KANSAS CITY, Mo. (TNS) — Driven by a stiff wind, fire spread swiftly through the fertilizer plant in West, Texas, on that spring evening in 2013.
By the time the first volunteer fire companies arrived, flames engulfed the seed room and threatened storage bins laden with 60 tons of ammonium nitrate.
“Gonna blow!” a former firefighter who’d driven to the scene warned West’s chief.
But as crews dragged hoses toward flames licking at stores of the same chemical Timothy McVeigh used to destroy the Oklahoma City federal building, a fire captain who worked at the plant was reassuring.
“It’ll never get hot enough to blow up,” he said.
Moments later, an orange fireball flashed. The explosion obliterated the West Fertilizer Co. plant, killing 15 people, 10 of them firefighters. It was the deadliest day since 9/11 for the American fire service.
The state fire marshal’s office laid much of the blame for the April 17, 2013, disaster on the fire department’s failure to follow safety standards.
Yet not a single firefighting regulation was broken.
That same year, a Dallas fire commander sent Stan Wilson and his crew into an unoccupied building that was in danger of collapsing. Minutes later, the ceiling caved in, killing Wilson.
Once again, multiple investigations found blatant safety errors. But when Wilson’s family considered holding the fire department accountable by filing a lawsuit, they were surprised to learn it couldn’t be done because fire departments generally have immunity from such suits.
“You’re a public employee and you die on the job due to gross negligence, and it’s ‘tough luck, Charlie,’” said Wilson’s brother, Ken. “We have no recourse to hold anyone accountable for this.”
Tough luck sums it up well on both the regulatory and legal fronts, The Kansas City Star found in an investigation of shortcomings in firefighter safety. In most occupations, there are rules to follow and legal consequences for flouting them.
Not necessarily with firefighters.
Because local fire departments are subject to no federal workplace safety rules and scant state regulation in much of the country, firefighters cannot count on government to help correct unsafe practices.
“OSHA cannot come in and do nothing for us, because we are not under OSHA,” Waycross, Ga., firefighter Bill Jordan said.
And because the survivors of fallen firefighters generally cannot file wrongful-death lawsuits against fire departments in Missouri, Kansas and most other states, the fear of shelling out big damage awards won’t spur departments to exercise more caution.
That lack of accountability, especially on the regulatory front, officials inside and outside government say, hampers efforts to prevent injuries and line-of-duty deaths.
“That’s kind of the problem with the fire service,” said Columbus, Ohio, battalion chief David Bernzweig, who is active in developing voluntary safety standards through a fire-service industry association, the National Fire Protection Association. “We don’t fall under any federal regs.”
Small advances on the regulatory front offer a glimmer of hope for firefighter safety advocates. But only a glimmer, because it could be years before the rules take effect — if at all — and then in only half the states.
The bottom line, according to the co-leaders of an OSHA committee working on new proposed regulations: “The nation has a moral obligation to protect those who protect our communities.”
Federal officials and industry groups saw the West disaster as horrific proof that when safety standards are voluntary, they are insufficient to reduce injuries and fatalities.
Under those standards, the fire department should have planned for a hazardous materials emergency at the fertilizer plant, but hadn’t done so.
Someone at the scene should have assumed command and directed operations, but not even the fire chief took charge.
Nor did anyone perform a risk assessment, as those standards encourage, to decide whether it would have made more sense to concentrate on evacuating the area rather than trying to put out a raging fire.
“The strategy and tactics utilized by the West Volunteer Fire Department,” the Texas state fire marshal’s report said, “were not appropriate for the rapidly developing and extremely volatile situation and exposed the firefighters to extreme risks.”
Many in the fire service said the West disaster demonstrated the need for tougher regulations nationwide.
“The consideration of a comprehensive rule designed to protect (emergency) responders is tremendously important,” the International Association of Fire Chiefs said, “because it seeks to address a conspicuous absence of safety-centric regulations over an industry widely regarded as one of the most hazardous.”
In late 2015, the Occupational Safety and Health Administration appointed representatives of groups with stakes in improving firefighter safety to an advisory committee charged with drafting proposed new regulations.
“Come up with a standard that will actually be fully protective of emergency responders in this country,” deputy OSHA director Jordan Barab told the committee.
The resulting 42-page draft, published two months ago, is the first rewrite of OSHA regulations governing firefighter safety in decades.
The proposed federal rules would update minimum standards already on the books for oxygen masks and fire-resistant clothing. More important, fire departments would be required to adopt many of the voluntary standards formulated over the years by the privately funded National Fire Protection Association.
Standards, in other words, that focus on firefighters’ safety at emergency scenes.
The proposed new rules would, for example, oblige fire commanders to weigh risks before sending firefighters into burning buildings. Provisions set out conditions for when to establish “exclusion zones” to keep firefighters out of danger when no civilian lives are at stake.
Under the proposed rules, firefighters would undergo annual physical examinations. For decades, heart attacks have accounted for half of the 81 line-of-duty fatalities that occur on average every year. Yet at many departments today, the only time a firefighter’s health is evaluated is when he or she is hired.
Other provisions address the growing cancer risk from toxins by setting out requirements for cleaning sooty protective clothing and gear.
The rules would save lives, supporters say.
But there’s no telling when, or whether, the rules might take effect.
The rule-making process could take years, the fire chiefs association says, and the proposed regulations could be watered down along the line. Plus, no one knows whether they will have the backing of the Trump administration. During the campaign, the now president-elect promised to rein in rather than expand federal regulations.
Even if the proposed emergency responder regulations are approved, they would apply only in the 26 states that have set federal OSHA regulations as their minimum standards. Missouri and Kansas are not among those states.
The reason: When Congress created OSHA 45 years ago, federal, state and local governments were exempt from following workplace safety rules imposed on private employers.
The safety rules would apply only in states that accept federal money to run their own OSHA programs. These OSHA-plan states must use the federal rules as their minimum standards for public employees.
Even then, enforcement varies from state to state. A Kansas City Star analysis of Labor Department records found wide disparities.
In some states, fines can be ridiculously low even in incidents resulting in high death tolls. For instance, the fire department in Charleston, S.C., was fined $3,160 for violations that contributed to the deaths of nine firefighters in 2007.
New Jersey, on the other hand, conducted 2,244 inspections from August 2014 to January 2016 and assessed $1.8 million in fines.
Efforts to extend federal OSHA protection to all public employees have been stymied time after time.
President Barack Obama backed legislation that would add protections throughout his two terms, failing to get much traction even when Democrats controlled Congress his first two years. Most recently, a bill sponsored by Democrats Al Franken of Minnesota in the Senate and Joe Courtney of Connecticut in the House failed to get a hearing in Congress.
(EDITORS: BEGIN OPTIONAL TRIM)
Spokesmen for Franken and Courtney did not respond to The Star’s requests for comment. But Missouri Sen. Claire McCaskill, a Democrat, said there is little hope the proposal will go anywhere in the next session, either.
“Claire is always anxious to protect firefighters and first responders,” McCaskill spokeswoman Sarah Feldman said, “but given the current political realities in Washington, this is one that’s best addressed at the state and local level.”
U.S. Rep. Emanuel Cleaver said he, too, is concerned about the safety of firefighters, but the Kansas City Democrat stopped short of endorsing more government regulation without knowing how firefighters and fire departments in his district feel about that.
“As a member of the Congressional Fire Services Caucus, my number one concern is the safety of the firefighters who risk their lives to save others and the property of others,” he said. “I want them to have the most efficient equipment and the most current training they need to perform such an arduous calling.
“However, I am cautious about unintended consequences without specific engagement and review by the men and women in my district most impacted.”
The union representing career firefighters, the International Association of Fire Fighters, has been working for years to include all firefighters under federal OSHA protection, “supporting national standards for safe apparatus, equipment and practices,” according to the union’s website.
At a meeting in February, Pat Morrison, the union’s representative on the OSHA rule-writing committee, advocated applying the new emergency responder rules to all states.
He declined to discuss how that might be achieved in the current political climate when a Star reporter tried to interview him at the Labor Department this summer.
Morrison said he needed permission from the union-affiliated local in Kansas City before commenting, and the local had not allowed it. Reached later, Local 42 President William Galvin said the union was displeased with The Star’s coverage of the deaths of two Kansas City firefighters in 2015 and refused to comment further.
Others in the fire service wish the federal government would go beyond a rule rewrite and give enforcement powers to the federal agency that already investigates firefighter fatalities, the National Institute for Occupational Safety and Health, or NIOSH.
“That’d be great if we had something that would connect NIOSH and OSHA,” said lawyer Curt Varone, a retired firefighter who has written books on firefighting law and runs the Fire Law blog.
But that would require greater federal funding, as NIOSH is currently unable to investigate nearly two-thirds of firefighter fatalities. Plus, Varone’s opinion is not shared by others in the fire service, who say the institute’s role as a research organization would be undermined if it had police powers.
None of the three largest organizations representing firefighters — the International Association of Fire Chiefs, the firefighters’ union and the National Volunteer Fire Council — has lobbied to give the institute “teeth.”
Indeed, some within the fire service worry that any kind of increased regulation, be it through the safety institute or OSHA, would weigh heavily on small volunteer departments. They might lose volunteers or disband if forced to comply with expensive new restrictions.
“I don’t think that heavy hand is the answer,” said volunteer fire council chairman Kevin Quinn.
“Mayday! Mayday! Collapse!” Truck 53’s captain barked into the radio mic. “I have two men missing!”
Dallas firefighters charged into the blazing apartment building and quickly rescued one of their trapped comrades on that day in May 2013. But it would be hours before they found 51-year-old Stan Wilson under 4 feet of broken drywall, soggy carpet and splintered lumber.
According to the autopsy report, the 28-year veteran of the Dallas Fire-Rescue Department suffocated when the ceiling fell on him. But a contributing cause of death, authorities would later determine, was a commander’s decision to send Wilson and his crew into a building that was in danger of collapse.
“People screwed up,” his widow, Jenny Wilson, told The Star. “Stan wasn’t supposed to die.”
Yet when Wilson and her husband’s siblings considered suing, they learned what the families of other fallen firefighters across the country have discovered: It’s next to impossible.
Cities and fire departments are immune because of workers’ compensation laws. They are designed to limit employers’ exposure to big damage awards while guaranteeing at least some help for a family after the loss of a breadwinner.
The amount varies. In Missouri, the surviving spouse of a firefighter, like any other worker killed on the job, receives two-thirds of the deceased’s salary for life, or until he or she remarries. In Kansas, the death benefit is a flat $300,000.
Survivors must leap over high hurdles to have any hope of collecting damages beyond workers’ comp. To win in court, said Kansas City lawyer Mitchell Burgess, the error must have been so far beyond the pale as to seem intentional.
That’s the foundation for a pending lawsuit in Connecticut.
Kevin Bell, a 48-year-old Hartford, Conn., firefighter, died in 2014 when he and another firefighter became separated while fighting a residential blaze. A lawsuit alleges that Bell’s partner left him behind to die and that the commander on the scene “made a conscious and deliberate decision” to delay sending in a rescue team. It also alleges that the fire department outfitted Bell and other firefighters with faulty oxygen tanks.
“Our world crashed that day,” Bell’s widow, Wayatte Statham-Bell, said when the suit was filed last year. “Our lives have never been the same.”
Fire department officers deny the allegations, but Connecticut’s state office of occupational safety cited the Hartford Fire Department for several “serious” violations, including failure to properly test firefighters’ breathing equipment.
In Georgia, a trial judge recently dismissed a similar lawsuit brought by the widow of firefighter Jeff Little against the city of Waycross and Fire Chief David Eddins. Lawyers for Dianne Little are trying to get the suit reinstated by the state court of appeals.
Little’s lawsuit alleges that Eddins ordered firefighters inside a vacant and condemned house long after it was safe because he had a grudge against one of the firefighters. The suit contends that Little, fearing for his job, went inside and died when part of the building collapsed.
“It’s not about the money,” Dianne Little said. “I want the answers. I want to know why.”
The city said it was shielded by workers’ comp. Eddins declined to comment when a Star reporter paid him a visit, but in a YouTube video said he was unsure why Little and the others had entered the building.
Dianne Little’s lawyer, Sean Simmons, predicted from the start that the case would be an uphill battle, but he thought it was worth pursuing.
“If somebody doesn’t take cases like this, nothing will ever change,” he said.
In the rare instances where firefighters’ lawsuits have been successful, they’ve led to safety improvements.
In Baltimore, 29-year-old Racheal Wilson and other recruits were sent into a “live burn” training exercise in 2007. The National Fire Protection Association has recommended standards for such exercises. An independent investigation later found the Baltimore fire department violated 50 of them.
Wilson, who was trapped on the third floor, died of burns and asphyxia. A lawsuit sought more than $10 million. Baltimore settled the case for $200,000. But the director of the training academy was fired, as was the safety officer, and the longtime fire chief resigned after votes of no confidence by the firefighters’ and fire officers’ unions.
Also successful in bringing safety improvements was a case this year in New York, where firefighters have a court precedent that lets them seek damages regarding safety equipment.
In 2005, six New York City firefighters were trapped on the fourth floor of a burning tenement in the Bronx. Fire management had stopped issuing safety ropes — because they added 3 pounds to firefighters’ 30 pounds of gear — so their choice was to wait to die or jump into the alley below.
Jeff Cool lived to tell about it, in part, because he had brought his own safety rope.
“I shattered both my shoulders,” Cool told The Star outside a fire station in midtown Manhattan. Titanium screws hold his fractured pelvis together. Without transfusions, he said, he would have bled to death 10 times over.
“My body right now,” he said, “is basically held together with Krazy Glue and duct tape.”
Like Cool, firefighters Gene Stolowski and Brendan Cawley still deal with pain nearly a dozen years later. Less fortunate were Lt. Curtis Meyran and firefighter John Bellew, who died on impact. Cool’s friend, firefighter Joseph DiBernardo, died six years later from an overdose of the painkillers he took to cope with severe injuries.
The department began issuing ropes again soon after the fire but claimed immunity from legal claims. Nearly a decade later, a jury disagreed and said the city owed $146 million. Rather than risk losing on appeal, the plaintiffs settled for $29.5 million this fall.
Stan Wilson’s family had hoped a lawsuit would compel the Dallas fire department to accept responsibility for his death and improve safety for other firefighters. Above all, Jenny Wilson wanted Dallas Fire-Rescue to begin recording its firefighter-to-firefighter radio channel, as virtually every other major metropolitan fire department has done for years.
Had a recording system been in operation the day her husband died, Wilson said, it might explain how his crew came to be inside an empty building that was in danger of collapsing. The incident commander denied issuing the order, although the surviving crew members claimed otherwise.
“It was never in my heart to file a lawsuit,” Wilson said. “The only reason I would have, if I could have, is to shake things up. Make things happen.”
Ultimately, the department did address a number of safety concerns without a court order. This fall the recording equipment Wilson wanted was installed as well.
Still, the inability to file a lawsuit nags at Ken Wilson. A court action, he said, might have forced the fire department to own up to its mistakes.
This year, on the anniversary, Wilson and a few friends stood outside Dallas City Hall with signs that said, “Three Years, No Accountability.”
Wilson said he would make it an annual tradition until the department takes responsibility.
“That’s been the saddest thing,” he said. “They won’t man up.”
That lack of accountability, especially on the regulatory front, officials inside and outside government say, hampers efforts to prevent injuries and line-of-duty deaths.
Be the first to know
Get local news delivered to your inbox!