considered to be the most cost-effective, efficient, and feasible means for allocating public and private resources and for achieving the stated purpose;

. . . .

(9) the uncertainties associated with the estimation of particular benefits and burdens and the difficulties involved in the comparison of qualitatively and quantitatively dissimilar benefits and burdens. A determination of the need for the regulation shall consider qualitative and quantitative benefits and burdens;

(10) the effect of the regulation on the environment and public health;

(11) the detrimental effect on the environment and public health if the regulation is not implemented. An assessment report must not consider benefits or burdens on out-of-state political bodies or businesses. The assessment of benefits and burdens which cannot be precisely quantified may be expressed in qualitative terms. This subsection must not be interpreted to require numerically precise cost-benefit analysis.

In addition to the factors enumerated above, the ALJ may also consider other relevant factors identified in the order in determining need and reasonableness. S.C. Code Ann. § 1-23-111(B).

The South Carolina Department of Labor, Licensing and Regulation is authorized to adopt and revise regulations necessary for the purpose of attaining the highest degree of health and safety protection for any and all employees working within the State of South Carolina, whether employed in the public or private sector pursuant to S.C. Code Ann. § 41-15-210 (Supp. 1997) and §§1-23-10, et seq. (1986 & Supp. 1997).

An agency is implicitly authorized to interpret, clarify and explain statutes by prescribing regulations "to fill in the details" for the complete and consistent operation and enforcement of the law within its expressed general purpose. A regulation is valid as long as it is reasonably related to the purpose of the enabling legislation. Young v. SCDHPT, 287 S.C. 108, 336 S.E.2d 879 (Ct. App. 1985). A regulation which is beyond the authorization of the agency's enabling legislation or which materially alters or adds to the law, however, is invalid. Society of Professional Journalists v. Sexton, 283 S.C. 563, 324 S.E.2d 313 (1984); Banks v. Batesburg Hauling Co., 202 S.C. 273, 24 S.E.2d 496 (1943).

"Reasonable" is defined as "Fair, proper, just, moderate, suitable under the circumstances. . . . Not immoderate or excessive, being synonymous with rational, honest, equitable, fair, suitable, moderate, tolerable." Black's Law Dictionary, 1265 (6th ed. 1990). The word has been further defined to mean "agreeable to reason under the facts and circumstances of the case before the Court." Ellis v. Taylor, 311 S.C. 66, 427 S.E.2d 678 (Ct. App. 1992). The question of whether a regulation is reasonable should focus on whether it has a rational basis or is rationally related to the end sought to be achieved. Hunter & Walden Co. v. S.C. State Licensing Board for Contractors, 272 S.C 211, 251 S.E.2d 186 (1978).

Proposed Regulation 71-I-1910.134(g)(4)(ii) as drafted, modifying the federal safety standard on respiratory protection for interior structural firefighting, unreasonably fails to protect the health and safety of employees as effectively as the federal standard.

Proposed Regulation 71-I-1910.134(g)(4)(ii) would be reasonable and necessary if amended to read (with suggested new language underlined):

At least two employees are located outside the IDLH atmosphere; however, prior to the assembly of the entire firefighting team, a qualified incident commander may allow two or more employees to enter the IDLH atmosphere with one employee located outside the IDLH atmosphere until the arrival of additional employees, provided that the following conditions are met:

1. the incident commander has completed the Incident Command System course or its equivalent as certified by the South Carolina Fire Academy;

2. the employees who enter the IDLH atmosphere have completed the Basic Firefighter Course or its equivalent as certified by the South Carolina Fire Academy;

3. the incident commander has determined that the standard staffing pattern is not feasible;

4. the entry can be made safely with the personnel on-site; and

5. arrival of additional employees to complete the standard staffing pattern is imminent.

Pursuant to S.C. Code Ann. § 1-23-111(C) (Supp. 1997), if the presiding administrative law judge determines that the need for or reasonableness of the proposed regulation has not been established, the agency must elect to:

(a) follow the suggested modifications of the administrative law

judge and submit the modified proposal for legislative approval;

(b) not modify the proposed regulation but submit the proposed regulations originally drafted to the General Assembly, along

with a copy of this Order, for legislative approval; or

(c) withdraw the proposed regulation.

Generally, I find that the Department is within its authority to promulgate this regulation and that the overall purpose of the proposed regulation is reasonable and needed; however, I also conclude that the proposed regulation as drafted does not meet the requisite statutory standard of reasonableness and must be amended. Therefore, it is recommended that the proposed regulation should be modified by the Department prior to submission to the General Assembly. The wisdom of approving the proposed regulation is not a matter for this Court to decide. That issue is one reserved for consideration by the General Assembly.

For the foregoing reasons, I recommend that Document 2343, the proposed regulation as drafted by the South Carolina Department of Labor, Licensing and Regulation, Office of Occupational Safety and Health Compliance, be amended as follows:

At least two employees are located outside the IDLH atmosphere; however, prior to the assembly of the entire firefighting team, a qualified incident commander may allow two or more employees to enter the IDLH atmosphere with one employee located outside the IDLH atmosphere until the arrival of additional employees, provided that the following conditions are met:

1. the incident commander has completed the Incident Command System course or its equivalent as certified by the South Carolina Fire Academy;

2. the employees who enter the IDLH atmosphere have completed the Basic Firefighter Course or its equivalent as certified by the South Carolina Fire Academy;

3. the incident commander has determined that the standard staffing pattern is not feasible;

4. the entry can be made safely with the personnel on-site; and

5. arrival of additional employees to complete the standard staffing pattern is imminent.

(new language underlined).

IT IS THEREFORE ORDERED that the Department of Labor Licensing and Regulation shall consider the findings and recommendations contained herein and elect a course of action as specified in S.C. Code Ann. § 1-23-111(C) (Supp. 1997). It is further ordered, pursuant to S.C. Code Ann. § 1-23-111(C)(b) (Supp. 1997), that if the Department elects to submit the proposed regulation for legislative approval as originally drafted or as modified as recommended herein, a copy of this Order must be submitted to the General Assembly with the proposed regulation.

AND IT IS SO ORDERED.

_________________________________

ALISON RENEE LEE

Administrative Law Judge

November 25, 1998

Columbia, South Carolina

1. "IDLH" references "immediately dangerous to life or health."

2. "SCBA" references a self-contained breathing apparatus.