HomeMy WebLinkAboutItem E I
AGENDA REPORT
DATE: August 13, 2001
TO: Honorable Mayor and City Council
THRU: John B. Bahorski, City Manager
FROM: Lee Whittenberg, Director of Development Services
SUBJECT: Status Report re: National Fire Protection Association
Deployment Standards (NFPA 1710 and NFPA 1720)
SUMMARY OF REQUEST:
Receive and File Status Report.
BACKGROUND:
On July 17, 2001 the National Fire Protection Association (NFPA) announced its
decision to issue two new standards concerning the deployment of fire department
personnel in career and volunteer departments, adding an important amendment designed
to allow local governments real and substantial flexibility in the way they provide fire
and emergency medical services. The announcement came a week after a large coalition
of national, regional, and state local government. Fire service and taxpayer groups
expressed their concerns at an NFPA Council hearing on the standards.
The specific standards approved by the Council are NFPA 1710, Standard for the
Organization and Deployment of Fire Suppression Operations, Emergency Medical
operations, and Special Operations to the Public by Career Fire Departments, and NFPA
1720, Standard for the Organization and Deployment of Fire Suppression Operations,
Emergency Medical operations, and Special Operations to the Public by Volunteer Fire
Departments. NFPA 1710 prescribes strict staffing and response times for career fire
departments. NFPA 1720 is its' counterpart for volunteer fire departments, but its'
requirements are less prescriptive.
The National Local Government and Taxpayer Coalition (Coalition) includes 7 national
local government personnel and risk management associations; 43 state municipal
leagues; 22 organizations representing state and district fire chiefs, volunteers and
firefighters; 11 other regional, state and local organizations such as the California State
Association of Counties and the Howard Jarvis Taxpayers Association; and 198
individual counties, cities, towns and villages.
Agenda Item 7
C:\My Documents\LEGISLAT,NFPA 1710&1720 CC Status Report.doc\LW\08-02-0I
r
Status Report re:NFPA 1710 and 1720
Standards re: Organization and Deployment of Fire Suppression
and Emergency Medical Operations
City Council Staff Report
August 13, 2001
The Coalition told the NFPA Council that the proposed staffing and response time
standards were seriously flawed because they imposed rigid constraints and substantial
financial burdens on local government's provision of fire and emergency services. The
Coalition also showed that the NFPA technical committees that developed the standards
excluded local elected and chief appointed officials, failed to accommodate the needs and
viewpoints of local governments and taxpayers, and ignored any scientific basis for the
standards. The Coalition asked the Council to not issue the standards and to reconstitute
the technical committee under new leadership in order to begin the process of developing
true consensus standards based on scientific analysis.
In approving the standards, the Council announced two important measures that appear to
respond directly to the Coalition's appeal. First, the Council approved the issuance of
both NFPA 1710 and 1720 only after adding the following supplemental language
concerning the acceptability of alternative approaches to providing fire and emergency
medical services other than those set out in the standards:
"1.3 Equivalency. Nothing in this standard is intended to prohibit the use
of systems, methods, or approaches of equivalent or superior performance
to those prescribed in this standard. Technical documentation shall be
submitted to the Authority Having Jurisdiction to demonstrate
equivalency."
By its terms, this amendment allows alternative "systems, methods, or approaches' to be
implemented by local governments, and allows local governments to review and make
the final decision on the adequacy of such alternatives. Members of the Coalition will
continue to study this provision in an effort to accurately assess its implications.
Second, the Council directed the technical committees responsible for NFPA 1710 and
1720 to begin review and revision of the standards on a three-year cycle (the quickest
possible under NFPA rules), and report to the 2004 Annual Meeting.
There is an appeal time period, and staff will provide additional reports regarding this
matter.
FISCAL IMPACT:
Potential direct fiscal impacts, depending as to the impacts of the implementation of
NFPA 1710 and 1720 on current response levels of the Orange County Fire Authority.
RECOMMENDATION:
Receive and File Status Report.
NFPA 1710&1720.CC Status Report 2
•
ti,
Status Report re:NFPA 1710 and 1720
Standards re: Organization and Deployment of Fire Suppression
and Emergency Medical Operations
City Council Staff Report
August 13,2001
NOTED Ai APPRO D:
( -
Whittenberg Jo :. Bahorski, City Manager
Director of Development Serv' es
Attachments: (2)
Attachment 1: "Fact Sheet on Proposed NFPA Standards 1710 and 1720"
and "Executive Director's Message — When Fairness and
Special interests Collide", Western City Magazine, July
2001
Attachment 2: Appeal of the League of California Cities to the NFPA
Standards Council regarding Proposed Standards 1710 and
1720, prepared by Howard, Rice, Nemerovski, Canady,
Falk and Rabkin, dated June 22, 2001
NFPA 1710& 1720 CC Status Repoli 3
Status Report re:NFPA 1710 and 1720
Standards re:Organization and Deployment of Fire Suppression
and Emergency Medical Operations
City Council Staff Report
August 13,2001
ATTACHMENT 1
"FACT SHEET ON PROPOSED NFPA
STANDARDS 1710 AND 1720" AND
"EXECUTIVE DIRECTOR'S MESSAGE -
WHEN FAIRNESS AND SPECIAL
INTERESTS COLLIDE", WESTERN CITY
MAGAZINE, JULY 2001
NFPA 1710&1720.CC Status Report 4
Fact Sheet on Proposed NFPA Standards 1710 and 1720
WHAT YOU NEED TO KNOW
Q. What is the National Fire Protection Association (NFPA)?
A. NFPA is an international association of firefighters, fire chiefs, vendors, and trade
organizations whose mission is "to reduce the worldwide burden of fire and other hazards
on the quality of life by providing and advocating scientifically-based consensus codes
and standards, research, training, and education." NFPA's guidelines, while voluntary,
often are incorporated into local ordinances and building codes.
Q. What is NFPA proposing?
A. NFPA has proposed minimum staffing levels and response times for fire'companies,
initial full alarm response levels, and extra alarm response levels for both municipal and
volunteer fire and emergency medical services apparatus. These standards would preempt
local control and decision-making about fire and EMS department operations,
administration, and deployment. The proposed standards are scheduled for a vote on May
16, 2001, during NFPA's annual conference in Anaheim, Calif.
Q. What are the proposed staffing standards?
A. The proposed standards, NFPA 1710 (for the career firefighters and EMS personnel)
and NFPA 1720 (for volunteers), would define minimum response times to an emergency
and minimum fire company and EMS staffing levels. For municipal fire departments, for
example, NFPA 1710 calls for fire companies to be staffed with a minimum of four on-duty_
personnel. "Companies" are defined as groups of members (engine companies, ladder
companies, squads, etc.) "operating with one piece of fire apparatus except where multiple
apparatus are assigned that are dispatched and arrive together, are continuously operated
together, and are managed by a single company officer." In addition, NFPA 1710 would
require five-six personnel to staff a fire emergency in a"hazardous"or"high-risk"area.
Q. What are the proposed response time standards?
A. The response time objectives for fire suppression, EMS response, and other operations
are:
• Turnout time: one minute
• Arrival of first engine company at a fire: 4 minutes
• Deployment of a full first alarm assignment at a fire: 8 minutes
• Arrival of EMS first responder: 4 minutes
• Arrival of advanced life support unit at an EMS incident: 8 minutes
O. What about volunteer fire departments?
A. The NFPA 1720 standards require an initial assembly of at least four personnel before
fire suppression activities can begin at a structural fire. When assembled, volunteers must
be able to safely start fighting a fire within two minutes 90 percent of the time, starting with
an initial rapid intervention team of two fully-equipped firefighters.
1
Q. What about combined fire departments?
A. Because there are so many variations, the local authority that has jurisdiction over
operations would decide whether standard 1710 (career) or 1720 (volunteer) would apply.
Q. How would passage of NFPA 1710 and 1720 affect local governments?
A. Minimum response times and minimum staffing levels for fire and emergency
services have always been determined by local governments. NFPA 1710 would preempt
local authority and impose a one-size-fits-all unfunded mandate on local governments,
costing cities and towns a significant amount of money and increasing local property
taxes. In a Wall Street Journal article (February 7, 2001), staff reporter Robert Johnson
noted that NFPA "is poised to make a recommendation that could prompt fire
departments to hire 30,000 more firemen nationwide, an 11% increase." Ironically,
compliance with NFPA 1710 also might undermine fire prevention efforts by forcing
local governments to shift dollars from prevention programs to fire suppression activities,
potentially increasing the danger to local firefighters.
Q. What is the potential liability for my community if the NFPA standard is
approved?
A. Failure to adopt and comply with NFPA 1710 could expose municipalities to
significant potential liability claims and lawsuits if a company with fewer than four
firefighters responds to a fire and the building is destroyed or someone is injured or
killed. Whether or not the presence of an additional firefighter in the company could
have prevented the tragedy is irrelevant. In addition, cities will face financial exposure in
labor contract negotiations/arbitration judgments and possible OSHA compliance costs if
they do not adopt the NFPA standards.
Q. Will the NFPA standards reduce fire losses and improve safety for fire personnel?
A. Proponents of the NFPA proposals have offered no empirical evidence that the NFPA
standards will achieve either objective. In fact, the opposite may occur if cities are forced
to shift resources from fire prevention to fire suppression and staffing.
Q. How can I get more information?
A. Contact your state municipal league and the national organizations listed below that
oppose the standards. Visit the NFPA web site at: www.nfpa.org/procom/pdfs/1710-
c.pdf (pages 159-166) to see the 1710 proposal, or get printed copies from NFPA by
calling 617-984-7593.
Contacts/Groups Opposing the NFPA Standards:
Scott Morris Mike Lawson
National League of Cities International City/County Management Association
1301 Pennsylvania Avenue NW 777 North Capitol Street NE,#500
Washington DC 20004-1763 Washington DC 20002
202-626-3021 202-289-4262
morris(a nlc.org mlawson(a?,icma.org
Roger Dahl Donald Murray
U.S. Conference of Mayors National Association of Counties
1620 Eye Street NW 440 First Street NW
Washington DC 20006 Washington DC 20001
202-293-7330 202-393-6226
rdahl(a),usmayors.org dmurrary(iP,naco.org
•
E X E C U T I V E D I R E C T O R ' S M E S S A G E
by Chris McKenzie
Wh en Fairness an
Special Collide
ne of my favorite childhood pastimes was accompanying my This month, I will be attending the
meeting of a little-known national orga-
•. father on walks to the scenes of fires in our neighborhood. nization, the National Fire Protection
Association (NFPA), that is quietly
trying to take such decisions out of the
We lived in an older section of St. Louis, When concerns developed in our neigh hands of neighborhood residents and
with alarm boxes on each corner, and it borhood about the hazards to children their elected city officials by setting
seemed that hardly a week went by with- from increasingly heavy through traffic, national standards about how quickly
out a fire alarm sounding somewhere in the solution fashioned by the local alder fire departments must respond to an
our neighborhood. My grandfather had man and city hall was to convert the alarm.At its annual conference in
been an insurance adjuster, so my father streets to one-way and place diagonal Anaheim in May, the NFPA gave pre
legitimately came by his fascination with mounds at the intersections.This pro- liminary approval to a new standard for
fire scenes. In short, admiring the work foundly reduced the number of speeders deploying emergency response services
of firefighters and supporting their role through the neighborhood, but I also that will require dramatic increases in
in local government has been part of my recall the debate surrounding these early fire suppression budgets and reductions
life.They are true professionals and traffic-calming devices and the commu- in spending on fire prevention and other
highly valued public servants. nity's concern that they not impede city services,such as libraries, parks,
emergency vehicles' response time.
recreation, streets and planning.
Ultimately,a compromise was struck continued
and the mounds were installed, but they
In May, the NFPA gave were designed to allow relatively easy
access by emergency vehicles.
preliminary approval to a .
new standard for deploy- The Importance of Making n y .�. � '< .'
Local Decisions Locally ✓ 9` {
ing emergency response s }3.
That early lesson in democracy taught 3!%`,- ..-..:-.;z-,J.,2;*,
services that will require me (and every ocher child in my neigh �w °°
borhood) that concerns about pedestrian 1 4 R 7
li dramatic increases in fire safety, vehicular access, emergency •�.. c "
response and public finance must and _ �;^ .A
suppression budgets and p p • . ,a .
PP can be balanced CO satisfy multiple i ,
reductions in spending priorities.The final decision was made f ^^ f.�'"
by the city in consultation with neigh-
on fire prevention and borhood residents and city fire profes-
other city services. sionals.The decision was made where
it could be most responsively and best ,
,
made—locally.
www.westerncity.com Western City,July 2001 3
E X E C U T I V E D I R E C T O R ' S M E S S A G. E
Proposed NFPA Firefighting lying the story at the beginning of this would have been much more difficult.
Standards Lack Local Input column. Community residents and their
elected officials are best positioned Sound public policy needs an open and
The proposed standard, NFPA 1710, p sitioned co fair debate by all the affected parties and
requires minimum staffing of four on- weigh competing interests in deploying their representatives.The exclusion of
duty personnel per fire company, for all local government services throughout elected officials from the process of
fire departments with paid staff.The any city. Imposing this one-size-fits-all developing 1710/1720 and the strong-
minimum response time standards standard, without considering building
construction, automatic fires sprinklers,
arm tactics displayed at the recent NFPA
would require: P convention (during which the chairman
public education, code enforcement,
• Turnout time in one minute; traffic congestion, other service de-
tried the 1710 committee ridiculed and
tried to embarrass chose who disagreed
• Arrival of the first engine company at mands, financial feasibility or other fac with him) were anything but open and
a fire in four minutes; tors, straitjackets the public and local fair. For the good of the public and the
elected officials. It fundamentally deprives
• Deployment of a full first-alarm people of making local choices about pri- fire service, NFPA should start over, and
assignment at a fire in eight minutes; orities for spending their funds. this time local elected officials should be
invited to the table.
• EMS first responder arrival in four
minutes; and
• A full advanced-life-support unit at an Sound ubliC policy
EMS incident in eight minutes. p p y Join the Fight Against NFPA's
needs an open and Effort to Usurp Local Control
Another proposed standard for volunteer The League's board of directors
departments,NFPA 1720,would require: fair debate by all the recently adopted formal opposi-
tion to the National Fire Protec-
• An initial assembly of at least four per- affected parties and tion Association's (NFPA)
sonnel before fire suppression activities Standards 1710 and 1720.The
can begin at a structural fire; and that their representatives. League was a leader in oppos-
• When assembled, volunteers must ing these standards at NFPA's
meeting, held May 16, 2001.At
be able to safely start fighting a fire that meeting, the League repre-
within two minutes 90 percent of the rented California's cities and 36
time,starting with an initial rapid An Unacceptable Definition other state municipal leagues.
intervention team of two fully Of Consensus
equipped firefighters. The League is now the lead
What is also troubling is that in the appellant against the adoption
process of developing this proposed of these standards and is pre-
standard, the NFPA deliberately exclud- senting its appeal at NFPA's
ed elected officials from their so-called July meeting.The League has
Imposing this one-size- "consensus" process. Furthermore, the been joined by the NLC, ICMA,
fits-all standard standard apparently is not based on NACO, USCM, CSAC and 41
empirical or scientific evidence, but on state municipal leagues in this
fundamentally deprives appeal process.
y p the opinions of fire professionals.
The League urges cities, associ-
people of making While fire professionals may agree that ations and other state municipal
the standard is appropriate, the views of leagues to weigh in on this issue
local choices about the public's locally elected representatives and join the opposition effort
the priorities for would appear to be just as important, so through whatever practical
that competing public interests can be means are possible, whether it is
spending their funds. weighed. For example, there was a time by contributing financially, writing
in the not too distant past when most letters, making phone calls or
law enforcement professionals would spreading the word to other
have told you that they should never leaders who believe that local
For those of us committed to excellence decisions are best made locally.
in the fire service and emergency medical patrol on foot or bicycle. Only through
the efforts of elected local officials did For more information about
service, the logical question raised by the community policing model come the NFPA situation, visit the
these proposed standards is:Why would League's website at www.
back into favor. If there had been a g
anyone disagree with them? national standard that all patrolling cacities.org.
The answer lies in the principles under- should be done only by car,such a change
4 League of California Cities www.cacities.org
Status Report re:NFPA 1710 and 1720
Standards re:Organization and Deployment of Fire Suppression
and Emergency Medical Operations
City Council Staff Report
August 13,2001
ATTACHMENT 2
APPEAL OF THE LEAGUE OF
CALIFORNIA CITIES TO THE NFPA
STANDARDS COUNCIL REGARDING
PROPOSED STANDARDS 1710 AND 1720,
PREPARED BY HOWARD, RICE,
NEMEROVSKI, CANADY, FALK AND
RABKIN, DATED JUNE 22, 2001
NFPA 1710& 1720.CC Status Report 5
II
s
law Offices Of
HOWARD Three Embarcadero Center
RICE Seventh Floor
NEMEROVSKI San Francisco,CA 94111-4065
Telephone 415.434.1600
CANARY Facsimile 415.217.5910
FALK www.howardrice.com
& RABKIN
A Professional Corporation June 22, 2001 Bernard A. Burk
ration
Standards Council Chair Gary Taylor
Members of the Standards Council
National Fire Protection Association
1 Batterymarch Park
P.O. Box 9101
Quincy,Massachusetts 02269-9101
Attn: Casey Grant, Secretary
Re: Appeal of the League of California Cities
to the NFPA Standards Council regarding Proposed Standards 1710 and 1720
Dear Chairperson Taylor and Members of the Standards Council:
Pursuant to Section 1-6 of the National Fire Protection Association Regulations
Governing Committee Projects,the League of California Cities,joined by the agencies and
organizations described below,appeals to the Standards Council concerning proposed standard
1710,Standard for the Organization and Deployment of Fire Suppression Operations,
Emergency Medical Operations, and Special Operations to the Public by Career Fire
Departments, and proposed standard 1720,Standard for the Organization and Deployment of
Fire Suppression Operations, Emergency Medical Operations, and Special Operations to the
Public by Volunteer Fire Departments.
Appellant respectfully requests that the Council hear its representative in oral argument
during its hearings to be held July 10,2001 in San Francisco, California.
NFPA Standards Council
June 18, 2001
Page i
TABLE OF CONTENTS
I. NAME, AFFILIATION AND ADDRESS OF THE APPELLANTS 1
II. STATEMENT IDENTIFYING THE PARTICULAR ACTIONS TO WHICH
THE APPEAL RELATES 1
III. ARGUMENT SETTING FORTH THE GROUNDS FOR THE APPEAL
INTRODUCTION
FACTUAL BACKGROUND 3
The novel features of the proposed standards 3
The practical implications of NFPA 1710 5
Prior rejection of minimum staffing provisions: NFPA 1500 6
Continued rejection of specific nationwide service standards: NFPA 1200 7
The lack of balance in the NFPA 1710 Technical Committee 9
A skewed Committee fails to observe the Association's procedural rules
and guidelines 12
A skewed Committee fails to marshal any reliable scientific basis for its
foreordained conclusions. 14
The IAFF reduces the Association's Technical Meeting to a labor rally 15
ARGUMENT 16
A. Repeated And Widespread Violations Of Numerous
Protections In The Association's Regulations And Conduct
Guide Prevented NFPA 1710 From Becoming Anything
Remotely Resembling A"Consensus" Standard 16
1. The Standards Council Was Misinformed At The
Outset As To The Need And Basis For Creating A
Separate Technical Committee To Consider A
Standard For Career Fire Departments 17
2. The Technical Committee Did Not Possess The
Balance That Basic Fairness, A Fully Informed
Process And The NFPA Rules Required 17
3. The Technical Committee Failed To Respect,
Seriously Consider, Or Attempt To Accommodate
Varying Interests Or Perspectives 20
NFPA Standards Council
June 18, 2001
Page ii
4. The May 2001 Technical Meeting Was
Procedurally Suspect. 21
B. The Technical Committee Did Not Rely On, And Did Not
Seriously Investigate, Any Substantial Scientific Basis For
Its Proposed Standard. 23
1. The Association Has Previously Recognized The
Lack Of Any Proper Basis For Rigid Mandatory
Nationwide Service Standards. 24
2. There Is No Reliable Empirical Or Scientific Basis
For The Proposed Standard. 25
3. There Is No Rational Or Scientific Basis For The
Scope Of The Proposed Standards "8
IV. STATEMENT OF RELIEF REQUESTED 29
NFPA Standards Council
June 22, 2001
Page 1
I. NAME, AFFILIATION AND ADDRESS OF THE APPELLANTS
This Appeal is submitted on behalf of the League of California Cities, a California
nonprofit corporation representing the interests of its 476 member cities, which comprise every
city in the State of California. It is submitted on Appellant's behalf by its undersigned counsel,
who may be contacted at the address appearing on the first page of this document.
Joining in this appeal are the organizations and agencies listed in Exhibit 1. These
include:
• The National League of Cities;
• The United States Conference of Mayors;
• The National Association of Counties;
• The International City/County Management Association;
• The Public Risk Management Association;
• The National Public Employer Labor Relations Association;
• The International Personnel Management Association;
• Forty other state municipal leagues,representing the interests of a total of over 15,000
cities nationwide;
• The Howard Jarvis Taxpayers Association;
• Numerous individual cities,towns and fire districts.
Additional organizations and agencies may notify the Council of their joinder in this appeal prior
to the hearing. See NFPA Reg. 1-6.4.
IL STATEMENT IDENTIFYING THE PARTICULAR ACTIONS TO WHICH THE
APPEAL RELATES
A more specific statement identifying the particular actions to which this appeal relates
was provided to the Association in the League's Notice of Appeal dated June 5,2001 and
attached as Exhibit 2. Generally,this appeal relates to the development, content and proposed
issuance of NFPA 1710 and NFPA 1720. These two proposed NFPA standards were
recommended to the Association by membership votes at the Technical Meeting held in
Anaheim, California on May 16, 2001. They are before the Standards Council to determine
whether or not they should be issued as official NFPA Standards.
•
NFPA Standards Council
June 22, 2001
Page 2
III. ARGUMENT SETTING FORTH THE GROUNDS FOR THE APPEAL
INTRODUCTION
For the first time in the National Fire Protection Association's history, and after the
Association has repeatedly considered and rejected such measures over the last ten years,
proposed standard NFPA 1710 seeks to impose uniform and inflexible minimum staffing and
maximum response-time requirements on every career fire department in North America. These
requirements would be imposed indiscriminately on every city and town from Nacogdoches to
New York City, irrespective of profound local differences in department size, population density,
available resources,or any of the myriad other practical factors that affect the cost and delivery
of public services. Meeting the unprecedented demands of NFPA 1710 would require the
construction and equipping of thousands of new fire stations, and the employment of tens of
thousands of additional personnel in the United States alone, at a cost to local taxpayers of
billions of dollars per year—all as a result of a process that systematically excluded the
viewpoint and interests of those who would be required to pay the cost, and that lacked any
objective basis to conclude that compliance would be a cost-effective means of reducing injury
and loss compared with other measures that might benefit local taxpayers rather than the
international labor union that has single-mindedly pressed this burden onto those taxpayers for
its own advantage.
As highlighted in its Mission Statement,the NFPA has a long and distinguished tradition
of"providing and advocating scientifically-based consensus codes and standards . . ."(emphasis
added). Its longstanding national and international prestige as a private standard-setting
organization has been integrally tied to its vigilance that its codes and standards be forged and
tested in two distinct crucibles of reason: first, a set of detailed and rigorously regulated
"consensus"procedures designed to ensure that the standard formulation process include, and
that its results reflect, all pertinent perspectives and affected interests; and second,an
intellectually rigorous insistence that Association documents demonstrably be"scientifically-
based"in empirically grounded and methodologically sound quantitative analysis.
The development of proposed standard 1710 and its companion standard 1720 has gone
terribly wrong in both respects. "Consensus"has been achieved only by excluding divergent
interests and points of view,and intimidating or ignoring any dissenting voices that remained.
No scientific basis for the critical aspects of the proposed standards exists. Instead of advancing
consensus and scientific inquiry, a single well-funded,highly organized interest group—
organized labor in the person of the International Association of Fire Fighters ("IAFF")—has
hijacked the Association's process to further its own ambitions.
Ironically, in persuading the Standards Council to form a Technical Committee for these
proposed standards,the IAFF represented the purpose of the project to be the virtual opposite of
what the IAFF-dominated Committee produced, and a membership meeting packed with
thousands of IAFF-funded voters obediently endorsed. Specifically, the IAFF expressly
represented to the Standards Council on no fewer than four separate occasions spanning a period
NFPA Standards Council
June 22, 2001
Page 3
of four years that"one size does not fit all"—that no specific minimum service standards were
universally appropriate for all fire departments or service jurisdictions; that any such standards
would need to be"tiered"to respond to variations in local conditions; that the IAFF intended to
promulgate service standards applicable only to a particular"urban" environment typically
served by a large, career department; and that limiting Committee jurisdiction to career fire
departments would facilitate this flexibility. The result of the IAFF's efforts,however, is
precisely the"one size fits all" standard that union leaders assured the Standards Council would
be"impossible"to effect, and would"leave everyone in a perpetual state of non-compliance and
confusion."
It would be no exaggeration to say that the Association's continued authority and
reputation for objective, fair, and balanced standards depends on its taking notice of these
multiple abuses of its procedural and substantive requirements,withholding approval of the
proposed standards until it has fully investigated these concerns, and remedying any deviations
by developing proposed standards under the regular procedures and substantive scientific
scrutiny that have been severely compromised to date. We urge the Council to begin that
corrective process here and now.
FACTUAL BACKGROUND
The novel features of the proposed standards. According to its title,NFPA 1710 is a
mandatory "Standard for the Organization and Deployment of Fire Suppression Operations,
Emergency Medical Operations, and Special Operations to the Public by Career Fire
Departments." Limiting its purview to the operation of"career" fire departments staffed by full-
time paid employees,NFPA 1710 imposes on fire services a number of requirements of a kind
that have never before been imposed by any NFPA code or standard(and, we will see,that the
Association has actually rejected on numerous occasions in the last ten years):
• NFPA 1710 proposes specific mandatory nationwide staffing minimums. It requires that
a"company"or"crew"—the minimum complement of personnel dispatched to work as a
unit on fire suppression or search and rescue operations—comprise at least four
firefighters. For almost all fire departments almost all the time, this amounts to a
requirement that each engine,truck and quint in service be staffed with at least four on-
duty personnel 24 hours a day, 7 days a week.'
• NFPA 1710 also proposes specific mandatory nationwide maximum response times for
fire suppression and emergency medical incidents. It requires that,at least 90%of the
'NFPA 1710§§3.1.8,5.2.2.1.1,5.2.2.2.1,5.2.2.4. The proposed standard acknowledges that a
"company"will"usually operat[e]with one piece of fire apparatus,"but allows a single company to staff
"multiple apparatus that are dispatched and arrive together and continuously operate together and are managed
by a single company officer." NFPA 1710 §§3.1.8(4).
NFPA Standards Council
June 22, 2001
Page 4
time,2 a fire department achieve a maximum"turnout time"(that is, the time between
when firefighters receive an alarm and the time they are on board their apparatus, fully
dressed and equipped)of one minute;3 response times of"four minutes(240 seconds)or
less for the arrival of the first arriving engine company at a fire suppression incident
and/or 8 minutes (480 seconds)or less for the deployment of a full first alarm assignment
at a fire suppression incident's"four minutes (240 seconds)or less for the arrival of a
unit with first responder or higher level capability at an emergency medical incident,"5
and"eight minutes (480 seconds)or less for the arrival of an advanced life support unit at
an emergency medical incident. . . ."6
g Y
Proposed standard 1720, governing volunteer fire departments, recognizes that local
government has the authority and the responsibility to determine the"scope and level of service
provided by the fire department,"the"necessary level of funding"and the"necessary level of
personnel and resources." In contrast to NFPA 1710's specific service minimums,NFPA 1720
directs in general terms that a fire department should"include sufficient personnel, equipment
and other resources to efficiently, effectively and safely deploy fire suppression resources."7
Even in proposed standard 1710,the staffing and response times for specialized fire department
functions—such as wildfire suppression and marine firefighting and rescue—are to be
determined flexibly in light of the particular risks and circumstances prevailing in the locality
served.8 But for general fire suppression and emergency medical services,NFPA 1710
superimposes the specific mandatory minimum staffing and maximum response-time
requirements described above regardless of a service jurisdiction's size;budget or tax base; local
regulatory requirements;population; density; topography; age, composition or standards of
construction; implementation of alternative means of fire suppression such as automatic sprinkler
systems; or other unique characteristics.9
2NFPA 1710§4.1.2.1.2.
3NFPA 1710§4.1.2.1.1(1).
4NFPA 1710§4.1.2.1.1(2).
5NFPA 1710§4.1.2.1.1(3).
6NFPA 1710§4.1.2.1.1(4).
7NFPA 1720§§4.1;A.1.2.3.
8NFPA 1710§§5.6.4,5.7.4.
9The standard generally proposes staffing for these functions"of the numbers necessary for safe and
effective fire-fighting performances relative to the expected. . .conditions,"including"(1)Life hazard to the
populace protected;(2)Provision[]of safe and effective fire-fighting performance conditions for the fire
fighters;(3)The number of trained response personnel available to the department including mutual aid
resources;(4)Potential property loss;(5)Nature,configuration,hazards and internal protection of the
properties involved;(6)Types of. ..tactics and evolutions employed as standard procedure,type of apparatus
used,and results expected to be obtained at the fire scene; [and](7)Topography,vegetation and terrain in the
(continued. ..)
NFPA Standards Council
June 22, 2001
Page 5
The practical implications of NFPA 1710. While Appellant appreciates that NFPA is a
private organization, and its codes and standards are not legal mandates,they are intended to be
broadly adopted as such. Yet there is no indication that the Technical Committee gave anything
more than the most nominal attention to the practical implications of, or cost-effective
alternatives to, imposing the inflexible nationwide minimum performance and staffing criteria
the proposed standard sets.
Perhaps this is not surprising given that, as explained below,the Committee's
membership lacked any meaningful representation from any constituency that would be required
to actually implement and pay for the proposed standard. But the practical implications of
adopting NFPA 1710 are in fact staggering. The League is informed that the majority of career
fire departments, both in its home state of California and nationwide, are not currently in
compliance with this standard, including many with service and safety records superior to fire
departments that are in compliance.
To meet the response time requirements,additional fire stations will have to be sited,
constructed, equipped and staffed. To meet the minimum crew-size requirements,additional
personnel will need to be hired—an estimated 30,000 new hires nationwide)° Despite the fact
that less than three percent of the typical fire department's service calls involve structure fires,"
the cost to local taxpayers of meeting the structure fire-related requirements of NFPA 1710 will
mount into the billions of dollars per year, in many cases amounting to double-digit increases in
city and county fire service budgets.12 As joining party Howard Jarvis Taxpayers Association
can attest,California is the original home of the taxpayer revolt; state constitutional restrictions
here beginning over 20 years ago with Proposition 13 make local tax increases all but infeasible.
And the current economic recession and insistence on tax reduction at the national level show
that local tax increases are no more likely anywhere else in the United States or Canada. As a
practical matter,then,NFPA 1710 amounts to an unfunded mandate that will require rebalancing
of municipal budgets throughout North America. Thus,without any demonstrated need, and
( . . .continued)
response area(s)."NFPA 1710§§5.7.4.1,5.7.4.1.1;see also §5.6.4.1.1 (suggesting consideration of similar
factors,as well as"requirements of the regulatory authorities having jurisdiction. . ."). The proposed standard
dictates that similar factors are to be considered in determining staffing for general fire suppression activities,
but also imposes a four-person-per-company minimum absent from these more specific subject areas. See
NFPA 1710§§5.2.1.1,5.2.2.1.1.
10R.Johnson,"As Blazes Get Fewer,Firefighters Take On New Emergency Roles," Wall St.Journal.
February 7,2001,at p.Al.
11M.Ahrens,NFPA Fire Analysis and Research Division, The U.S.Fire Problem Overview Report:
Leading Causes and Other Patterns and Trends(NFPA 2000)at p.12 (excerpts attached as Ex. 7). In service
areas characterized by lower density,newer construction,and widespread fire prevention devices(such as heat
and smoke detectors and automatic sprinklering),structure fires can be 1%or less of a department's service
calls.
12The Georgia Municipal Association,for example,estimates compliance costs in Georgia alone will be
over$89 million. See Ex. 8.
NFPA Standards Council
June 22, 2001
Page 6
quite possibly without the acquiescence of the local electorate, imposition of NFPA 1710 will
require dramatic cutbacks in all manner of local services, including community policing,public
parks and libraries,and municipal services for children and senior citizens.
Is it worth it? As we will see,the NFPA 1710 Technical Committee has no idea.The
Committee apparently failed to consider whether equal or greater improvements in civilian and
firefighter health and safety could be achieved in localities where the need genuinely exists
through the devotion of vastly less resources to more modest overall department staffing
increases(as opposed to across-the-board increases in standard crew size), better training,
equipment or apparatus, or for that matter by imposing(and even subsidizing)prevention
measures such as fire code upgrades and sprinkler retrofitting that significantly reduce the
incidence and seriousness of structure fires.'3
Prior rejection of minimum staffing provisions: NFPA 1 500. The issue of specific
standards for staffing and response times is not new. NFPA has considered—and rejected—
minimum crew size mandates more than once over the last 15 years. NFPA 1500,Standard on
Fire Department Occupational Safety and Health Program, was first issued in 1987. When the
standard came up for reconfirmation in the early 1990s,the IAFF sought to convert the apparatus
staffing recommendations in NFPA 1500's Appendix to strict apparatus staffing requirements in
the actual body of the standard. After thorough discussion,the responsible Technical Committee
rejected this proposal. IAFF—through the man who later would become Secretary of the NFPA
1710 Technical Committee, Richard Duffy—proposed inflexible mandatory fireground staffing
requirements as an amendment to the second edition of NFPA 1500 when it was brought before
the Association membership at the 1992 Annual Meeting. At a membership meeting not packed
with voters bought and paid for with IAFF dues,the amendment was rejected by over three-
quarters of the members present.14
13Similarly,the Technical Committee apparently never seriously considered the possibility that forced
compliance with NFPA 1710's inflexible minimum staffing and response-time requirements could actually
increase the risk of loss and injury to civilians and firefighters. For example,in municipalities with traffic
problems,severe weather conditions,or large areas,efforts to comply with NFPA 1710's decreased mandatory
response times could increase the risk of collisions involving fire apparatus.
"Transcript of May 1992 NFPA Annual Meeting,at pp.51-53,78(Committee fails to approve
minimum crew-size provision);p.94(membership rejects inflexible fireground staffing provision)(excerpt
attached as Ex.9). The floor debate on this proposed amendment presages many of the questionable IAFF
themes and tactics that pervade the instant context: Mr.Duffy flatly asserts that the IAFF"believe[s] [local
governments]should not decide on the fireground safety standard." Ex.9 at pp.56-57. Others strongly
disagree,citing concerns about the variability of local conditions and preferences(Ex.9 at pp. 71-74,89-90)
and the problem of unfunded mandates(Ex.9 at pp.71-74). Many NFPA members are disturbed by what they
perceive to be an attempt by the IAFF to avoid public comment and other NFPA procedural safeguards. Ex.9
at p.80. Some speakers go further,accusing the IAFF of harassing fire chiefs opposed to the amendment with
"late night phone calls"and"character assassination"(Ex.9 at p. 82-84)and alleging that the"NFPA 1500
Committee has been highjacked by the IAFF."Ex.9 at p.84.
NFPA Standards Council
June 22, 2001
Page 7
Later in 1992, then-NFPA 1500 Committee Chair(and future NFPA 1710 Committee
Chair)Alan Brunacini authored, and the IAFF supported, a proposed Temporary Interim
Amendment("TIA")to NFPA 1500 similar to the proposed amendments that the NFPA 1500
Technical Committee and the NFPA membership had rejected. In January 1993,the Standards
Council met to consider it. Then, as now, the empirical basis for the proposed requirements was
much in question. Standards Council member Jenny Nelson remarked to IAFF General
President Al Whitehead, "I have been looking at the data that you have given and have tried to
find some conclusions that say that the four person manning would actually decrease the injuries
or prevent deaths. I don't see that in the statistics."15 The Standards Council rejected the TIA.
The NFPA Board of Directors agreed, expressing concern that the amendment's wording could
be misinterpreted to address minimum apparatus crew size as opposed to initial deployment in
fire attack. 6
Continued rejection of specific nationwide service standards: NFPA 1200. The union
did not quit there. In 1994, the IAFF's General President formally requested that the Standards
Council form a new committee to address staffing and deployment issues. When the Standards
Council met to address the request, IAFF representative Dave McCormack(later a member of
the NFPA 1710 Technical Committee) assured the Council that"we believe strongly in the
NFPA consensus standards making process,"and that variability in local conditions must be
accommodated: "the response time in Frozen Boot [Montana] is not going to be the same as for
San Francisco or New York or Washington, D.C." 7 At a subsequent meeting, McCormack
assured the Council on behalf of the IAFF that"to our belief one size does not fit all.s18 He
specifically agreed with Council member Gary Taylor"that the dominant issue here is how you
organize public protection depending on urban versus rural rather than whether it is volunteer
or professional"and later summarized that the IAFF"wants to address the issue of deployment
in essentially an urban setting."19 In response,the council decided to form a technical committee
for a new standard,NFPA 1200,noting that"deployment needs may vary depending on the type
of fire department or community environment, and that there are several proposals as to how
these different deployment contexts might be categorized.s20
15Transcript from January 13, 1993 Standards Council Meeting at p. 17(attached as Ex. 10). A
reconstituted NFPA 1500 Technical Committee eventually recommended a less stringent TIA to NFPA 1500
that declined to dictate apparatus crew size and instead promulgated a more flexible fireground staffing
standard for structure fire attack that did not dictate crew size. See NFPA Standards Council Decision 93-23
and Attached TIA(attached as Ex. 11). This TIA was approved by the Standards Council on July 23, 1993.
See Ex. 11 at p. 1593.
16See NFPA Board of Directors March 11, 1993 Decision(attached as Ex. 12).
'Transcript of July 12, 1994 NFPA Standards Council Meeting at p.9(attached as Ex. 13).
18Transcript of January 11, 1995 NFPA Standards Council Meeting at p. 19(excerpt attached as Ex. 14).
19Ex. 14 at p.40 and p.80(emphasis added);see also Ex. 14 at 56-58,67,71-72.
20See NFPA Standards Council Decision 94-93 (attached as Ex. 15).
NFPA Standards Council
June 22, 2001
Page 8
But the NFPA 1200 Committee—apparently with a more modest labor representation and
a more diverse collection of viewpoints—could not come to consensus.21 In mid-1997,the
Standards Council convened a meeting to consider how to proceed. Amidst pointed controversy
about exactly what had transpired at the NFPA 1200 Committee's previous meeting,the IAFF-
having been unable to induce the Committee to endorse the staffmg and deployment standard it
had long desired—requested that NFPA 1200 be abandoned and the Committee's jurisdiction be
divided.z2 IAFF representative Dave McCormack, long-time veteran of the staffmg-standards
wars and soon-to-be member of the NFPA 1710 Committee,argued for the division,once again
urging that"one size does not fit all, and a failure to recognize this has produced what is an
inherently flawed charge to the [NFPA 1200] committee . . . ."23 McCormack asserted that IAFF
"believe[s] very strongly that . . . the frequency and intensity of the fire situation is really a
function also of population, of population density,"which itself was reflected by a career
department's size. The IAFF, McCormack said, recognized a"divergence of need"between
different service jurisdictions that it"beg[ged]"the Council to recognize, and asked the Council
to"create a standard that deals with career departments of a certain size." "Do everyone a large
favor," McCormack urged,"and create a tiered compliance system.s24 At a public meeting of
the Council later in 1997 at which this discussion continued, McCormack addressed the concern
that"many fire departments, particularly small departments . . . will have serious difficulties
meeting [a specific mandatory minimum] standard,"stressing that the IAFF"agree[s] and we
implore the Standards Council to recognize these differences," and that"[t]iered compliance will
permit us to develop a system that does not leave everyone in a perpetual state of non-
21See Declaration of Gerard Hoetmer("Hoetmer Decl.")(attached as Ex. 5)¶10;Transcript of July 1997
Standards Council Meeting at p.45(excerpt attached as Ex. 16)(NFPA 1200 Technical Committee Chair John
Granifo states that"the major constituencies"were"represented on the[NFPA 1200]committee").
Section 4-5.1 of the draft version of NFPA 1200 contained in the 1997 Fall Meeting Report on
Proposals proposes a flexible standard for staffing"comprised of the numbers necessary for safe and effective
fire-fighting conditions"responsive to numerous factors,including"life hazard to the populace protected";
"provisions of safe and effective fire-fighting performance conditions for the fire fighters";"the potential
property loss";"the nature,configuration,hazards,and internal protection of the properties involved";and"the
types of fireground tactics employed as standard procedure,the type of apparatus used,and the results
expected to be obtained at the fire scene."
23Ex. 16 at p. 59.
24Ex. 16 at p. 59-61,63(emphasis added). Ironically,the International Association of Fire Chiefs,
whose Board was later co-opted into supporting NFPA 1710,argued at this hearing that"there is not a need"
for a uniform deployment standard in light of the necessity for responsiveness to local conditions and the need
for local control. Ex. 16 at pp.49-53("Local jurisdiction and municipalities are so different in their
demographics,geography and levels of risk,it is nearly impossible to create a standard that will fit into every
agency").
NFPA Standards Council
June 22, 2001
Page 9
compliance and confusion."25 "[I]t is impossible,"McCormack urged, "to have one size fit
all . . . .,,26
In 1998, the Standards Council appointed a Task Group to make a recommendation
regarding NFPA 1200. The IAFF representatives on the Task Group continued to advocate
splitting the jurisdiction of the committee,now between career and volunteer fire departments,
which they represented would accommodate other interests' desire to use"jurisdictional
demographics such as population . . . type of hazards" and the like.27 The Task Group, which
included diverse interests and viewpoints, agreed on little other than that you"can't paint the
whole country with one brush(i.e. `one size doesn't fit all')."28
In July 1998, after a further hearing,the Standards Council decided to adopt the IAFF's
proposal to divide the deployment standard between career and volunteer fire departments.
Accepting the IAFF's repeated representations on the subject,the Council expressly noted that
"deployment needs might vary depending on the type of fire department or other factors."29
The lack of balance in the NFPA 1710 Technical Committee. In ways of which the
Standards Council does not appear to have been aware, the Technical Committee formed to
consider NFPA 1710 was disproportionately staffed with members aligned with a single
interest—organized labor. NFPA staff represented to the Council in March 1999 that
"considerable time has been spent in-house and in concurrence with the Chairman in trying to
develop a balanced Technical Committee . . . ,"30 but the result was anything but:
• The membership outline the Committee Chair prepared amply represented organized
labor in the fire service,but from the outset reserved only a single seat for a city manager,
and no places for any elected official. A memo from Committee liaison Foley to the
Council represented that places had been reserved for"citizen groups"and business
interests,yet it appears that not a single representative of any citizen,business,or
taxpayer organization was ever invited to participate.31 The single city manager's seat
25Transcript of November 19, 1997 NFPA Standards Council Meeting at pp.9, 11 (attached as Ex. 17)
26Ex. 17 at p.37. Soon-to-be NFPA 1710 Committee Secretary Richard Duffy argued that the new
committee should be"solely made up of those that represent or are a part of the career fire department." Ex.
17 at p.32. As we will see,despite the Association's detailed consensus and balance requirements,Duffy very
nearly got his wish.
27Summary Report of April 28, 1998 NFPA 1200 Task Group Meeting at p.2(attached as Ex. 18)
28Ex. 18 at p.3.
29Minutes of July 15-17, 1998 Standards Council Meeting at p.4(excerpt attached as Ex. 19).
•
30Memo from staff liaison Stephen Foley to the Standards Council dated March 25, 1999 at p. 1977
(attached as Ex.20).
31 Ex.20 at pp. 1976-79.
NFPA Standards Council
June 22, 2001
Page 10
was not filled, nor was a single Committee member who eventually voted against the
standard(or even abstained) invited to participate in the Committee, until after the
Committee had begun to meet and the proposed standard's initial drafting was
complete.32
• Fourteen of the 26 Committee members appointed in time for the Committee's first
meeting and drafting session—many of whom were not categorized as representatives of
labor—had longstanding affiliations with the IAFF or other firefighters' unions. Four
members were direct IAFF representatives on the Committee;33 four more represented
their union locals on the committee and/or were current and lifetime union members;34
and six more disclosed longstanding ties to local and international firefighters' unions."
32The Committee's minutes show that Cortez Lawrence and Valerie Lemmie,who eventually voted
against NFPA 1710,and Diane Breedlove and Larry Mullikin,who abstained,had not been appointed to the
Committee at the time of its first meeting in June 1999. They thus did not participate in the Task Group that
drafted the proposed standard,which was formed by Chairman Brunacini shortly after the first Committee
meeting.See Ex.21 at pp.995-97.
33Committee Secretary Richard M.Duffy,an IAFF employee(Ex.22 at pp. 1861, 1866);Kenneth
Buzzell,a full-time employee of and chief negotiator for the IAFF local in Los Angeles(Ex.22 at pp. 1848-
50);Jim Lee,President and full-time employee of the Toronto Professional Fire Fighters'Association(Ex.22
at pp. 1885-87);and David McCormack,Assistant to the General President of the IAFF(Ex.22 at pp. 1898,
1901).
Don Forrest,a 37-year member of the Los Angeles Fire Department(Ex.22 at p. 1867);John King,a
16-year member of the Detroit Fire Department whose participation was funded in part by the Detroit Fire
Fighters(Ex.22 at p. 1881);Gary Rainey,representing Metro Dade Firefighters,IAFF Local 1403 on the
Committee(Ex.22 at p. 1931);and Mark Sanders,President and full-time employee of the Cincinnati Fire
Fighters Union,IAFF Local 48,representing his union on the Committee(Ex.22 at p. 1944).
35Terry Allen,the Cambridge,Ontario fire chief,held multiple elected positions a longtime membership
in the Cambridge Professional Fire Fighters Association. Ex.22 at p. 1821. Wayne Bernard,the Surrey,B.C.
deputy fire chief,had been an IAFF Local President,British Columbia Professional Fire Fighters Association
Executive Vice-President and long-time union member. Ex.22 at pp. 1831-32. John Cochran,currently
employed by the U.S.Fire Administration,was an IAFF local president. Ex.22 at p. 1858. Christopher
Platten,appointed as a neutral"special expert,"is a labor lawyer one of whose principal clients is the IAFF.
The Internet web site for San Jose,California IAFF Local 230,for example,states that"Christopher E.Platten
is our labor attorney"and that"for over fifteen years. . .he has always been there for us literally day and
night." See http://www.sjff.org/legal.htm. Dr.Franklin Pratt was also appointed to the committee as a neutral
"special expert,"but buried in his 14-page application package is the statement that he"has assisted the IAFF
on matters associated with EMS and therefore could also represent their views by serving on this Committee."
Ex.22 at pp. 1916, 1930(emphasis added).Charles Soros,categorized as a manufacturer,represented the Fire
Department Safety Officers Association on the Committee. He was a founding member of IAFF Local 2898 in
Seattle,Washington,and had served as an IAFF alternate on the NFPA 1900 Technical Committee regarding
apparatus. Ex.22 at pp. 1951-53;See Excerpt from Seattle IAFF Local 2898 web page
"http://www.ndcrt.org/sfdoa/sealoca112898.html"(attached as Ex.23).
NFPA Standards Council
June 22, 2001
Page 11
Fifteen of the 30 members that eventually staffed the Committee had longstanding union
ties.36
• Thirteen members of the Committee (including three members referred to in the previous
paragraph who disclosed longstanding ties with organized labor) were fire chiefs or
deputy fire chiefs. Many of them had long careers as union firefighters(and, as discussed
below, were plainly mindful of the expressly threatened labor unrest they could avoid by
following organized labor's lead on these issues).37 As described below, this alliance
manifested itself as the IAFF and members of the International Association of Fire Chiefs
("ICHIEFS")joined forces early in the process to the effective exclusion of all other
affected interests.38
• Virtually absent from the Technical Committee was anyone accustomed to viewing these
issues from, and articulating the perspective of,those who must reconcile the demands of
labor with the political,practical,regulatory and budgetary constraints that pervade all
municipal services. Of the initial Technical Committee members,not one was an elected
member of a local government—no mayors,no city council members, no county
supervisors, and no elected fire district board members. No provincial, state or national
local government organization was invited to provide representation on the Committee,
even though the International City/County Management Association("ICMA") had
provided a member of the Task Force formed to advise the Standards Council on how to
proceed in the face of the NFPA 1200 impasse,and had expressly advised the Council to
seek representation on any new committee from both the ICMA and the National League
36In addition to the two token no votes and two abstentions belatedly added as described in footnote 32
above,the Committee later also added William Bingham,the Boynton Beach,Florida fire chief,who remains a
member of the Iowa Firemen's Association. Ex.22 at pp. 1837, 1839.
37Committee Chair Alan Brunacini(Ex.22 at p. 1816);Terry Allen,who disclosed longtime
membership and multiple officer positions in the Cambridge Professional Fire Fighters Association(Ex.22 at
p. 1821);Wayne Bernard,the Surrey,B.C.fire chief had been an IAFF Local President,British Columbia
Professional Fire Fighters Association Executive Vice-President and long-time union member(Ex.22 at p.
1831);William Bingham,the Boynton Beach,Florida fire chief who remains a member of the Iowa Firemen's
Association(Ex.22 at pp. 1837, 1839);Ross Chadwick,the Denton,Texas fire chief(Ex.22 at pp. 1851-52);
Dennis Compton,the Mesa,Arizona fire chief and ICHIEFS representative(Ex.22 at p. 1859);Lawrence
Garcia,the Wichita fire chief and ICHIEFS representative(Ex.22 at pp. 1868-69);Harold Hairston,the
Philadelphia fire chief(Ex.22 at p. 1870);Patrick Hughes,the North Richland Hills assistant fire chief and
ICHIEFS member(Ex.22 at pp. 1873, 1877);Ken Riddle,the Las Vegas deputy fire chief(Ex.22 at p. 1938);
Nick Russo,the Hull,Massachusetts fire chief and ICHIEFS representative(Ex.22 at pp. 1941-42);and
Edward Stinnette,the Fairfax County,Virginia assistant chief(Ex.22 at pp. 1954-58). Larry Mullikin,who
abstained,is the fire chief in Stillwater,Oklahoma,though he sat on the Committee as the representative of the
International Fire Service Training Association.
38lronically,ICHIEFS and its members on the Committee do not appear to have been representing any
consensus among fire commanders. ICHIEFS'members,and fire commanders generally,are reported to be
deeply divided on this issue.
NFPA Standards Council
June 22, 2001
Page 12
of Cities("NLC") because of the NLC's focus on the perspective of elected(rather than
appointed) local officials.39 The NFPA 1710 Committee Chair confirmed to the
membership at the Technical Meeting that"we never heard from any of them in the
process.i40 Only one of the Committee members—City Manager Valerie Lemmie of
Dayton, Ohio—represented the perspective of public managers and employers,and she
was not invited to join the Committee until its last meeting, after the proposed standard
was fully drafted and the Committee's recommendation preordained, and a full year after
she first applied to serve.41 The Technical Committee's disdain for this critical
perspective was plain. As the Committee Chair remarked at a public panel discussion
earlier this year concerning NFPA 1710, "local control is horse shit."42
A skewed Committee fails to observe the Association's procedural rules and guidelines.
With its disproportionate representation and coordinated resolve, labor closed ranks and drove
the Committee relentlessly to the result it had repeatedly failed to achieve over the preceding 15
years under ordinary NFPA procedures. What the Committee sacrificed along the way was the
consensus-and scientifically-based standard formulation and decisionmaking that has been
NFPA's hallmark for over a century. In a speech shortly before the May 2001 Technical
Meeting, the IAFF's General President emphasized the union's longstanding dedication to
achieving this result without regard for the more fragile contemplative virtues on which NFPA's
processes depend:
I want to make it clear that the passage of NFPA 1710 is a top priority for the
[IAFF]. Along with our fire service allies we have committed the necessary
resources and we have the necessary resolve to win this important standard . . . .
And I assure you we will win . . . . To the fire chiefs who lack the spine to
support 1710,you are dead wrong and you will have to live with your own
decision and the consequences of your actions:*
Indeed,the resolve had been indomitable, and the union's veiled threats all too real. It
was clear to Committee members not affiliated with the IAFF or the other interests that labor
quickly co-opted that the process was entirely dominated by the IAFF and its narrow agenda, and
39Ex. 18 at p. 1.
40May 16,2001 NFPA Technical Meeting Transcript at p.91 (attached as Ex.24).
41Ex.22 at p. 1888(application dated November 9, 1999). As noted above,Diane Breedlove of the City
of Sugar Land,Texas was invited to join the Committee after it had already met and the proposed standard had
been preliminarily drafted. However,Ms.Breedlove left the City of Sugar Land in 2000,and her employer
eventually wrote NFPA to advise that she did not represent Sugar Land on the Committee. See March 19,
2001 Letter from David Neely to Alan Brunacini(attached as Ex.25).
42Lawrence Decl.(Ex.3)¶31.
43March 1,2001 Speech by IAFF General President Harold Schaitberger to the Fire Department
Instructional Conference ("FDIC")in Indianapolis,Indiana at p.6(attached as Ex.26)(emphasis added).
NFPA Standards Council
June 22, 2001
Page 13
the outcome preordained. While we cannot hope to document all the failings of the Technical
Committee's process, here are a few examples:
• Committee members report that, rather than acting as a neutral discussion facilitator as
the Association's rules require, Committee Chair Alan Brunacini regularly injected his
own opinion into the debate. Similarly,Committee Secretary (and IAFF Secretary)
Richard Duffy, rather than acting as a neutral scribe,would selectively memorialize
committee discussions,rally and organize the IAFF contingent of the Technical
Committee, and indulge in personal attacks on those who questioned the IAFF's views.
For instance,Mr. Duffy would preface discussion of a proposal or comment submitted by
an interested party with whom his union disagreed with dismissive remarks such as
"here's another stupid comment from [whatever organization the submitter was affiliated
with]." Literally hundreds of thoughtful proposals and comments from fire service
professionals and civic leaders were rejected out of hand with little or no discussion.
Through such tactics,the few dissenting Committee members were intimidated and their
views marginalized."
•
• When one Committee member raised the possibility of issuing a nonmandatory"Guide"
or"Recommended Practice"as opposed to a mandatory"Standard,"the Committee Chair
summarily quashed the issue,making it clear that the Committee would consider only a
mandatory"Standard"and that any other approach was out of the question. Committee
members were startled when, at the May 2001 Technical Meeting, the Chair represented
to the NFPA membership that the Committee had thoroughly discussed and carefully
considered whether a Standard or a Guide would be the better approach a5
• One Committee member who was outspokenly skeptical about the wisdom and scientific
basis for the mandatory minimum staffing and response-time requirements of NFPA
1710 and who indicated that he would vote against the proposed standard received threats
of labor unrest in the fire department he headed, and threats that the IAFF would picket
and cause fire departments to boycott the products of the fire service training manual
publisher he represented on the Committee. In the face of these threats,he was forced to
abstain rather than vote against the proposed standard as his conscience dictated.46
44Lawrence Decl.(attached as Ex.3)124-31;Declaration of Larry Mullikin("Mullikin Decl.")
(attached as Ex.4)¶5-6. Significantly,only one comment was held for further consideration: to set separate
and distinct standards for"urban,""suburban"and"rural"service areas more responsive to their practical
needs and circumstances. 2001 May Association Technical Meeting Report on Comments at pp.317-18,
Comment No. 1710-224.
4SLawrence Decl.(Ex. 3)¶¶21-22; Ex.24 at p.60.
46Mullikin Decl.(Ex.4)112-18.
NFPA Standards Council
June 22, 2001
Page 14
A skewed Committee fails to marshal any reliable scientific basis for its foreordained
conclusions. The Technical Committee ignored not only process,but also substance. Another
victim of the Committee's artificially narrowed agenda was scientific inquiry—a value that is
supposed to lie at the core of all NFPA codes and standards, and dignify them as far more than
politically expedient compromises.
Over the last decade,NFPA has repeatedly rejected the nationwide minimum staffing and
response time requirements at the heart of NFPA 1710 in significant part because there was no
hard scientific evidence that they made any appreciable difference.47 In 1993, in the midst of this
controversy,NFPA's then-Director of Data Research John Hall wrote a research memorandum
on this very subject to NFPA's current assistant Vice President of Public Fire Protection Gary
Tokle. The memo analyzes the limited existing empirical and scientific literature, and highlights
the absence of any reliable empirical basis to conclude that minimum crew size materially affects
firefighter safety, let alone civilian safety and property risks. This NFPA analysis observes that
"it would be possible to design a statistical regression study"meaningfully isolating crew size as
a predictive factor,but that"no such study has been done.i48
No scientific study establishing the efficacy of mandatory minimum crew size or
response time minimums for fire suppression services has been undertaken since John Hall wrote
his revealing memorandum. Certainly none is cited among the references on which NFPA 1710
purports to rely—which conveniently omit any reference to the 1993 NFPA research memo. As
will be shown below, the references that NFPA 1710 does cite with any bearing on this question
actually are either irrelevant to or inconsistent with rigid and inflexible nationwide minimum
standards. In the meantime, according to recent NFPA and other research that NFPA 1710 also
fails to cite, as a result of improvements in fire prevention practices, equipment and training,
structure fire incidence and severity, as well as civilian and firefighter injury and loss,have
significantly decreased in the last ten years without any specific national standard for staffmg or
response time, and as fire service budgets have been reduced in favor of prevention measures 49
In short,there has been no new empirical or scientific learning—or for that matter any empirical
or scientific learning at all—that could justify the NFPA 1710 Technical Committee's
recommended policy flip-flop. Indeed, at a public meeting earlier this year, the recipient of the
1993 NFPA research memorandum—NFPA Assistant Vice President of Public Fire Protection
Gary Tokle—conceded that there was no empirical evidence underlying NFPA 1710.50 The only
change has been in the membership and intentions of the Committee itself.
47Hoetmer Decl.(Ex.5)73-18;see pp.6-9 above.
48October 6, 1993 NFPA Memo from John Hall to Gary Tokle entitled"Evidence on the Link Between
Fire Fighter Deaths and Injuries and Fireground Staffing"at p.2(emphasis added)(attached as Ex.27).
49Ex. 7 at p.3 ;G.Hoetmer,"Diverting Dollars,"http://www.governing.com/view/vu052301.htm.
50"ICMA Members Meet with NFPA/ICHIEFS Regarding Proposed Standard 1710,"
http://www.icma.org/go.cfm?cid=2&gid=8&sid=15&did=1052.
NFPA Standards Council
June 22, 2001
Page 15
The IAFF reduces the Association's Technical Meeting to a labor rally. With the
Technical Committee's recommendation in hand, the IAFF engaged in what it called a"multi-
level campaign"to ensure a positive membership vote at the May 2001 Technical Meeting.5' As
at the Technical Committee level, a deliberative process might not have produced the desired
result, and accordingly was out of the question. "[I]t will take our might, our muscle, and our
will to make sure [1710] passes in May," IAFF General President Schaitberger instructed his
rank and file.52 Potential opposition was quashed. Two weeks before the meeting, Schaitberger
warned"[t]he fire chiefs who lack the spine to support 1710 . . . you will have to live with your
own decision and the consequences of your actions."53 Firehouses throughout North America
were galvanized. Union leadership made it known that"IAFF members from every corner of
[the U.S. and Canada] are expected to converge on the NFPA meeting in one of the largest
mobilizations in our Union's history . . . ,,,54
The IAFF boasted that it had spent millions to enroll its rank and file as voting NFPA
members and send them to Anaheim to dictate the meeting's outcome. One fire chief seeking to
clarify his voting status at the meeting was informed by NFPA staff that the 180-day pre-meeting
deadline to become a voting member had been extended to accommodate the avalanche of
firefighters' applications.55 Rumors circulated on the floor that IAFF had paid to enroll not only
firefighters,but their spouses as voting members to accompany them to the Technical Meeting
and ensure the desired result. The Committee Chair's personal secretary reportedly traveled
from Phoenix to vote in favor of NFPA 1710.
As might have been expected, the IAFF's"might,""muscle"and"will"carried the day.
As the IAFF's press release observed, what was supposed to have been a Technical Meeting
concerning a consensus-and scientifically-based standard turned into"the largest meeting of
IAFF members at any event in the 84-year history of the union."56 Discussion was superfluous,
and IAFF-sponsored cloture motions promptly scotched debate on motions to amend or return
the proposed standard to committee while speakers remained lined up at the microphones
waiting to be heard.57 As the IAFF reported after the meeting adjourned:
51May 18,2001 IAFF Press Release at p.5(attached as Ex.28).
52H. Schaitberger,"The Right Standard for the New Century"April,2001 IAFF Monthly Newsletter
(attached as Ex.29).
53Ex.26 at p.6.
$4Ex.29.
55Declaration of Samuel Nawrot("Nawrot Decl.")¶6(attached as Ex.6).
5 Ex.28 at p.4.
57Ex.24 at pages 67,79-80,88,97-99, 117-18. Nawrot Dec1.¶12.
NFPA Standards Council
June 22, 2001
Page 16
•
More than 2,600 members of the IAFF voted in unison . . . providing the votes
needed to pass [1710] by a decisive 10-to-1 margin . . . . The IAFF dominated the
meeting.5
ARGUMENT
Even the most casual observer of the process just described would be concerned about the
legitimacy of the outcome. For those schooled in the detailed and carefully regulated procedures
of the Association's Regulations Governing Committee Projects ("NFPA Regs.")and Guide for
the Conduct of Participants in the NFPA Codes and Standards Development Process ("NFPA
Conduct Guide")this concern should be most grave. Procedural rules and standards designed to
ensure balance and consensus among divergent interests, needs and views were ignored. See
Part III(A). So was any pretense at reliance on empirical science to justify the result. See Part
III(B). If the values reflected in the Association's Regulations and Conduct Guide mean -
anything,the Standards Council is duty-bound to intervene.59
A. Repeated And Widespread Violations Of Numerous Protections In The
Association's Regulations And Conduct Guide Prevented NFPA 1710 From
Becoming Anything Remotely Resembling A "Consensus" Standard.
The requirement that the Association's codes and standards result from a"consensus"
process is so integral to NFPA's special role and standing that it is incorporated into the
Association's Mission Statement. As the Association's Regulations make clear:
"Consensus"has been achieved when, in the judgment of the Standards Council
of the National Fire Protection Association, substantial agreement has been
reached by materially affected interest categories. Substantial agreement means
much more than a simple majority but not necessarily unanimity. Consensus
requires that all views and objections be considered and that a concerted effort be
made toward their resolution.6o
58Ex.28 at p. 1-2,3.
59"The Standards Council acts as the overseer of the standards development process,the official issuer
of all NFPA documents,and the body that hears and determines all complaints related to the standards
development process and to the issuance of NFPA codes and standards. As such,the Standards Council must
both be and be perceived to be a fair and nonpartisan decision-making body." NFPA Conduct Guide§3-5(a).
60NFPA Regs.3-3.6.1 (emphasis added). The Association's regulations explicitly recognize that that
this demandingly inclusive definition of"consensus"must apply in the promulgation of"mandatory standards"
such as the one at issue here:
[m]andatory standards. . .shall be developed via an open process having a published
developmental procedure. The developmental procedure shall include a means for obtaining
(continued. . . )
m.
NFPA Standards Council
June 22, 2001
Page 17
"Consensus" for the NFPA is not some vague abstraction. Detailed rules and regulations
clarify what the Association intends"consensus"to comprise, and closely regulate the process by
which it is to be achieved. The Association demands that"all participants in the NFPA standards
development process . . . adhere, both in letter and in spirit,to all duly established rules,
regulations, and policies governing the . . . process."61
1. The Standards Council Was Misinformed At The Outset As To The Need
And Basis For Creating A Separate Technical Committee To Consider A
Standard For Career Fire Departments.
As discussed in detail above,the Standards Council appears to have been sold a bill of
goods. At meeting after meeting,year after year,the same IAFF leaders that eventually were
appointed to the NFPA 1710 Committee barefacedly represented to the Council their unwavering
conviction that"one size does not fit all,"that"tiered" service requirements responsive to
jurisdictional demographics were indispensable to avoid"leav[ing} everyone in a perpetual state
of non-compliance and confusion,"and that IAFF intended to focus its service standards on
"urban" service areas. Once its supporters grasped control of the Committee and its processes,
however,they never looked back. Tiered service levels and responsiveness to local conditions
were categorically rejected; local needs and control were ridiculed and dismissed. The promised
focus on"urban"environments completely disappeared. One size suddenly did fit all and, all
those earnest protestations notwithstanding, it suddenly always had.
What the Council was promised and what the Council got could not be more different.
The IAFF's repudiation of the representations that induced the Council to put NFPA 1710 in
motion in and of itself compels a fresh start.
2. The Technical Committee Did Not Possess The Balance That Basic Fairness,
A Fully informed Process And The NFPA Rules Required.
Vital to the NFPA's salutary notion of"consensus" is that the development of a code or
standard not be dominated by one interest group or even a number of interest groups, but rather
by a"balance of affected interests."62 The Association thus"promotes the development of
consensus through the broad and balanced participation of a variety of interests and through the
full airing and discussion of all points of view."63 And"[i]n order for the standards development
(. . .continued)
divergent views,if any. The development procedure shall include a means of achieving
consensus for the resolution of divergent views and objections. (NFPA Reg.3-3.7.1.2)
"The Standards Council bases its judgment as to when a consensus has been achieved on the entire record
before council." NFPA Reg. 3-3.6.1.
61NFPA Conduct Guide §2(e)(emphasis added).
62NFPA 2001 Directory at p. 5.
63NFPA Conduct Guide§2(d)(emphasis added).
NFPA Standards Council
June 22, 2001
Page 18
process to operate fairly and effectively, it is necessary that technical committees...contain the
representation of a variety of interests and that those interests are balanced within the
committees.s64 The Association's Regulations similarly require that Technical Committee
appointments aim toward"[m]aintaining a balance of interests within the membership."65 As an
outside (but by no means exclusive) governor, "[n]o more than one-third of the voting members
[on a Technical Committee] shall represent any one interest."66
Thus Technical Committee members are to be"appointed on the basis of their personal
qualifications" but,"for purposes of balance,their business interests and affiliations shall be
considered.i67 And"[i]n order that the points of view and information participants contribute to
the NFPA standards development process can be accurately evaluated by others, participants
should always endeavor to make known their business, commercial, organizational, or other
affiliations that might affect their interests or points of view."68
Far from ensuring"the broad and balanced participation of a variety of interests,"69 the
Technical Committee for NFPA 1710 completely failed to meet the Association's criteria for
balance. To summarize just a few egregious examples:
• The Technical Committee was lopsidedly staffed with members affiliated with the IAFF.
At least fifteen of the Committee's 30 members have longstanding and close ties to the
union—violating both the general requirement that no one interest be disproportionately
represented, and the specific prohibition that no more than one-third of a committee's
members be affiliated with a particular interest.70 When this unified block joined hands
64NFPA Conduct Guide §3-3(a)(emphasis added).
65NFPA Reg.3-2.4.2(c).
66NFPA Reg.3-2.5. NFPA is a member of the American National Standards Institute("ANSI")and its
procedures are designed to comply with ANSI requirements. NFPA 2001 Directory at p.39. Among other
things,ANSI's Procedures for the Development and Coordination of American National Standards mandates
that a"standards development process"such as NFPA's requires input from a"balance of interests"and that it
not be"dominated by any single interest category"such that no single interest category"constitute[]more than
one-third of the membership of the committee"See ANSI Procedures for the Development and Coordination
of American National Standards.
67NFPA Reg.3-2.2.1(c)(emphasis added).
68NFPA Conduct Guide §3-1(e);see also NFPA Conduct Guide §3-3(a).
69NFPA Conduct Guide§2(d)(emphasis added);see also NFPA Reg.3-2.5.
70See footnotes 32-37 above and accompanying text. In addition,"special expert"Platten may have
independently violated NFPA rules: "Special experts comprise a category of independent consultants and
experts who are generally unallied with any particular.. .interest." NFPA Conduct Guide 3-3(e). When
advocating on behalf of a client before the committee,they are to disclose their affiliation and not vote.
Although specifically and exclusively associated with organized labor and a long-time legal representative of
(continued. . .)
NFPA Standards Council
June 22, 2001
Page 19
with the contingent of fire commanders it had both logrolled and threatened into line, any
possible dissent from the party line came only from a scattered and courageous few.
• Against this overwhelming weight of labor and allied interests, the Committee included
not a single elected government official to bring forth issues of budgetary tradeoffs and
constraints, variable local conditions, and the need for local control. Of course, as •
discussed above the IAFF proposal that had prompted the formation of the Committee
did not contemplate representation from these interests.'' Positions on the Committee
that the Council was told had been set aside for citizens' and business groups were
simply never filled. A single city manager was added to the Committee only in time for
its very last meeting, so late in its process that she could have no practical influence on
the course of any issue. NFPA records indicate, and NFPA staff has confirmed,that there
was no invitation to the ICMA,the National League of Cities, the U.S. Conference of
Mayors,the National Association of Counties,or any state municipal league,business
group, or taxpayer organization to participate in the Technical Committee or the
development of the standard.72 As noted above, the Technical Committee Chair
confirmed to the membership at the Technical Meeting that"we never heard from any of
them in the process."73
While the process that created it raises questions, ultimately it does not matter how or
why the NFPA 1710 Technical Committee began and ended in the lopsided and inequitable
configuration with which it was invested. What does matter is that the Association's imperative
to seek out and incorporate "the broad and balanced participation of a variety of interests" was
utterly disregarded. Individually and collectively,these violations resulted.in a Committee
hopelessly skewed to a single point of view and intransigently committed to a specific result. As
we now discuss,this imbalance also facilitated the intolerance and closed-mindedness that
regrettably characterized the Committee's proceedings.
( . . .continued)
IAFF,Mr.Platten both allowed himself to be categorized as a"special expert"and to vote on Committee
business,uniformly in lockstep with the IAFF interest block.
71See footnotes 26 and 42 above and accompanying text.
72As noted above,the Association's records do contain a single letter to the ICMA inviting it to
participate in the Task Group formed to recommend a response to the NFPA 1200 Technical Committee's
failure to reach consensus. See February 6, 1998 letter from Casey Grant to William Hansell of ICMA et al.
(attached as Ex.30). Despite the fact that ICMA did provide a representative to that Task Group,and in a
meeting of that Task Group recommended to the Standards Council that both it and the National League of
Cities be represented on any new or reconstituted technical committee,NFPA's records do not reflect any
indication of an invitation to ICMA,the National League of Cities,or any other organization of elected local
officials to participate in the Technical Committee for NFPA 1710 that was eventually formed.
73Ex.24 at p.91.
NFPA Standards Council
June 22, 2001
Page 20
3. The Technical Committee Failed To Respect, Seriously Consider, Or
Attempt To Accommodate Varying Interests Or Perspectives.
NFPA President George Miller has stressed that NFPA's codes are"begun with a spirit of
participation,partnership, and commonality that is unclaimed by other code-makers."74 Thus
Association rules require that"[p]articipants should encourage full participation in the standards
development process by all interested persons, and they should encourage and facilitate the full
and open dissemination of all information necessary to enable full and fair consideration of all
points of view."75
Participants must never"attempt to withhold or prohibit information or points of view
from being disseminated, particularly on the grounds that the participant is in disagreement with
the information points of view. Disagreements should be addressed and resolved through full
presentation and discussion of all information and points of view,not through withholding
information of preventing points of view from being expressed.s76 Committee members must
"treat all persons having dealings with their Committee with respect and fairness and should not
offer or appear to offer preferential treatment to any person or group.i77 And while participants
"may forcefully advocate their views or positions, they should be candid and forth coming about
any weakness in their position, and they should refrain from debate and discussion that is
disrespectful or unprofessional in tone or that is unduly personalized or damaging to the overall
process of achieving consensus."78
As noted above, "consensus requires that all views and objections be considered and that
a concerted effort be made toward their resolution."79 Regrettably, that process failed here:
• Throughout the Technical Committee's proceedings,IAFF loyalist Richard Duffy,the
Committee Secretary, made personal attacks on sponsors of Proposals and Comments
that were inconsistent with the IAFF view. Driven by the IAFF contingent,the
Committee rejected hundreds upon hundreds of thoughtful and sensible comments and
proposals from a diverse.range of fire professionals, civic officials,and others from all
over North America out of hand with virtually no discussion.80
74NFPA 2001 Directory at p.3.
75NFPA Conduct Guide§3-1(c).
76NFPA Conduct Guide§3-1(d);see also §3-3(h).
77NFPA Conduct Guide§3-3(g),
78NFPA Conduct Guide 3-1(f).
79NFPA Reg.3-3.6.1.
80Lawrence Decl.(Ex.3)¶27;Mullikin Decl.(Ex.4)¶10.
NFPA Standards Council
June 22, 2001
Page 21
• The Technical Committee Chair particularly is required to"act in an impartial manner,"
to"refrain from asserting a position in technical discussions,"and to"endeavor to
stimulate participation from all committee members.i81 Yet the Committee Chair
dictated Committee positions during meetings, for example quashing discussion of
whether NFPA 1710 should be a mandatory Standard or a recommended Guide.82 The
Committee Chair's public position on the interests of local government and taxpayers
was clear and absolute: "local control is horse shit."83
• As noted above,the contingent of fire chiefs on the Committee was quickly co-opted by
concerns over labor unrest. Dissenters were subjected to heavy-handed intimidation.
The IAFF's General President warned"the fire chiefs that lack the spine to support 1710"
that they would"have to live with [their] own decision and the consequences of[their]
actions.i84 This was not idle rhetoric: One fire chief on the Committee who questioned
the proposed standard was threatened with unrest within his IAFF-unionized department,
as well as union boycotting of the products of the fire service training manual publisher
with which he was affiliated.85
These substantial and serious departures from the letter and spirit of the Association's
rules requiring fairness, openness,and unfettered, meaningful participation by all affected
interests in the creation and promulgation of NFPA standards leached the Committee's process
of any integrity or legitimacy.
4. The May 2001 Technical Meeting Was Procedurally Suspect.
The membership vote on a proposed standard should not be a mere formality,let alone a
special interest rally. Yet, in the words of its own press release, the IAFF reduced the Technical
Meeting at which NFPA 1710 was considered to"the largest meeting of IAFF members at any
event in the 84-year history of the union."86 A number of serious issues emerge:
• The Association requires participants not to"urge,arrange, or otherwise facilitate the
participation of persons with no . . . interest for the purpose of affecting the outcome of a
81NFPA Conduct Guide§§3-4(a),(g),(i).
82See footnote 45 above and accompanying text. The Chair also went so far as to publicly mock an
individual offering serious and reasoned argument against NFPA 1710 at the May Technical Meeting. See Ex.
24 at p.60.
83Lawrence Decl.(Ex.3)¶31.
"Ex.26 at p.6.
85Mullikin Decl.(Ex.4)¶¶12-18.
86Ex.28 at p.4.
NFPA Standards Council
June 22, 2001
Page 22
vote on an issue at a technical session.i87 Whether a single organization's concerted
expenditure of millions of dollars to enroll and transport hundreds or thousands of its
members to a meeting violates this standard, it certainly calls the legitimacy of the
process into grave question. This is particularly true when,as the IAFF's press release
later trumpeted, it orchestrated the thousands whose presence it had procured to vote "in
unison"and"dominate[] the meeting."88 Choreographed cloture votes shut down debate,
and many who had traveled to the meeting to share their concerns were left unheard.89
• Of even greater concern are reports (direct evidence regarding which has not yet been
made available)that the Association quietly extended its membership deadline in
violation of its own rules to accommodate late-submitted IAFF applications, and that
IAFF members and other supporters enrolled their spouses and others as voting members
to accompany them to the meeting.90
87NFPA Conduct Guide§3-2.
88Ex.28 at p.1-2,3.
89Ex.24 at pp.67,79-80,88,97-99, 117-18. Nawrot Decl.(Ex.6)at p. 12. In addition,and although it
seems unlikely to have affected the outcome given IAFF's heavy-handed control of the proceedings,it is at
least some measure of the integrity of the decisionmaking process overall that the Technical Committee Chair
materially misinformed the membership on two distinct occasions during the limited and nominal floor
discussion the IAFF allowed.
First,in the context of debate over a proposed amendment to change the proposed mandatory standard
to a non-mandatory"Guide,"the Chair advised the membership that the Technical Committee had conducted
"intense and continued discussion"on this choice before rejecting it. Ex.24 at¶60. However,at least one
Committee member reports that the Chair had peremptorily informed them that the Committee was tasked to
produce a mandatory standard,that no alternative was acceptable,and that no discussion of the issue was
necessary or appropriate.Lawrence Decl.(Ex.3)¶21-22.
Second,when the lack of input and participation from local government organizations was raised during
floor discussion,the Chair remarked:
As the Chairman of this Committee,all of those organizations were invited to participate.
(Applause) You got here late. Because we never heard from any of them in the process. We
had no response from any of them. That's been my consistent experience in almost twenty years
of developing codes for the NFPA of the participants in the code development process that
affects the fire service. I've never seen anybody from those organizations during that period of
time. (Applause) (Ex.24 at p.91)
But as noted above the Association's records indicate,and NFPA staff has directly confirmed to Appellant's
Executive Director,that these local government organizations were not"invited to participate"in the
development of NFPA 1710. To the contrary,their input and viewpoint was systematically excluded.
90See footnote 55 above and accompanying text.
•
NFPA Standards Council
June 22, 2001
Page 23
Individually and together,these tactics bear a startling resemblance to those the United
States Supreme Court condemned in Allied Tube& Conduit Corp. v. Indian Head, Inc.91 With
respect to the reports of membership abuse,we respectfully suggest that the Association open its
records to public scrutiny and"let the sun shine in" so that all affected can see whether and to
what extent the Association's meeting process was compromised. With respect to the IAFF's
demonstrated—indeed, flaunted—packing and domination of the membership meeting, we ask
the Council to intervene to protect the integrity of the Association's processes.
B. The Technical Committee Did Not Rely On, And Did Not Seriously Investigate,
Any Substantial Scientific Basis For Its Proposed Standard.
Hand-in-hand in the Association's Mission Statement with a reliance on"consensus"
processes to ensure appropriate content is the requirement that the Association's codes and
standards be"scientifically-based." Thus the Association's Conduct Guide requires that
technical committees"promote the development of codes and standards that are scientifically
and technically sound . . . ."92 "In all discussion, debate, and deliberation within the standards
development process,participants should confine their comments to the merits of the scientific,
technical,and procedural issues under review."93 Technical Committee members"are not
appointed to committees for the purpose of furthering their business,commercial,or other
outside interests"; instead,they are to"base all advocacy,voting, and other standards
91488 U.S.492(1988). Indeed,the IAFF seems to have copied its play-book almost literally from the
Supreme Court's description of how another interest group managed to"'subvert' the consensus standard-
making process of the[NFPA],"though IAFF seems to have multiplied its efforts and its expenditures tenfold
over its predecessors':
• [The interest group]recruited 230 persons to join[NFPA] and to attend the annual meeting vote
against the proposal[that the interest group opposed] . . .including employees,executives,sales
agents,the agents' employees,employees from two divisions that did not sell electrical products
and the wife of a national sales director. [The interest group]also paid over$100,000 for the
membership,registration,and attendance expenses of these voters. At the annual meeting,the
[interest]group voters were instructed where to sit and how and when to vote by group leaders
who used walkie-talkies and hand signals to facilitate communication. Few of the[interest]
group voters had any of the technical documentation necessary to follow the meeting. None of
them spoke at the meeting to give their reasons for opposing the proposal. . . . Nonetheless,with
their solid vote in hand,the proposal was rejected. . . . (486 U.S.at 496-97)
The Supreme Court in Allied Tube recognized the"advantages"of"safety standards based on the merits of
objective expert judgments and through procedures that prevent the standard-setting process from being biased
by members with economic interests. . . ,"but noted that abuses of these private processes could be illegal,
whether through violation of well-formed procedural or substantive rules,or through literal compliance with
rules not adequately protective of the integrity of the process or its results. 486 U.S.at 500,509.
92NFPA Conduct Guide §2(c).
93NFPA Conduct Guide§3-1(f).
NFPA Standards Council
June 22, 2001
Page 24
development activities on sound technical and scientific bases and should act in the interest of
fire safety and NFPA's other purposes and goals.i94
The Association represents that its codes and standards are based on"state-of-the-art
information."95 Not here. We do not ask the Standards Council to re-analyze some mass of
conflicting scientific conclusions that a properly constituted Technical Committee actually
considered and addressed. Here the Association has repeatedly concluded the"science"
purportedly relied on does not support the standard advanced. The Technical Committee has
provided no reliable, objective empirical or scientific basis to support its proposed inflexible
mandatory national standards, and reportedly resisted investigating or considering any. Under
these circumstances,the Council must intervene and either reject the baseless standard in
question,or alternatively return it to a Technical Committee more willing to confront and
consider the evidence and require that a fully informed and considered scientific analysis take
place.
1. The Association Has Previously Recognized The Lack Of Any Proper Basis
For Rigid Mandatory Nationwide Service Standards.
Due in large part to the lack of scientific evidence supporting specific nationwide
minimum service requirements,the Association has repeatedly rejected such requirements. The
Technical Committee considering the reconfirmation of NFPA 1500 in the early 1990s rejected
them, in significant part for their lack of proper empirical basis.96 The Standards Council
considering the TIA to NFPA 1500 considered whether any scientific basis existed for such
requirements, and rejected them; so did the Association's Board of Directors.97 An NFPA
membership vote in 1992, unencumbered by thousands of choreographed IAFF members
enjoying a free trip to Disneyland, rejected them by a better than 4-1 margin. The NFPA 1200
Technical Committee, citing the same empirical literature on which NFPA 1710 now purports to
rely, rejected them as we11.98
The IAFF would now have this unbroken string of carefully considered consensus- and
scientifically-based decisions overturned. There is no basis to do so.
94NFPA Conduct Guide§3-3(d).
95NFPA 2001 Directory at p. 5.
%See pp.6-7 above;Hoetmer Decl.(Ex.5)¶10-14.
97See pp.6-7 above.
98See pp. 7-9 above;Hoetmer Decl.(Ex.5)¶16-18.
NFPA Standards Council
June 22, 2001
Page 25
2. There Is No Reliable Empirical Or Scientific Basis For The Proposed
Standard.
As noted above, in 1993 NFPA's then-Director of Data Research John Hall wrote a
research memorandum to NFPA's current Assistant Vice President of Public Fire Protection
Gary Tokle emphasizing the absence of any empirical or scientific basis to conclude that
minimum crew size provides any significant benefits:
It would be possible to design a statistical regression study that would treat fire
fighter injuries as the variable to be predicted; fireground staffing, crew size, and
deviations between authorized and actual staffing as primary predictive variables
to be analyzed; and other suppression provisions and differences in fire severity
analysis. Historical data could be used from a group of participating fire
departments, and the design of the study would be reasonably straightforward. No
such study has been done.99
Having reviewed and considered the few insufficient studies that had been completed regarding
somewhat related questions,the NFPA analysis concluded:
What is not so clear is(a) whether there is a relationship to crew size that goes
beyond the relationship to fireground staffing; (b)how much the risk is related to
the planned level of fireground staffing and how much to operating at less than
the planned level(which is what people were trained on), whatever level that
might be; (c)whether the relationship to fireground staffing still shows up if you
control for all other relevant factors; and(d) whether there are particular levels of
staffing and/or crew size that correspond to major changes in the risk of fire
fighter injury, and if so,what those levels are.All of this means it is not clear how
much the risk of injury or death changes as a function of staffing.100
The failure of NFPA 1710 or its Technical Committee to address or even cite this careful
analysis by NFPA's own highly competent professional staff is telling,to say the least. Any
examination of the references that NFPA 1710 does cite shows them to be irrelevant to or
inconsistent with the imposition of a rigid nationwide standard for minimum crew size or
maximum response time. To give just a few examples:
• A fair volume of the"science"on which the Committee purported to rely comprises
nothing more than operating procedures used by the Phoenix Fire Department,
commanded by Technical Committee Chair Alan Brunacini. While these documents
confirm that Phoenix ordinarily staffs four firefighters per apparatus and has adopted
some limits on structure fire and emergency medical response times,they do not even
99Ex. 27 at p. 2(emphasis added).
100Ex.27 at pp. 9-10(emphasis added).
NFPA Standards Council
June 22, 2001
Page 26
purport to explain the reasons for the Department's choices. Nor do they address
whether, or why, those choices are provably optimal for the City of Phoenix, let alone for
every fire service jurisdiction in North America.101 If the actual practices of operating
fire departments are relevant,then the fact that the majority of operating career fire
departments in North America do not comply with the standards proposed should be
dispositive.
• Much of the remaining"science"on which NFPA 1710 purports to rely, including the
"fire propagation curve"and related material,102 establishes little more than that fire is
hot, and left unchecked gets hotter and spreads. Of course, not all fires bum the same.
The configuration and composition of a structure, and the existence of automatic
suppression devices like sprinklers, significantly affect a fire's spread rate.103 These
factors, as well as the time of discovery(itself affected by many factors, including the use
of heat and smoke detectors)and the efficiency of communications—not to mention the
service jurisdiction's density, topography, weather and traffic, as well as political
considerations such as budget and risk management—are all independent variables
bearing on the response time addressed in NFPA 1710. No study cited in NFPA 1710
scientifically determines that there is an optimum structure fire response time for every
fire department irrespective of these local variables; to the contrary, the studies cited
expressly recognize the dependence of response time on these and other factors.104
• The other references on which NFPA purports to rely similarly decline to dictate a single
minimum crew size as the only or best solution for every fire service. The National Fire
Academy, for example, advocates a"systems approach" in which"a community
determine[s] its level of acceptable risk . . . and identifies ways to minimize that risk,"
ways that invariably depend on local physical,political and fiscal conditions.105 In fact,
this publication suggests that comparing one department's approach under one set of
local conditions to another's under others is "not realistic and a waste of time,"and
argues that"examination of fire suppression capability . . . should concentrate on
determining whether or not the suppression capability provided [in a particular
":"See Phoenix Fire Department,"Fire Department Evaluation System: Command Evaluation for a 3'1
Alarm Structure Fire"(1993);Phoenix Fire Department, "Fire Department Evaluation System: Medical
Assignment-CODE"(1992); Phoenix Fire Department,"Fire Department Evaluation System: Benchmark
Structure Fire"(1992).
102See, e.g., NFPA 1710§A.5.2.1.2.1;National Fire Academy,"Fire Analysis: A Systems Approach"
(1984);U.S. Dept.of Commerce,"An Update Guide for HAZARD I Version 1.2"(1994).
103National Fire Academy,pp.3-7 to 3-8.
104See, e.g., National Fire Academy at iii,4-4, 5-3 to 5-7;Office of the Fire Marshal of Ontario,"Fire
Ground Staffing and Delivery Systems Within A Comprehensive Fire Safety Effectiveness Model"(1993)at
pp.42-43.
'°5National Fire Academy at pp. iii, 1-3,2-8,2-15,3-8,4-4,5-3 to 5-7.
•
NFPA Standards Council
June 22, 2001
Page 27
jurisdiction] is adequate or appropriate to deal with the risk."106 The Ontario Fire
Marshal's study freely and repeatedly counsels that"it is not possible to consider fire
f i g h t e r s t a f f in g in isolation"and that"there are . . . a broad range of factors which impact
on the effectiveness of fire protection services"; at least twenty such factors and sub-
factors are identified, including"the changing expectations being placed on the fire
service,and differences in local needs and conditions . . . .s107
All of these references existed when the Association rejected minimum staffing and
response time requirements in the context of NFPA 1200; indeed,NFPA 1200 cites many of
them as support for its flexible multi-factor staffing standard.108 None is more recent than 1993.
And NFPA 1710 fails to mention that since 1988, fire incidents are down 28%, civilian deaths
are down 35%, fire fighter deaths are down 33%,civilian injuries are down 25%, fire fighter
injuries are down 15%and property damage adjusted for inflation is down 26%,all during a time
when cities and counties were spending less on fire suppression and response but increasing their
code requirements for automatic sprinklers and smoke detectors.'09 Little wonder that NFPA
Assistant Vice President of Public Fire Protection Gary Tokle recently conceded that there was
106Id. at p.4-4.
1°70ffice of the Fire Marshal of Ontario at pp.i-iii,v, 1-2,5, 15-16. The study points out that there are
many divergent views on the staffing issue(id. at pp.34-36);and observes that"[v]alid conclusions about the
number of fire fighters that should be dispatched and assembled on the fire ground are only possible following
comprehensive testing,simulation and field study"that has yet to be done(id. at p.23;see id. at p. vii).
Ironically,a representative of the same Office that authored this study on which IAFF now relies to support
inflexible nationwide minimum staffing standards represented to the Standards Council in 1997 that"if the
standard is not prescriptive and allows for flexibility,I believe the goals could be achieved,"but that those
goals"cannot be achieved by putting prescriptive detail in standards because those prescriptive details
certainly cannot match the diversity that is out there. . . ." Ex. 17 at p. 17(emphasis added).
Similarly,a 20-year-old publication NFPA 1710 cites appears to suggest that reducing crew size from
five to four increases fire"knockdown"time and property loss—until its details are examined. The study is
"limited to the elements of a fire occurring in a single family dwelling or apartment and handled by a single
fire company"under highly specific and rather unusual circumstances(such as no weather or traffic
complications);the study notes that"most fires are more complex than the example used here"and require
"several companies"of firefighters. J.C.Gerard&A.T.Jacobson,"Reduced Staffing: At What Cost,"Fire
Service Today(Sept. 1981)at pp. 17, 19,21 (emphasis added). As observed in the 1993 NFPA study quoted
above,because of the assumption of one-company response,this article can shed no light on any difference
between fireground staffing at large and individual crew size. Given the many assumptions and limited data,
the authors themselves characterize the article as"preliminary,""two-dimensional,"and"only encompass[ing]
a limited number of factors." More to the point,the authors themselves do not conclude that fire departments
necessarily should increase crew size;to the contrary,they point out operational and training approaches by
which smaller crews can perform equally effectively,and suggest that a fire service implement plans
"[d]epending on the department's overall staffing and specific needs. . . ." Id. at p.21
108See NFPA 1200§A-8.
1°9Ex.7 at pp. 3;G.Hoetmer,"Diverting Dollars,'http://www.goveming.com/view/vu052301.htm.
NFPA Standards Council
June 22, 2001
Page 28
no empirical evidence supporting NFPA 1710's mandatory nationwide minimum staffing and
response time requirements.10
3. There Is No Rational Or Scientific Basis For The Scope Of The Proposed
Standards.
As we have seen, the exclusion of volunteer fire departments from the inflexible
nationwide minimum standards of NFPA 1710 is based not on any scientific principle,but on the
political expedient that no volunteer department could meet rigid minimum service requirements,
and representatives articulating the interests of the localities served by such departments thus had
to be excluded from the discussion to create the illusion of"consensus." The IAFF repeatedly
represented to the Standards Council that it wished to set minimum service standards for a far
more limited service model—"urban"career fire departments"of a certain size."'" Whether or
not that would have been a feasible or prudent exercise, the IAFF quietly abandoned the
restriction as soon as a Technical Committee packed with its sympathizers was in place,holding
or rejecting proposals and comments consistent with the scope model IAFF had originally
presented to the Council. The proposed standard before the Council today thus imposes rigid
nationwide minimum crew size and response time requirements on every fire department whose
personnel are"substantially all" full-time paid employees, regardless of any other characteristic
of the department or the jurisdiction it serves.12
And if the configuration of a fire department or its service area and its effect on the
department's ability to meet a particular standard is properly considered in determining
appropriate crew size and response times,there is no conceivable scientific basis for treating
urban, suburban and rural service areas identically simply because their fire departments are
staffed with paid municipal employees as opposed to volunteers, irrespective of a jurisdiction's
size; budget or tax base; local regulatory requirements;population; density; topography; age,
composition or standards of construction; implementation of alternative means of fire
suppression such as automatic sprinkler systems; or any of the myriad other factors that, as just
discussed,the empirical literature has concluded are appropriately considered in formulating
service standards. Similarly,no rational or scientific basis was articulated for leaving staffing
and response times for specialized services such as marine fire and wildfire suppression flexibly
10ICMA Members Meet with NFPA/ICHIEFS Regarding Proposed Standard 1710,"
http://www.icma.org/go.cfm?cid=2&gid=8&sid=15&did=1052.
"'See footnotes 1-7 above and accompanying text.
"2The irrational and uncertain interrelationship of the scope of NFPA 1710 and NFPA 1720 is another
independent defect of both proposed standards requiring their return to committee. NFPA 1710 applies to
"substantially all career fire departments." NFPA 1710§1.1.1. NFPA 1720 applies to"substantially all
volunteer fire departments." NFPA 1720§1.1.1. But what constitutes"substantially all"—85%? 90%?
95%? And by the respective terms of the two proposed standards,combination departments that are neither
"substantially all"paid nor"substantially all"volunteer apparently are not governed by either standard. No
rational or scientific basis for that result is immediately apparent,or suggested by either Technical Committee.
NFPA Standards Council
June 22, 2001
Page 29
dependent on local circumstances while imposing inflexible nationwide minimum requirements
on the most general and potentially varied fire suppression activities.'13
Nor is there any indication that the Technical Committee considered any of the wide-
ranging and serious implications of its scope decisions, including:
• How many career departments met the proposed standard's mandatory minimums, and if
not,why not;
• What the logistical and financial costs might be for nonconforming career departments to
meet the proposed standard;
• Whether there were other, more cost-effective means of serving the goals of civilian and
firefighter safety and property protection, or what local conditions would influence that
determination in any particular case.
The lack of attention to these serious and pervasive concerns leaves NFPA 1710 a public
policy disaster in the making.
IV. STATEMENT OF RELIEF REQUESTED
For all of the foregoing reasons, Appellants respectfully request that the Council order
one or more of the following:
A. That proposed standards 1710 and 1720 not be issued, and their Technical
Committees be dissolved;or
B. That proposed standards 1710 and 1720 not be issued, and that further action on the
proposed standards be deferred pending a full public investigation of the documented and
alleged failures in the process that led to its recommendation; or
C. That proposed standards 1710 and 1720 not be issued,but rather(in addition to the
full public investigation described in the preceding request)be returned to one or more
Technical Committees whose jurisdiction has been re-evaluated, and whose membership
and leadership has been reconstituted to provide full and fair representative balance
among all affected interests, and instructed to labor sincerely and in good faith to achieve
"consensus"as described in the Association's Regulations and Conduct Guide,to
consider any or all of the following:
13See footnote 8 above and accompanying text.
NFPA Standards Council
June 22, 2001
Page 30
1. Whether any absolute and inflexible nationwide minimums for crew size and
response times are appropriate for all career fire departments regardless of the wide
variations in the local conditions under which they operate;
2. Whether more flexible standards dependent on prevailing local conditions are
more appropriate than a single nationwide standard for all career fire departments
and, if so, how that standard should be defined;
3. Whether there are other definable characteristics of fire service jurisdictions that
would empirically justify multiple tiers of specific minimum service standards and, if
so, how those tiers might be defined and what service standards should be considered
for each tier;14 and
4. What quantitative empirical and scientific basis exists for any general or specific
performance prescriptions that the successor Committee or Committees may
eventually recommend.
We thank the Standards Council for its patient attention, and look forward to the
opportunity to address the Council directly at its meeting in July in San Francisco.
Respectfully,
Howard, Rice, Nemerovski, Canady,
Falk& Rabkin
A Professional Corporation
By
Bernard A. Burk
Counsel for the League of California Cities
cc: Chris McKenzie, Executive Director,League of California Cities
JoAnne Speers, Esq., General Counsel, League of California Cities
•
114For example,NFPA 1710 Comment No. 1710-224 suggested that different minimum service
standards should be imposed on career departments serving"urban,""suburban," "rural"and"frontier"
service areas.
Organizations Opposing NFPA 1710 and 1720
Joining in the June 5,2001 Appeal
and the June 18,2001 Letter Brief to the NFPA Standards Council
Submitted on Behalf of the League of California Cities
As of June 18, 2001
National Organizations
International City/County Management Association
National League of Cities
National Association of Counties
U.S. Conference of Mayors
Public Risk Management Association
National Public Employer Labor Relations Association
International Personnel Management Association
California State Associations
League of California Cities
California State Association of Counties
Fire Districts Association of California
Howard Jarvis Taxpayers Association
State Municipal Leagues (No. of cities each League represents in parentheses)
Alabama League of Municipalities (425)
Alaska Municipal League(136)
League of Arizona Cities and Towns (87)
Arkansas Municipal League(484)
Colorado Municipal League(262)
Connecticut Conference of Municipalities (151)
Florida League of Cities, Inc. (402)
Georgia Municipal Association(463)
Association of Idaho Cities(184)
Illinois Municipal League (1,079)
Indiana Association of Cities and Towns(469)
Iowa League of Cities(875)
League of Kansas Municipalities(530)
Louisiana Municipal Association(295)
Maine Municipal Association(489)
Maryland Municipal League (151)
Massachusetts Municipal Association(349)
Michigan Municipal League (511)
League of Minnesota Cities(814)
Mississippi Municipal League(276)
Missouri Municipal League(605)
Nevada League of Cities and Municipalities(18)
New Jersey State League of Municipalities(563)
f
AGENDA REPORT
DATE: August 13, 2001
TO: Honorable Mayor and City Council
THRU: John B. Bahorski, City Manager
FROM: Lee Whittenberg, Director of Development Services
SUBJECT: Status Report re: National Fire Protection Association
Deployment Standards (NFPA 1710 and NFPA 1720)
SUMMARY OF REQUEST:
Receive and File Status Report.
BACKGROUND:
On July 17, 2001 the National Fire Protection Association (NFPA) announced its
decision to issue two new standards concerning the deployment of fire department
personnel in career and volunteer departments, adding an important amendment designed
to allow local governments real and substantial flexibility in the way they provide fire
and emergency medical services. The announcement came a week after a large coalition
of national, regional, and state local government. Fire service and taxpayer groups
expressed their concerns at an NFPA Council hearing on the standards.
The specific standards approved by the Council are NFPA 1710, Standard for the
Organization and Deployment of Fire Suppression Operations, Emergency Medical
operations, and Special Operations to the Public by Career Fire Departments, and NFPA
1720, Standard for the Organization and Deployment of Fire Suppression Operations,
Emergency Medical operations, and Special Operations to the Public by Volunteer Fire
Departments. NFPA 1710 prescribes strict staffing and response times for career fire
departments. NFPA 1720 is its' counterpart for volunteer fire departments, but its'
requirements are less prescriptive.
The National Local Government and Taxpayer Coalition (Coalition) includes 7 national
local government personnel and risk management associations; 43 state municipal
leagues; 22 organizations representing state and district fire chiefs, volunteers and
firefighters; 11 other regional, state and local organizations such as the California State
Association of Counties and the Howard Jarvis Taxpayers Association; and 198
individual counties, cities, towns and villages.
Agenda Item /'
C:1My Documents\LEGISLAT,NFPA 1710 R 1720.CC Status Report.doc\LW\08-02-0I
Status Report re:NFPA 1710 and 1720
Standards re: Organization and Deployment of Fire Suppression
and Emergency Medical Operations
City Council Staff Report
August 13, 2001
The Coalition told the NFPA Council that the proposed staffing and response time
standards were seriously flawed because they imposed rigid constraints and substantial
financial burdens on local government's provision of fire and emergency services. The
Coalition also showed that the NFPA technical committees that developed the standards
excluded local elected and chief appointed officials, failed to accommodate the needs and
viewpoints of local governments and taxpayers, and ignored any scientific basis for the
standards. The Coalition asked the Council to not issue the standards and to reconstitute
the technical committee under new leadership in order to begin the process of developing
true consensus standards based on scientific analysis.
In approving the standards, the Council announced two important measures that appear to
respond directly to the Coalition's appeal. First, the Council approved the issuance of
both NFPA 1710 and 1720 only after adding the following supplemental language
concerning the acceptability of alternative approaches to providing fire and emergency
medical services other than those set out in the standards:
"1.3 Equivalency. Nothing in this standard is intended to prohibit the use
of systems, methods, or approaches of equivalent or superior performance
to those prescribed in this standard. Technical documentation shall be
submitted to the Authority Having Jurisdiction to demonstrate
equivalency."
By its terms, this amendment allows alternative "systems, methods, or approaches' to be
implemented by local governments, and allows local governments to review and make
the final decision on the adequacy of such alternatives. Members of the Coalition will
continue to study this provision in an effort to accurately assess its implications.
Second, the Council directed the technical committees responsible for NFPA 1710 and
1720 to begin review and revision of the standards on a three-year cycle (the quickest
possible under NFPA rules), and report to the 2004 Annual Meeting.
There is an appeal time period, and staff will provide additional reports regarding this
matter.
FISCAL IMPACT:
Potential direct fiscal impacts, depending as to the impacts of the implementation of
NFPA 1710 and 1720 on current response levels of the Orange County Fire Authority.
RECOMMENDATION:
Receive and File Status Report.
NFPA 1710&1720.CC Status Report 2
•
,
Status Report re:NFPA 1710 and 1720
Standards re: Organization and Deployment of Fire Suppression
and Emergency Medical Operations
City Council Staff Report
August 13,2001
NOTED Ai APPRO D:
f • 11 '6
- Whittenberg Jo :. Bahorski, City Manager
Director of Development Serv. es
Attachments: (2)
Attachment 1: "Fact Sheet on Proposed NFPA Standards 1710 and 1720"
and "Executive Director's Message — When Fairness and
Special interests Collide", Western City Magazine, July
2001
Attachment 2: Appeal of the League of California Cities to the NFPA
Standards Council regarding Proposed Standards 1710 and
1720, prepared by Howard, Rice, Nemerovski, Canady,
Falk and Rabkin, dated June 22,2001
NFPA 1710&1720 CC Status Report 3
r - .
,
Status Report re:NFPA 1710 and 1720
Standards re:Organization and Deployment of Fire Suppression
and Emergency Medical Operations
City Council Staff Report
August 13, 2001
ATTACHMENT 1
"FACT SHEET ON PROPOSED NFPA
STANDARDS 1710 AND 1720" AND
"EXECUTIVE DIRECTOR'S MESSAGE -
WHEN FAIRNESS AND SPECIAL
INTERESTS COLLIDE", WESTERN CITY
MAGAZINE, JULY 2001
NFPA 1710&1720.CC Status Report 4
•
Fact Sheet on Proposed NFPA Standards 1710 and 1720
WHAT YOU NEED TO KNOW
Q. What is the National Fire Protection Association (NFPA)?
A. NFPA is an international association of firefighters, fire chiefs, vendors, and trade
organizations whose mission is "to reduce the worldwide burden of fire and other hazards
on the quality of life by providing and advocating scientifically-based consensus codes
and standards, research, training, and education." NFPA's guidelines, while voluntary,
often are incorporated into local ordinances and building codes.
Q. What is NFPA proposing?
A. NFPA has proposed minimum staffing levels and response times for fire'companies,
initial full alarm response levels, and extra alarm response levels for both municipal and
volunteer fire and emergency medical services apparatus. These standards would preempt
local control and decision-making about fire and EMS department operations,
administration, and deployment. The proposed standards are scheduled for a vote on May
16, 2001, during NFPA's annual conference in Anaheim, Calif.
Q. What are the proposed staffing standards?
A. The proposed standards, NFPA 1710 (for the career firefighters and EMS personnel)
and NFPA 1720 (for volunteers), would define minimum response times to an emergency
and minimum fire company and EMS staffing levels. For municipal fire departments, for
example, NFPA 1710 calls for fire companies to be staffed with a minimum of four on-duty
personnel. "Companies" are defined as groups of members (engine companies, ladder
companies, squads, etc.) "operating with one piece of fire apparatus except where multiple
apparatus are assigned that are dispatched and arrive together, are continuously operated
together, and are managed by a single company officer." In addition, NFPA 1710 would
require five-six personnel to staff a fire emergency in a"hazardous"or"high-risk"area.
Q. What are the proposed response time standards?
A. The response time objectives for fire suppression, EMS response, and other operations
are:
• Turnout time: one minute
• Arrival of first engine company at a fire: 4 minutes
• Deployment of a full first alarm assignment at a fire: 8 minutes
• Arrival of EMS first responder: 4 minutes
• Arrival of advanced life support unit at an EMS incident: 8 minutes
Q. What about volunteer fire departments?
A. The NFPA 1720 standards require an initial assembly of at least four personnel before
fire suppression activities can begin at a structural fire. When assembled, volunteers must
be able to safely start fighting a fire within two minutes 90 percent of the time, starting with
an initial rapid intervention team of two fully-equipped firefighters.
Z
Q. What about combined fire departments?
A. Because there are so many variations, the local authority that has jurisdiction over
operations would decide whether standard 1710(career) or 1720 (volunteer) would apply.
Q. How would passage of NFPA 1710 and 1720 affect local governments?
A. Minimum response times and minimum staffmg levels for fire and emergency
services have always been determined by local governments. NFPA 1710 would preempt
local authority and impose a one-size-fits-all unfunded mandate on local governments,
costing cities and towns a significant amount of money and increasing local property
taxes. In a Wall Street Journal article (February 7, 2001), staff reporter Robert Johnson
noted that NFPA "is poised to make a recommendation that could prompt fire
departments to hire 30,000 more firemen nationwide, an 11% increase." Ironically,
compliance with NFPA 1710 also might undermine fire prevention efforts by forcing
local governments to shift dollars from prevention programs to fire suppression activities,
potentially increasing the danger to local firefighters.
Q. What is the potential liability for my community if the NFPA standard is
approved?
A. Failure to adopt and comply with NFPA 1710 could expose municipalities to
significant potential liability claims and lawsuits if a company with fewer than four
firefighters responds to a fire and the building is destroyed or someone is injured or
killed. Whether or not the presence of an additional firefighter in the company could
have prevented the tragedy is irrelevant. In addition, cities will face fmancial exposure in
labor contract negotiations/arbitration judgments and possible OSHA compliance costs if
they do not adopt the NFPA standards.
Q. Will the NFPA standards reduce fire losses and improve safety for fire personnel?
A. Proponents of the NFPA proposals have offered no empirical evidence that the NFPA
standards will achieve either objective. In fact, the opposite may occur if cities are forced
to shift resources from fire prevention to fire suppression and staffing.
Q. How can I get more information?
A. Contact your state municipal league and the national organizations listed below that
oppose the standards. Visit the NFPA web site at: www.nfpa.org/procom/pdfs/1710-
c.pdf (pages 159-166) to see the 1710 proposal, or get printed copies from NFPA by
calling 617-984-7593.
Contacts/Groups Opposing the NFPA Standards:
Scott Morris Mike Lawson
National League of Cities International City/County Management Association
1301 Pennsylvania Avenue NW 777 North Capitol Street NE, #500
Washington DC 20004-1763 Washington DC 20002
202-626-3021 202-289-4262
morrisna.nlc.org mlawsonaicma.org
• .I
Roger Dahl Donald Murray
U.S. Conference of Mayors National Association of Counties
1620 Eye Street NW 440 First Street NW
Washington DC 20006 Washington DC 20001
202-293-7330 202-393-6226
rdahl @usmayors.org dmurrary@naco.org
•
E X E C U T I V E D I R E C T O R ' S M E S S A G E
by Chris McKenzie
When Fairness and
Special nterests o 1 e
ne of my favorite childhood pastimes was accompanying my This month, I will be attending the
meeting of a little-known national orga-
'father on walks to the scenes of fires in our neighborhood. nization, the National Fire Protection
Association (NFPA), that is quietly
trying to take such decisions out of the
We lived in an older section of Sc. Louis, When concerns developed in our neigh- hands of neighborhood residents and
with alarm boxes on each corner, and it borhood about the hazards to children their elected city officials by setting
seemed that hardly a week went by with- from increasingly heavy through traffic, national standards about how quickly
out a fire alarm sounding somewhere in the solution fashioned by the local alder- fire departments must respond to an
our neighborhood. My grandfather had man and city hall was to convert the alarm.At its annual conference in
been an insurance adjuster, so my father streets to one-way and place diagonal Anaheim in May, the NFPA gave pre
legitimately came by his fascination with mounds at the intersections.This pro liminary approval to a new standard for
fire scenes. In short, admiring the work foundly reduced the number of speeders deploying emergency response services
of firefighters and supporting their role through the neighborhood, but I also that will require dramatic increases in
in local government has been part of my recall the debate surrounding these early fire suppression budgets and reductions
life.They are true professionals and traffic-calming devices and the commu in spending on fire prevention and other
highly valued public servants. nity's concern that they not impede city services,such as libraries, parks,
emergency vehicles' response time. recreation, streets and planning.
Ultimately, a compromise was struck continued
and the mounds were installed, but they
In May, the NFPA gave were designed to allow relatively easy
access by emergency vehicles.
preliminary approval to a ,. ..,
new standard for deploy- The Importance of Making
Local Decisions Locally c `; •
ing emergency response
Thar early lesson in democracy taught Z'"a`-� r
services that will require me (and every ocher child in my neigh- `.
borhood) that concerns about pedestrian A '- {Y
dramatic increases in fire ,
safety, vehicular access, emergency r V''' �.
rsafir suppression budgets and response and public finance must and '+
can be balanced to satisfy multiple x Y
reductions in spending priorities.The final decision was made — 'N s'
by the city in consultation with neigh- ¢`-'
•on fire prevention and borhood residents and city fire proles- _-
other city services. sionals.The decision was made where
it could be most responsively and best L,;1�,,z
made—locally.
www.westerncity.com Western City,July 2001 3
•
E X E C U T I V E D I R E C T O R ' S M E S S A G E
Proposed NFPA Firefighting lying the story at the beginning of this would have been much more difficult.
Standards Lack Local Input column. Community residents and their
elected officials are best positioned co Sound public policy needs an open and
The proposed standard, NFPA 1710, P fair debate by all the affected parties and
requires minimum staffing of four on- weigh competing interests in deploying their representatives.The exclusion of
duty personnel per fire company, for all local government services throughout elected officials from the process of
fire departments with paid staff.The any city. Imposing this one-size-fits-all developing 1710/1720 and the strong-
minimum response time standards standard,without considering building arm tactics displayed at the recent NFPA
would require: construction, automatic fire sprinklers, convention (during which the chairman
public education, code enforcement,
• Turnout time in one minute; traffic congestion, other service de-
tried the 1710 committee ridiculed and
• Arrival of the first engine company at mands, financial feasibility or ocher fac- tried to embarrass chose who disagreed
tors,straitjackets the public and local with him) were anything but open and
a fire in four minutes; P fair. For the good of the public and the
elected officials. It fundamentally deprives
• Deployment of a full first-alarm people of making local choices about pri- fire service, NFPA should start over, and
assignment at a fire in eight minutes; this time local elected officials should be
g g orities for spending their funds.
invited to the table.
• EMS first responder arrival in four
minutes; and
• A full advanced-life-support unit at an Sound ubliC policy
EMS incident in eight minutes. p p y Join the Fight Against NFPA's
needs an open and Effort to Usurp Local Control
Another proposed standard for volunteer The League's board of directors
departments,NFPA 1720,would require: fair debate by all the recently adopted formal opposi-
tion to the National Fire Protec-
• An initial assembly of at least four per- affected parties and tion Association's (NFPA)
sonnel before fire suppression activities Standards 1710 and 1720.The
can begin at a structural fire; and that their representatives. League was a leader in oppos-
• When assembled,volunteers must ing these standards at NFPA's
meeting, held May 16, 2001.At
be able to safely start fighting a fire that meeting, the League repre-
within two minutes 90 percent of the sented California's cities and 36
time,starting with an initial rapid An Unacceptable Definition other state municipal leagues.
intervention team of two fully Of Consensus
equipped firefighters. The League is now the lead
What is also troubling is that in the appellant against the adoption
process of developing this proposed of these standards and is pre-
standard, the NFPA deliberately exclud- senting its appeal at NFPA's
Imposing this one—size— ed elected officials from their so-called July meeting.The League has
p g "consensus" process. Furthermore, the been joined by the NLC, ICMA,
fits-all standard standard apparently is not based on NACO, USCM, CSAC and 41
state municipal leagues in this
empirical or scientific evidence, but on
fundamentally deprives the opinions of fire professionals. appeal process.
The League urges cities, associ-
people of making While fire professionals may agree that ations and other state municipal
the standard is appropriate, the views of leagues to weigh in on this issue
local choices about the public's locally elected representatives and join the opposition effort
the priorities for would appear to be just as important, so through whatever practical
that competing public interests can be means are possible, whether it is
spending their funds. weighed. For example, there was a time by contributing financially, writing
in the not too distant past when most letters, making phone calls or
law enforcement professionals would spreading the word to other
have told you that they should never leaders who believe that local
For those of us committed to excellence decisions are best made locally.
patrol on foot or bicycle. Only through
in the fire service and emergency medical the efforts of elected local officials did For more information about
service, the logical question raised by the community policing model come the NFPA situation, visit the
these proposed standards is: Why would League's website at www.
an one disaoree with them? back into favor. If there had been a
y disagree national standard that all patrolling cacities.org.
The answer lies in the principles under- should be done only by car,such a change
4 League of California Cities www.cacities.org
Status Report re:NFPA 1710 and 1720
Standards re:Organization and Deployment of Fire Suppression
and Emergency Medical Operations
City Council Staff Report
August 13, 2001
ATTACHMENT 2
APPEAL OF THE LEAGUE OF
CALIFORNIA CITIES TO THE NFPA
STANDARDS COUNCIL REGARDING
PROPOSED STANDARDS 1710 AND 1720,
PREPARED BY HOWARD, RICE,
NEMEROVSKI, CANADY, FALK AND
RABKIN, DATED JUNE 22, 2001
NFPA 1710&1720.CC Status Report 5
Law Offices Of
HOWARD Three Embarcadero Center
RICE Seventh Floor
NEMEROVSKI San Francisco,CA 94111-4065
CANADY Telephone 415.434.1600
Facsimile 415.217.5910
FALK www.howardrice.com
RABKIN
A Professional Corporation
June 22, 2001 Bernard A. Burk
Standards Council Chair Gary Taylor
Members of the Standards Council
National Fire Protection Association
1 Batterymarch Park
P.O. Box 9101
Quincy,Massachusetts 02269-9101
Attn: Casey Grant, Secretary
Re: Appeal of the League of California Cities
to the NFPA Standards Council regarding Proposed Standards 1710 and 1720
Dear Chairperson Taylor and Members of the Standards Council:
Pursuant to Section 1-6 of the National Fire Protection Association Regulations
Governing Committee Projects,the League of California Cities,joined by the agencies and
organizations described below, appeals to the Standards Council concerning proposed standard
1710,Standard for the Organization and Deployment of Fire Suppression Operations,
Emergency Medical Operations, and Special Operations to the Public by Career Fire
Departments,and proposed standard 1720, Standard for the Organization and Deployment of
Fire Suppression Operations, Emergency Medical Operations, and Special Operations to the
Public by Volunteer Fire Departments.
Appellant respectfully requests that the Council hear its representative in oral argument
during its hearings to be held July 10,2001 in San Francisco, California.
NFPA Standards Council
June 18, 2001
Page i
TABLE OF CONTENTS
NAME, AFFILIATION AND ADDRESS OF THE APPELLANTS 1
II. STATEMENT IDENTIFYING THE PARTICULAR ACTIONS TO WHICH
THE APPEAL RELATES 1
III. ARGUMENT SETTING FORTH THE GROUNDS FOR THE APPEAL 2
INTRODUCTION 2
FACTUAL BACKGROUND 3
The novel features of the proposed standards 3
The practical implications of NFPA 1710 5
Prior rejection of minimum staffing provisions: NFPA 1500 6
Continued rejection of specific nationwide service standards: NFPA 1200 7
The lack of balance in the NFPA 1710 Technical Committee 9
A skewed Committee fails to observe the Association's procedural rules
and guidelines 12
A skewed Committee fails to marshal any reliable scientific basis for its
foreordained conclusions. 14
The IAFF reduces the Association's Technical Meeting to a labor rally 15
ARGUMENT 16
A. Repeated And Widespread Violations Of Numerous
Protections In The Association's Regulations And Conduct
Guide Prevented NFPA 1710 From Becoming Anything
Remotely Resembling A "Consensus" Standard 16
1. The Standards Council Was Misinformed At The
Outset As To The Need And Basis For Creating A
Separate Technical Committee To Consider A
Standard For Career Fire Departments... 17
2. The Technical Committee Did Not Possess The
Balance That Basic Fairness, A Fully Informed
Process And The NFPA Rules Required 17
3. The Technical Committee Failed To Respect,
Seriously Consider, Or Attempt To Accommodate
Varying Interests Or Perspectives 20
•
NFPA Standards Council
June 18, 2001
Page ii
4. The May 2001 Technical Meeting Was
Procedurally Suspect. 21
B. The Technical Committee Did Not Rely On, And Did Not
Seriously Investigate, Any Substantial Scientific Basis For
Its Proposed Standard. 23
1. The Association Has Previously Recognized The
Lack Of Any Proper Basis For Rigid Mandatory
Nationwide Service Standards. 24
2. There Is No Reliable Empirical Or Scientific Basis
For The Proposed Standard. 25
3. There Is No Rational Or Scientific Basis For The
Scope Of The Proposed Standards 28
IV. STATEMENT OF RELIEF REQUESTED 29
•
NFPA Standards Council
June 22,2001
Page 1
I. NAME,AFFILIATION AND ADDRESS OF THE APPELLANTS
This Appeal is submitted on behalf of the League of California Cities,a California
nonprofit corporation representing the interests of its 476 member cities,which comprise every
city in the State of California. It is submitted on Appellant's behalf by its undersigned counsel,
who may be contacted at the address appearing on the first page of this document.
Joining in this appeal are the organizations and agencies listed in Exhibit 1. These
include:
• The National League of Cities;
• The United States Conference of Mayors;
• The National Association of Counties;
• The International City/County Management Association;
• The Public Risk Management Association;
• The National Public Employer Labor Relations Association;
• The International Personnel Management Association;
• Forty other state municipal leagues,representing the interests of a total of over 15,000
cities nationwide;
• The Howard Jarvis Taxpayers Association;
• Numerous individual cities,towns and fire districts.
Additional organizations and agencies may notify the Council of their joinder in this appeal prior
to the hearing. See NFPA Reg. 1-6.4.
II. STATEMENT IDENTIFYING THE PARTICULAR ACTIONS TO WHICH THE
APPEAL RELATES
A more specific statement identifying the particular actions to which this appeal relates
was provided to the Association in the League's Notice of Appeal dated June 5,2001 and
attached as Exhibit 2. Generally,this appeal relates to the development, content and proposed
issuance of NFPA 1710 and NFPA 1720. These two proposed NFPA standards were
recommended to the Association by membership votes at the Technical Meeting held in
Anaheim,California on May 16, 2001. They are before the Standards Council to determine
whether or not they should be issued as official NFPA Standards.
NFPA Standards Council
June 22, 2001
Page 2
III. ARGUMENT SETTING FORTH THE GROUNDS FOR THE APPEAL
INTRODUCTION
For the first time in the National Fire Protection Association's history, and after the
Association has repeatedly considered and rejected such measures over the last ten years,
proposed standard NFPA 1710 seeks to impose uniform and inflexible minimum staffing and
maximum response-time requirements on every career fire department in North America. These
requirements would be imposed indiscriminately on every city and town from Nacogdoches to
New York City, irrespective of profound local differences in department size,population density,
available resources,or any of the myriad other practical factors that affect the cost and delivery
of public services. Meeting the unprecedented demands of NFPA 1710 would require the
construction and equipping of thousands of new fire stations, and the employment of tens of
thousands of additional personnel in the United States alone, at a cost to local taxpayers of
billions of dollars per year—all as a result of a process that systematically excluded the
viewpoint and interests of those who would be required to pay the cost, and that lacked any
objective basis to conclude that compliance would be a cost-effective means of reducing injury
and loss compared with other measures that might benefit local taxpayers rather than the
international labor union that has single-mindedly pressed this burden onto those taxpayers for
its own advantage.
As highlighted in its Mission Statement,the NFPA has a long and distinguished tradition
of"providing and advocating scientifically-based consensus codes and standards . . ."(emphasis
added). Its longstanding national and international prestige as a private standard-setting
organization has been integrally tied to its vigilance that its codes and standards be forged and
tested in two distinct crucibles of reason: first, a set of detailed and rigorously regulated
"consensus"procedures designed to ensure that the standard formulation process include, and
that its results reflect, all pertinent perspectives and affected interests; and second,an
intellectually rigorous insistence that Association documents demonstrably be"scientifically-
based"in empirically grounded and methodologically sound quantitative analysis.
The development of proposed standard 1710 and its companion standard 1720 has gone
terribly wrong in both respects. "Consensus"has been achieved only by excluding divergent
interests and points of view,and intimidating or ignoring any dissenting voices that remained.
No scientific basis for the critical aspects of the proposed standards exists. Instead of advancing
consensus and scientific inquiry, a single well-funded,highly organized interest group—
organized labor in the person of the International Association of Fire Fighters ("IAFF")—has
hijacked the Association's process to further its own ambitions.
Ironically, in persuading the Standards Council to form a Technical Committee for these
proposed standards, the IAFF represented the purpose of the project to be the virtual opposite of
what the IAFF-dominated Committee produced, and a membership meeting packed with
thousands of IAFF-funded voters obediently endorsed. Specifically, the IAFF expressly
represented to the Standards Council on no fewer than four separate occasions spanning a period
NFPA Standards Council
June 22, 2001
Page 3
of four years that"one size does not fit all"—that no specific minimum service standards were
universally appropriate for all fire departments or service jurisdictions; that any such standards
would need to be"tiered"to respond to variations in local conditions; that the IAFF intended to
promulgate service standards applicable only to a particular"urban" environment typically
served by a large, career department; and that limiting Committee jurisdiction to career fire
departments would facilitate this flexibility. The result of the IAFF's efforts,however, is
precisely the"one size fits all" standard that union leaders assured the Standards Council would
be"impossible"to effect, and would"leave everyone in a perpetual state of non-compliance and
confusion."
It would be no exaggeration to say that the Association's continued authority and
reputation for objective, fair, and balanced standards depends on its taking notice of these
multiple abuses of its procedural and substantive requirements, withholding approval of the
proposed standards until it has fully investigated these concerns, and remedying any deviations
by developing proposed standards under the regular procedures and substantive scientific
scrutiny that have been severely compromised to date. We urge the Council to begin that
corrective process here and now.
FACTUAL BACKGROUND
The novel features of the proposed standards. According to its title,NFPA 1710 is a
mandatory"Standard for the Organization and Deployment of Fire Suppression Operations,
Emergency Medical Operations, and Special Operations to the Public by Career Fire
Departments." Limiting its purview to the operation of"career" fire departments staffed by full-
time paid employees,NFPA 1710 imposes on fire services a number of requirements of a kind
that have never before been imposed by any NFPA code or standard(and,we will see,that the
Association has actually rejected on numerous occasions in the last ten years):
• NFPA 1710 proposes specific mandatory nationwide staffing minimums. It requires that
a"company" or"crew"—the minimum complement of personnel dispatched to work as a
unit on fire suppression or search and rescue operations—comprise at least four
firefighters. For almost all fire departments almost all the time, this amounts to a
requirement that each engine,truck and quint in service be staffed with at least four on-
duty personnel 24 hours a day, 7 days a week.'
• NFPA 1710 also proposes specific mandatory nationwide maximum response times for
fire suppression and emergency medical incidents. It requires that, at least 90%of the
NFPA 1710§§3.1.8,5.2.2.1.1,5.2.2.2.1,5.2.2.4. The proposed standard acknowledges that a
"company"will"usually operat[e]with one piece of fire apparatus,"but allows a single company to staff
"multiple apparatus that are dispatched and arrive together and continuously operate together and are managed
by a single company officer." NFPA 1710 §§3.1.8(4).
NFPA Standards Council
June 22, 2001
Page 4
time,2 a fire department achieve a maximum"turnout time" (that is,the time between
when firefighters receive an alarm and the time they are on board their apparatus, fully
dressed and equipped) of one minute;3 response times of"four minutes(240 seconds) or
less for the arrival of the first arriving engine company at a fire suppression incident
and/or 8 minutes(480 seconds) or less for the deployment of a full first alarm assignment
at a fire suppression incident;"4 "four minutes (240 seconds)or less for the arrival of a
unit with first responder or higher level capability at an emergency medical incident;"5
and"eight minutes (480 seconds)or less for the arrival of an advanced life support unit at
an emergency medical incident . . . .s6
Proposed standard 1720, governing volunteer fire departments, recognizes that local
government has the authority and the responsibility to determine the"scope and level of service
provided by the fire department,"the"necessary level of funding"and the"necessary level of
personnel and resources." In contrast to NFPA 1710's specific service minimums,NFPA 1720
directs in general terms that a fire department should"include sufficient personnel, equipment
and other resources to efficiently,effectively and safely deploy fire suppression resources."7
Even in proposed standard 1710,the staffing and response times for specialized fire department
functions—such as wildfire suppression and marine firefighting and rescue—are to be
determined flexibly in light of the particular risks and circumstances prevailing in the locality
served.8 But for general fire suppression and emergency medical services,NFPA 1710
superimposes the specific mandatory minimum staffing and maximum response-time
requirements described above regardless of a service jurisdiction's size; budget or tax base; local
regulatory requirements; population; density; topography; age, composition or standards of
construction; implementation of alternative means of fire suppression such as automatic sprinkler
systems; or other unique characteristics.9
2NFPA 1710§4.1.2.1.2.
3NFPA 1710§4.1.2.1.1(1).
4NFPA 1710§4.1.2.1.1(2).
SNFPA 1710 §4.1.2.1.1(3).
6NFPA 1710§4.1.2.1.1(4).
7NFPA 1720§§4.1;A.1.2.3.
8NFPA 1710§§5.6.4,5.7.4.
9The standard generally proposes staffing for these functions"of the numbers necessary for safe and
effective fire-fighting performances relative to the expected. . .conditions,"including"(1)Life hazard to the
populace protected;(2)Provision[]of safe and effective fire-fighting performance conditions for the fire
fighters;(3)The number of trained response personnel available to the department including mutual aid
resources;(4)Potential property loss;(5)Nature,configuration,hazards and internal protection of the
properties involved;(6)Types of. . . tactics and evolutions employed as standard procedure,type of apparatus
used,and results expected to be obtained at the fire scene; [and](7)Topography,vegetation and terrain in the
(continued. ..)
•
NFPA Standards Council
June 22, 2001
Page 5
The practical implications of NFPA 1710. While Appellant appreciates that NFPA is a
private organization, and its codes and standards are not legal mandates,they are intended to be
broadly adopted as such. Yet there is no indication that the Technical Committee gave anything
more than the most nominal attention to the practical implications of, or cost-effective
alternatives to, imposing the inflexible nationwide minimum performance and staffing criteria
the proposed standard sets.
Perhaps this is not surprising given that, as explained below,the Committee's
membership lacked any meaningful representation from any constituency that would be required
to actually implement and pay for the proposed standard. But the practical implications of
adopting NFPA 1710 are in fact staggering. The League is informed that the majority of career
fire departments,both in its home state of California and nationwide, are not currently in
compliance with this standard, including many with service and safety records superior to fire
departments that are in compliance.
To meet the response time requirements, additional fire stations will have to be sited,
constructed, equipped and staffed. To meet the minimum crew-size requirements,additional
personnel will need to be hired—an estimated 30,000 new hires nationwide.1) Despite the fact
that less than three percent of the typical fire department's service calls involve structure fires,"
the cost to local taxpayers of meeting the structure fire-related requirements of NFPA 1710 will
mount into the billions of dollars per year, in many cases amounting to double-digit increases in
city and county fire service budgets.12 As joining party Howard Jarvis Taxpayers Association
can attest,California is the original home of the taxpayer revolt; state constitutional restrictions
here beginning over 20 years ago with Proposition 13 make local tax increases all but infeasible.
And the current economic recession and insistence on tax reduction at the national level show
that local tax increases are no more likely anywhere else in the United States or Canada. As a
practical matter, then,NFPA 1710 amounts to an unfunded mandate that will require rebalancing
of municipal budgets throughout North America. Thus,without any demonstrated need, and
( . . .continued)
response area(s)."NFPA 1710§§5.7.4.1,5.7.4.1.1.,see also§5.6.4.1.1 (suggesting consideration of similar
factors,as well as"requirements of the regulatory authorities having jurisdiction. . ."). The proposed standard
dictates that similar factors are to be considered in determining staffmg for general fire suppression activities,
but also imposes a four-person-per-company minimum absent from these more specific subject areas. See
NFPA 1710§§5.2.1.1,5.2.2.1.1.
1°R.Johnson,"As Blazes Get Fewer,Firefighters Take On New Emergency Roles," Wall St.Journal,
February 7,2001,at p.Al.
I1M.Ahrens,NFPA Fire Analysis and Research Division,The U.S.Fire Problem Overview Report:
Leading Causes and Other Patterns and Trends(NFPA 2000)at p.12 (excerpts attached as Ex. 7). In service
areas characterized by lower density,newer construction,and widespread fire prevention devices(such as heat
and smoke detectors and automatic sprinidering),structure fires can be 1%or less of a department's service
calls.
I2The Georgia Municipal Association,for example,estimates compliance costs in Georgia alone will be
over$89 million. See Ex. 8.
NFPA Standards Council
June 22, 2001
Page 6
quite possibly without the acquiescence of the local electorate, imposition of NFPA 1710 will
require dramatic cutbacks in all manner of local services, including community policing,public
parks and libraries, and municipal services for children and senior citizens.
Is it worth it? As we will see,the NFPA 1710 Technical Committee has no idea. The
Committee apparently failed to consider whether equal or greater improvements in civilian and
firefighter health and safety could be achieved in localities where the need genuinely exists
through the devotion of vastly less resources to more modest overall department staffing
increases (as opposed to across-the-board increases in standard crew size), better training,
equipment or apparatus, or for that matter by imposing(and even subsidizing)prevention
measures such as fire code upgrades and sprinkler retrofitting that significantly reduce the
incidence and seriousness of structure fires.'3
Prior rejection of mi;iunum staffing provisions: NFPA 1500. The issue of specific
standards for staffing and response times is not new. NFPA has considered—and rejected—
minimum crew size mandates more than once over the last 15 years. NFPA 1500,Standard on
Fire Department Occupational Safety and Health Program, was first issued in 1987. When the
standard came up for reconfirmation in the early 1990s,the IAFF sought to convert the apparatus
staffing recommendations in NFPA 1500's Appendix to strict apparatus staffing requirements in
the actual body of the standard. After thorough discussion,the responsible Technical Committee
rejected this proposal. IAFF—through the man who later would become Secretary of the NFPA
1710 Technical Committee, Richard Duffy—proposed inflexible mandatory fireground staffing
requirements as an amendment to the second edition of NFPA 1500 when it was brought before
the Association membership at the 1992 Annual Meeting. At a membership meeting not packed
with voters bought and paid for with IAFF dues, the amendment was rejected by over three-
quarters of the members present.14
13Similarly,the Technical Committee apparently never seriously considered the possibility that forced
compliance with NFPA 1710's inflexible minimum staffing and response-time requirements could actually
increase the risk of loss and injury to civilians and firefighters. For example,in municipalities with traffic
problems,severe weather conditions,or large areas,efforts to comply with NFPA 1710's decreased mandatory
response times could increase the risk of collisions involving fire apparatus.
14Transcript of May 1992 NFPA Annual Meeting,at pp. 51-53,78(Committee fails to approve
minimum crew-size provision);p.94(membership rejects inflexible fireground staffing provision)(excerpt
attached as Ex.9). The floor debate on this proposed amendment presages many of the questionable IAFF
themes and tactics that pervade the instant context: Mr.Duffy flatly asserts that the IAFF"believe[s] [local
governments]should not decide on the fireground safety standard." Ex.9 at pp.56-57. Others strongly
disagree,citing concerns about the variability of local conditions and preferences(Ex.9 at pp. 71-74,89-90)
and the problem of unfunded mandates(Ex.9 at pp. 71-74). Many NFPA members are disturbed by what they
perceive to be an attempt by the IAFF to avoid public comment and other NFPA procedural safeguards. Ex.9
at p.80. Some speakers go further,accusing the IAFF of harassing fire chiefs opposed to the amendment with
"late night phone calls"and"character assassination"(Ex.9 at p.82-84)and alleging that the"NFPA 1500
Committee has been highjacked by the IAFF."Ex.9 at p.84.
NFPA Standards Council
June 22, 2001
Page 7
Later in 1992,then-NFPA 1500 Committee Chair(and future NFPA 1710 Committee
Chair)Alan Brunacini authored, and the IAFF supported, a proposed Temporary Interim
Amendment("TIA")to NFPA 1500 similar to the proposed amendments that the NFPA 1500
Technical Committee and the NFPA membership had rejected. In January 1993, the Standards
Council met to consider it. Then,as now, the empirical basis for the proposed requirements was
much in question. Standards Council member Jenny Nelson remarked to IAFF General
President Al Whitehead,"I have been looking at the data that you have given and have tried to
find some conclusions that say that the four person manning would actually decrease the injuries
or prevent deaths. I don't see that in the statistics."15 The Standards Council rejected the TIA.
The NFPA Board of Directors agreed, expressing concern that the amendment's wording could
be misinterpreted to address minimum apparatus crew size as opposed to initial deployment in
fire attack. 6
Continued rejection of specific nationwide service standards: NFPA 1200. The union
did not quit there. In 1994,the IAFF's General President formally requested that the Standards
Council form a new committee to address staffing and deployment issues. When the Standards
Council met to address the request, IAFF representative Dave McCormack(later a member of
the NFPA 1710 Technical Committee) assured the Council that"we believe strongly in the
NFPA consensus standards making process,"and that variability in local conditions must be
accommodated: "the response time in Frozen Boot [Montana] is not going to be the same as for
San Francisco or New York or Washington, D.C.s17 At a subsequent meeting, McCormack
assured the Council on behalf of the IAFF that"to our belief one size does not fit all."18 He
specifically agreed with Council member Gary Taylor"that the dominant issue here is how you
organize public protection depending on urban versus rural rather than whether it is volunteer
or professional" and later summarized that the IAFF"wants to address the issue of deployment
in essentially an urban setting."19 In response,the council decided to form a technical committee
for a new standard,NFPA 1200,noting that"deployment needs may vary depending on the type
of fire department or community environment, and that there are several proposals as to how
these different deployment contexts might be categorized.s20
15Transcript from January 13, 1993 Standards Council Meeting at p. 17(attached as Ex. 10). A
reconstituted NFPA 1500 Technical Committee eventually recommended a less stringent TIA to NFPA 1500
that declined to dictate apparatus crew size and instead promulgated a more flexible fireground staffing
standard for structure fire attack that did not dictate crew size. See NFPA Standards Council Decision 93-23
and Attached TIA(attached as Ex. 11). This TIA was approved by the Standards Council on July 23, 1993.
See Ex. 11 at p. 1593.
16See NFPA Board of Directors March 11, 1993 Decision(attached as Ex. 12).
"Transcript of July 12, 1994 NFPA Standards Council Meeting at p.9(attached as Ex. 13).
Transcript of January 11, 1995 NFPA Standards Council Meeting at p. 19(excerpt attached as Ex. 14).
19Ex. 14 at p.40 and p. 80(emphasis added);see also Ex. 14 at 56-58,67,71-72.
20See NFPA Standards Council Decision 94-93 (attached as Ex. 15).
NFPA Standards Council
June 22, 2001
Page 8
But the NFPA 1200 Committee—apparently with a more modest labor representation and
a more diverse collection of viewpoints—could not come to consensus.21 In mid-1997, the
Standards Council convened a meeting to consider how to proceed. Amidst pointed controversy
about exactly what had transpired at the NFPA 1200 Committee's previous meeting,the IAFF-
having been unable to induce the Committee to endorse the staffmg and deployment standard it
had long desired—requested that NFPA 1200 be abandoned and the Committee's jurisdiction be
divided.`2 IAFF representative Dave McCormack, long-time veteran of the staffmg-standards
wars and soon-to-be member of the NFPA 1710 Committee, argued for the division, once again
urging that"one size does not fit all, and a failure to recognize this has produced what is an
inherently flawed charge to the [NFPA 1200] committee . . . ."23 McCormack asserted that IAFF
"believe[s] very strongly that . . .the frequency and intensity of the fire situation is really a
function also of population, of population density,"which itself was reflected by a career
department's size. The IAFF, McCormack said, recognized a"divergence of need"between
different service jurisdictions that it"beg[ged]"the Council to recognize, and asked the Council
to"create a standard that deals with career departments of a certain size." "Do everyone a large
favor,"McCormack urged, "and create a tiered compliance system.s24 At a public meeting of
the Council later in 1997 at which this discussion continued, McCormack addressed the concern
that"many fire departments,particularly small departments . . . will have serious difficulties
meeting [a specific mandatory minimum] standard," stressing that the IAFF"agree[s] and we
implore the Standards Council to recognize these differences,"and that"[tiiered compliance will
permit us to develop a system that does not leave everyone in a perpetual state of non-
21 See Declaration of Gerard Hoetmer("Hoetmer Decl.")(attached as Ex. 5)110;Transcript of July 1997
Standards Council Meeting at p.45(excerpt attached as Ex. 16)(NFPA 1200 Technical Committee Chair John
Granifo states that"the major constituencies"were"represented on the[NFPA 1200]committee").
22Section 4-5.1 of the draft version of NFPA 1200 contained in the 1997 Fall Meeting Report on
Proposals proposes a flexible standard for staffing"comprised of the numbers necessary for safe and effective
fire-fighting conditions"responsive to numerous factors,including"life hazard to the populace protected";
"provisions of safe and effective fire-fighting performance conditions for the fire fighters";"the potential
property loss";"the nature,configuration,hazards,and internal protection of the properties involved";and"the
types of fireground tactics employed as standard procedure,the type of apparatus used,and the results
expected to be obtained at the fire scene."
23Ex. 16 at p.59.
24Ex. 16 at p. 59-61,63 (emphasis added). Ironically,the International Association of Fire Chiefs,
whose Board was later co-opted into supporting NFPA 1710,argued at this hearing that"there is not a need"
for a uniform deployment standard in light of the necessity for responsiveness to local conditions and the need
for local control. Ex. 16 at pp.49-53("Local jurisdiction and municipalities are so different in their
demographics,geography and levels of risk,it is nearly impossible to create a standard that will fit into every
agency").
NFPA Standards Council
June 22, 2001
Page 9
compliance and confusion."25 "[I]t is impossible," McCormack urged, "to have one size fit
all. . . .,,26
In 1998,the Standards Council appointed a Task Group to make a recommendation
regarding NFPA 1200. The IAFF representatives on the Task Group continued to advocate
splitting the jurisdiction of the committee, now between career and volunteer fire departments,
which they represented would accommodate other interests' desire to use"jurisdictional
demographics such as population . . . type of hazards" and the like.27 The Task Group,which
included diverse interests and viewpoints, agreed on little other than that you"can't paint the
whole country with one brush(i.e. `one size doesn't fit all')."28
In July 1998,after a further hearing, the Standards Council decided to adopt the IAFF's
proposal to divide the deployment standard between career and volunteer fire departments.
Accepting the IAFF's repeated representations on the subject, the Council expressly noted that
"deployment needs might vary depending on the type of fire department or other factors."29
The lack of balance in the NFPA 1710 Technical Committee. In ways of which the
Standards Council does not appear to have been aware, the Technical Committee formed to
consider NFPA 1710 was disproportionately staffed with members aligned with a single
interest—organized labor. NFPA staff represented to the Council in March 1999 that
"considerable time has been spent in-house and in concurrence with the Chairman in trying to
develop a balanced Technical Committee . . . ,"30 but the result was anything but:
• The membership outline the Committee Chair prepared amply represented organized
labor in the fire service,but from the outset reserved only a single seat for a city manager,
and no places for any elected official. A memo from Committee liaison Foley to the
Council represented that places had been reserved for"citizen groups"and business
interests,yet it appears that not a single representative of any citizen,business,or
taxpayer organization was ever invited to participate.31 The single city manager's seat
25Transcript of November 19, 1997 NFPA Standards Council Meeting at pp.9, 11 (attached as Ex. 17)
26Ex. 17 at p.37. Soon-to-be NFPA 1710 Committee Secretary Richard Duffy argued that the new
committee should be"solely made up of those that represent or are a part of the career fire department." Ex.
17 at p.32. As we will see,despite the Association's detailed consensus and balance requirements,Duffy very
nearly got his wish.
27Summary Report of April 28, 1998 NFPA 1200 Task Group Meeting at p.2(attached as Ex. 18)
28Ex. 18 at p.3.
29Minutes of July 15-17, 1998 Standards Council Meeting at p.4(excerpt attached as Ex. 19).
30Memo from staff liaison Stephen Foley to the Standards Council dated March 25, 1999 at p. 1977
(attached as Ex.20).
31 Ex.20 at pp. 1976-79.
NFPA Standards Council
June 22, 2001
Page 10
was not filled, nor was a single Committee member who eventually voted against the
standard(or even abstained) invited to participate in the Committee, until after the
Committee had begun to meet and the proposed standard's initial drafting was
complete.32
• Fourteen of the 26 Committee members appointed in time for the Committee's first
meeting and drafting session—many of whom were not categorized as representatives of
labor—had longstanding affiliations with the IAFF or other firefighters' unions. Four
members were direct IAFF representatives on the Committee;33 four more represented
their union locals on the committee and/or were current and lifetime union members;34
and six more disclosed longstanding ties to local and international firefighters' unions.35
32The Committee's minutes show that Cortez Lawrence and Valerie Lemmie,who eventually voted
against NFPA 1710,and Diane Breedlove and Larry Mullikin,who abstained,had not been appointed to the
Committee at the time of its first meeting in June 1999. They thus did not participate in the Task Group that
drafted the proposed standard,which was formed by Chairman Brunacini shortly after the first Committee
meeting.See Ex.21 at pp.995-97.
33Committee Secretary Richard M.Duffy,an IAFF employee(Ex.22 at pp. 1861, 1866);Kenneth
Buzzell,a full-time employee of and chief negotiator for the IAFF local in Los Angeles(Ex.22 at pp. 1848-
50);Jim Lee,President and full-time employee of the Toronto Professional Fire Fighters'Association(Ex.22
at pp. 1885-87);and David McCormack,Assistant to the General President of the IAFF(Ex.22 at pp. 1898,
1901).
34Don Forrest,a 37-year member of the Los Angeles Fire Department(Ex.22 at p. 1867);John King,a
16-year member of the Detroit Fire Department whose participation was funded in part by the Detroit Fire
Fighters(Ex.22 at p. 1881);Gary Rainey,representing Metro Dade Firefighters,IAFF Local 1403 on the
Committee(Ex.22 at p. 1931);and Mark Sanders,President and full-time employee of the Cincinnati Fire
Fighters Union,IAFF Local 48,representing his union on the Committee(Ex.22 at p. 1944).
35Terry Allen,the Cambridge,Ontario fire chief,held multiple elected positions a longtime membership
in the Cambridge Professional Fire Fighters Association. Ex.22 at p. 1821. Wayne Bernard,the Surrey,B.C.
deputy fire chief,had been an IAFF Local President,British Columbia Professional Fire Fighters Association
Executive Vice-President and long-time union member. Ex.22 at pp. 1831-32. John Cochran,currently
employed by the U.S.Fire Administration,was an IAFF local president. Ex.22 at p. 1858. Christopher
Platten,appointed as a neutral"special expert,"is a labor lawyer one of whose principal clients is the IAFF.
The Internet web site for San Jose,California IAFF Local 230,for example,states that"Christopher E.Platten
is our labor attorney"and that"for over fifteen years.. .he has always been there for us literally day and
night." See http://www.sjff.org/legal.htm. Dr.Franklin Pratt was also appointed to the committee as a neutral
"special expert,"but buried in his 14-page application package is the statement that he"has assisted the IAFF
on matters associated with EMS and therefore could also represent their views by serving on this Committee."
Ex.22 at pp. 1916, 1930(emphasis added).Charles Soros,categorized as a manufacturer,represented the Fire
Department Safety Officers Association on the Committee. He was a founding member of IAFF Local 2898 in
Seattle,Washington,and had served as an IAFF alternate on the NFPA 1900 Technical Committee regarding
apparatus. Ex.22 at pp. 1951-53;See Excerpt from Seattle IAFF Local 2898 web page
"http://www.ndcrt.org/sfdoa/sealocal12898.htm1"(attached as Ex.23).
NFPA Standards Council
June 22, 2001
Page 11
Fifteen of the 30 members that eventually staffed the Committee had longstanding union
ties.36
• Thirteen members of the Committee(including three members referred to in the previous
paragraph who disclosed longstanding ties with organized labor) were fire chiefs or
deputy fire chiefs. Many of them had long careers as union firefighters (and, as discussed
below, were plainly mindful of the expressly threatened labor unrest they could avoid by
following organized labor's lead on these issues).37 As described below,this alliance
manifested itself as the IAFF and members of the International Association of Fire Chiefs
("ICHIEFS")joined forces early in the process to the effective exclusion of all other
affected interests.38
• Virtually absent from the Technical Committee was anyone accustomed to viewing these
issues from, and articulating the perspective of,those who must reconcile the demands of
labor with the political,practical, regulatory and budgetary constraints that pervade all
municipal services. Of the initial Technical Committee members, not one was an elected
member of a local government—no mayors, no city council members, no county
supervisors, and no elected fire district board members. No provincial, state or national
local government organization was invited to provide representation on the Committee,
even though the International City/County Management Association("ICMA")had
provided a member of the Task Force formed to advise the Standards Council on how to
proceed in the face of the NFPA 1200 impasse,and had expressly advised the Council to
seek representation on any new committee from both the ICMA and the National League
36In addition to the two token no votes and two abstentions belatedly added as described in footnote 32
above,the Committee later also added William Bingham,the Boynton Beach,Florida fire chief,who remains a
member of the Iowa Firemen's Association. Ex.22 at pp. 1837, 1839.
37Committee Chair Alan Brunacini(Ex.22 at p. 1816);Terry Allen,who disclosed longtime
membership and multiple officer positions in the Cambridge Professional Fire Fighters Association(Ex.22 at
p. 1821);Wayne Bernard,the Surrey,B.C.fire chief had been an IAFF Local President,British Columbia
Professional Fire Fighters Association Executive Vice-President and long-time union member(Ex.22 at p.
1831);William Bingham,the Boynton Beach,Florida fire chief who remains a member of the Iowa Firemen's
Association(Ex.22 at pp. 1837, 1839);Ross Chadwick,the Denton,Texas fire chief(Ex.22 at pp. 1851-52);
Dennis Compton,the Mesa,Arizona fire chief and ICHIEFS representative(Ex.22 at p. 1859);Lawrence
Garcia,the Wichita fire chief and ICHIEFS representative(Ex.22 at pp. 1868-69);Harold Hairston,the
Philadelphia fire chief(Ex.22 at p. 1870);Patrick Hughes,the North Richland Hills assistant fire chief and
ICHIEFS member(Ex.22 at pp. 1873, 1877);Ken Riddle,the Las Vegas deputy fire chief(Ex.22 at p. 1938);
Nick Russo,the Hull,Massachusetts fire chief and ICHIEFS representative(Ex.22 at pp. 1941-42);and
Edward Stinnette,the Fairfax County,Virginia assistant chief(Ex.22 at pp. 1954-58). Larry Mullikin,who
abstained,is the fire chief in Stillwater,Oklahoma,though he sat on the Committee as the representative of the
International Fire Service Training Association.
38lronically,ICHIEFS and its members on the Committee do not appear to have been representing any
consensus among fire commanders. ICHIEFS'members,and fire commanders generally,are reported to be
deeply divided on this issue.
NFPA Standards Council
June 22, 2001
Page 12
of Cities("NLC") because of the NLC's focus on the perspective of elected(rather than
appointed) local officials.39 The NFPA 1710 Committee Chair confirmed to the
membership at the Technical Meeting that"we never heard from any of them in the
process.s4° Only one of the Committee members—City Manager Valerie Lemmie of
Dayton, Ohio—represented the perspective of public managers and employers,and she
was not invited to join the Committee until its last meeting, after the proposed standard
was fully drafted and the Committee's recommendation preordained, and a full year after
she first applied to serve.41 The Technical Committee's disdain for this critical
perspective was plain. As the Committee Chair remarked at a public panel discussion
earlier this year concerning NFPA 1710, "local control is horse shit."42
A skewed Committee fails to observe the Association's procedural rules and guidelines.
With its disproportionate representation and coordinated resolve, labor closed ranks and drove
the Committee relentlessly to the result it had repeatedly failed to achieve over the preceding 15
years under ordinary NFPA procedures. What the Committee sacrificed along the way was the
consensus- and scientifically-based standard formulation and decisionmaking that has been
NFPA's hallmark for over a century. In a speech shortly before the May 2001 Technical
Meeting,the IAFF's General President emphasized the union's longstanding dedication to
achieving this result without regard for the more fragile contemplative virtues on which NFPA's
processes depend:
I want to make it clear that the passage of NFPA 1710 is a top priority for the
[IAFF]. Along with our fire service allies we have committed the necessary
resources and we have the necessary resolve to win this important standard . . . .
And I assure you we will win . . . . To the fire chiefs who lack the spine to
support 1710,you are dead wrong and you will have to live with your own
decision and the consequences of your actions.43
Indeed, the resolve had been indomitable, and the union's veiled threats all too real. It
was clear to Committee members not affiliated with the IAFF or the other interests that labor
quickly co-opted that the process was entirely dominated by the IAFF and its narrow agenda, and
39Ex. 18 at p. 1.
40May 16,2001 NFPA Technical Meeting Transcript at p.91 (attached as Ex.24).
41Ex.22 at p. 1888(application dated November 9, 1999). As noted above,Diane Breedlove of the City
of Sugar Land,Texas was invited to join the Committee after it had already met and the proposed standard had
been preliminarily drafted. However,Ms. Breedlove left the City of Sugar Land in 2000,and her employer
eventually wrote NFPA to advise that she did not represent Sugar Land on the Committee. See March 19,
2001 Letter from David Neely to Alan Brunacini(attached as Ex.25).
42Lawrence Decl.(Ex.3)¶31.
43March 1,2001 Speech by IAFF General President Harold Schaitberger to the Fire Department
Instructional Conference ("FDIC")in Indianapolis,Indiana at p.6(attached as Ex.26)(emphasis added).
NFPA Standards Council
June 22, 2001
Page 13
the outcome preordained. While we cannot hope to document all the failings of the Technical
Committee's process, here are a few examples:
• Committee members report that,rather than acting as a neutral discussion facilitator as
the Association's rules require, Committee Chair Alan Brunacini regularly injected his
own opinion into the debate. Similarly,Committee Secretary (and IAFF Secretary)
Richard Duffy,rather than acting as a neutral scribe,would selectively memorialize
committee discussions,rally and organize the IAFF contingent of the Technical
Committee, and indulge in personal attacks on those who questioned the IAFF's views.
For instance,Mr. Duffy would preface discussion of a proposal or comment submitted by
an interested party with whom his union disagreed with dismissive remarks such as
"here's another stupid comment from [whatever organization the submitter was affiliated
with]." Literally hundreds of thoughtful proposals and comments from fire service
professionals and civic leaders were rejected out of hand with little or no discussion.
Through such tactics, the few dissenting Committee members were intimidated and their
views marginalized.`'
•
• When one Committee member raised the possibility of issuing a nonmandatory"Guide"
or"Recommended Practice" as opposed to a mandatory "Standard,"the Committee Chair
summarily quashed the issue,making it clear that the Committee would consider only a
mandatory"Standard"and that any other approach was out of the question. Committee
members were startled when,at the May 2001 Technical Meeting,the Chair represented
to the NFPA membership that the Committee had thoroughly discussed and carefully
considered whether a Standard or a Guide would be the better approach.45
• One Committee member who was outspokenly skeptical about the wisdom and scientific
basis for the mandatory minimum staffing and response-time requirements of NFPA
1710 and who indicated that he would vote against the proposed standard received threats
of labor unrest in the fire department he headed,and threats that the IAFF would picket
and cause fire departments to boycott the products of the fire service training manual
publisher he represented on the Committee. In the face of these threats,he was forced to
abstain rather than vote against the proposed standard as his conscience dictated.46
`Lawrence Decl. (attached as Ex.3)¶124-31;Declaration of Larry Mullikin("Mullikin Decl.")
(attached as Ex.4)15-6. Significantly,only one comment was held for further consideration: to set separate
and distinct standards for"urban,""suburban"and"rural"service areas more responsive to their practical
needs and circumstances. 2001 May Association Technical Meeting Report on Comments at pp.317-18,
Comment No. 1710-224.
45Lawrence Decl.(Ex. 3)¶121-22; Ex.24 at p.60.
46Mullikin Decl.(Ex.4)1112-18.
NFPA Standards Council
June 22, 2001
Page 14
A skewed Committee fails to marshal any reliable scientific basis for its foreordained
conclusions. The Technical Committee ignored not only process, but also substance. Another
victim of the Committee's artificially narrowed agenda was scientific inquiry—a value that is
supposed to lie at the core of pp o all NFPA codes and standards,lords, and dignify them as far more than
politically expedient compromises.
Over the last decade,NFPA has repeatedly rejected the nationwide minimum staffmg and
response time requirements at the heart of NFPA 1710 in significant part because there was no
hard scientific evidence that they made any appreciable difference.47 In 1993, in the midst of this
controversy,NFPA's then-Director of Data Research John Hall wrote a research memorandum
on this very subject to NFPA's current assistant Vice President of Public Fire Protection Gary
Tokle. The memo analyzes the limited existing empirical and scientific literature, and highlights
the absence of any reliable empirical basis to conclude that minimum crew size materially affects
firefighter safety, let alone civilian safety and property risks. This NFPA analysis observes that
. "it would be possible to design a statistical regression study"meaningfully isolating crew size as
a predictive factor, but that"no such study has been done.s48
No scientific study establishing the efficacy of mandatory minimum crew size or
response time minimums for fire suppression services has been undertaken since John Hall wrote
his revealing memorandum. Certainly none is cited among the references on which NFPA 1710
purports to rely—which conveniently omit any reference to the 1993 NFPA research memo. As
will be shown below,the references that NFPA 1710 does cite with any bearing on this question
actually are either irrelevant to or inconsistent with rigid and inflexible nationwide minimum
standards. In the meantime, according to recent NFPA and other research that NFPA 1710 also
fails to cite, as a result of improvements in fire prevention practices, equipment and training,
structure fire incidence and severity, as well as civilian and firefighter injury and loss,have
significantly decreased in the last ten years without any specific national standard for staffing or
response time, and as fire service budgets have been reduced in favor of prevention measures 49
In short,there has been no new empirical or scientific learning—or for that matter any empirical
or scientific learning at all—that could justify the NFPA 1710 Technical Committee's
recommended policy flip-flop. Indeed, at a public meeting earlier this year,the recipient of the
1993 NFPA research memorandum—NFPA Assistant Vice President of Public Fire Protection
Gary Tokle—conceded that there was no empirical evidence underlying NFPA 1710.5° The only
change has been in the membership and intentions of the Committee itself.
47Hoetmer Decl.(Ex.5)73-18;see pp.6-9 above.
4$October 6, 1993 NFPA Memo from John Hall to Gary Tokle entitled"Evidence on the Link Between
Fire Fighter Deaths and Injuries and Fireground Staffing"at p.2(emphasis added)(attached as Ex.27).
49Ex. 7 at p.3 ;G.Hoetmer,"Diverting Dollars,"http://www.governing.com/view/vu052301.htm.
50"ICMA Members Meet with NFPA/ICHIEFS Regarding Proposed Standard 1710,"
http://www.icma.org/go.cfm?cid=2&gid=8&sid=15&did=1052.
NFPA Standards Council
June 22, 2001
Page 15
The IAFF reduces the Association's Technical Meeting to a labor rally. With the
Technical Committee's recommendation in hand,the IAFF engaged in what it called a"multi-
level campaign"to ensure a positive membership vote at the May 2001 Technical Meeting." As
at the Technical Committee level, a deliberative process might not have produced the desired
result, and accordingly was out of the question. "[I]t will take our might, our muscle, and our
will to make sure [1710] passes in May," IAFF General President Schaitberger instructed his
rank and file.52 Potential opposition was quashed. Two weeks before the meeting, Schaitberger
warned"[t]he fire chiefs who lack the spine to support 1710 . . . you will have to live with your
own decision and the consequences of your actions."53 Firehouses throughout North America
were galvanized. Union leadership made it known that"IAFF members from every corner of
[the U.S. and Canada] are expected to converge on the NFPA meeting in one of the largest
mobilizations in our Union's history . . . .s54
The IAFF boasted that it had spent millions to enroll its rank and file as voting NFPA
members and send them to Anaheim to dictate the meeting's outcome. One fire chief seeking to
clarify his voting status at the meeting was informed by NFPA staff that the 180-day pre-meeting
deadline to become a voting member had been extended to accommodate the avalanche of
firefighters' applications.55 Rumors circulated on the floor that IAFF had paid to enroll not only
firefighters, but their spouses as voting members to accompany them to the Technical Meeting
and ensure the desired result. The Committee Chair's personal secretary reportedly traveled
from Phoenix to vote in favor of NFPA 1710.
As might have been expected,the IAFF's"might,""muscle"and"will"carried the day.
As the IAFF's press release observed, what was supposed to have been a Technical Meeting
concerning a consensus- and scientifically-based standard turned into"the largest meeting of
IAFF members at any event in the 84-year history of the union.i56 Discussion was superfluous,
•
and IAFF-sponsored cloture motions promptly scotched debate on motions to amend or return
the proposed standard to committee while speakers remained lined up at the microphones
waiting to be heard.57 As the IAFF reported after the meeting adjourned:
51May 18,2001 IAFF Press Release at p.5(attached as Ex.28).
52H.Schaitberger,"The Right Standard for the New Century"April,2001 IAFF Monthly Newsletter
(attached as Ex.29).
53Ex.26 at p.6.
54Ex.29. •
"Declaration of Samuel Nawrot("Nawrot Decl.")¶6(attached as Ex.6).
56Ex.28 at p.4.
57Ex.24 at pages 67,79-80,88,97-99, 117-18. Nawrot Dec1.¶12.
NFPA Standards Council
June 22, 2001
Page 16
•
More than 2,600 members of the IAFF voted in unison . . . providing the votes
needed to pass [1710] by a decisive 10-to-1 margin . . . . The IAFF dominated the
meeting.5
ARGUMENT
Even the most casual observer of the process just described would be concerned about the
legitimacy of the outcome. For those schooled in the detailed and carefully regulated procedures
of the Association's Regulations Governing Committee Projects ("NFPA Regs.") and Guide for
the Conduct of Participants in the NFPA Codes and Standards Development Process ("NFPA
Conduct Guide") this concern should be most grave. Procedural rules and standards designed to
ensure balance and consensus among divergent interests, needs and views were ignored. See
Part III(A). So was any pretense at reliance on empirical science to justify the result. See Part
III(B). If the values reflected in the Association's Regulations and Conduct Guide mean
anything,the Standards Council is duty-bound to intervene.59
A. Repeated And Widespread Violations Of Numerous Protections In The
Association's Regulations And Conduct Guide Prevented NFPA 1710 From
Becoming Anything Remotely Resembling A "Consensus" Standard.
The requirement that the Association's codes and standards result from a"consensus"
process is so integral to NFPA's special role and standing that it is incorporated into the
Association's Mission Statement. As the Association's Regulations make clear:
"Consensus"has been achieved when, in the judgment of the Standards Council
of the National Fire Protection Association, substantial agreement has been
reached by materially affected interest categories. Substantial agreement means
much more than a simple majority but not necessarily unanimity. Consensus
requires that all views and objections be considered and that a concerted effort be
made toward their resolution.6o
58Ex.28 at p. 1-2,3.
59"The Standards Council acts as the overseer of the standards development process,the official issuer
of all NFPA documents,and the body that hears and determines all complaints related to the standards
development process and to the issuance of NFPA codes and standards. As such,the Standards Council must
both be and be perceived to be a fair and nonpartisan decision-making body." NFPA Conduct Guide§3-5(a).
60NFPA Regs.3-3.6.1 (emphasis added). The Association's regulations explicitly recognize that that
this demandingly inclusive definition of"consensus"must apply in the promulgation of"mandatory standards"
such as the one at issue here:
[m]andatory standards. . .shall be developed via an open process having a published
developmental procedure. The developmental procedure shall include a means for obtaining
(continued. . . )
NFPA Standards Council
June 22, 2001
Page 17
"Consensus" for the NFPA is not some vague abstraction. Detailed rules and regulations
clarify what the Association intends"consensus"to comprise, and closely regulate the process by
which it is to be achieved. The Association demands that"all participants in the NFPA standards
development process . . . adhere,both in letter and in spirit,to all duly established rules,
regulations, and policies governing the . . . process."61
1. The Standards Council Was Misinformed At The Outset As To The Need
And Basis For Creating A Separate Technical Committee To Consider A
Standard For Career Fire Departments.
As discussed in detail above,the Standards Council appears to have been sold a bill of
goods. At meeting after meeting,year after year,the same IAFF leaders that eventually were
appointed to the NFPA 1710 Committee barefacedly represented to the Council their unwavering
conviction that"one size does not fit all,"that"tiered" service requirements responsive to
jurisdictional demographics were indispensable to avoid"leav[ing] everyone in a perpetual state
of non-compliance and confusion,"and that IAFF intended to focus its service standards on
"urban" service areas. Once its supporters grasped control of the Committee and its processes,
however,they never looked back. Tiered service levels and responsiveness to local conditions
were categorically rejected; local needs and control were ridiculed and dismissed. The promised
focus on"urban"environments completely disappeared. One size suddenly did fit all and,all
those earnest protestations notwithstanding, it suddenly always had.
What the Council was promised and what the Council got could not be more different.
The IAFF's repudiation of the representations that induced the Council to put NFPA 1710 in
motion in and of itself compels a fresh start.
2. The Technical Committee Did Not Possess The Balance That Basic Fairness,
A Fully Informed Process And The NFPA Rules Required.
Vital to the NFPA's salutary notion of"consensus" is that the development of a code or
standard not be dominated by one interest group or even a number of interest groups,but rather
by a"balance of affected interests.,62 The Association thus"promotes the development of
consensus through the broad and balanced participation of a variety of interests and through the
full airing and discussion of all points of view."63 And"[i]n order for the standards development
(. . .continued)
divergent views,if any. The development procedure shall include a means of achieving
consensus for the resolution of divergent views and objections. (NFPA Reg.3-3.7.1.2)
"The Standards Council bases its judgment as to when a consensus has been achieved on the entire record
before council." NFPA Reg.3-3.6.1.
61NFPA Conduct Guide§2(e)(emphasis added).
62NFPA 2001 Directory at p.5.
63NFPA Conduct Guide §2(d)(emphasis added).
NFPA Standards Council
June 22, 2001
Page 18
process to operate fairly and effectively, it is necessary that technical committees...contain the
representation of a variety of interests and that those interests are balanced within the
committees.i64 The Association's Regulations similarly require that Technical Committee
appointments aim toward"[m]aintaining a balance of interests within the membership."65 As an
outside (but by no means exclusive)governor, "[n]o more than one-third of the voting members
[on a Technical Committee] shall represent any one interest."66
Thus Technical Committee members are to be"appointed on the basis of their personal
qualifications"but,"for purposes of balance, their business interests and affiliations shall be
considered.s67 And"[i]n order that the points of view and information participants contribute to
the NFPA standards development process can be accurately evaluated by others,participants
should always endeavor to make known their business, commercial, organizational, or other
affiliations that might affect their interests or points of view."68
Far from ensuring"the broad and balanced participation of a variety of interests,"69 the
Technical Committee for NFPA 1710 completely failed to meet the Association's criteria for
balance. To summarize just a few egregious examples:
• The Technical Committee was lopsidedly staffed with members affiliated with the IAFF.
At least fifteen of the Committee's 30 members have longstanding and close ties to the
union—violating both the general requirement that no one interest be disproportionately
represented, and the specific prohibition that no more than one-third of a committee's
members be affiliated with a particular interest.70 When this unified block joined hands
64NFPA Conduct Guide§3-3(a)(emphasis added).
65NFPA Reg.3-2.4.2(c).
66NFPA Reg.3-2.5. NFPA is a member of the American National Standards Institute("ANSI")and its
procedures are designed to comply with ANSI requirements. NFPA 2001 Directory at p.39. Among other
things,ANSI's Procedures for the Development and Coordination of American National Standards mandates
that a"standards development process"such as NFPA's requires input from a"balance of interests"and that it
not be"dominated by any single interest category"such that no single interest category"constitute[]more than
one-third of the membership of the committee"See ANSI Procedures for the Development and Coordination
of American National Standards.
67NFPA Reg.3-2.2.1(c)(emphasis added).
68NFPA Conduct Guide §3-1(e);see also NFPA Conduct Guide §3-3(a).
69NFPA Conduct Guide§2(d)(emphasis added);see also NFPA Reg. 3-2.5.
70See footnotes 32-37 above and accompanying text. In addition,"special expert"Platten may have
independently violated NFPA rules: "Special experts comprise a category of independent consultants and
experts who are generally unallied with any particular.. .interest." NFPA Conduct Guide 3-3(e). When
advocating on behalf of a client before the committee,they are to disclose their affiliation and not vote.
Although specifically and exclusively associated with organized labor and a long-time legal representative of
(continued. . .)
NFPA Standards Council
June 22, 2001
Page 19
with the contingent of fire commanders it had both logrolled and threatened into line, any
possible dissent from the party line came only from a scattered and courageous few.
• Against this overwhelming weight of labor and allied interests,the Committee included
not a single elected government official to bring forth issues of budgetary tradeoffs and
constraints, variable local conditions, and the need for local control. Of course,as
discussed above the IAFF proposal that had prompted the formation of the Committee
did not contemplate representation from these interests." Positions on the Committee
that the Council was told had been set aside for citizens' and business groups were
simply never filled. A single city manager was added to the Committee only in time for
its very last meeting, so late in its process that she could have no practical influence on
the course of any issue. NFPA records indicate, and NFPA staff has confirmed,that there
was no invitation to the ICMA,the National League of Cities, the U.S. Conference of
Mayors,the National Association of Counties, or any state municipal league,business
group, or taxpayer organization to participate in the Technical Committee or the
• development of the standard.72 As noted above, the Technical Committee Chair
confirmed to the membership at the Technical Meeting that"we never heard from any of
them in the process."73
While the process that created it raises questions, ultimately it does not matter how or
why the NFPA 1710 Technical Committee began and ended in the lopsided and inequitable
configuration with which it was invested. What does matter is that the Association's imperative
to seek out and incorporate"the broad and balanced participation of a variety of interests"was
utterly disregarded. Individually and collectively,these violations resulted in a Committee
hopelessly skewed to a single point of view and intransigently committed to a specific result. As
we now discuss,this imbalance also facilitated the intolerance and closed-mindedness that
regrettably characterized the Committee's proceedings.
(. ..continued)
IAFF,Mr.Platten both allowed himself to be categorized as a"special expert"and to vote on Committee
business,uniformly in lockstep with the IAFF interest block.
"See footnotes 26 and 42 above and accompanying text.
72As noted above,the Association's records do contain a single letter to the ICMA inviting it to
participate in the Task Group formed to recommend a response to the NFPA 1200 Technical Committee's
failure to reach consensus. See February 6, 1998 letter from Casey Grant to William Hansell of ICMA et al.
(attached as Ex.30). Despite the fact that ICMA did provide a representative to that Task Group,and in a
meeting of that Task Group recommended to the Standards Council that both it and the National League of
Cities be represented on any new or reconstituted technical committee,NFPA's records do not reflect any
indication of an invitation to ICMA,the National League of Cities,or any other organization of elected local
officials to participate in the Technical Committee for NFPA 1710 that was eventually formed.
73Ex.24 at p.91.
NFPA Standards Council
June 22, 2001
Page 20
3. The Technical Committee Failed To Respect, Seriously Consider, Or
Attempt To Accommodate Varying Interests Or Perspectives.
NFPA President George Miller has stressed that NFPA's codes are "begun with a spirit of
participation,partnership, and commonality that is unclaimed by other code-makers.i74 Thus
Association rules require that"[p]articipants should encourage full participation in the standards
development process by all interested persons, and they should encourage and facilitate the full
and open dissemination of all information necessary to enable full and fair consideration of all
points of view.i75
Participants must never"attempt to withhold or prohibit information or points of view
from being disseminated, particularly on the grounds that the participant is in disagreement with
the information points of view. Disagreements should be addressed and resolved through full
presentation and discussion of all information and points of view,not through withholding
information of preventing points of view from being expressed.s76 Committee members must
"treat all persons having dealings with their Committee with respect and fairness and should not
offer or appear to offer preferential treatment to any person or group.i77 And while participants
"may forcefully advocate their views or positions, they should be candid and forth coming about
any weakness in their position,and they should refrain from debate and discussion that is
disrespectful or unprofessional in tone or that is unduly personalized or damaging to the overall
process of achieving consensus."78
As noted above, "consensus requires that all views and objections be considered and that
a concerted effort be made toward their resolution."79 Regrettably, that process failed here:
• Throughout the Technical Committee's proceedings, IAFF loyalist Richard Duffy,the
Committee Secretary, made personal attacks on sponsors of Proposals and Comments
that were inconsistent with the IAFF view. Driven by the IAFF contingent,the
Committee rejected hundreds upon hundreds of thoughtful and sensible comments and
proposals from a diverse range of fire professionals, civic officials, and others from all
over North America out of hand with virtually no discussion.80
74NFPA 2001 Directory at p.3.
75NFPA Conduct Guide§3-1(c).
76NFPA Conduct Guide§3-1(d);see also §3-3(h).
77NFPA Conduct Guide§3-3(g),
78NFPA Conduct Guide 3-1(f).
79NFPA Reg.3-3.6.1.
80Lawrence Decl.(Ex.3)¶27;Mullikin Decl.(Ex. 4) ]10.
NFPA Standards Council
June 22, 2001
Page 21
• The Technical Committee Chair particularly is required to"act in an impartial manner,"
to"refrain from asserting a position in technical discussions," and to"endeavor to
stimulate participation from all committee members."81 Yet the Committee Chair
dictated Committee positions during meetings, for example quashing discussion of
whether NFPA 1710 should be a mandatory Standard or a recommended Guide.82 The
Committee Chair's public position on the interests of local government and taxpayers
was clear and absolute: "local control is horse shit.i83
• As noted above,the contingent of fire chiefs on the Committee was quickly co-opted by
concerns over labor unrest. Dissenters were subjected to heavy-handed intimidation.
The IAFF's General President warned"the fire chiefs that lack the spine to support 1710"
that they would"have to live with [their] own decision and the consequences of[their]
actions."84 This was not idle rhetoric: One fire chief on the Committee who questioned
the proposed standard was threatened with unrest within his IAFF-unionized department,
as well as union boycotting of the products of the fire service training manual publisher
with which he was affiliated.85
These substantial and serious departures from the letter and spirit of the Association's
rules requiring fairness, openness,and unfettered,meaningful participation by all affected
interests in the creation and promulgation of NFPA standards leached the Committee's process
of any integrity or legitimacy.
4. The May 2001 Technical Meeting Was Procedurally Suspect.
The membership vote on a proposed standard should not be a mere formality, let alone a
special interest rally. Yet, in the words of its own press release,the IAFF reduced the Technical
Meeting at which NFPA 1710 was considered to"the largest meeting of IAFF members at any
event in the 84-year history of the union."86 A number of serious issues emerge:
• The Association requires participants not to "urge,arrange, or otherwise facilitate the
participation of persons with no . . . interest for the purpose of affecting the outcome of a
81NFPA Conduct Guide§§3-4(a),(g),(i).
82See footnote 45 above and accompanying text. The Chair also went so far as to publicly mock an
individual offering serious and reasoned argument against NFPA 1710 at the May Technical Meeting. See Ex.
24 at p.60.
83Lawrence Decl.(Ex. 3)¶31.
84Ex.26 at p. 6.
85Mullikin Decl.(Ex.4)11112-18.
86Ex.28 at p.4.
NFPA Standards Council
June 22, 2001
Page 22
vote on an issue at a technical session.s87 Whether a single organization's concerted
expenditure of millions of dollars to enroll and transport hundreds or thousands of its
members to a meeting violates this standard, it certainly calls the legitimacy of the
process into grave question. This is particularly true when,as the IAFF's press release
later trumpeted, it orchestrated the thousands whose presence it had procured to vote "in
unison"and"dominate[] the meeting."88 Choreographed cloture votes shut down debate,
and many who had traveled to the meeting to share their concerns were left unheard.89
• Of even greater concern are reports (direct evidence regarding which has not yet been
made available)that the Association quietly extended its membership deadline in
violation of its own rules to accommodate late-submitted IAFF applications, and that
IAFF members and other supporters enrolled their spouses and others as voting members
to accompany them to the meeting.90
87NFPA Conduct Guide §3-2.
88Ex.28 at p.1-2,3.
89Ex.24 at pp.67,79-80,88,97-99, 117-18. Nawrot Decl.(Ex.6)at p. 12. In addition,and although it
seems unlikely to have affected the outcome given IAFF's heavy-handed control of the proceedings,it is at
least some measure of the integrity of the decisionmaking process overall that the Technical Committee Chair
materially misinformed the membership on two distinct occasions during the limited and nominal floor
discussion the IAFF allowed.
First,in the context of debate over a proposed amendment to change the proposed mandatory standard
to a non-mandatory"Guide,"the Chair advised the membership that the Technical Committee had conducted
"intense and continued discussion"on this choice before rejecting it. Ex.24 at¶60. However,at least one
Committee member reports that the Chair had peremptorily informed them that the Committee was tasked to
produce a mandatory standard,that no alternative was acceptable,and that no discussion of the issue was
necessary or appropriate.Lawrence Decl.(Ex. 3)¶21-22.
Second,when the lack of input and participation from local government organizations was raised during
floor discussion,the Chair remarked:
As the Chairman of this Committee,all of those organizations were invited to participate.
(Applause) You got here late. Because we never heard from any of them in the process. We
had no response from any of them. That's been my consistent experience in almost twenty years
of developing codes for the NFPA of the participants in the code development process that
affects the fire service. I've never seen anybody from those organizations during that period of
time. (Applause) (Ex.24 at p.91)
But as noted above the Association's records indicate,and NFPA staff has directly confirmed to Appellant's
Executive Director,that these local government organizations were not"invited to participate"in the
development of NFPA 1710. To the contrary,their input and viewpoint was systematically excluded.
90See footnote 55 above and accompanying text.
NFPA Standards Council
June 22, 2001
Page 23
Individually and together,these tactics bear a startling resemblance to those the United
States Supreme Court condemned in Allied Tube& Conduit Corp. v. Indian Head, Inc.91 With
respect to the reports of membership abuse,we respectfully suggest that the Association open its
records to public scrutiny and"let the sun shine in" so that all affected can see whether and to
what extent the Association's meeting process was compromised. With respect to the IAFF's
demonstrated—indeed, flaunted—packing and domination of the membership meeting,we ask
the Council to intervene to protect the integrity of the Association's processes.
B. The Technical Committee Did Not Rely On, And Did Not Seriously Investigate,
Any Substantial Scientific Basis For Its Proposed Standard.
Hand-in-hand in the Association's Mission Statement with a reliance on"consensus"
processes to ensure appropriate content is the requirement that the Association's codes and
standards be"scientifically-based." Thus the Association's Conduct Guide requires that
technical committees"promote the development of codes and standards that are scientifically
and technically sound . . . ."92 "In all discussion, debate, and deliberation within the standards
development process,participants should confine their comments to the merits of the scientific,
technical, and procedural issues under review."93 Technical Committee members"are not
appointed to committees for the purpose of furthering their business, commercial, or other
outside interests"; instead,they are to"base all advocacy,voting,and other standards
91488 U.S.492(1988). Indeed,the IAFF seems to have copied its play-book almost literally from the
Supreme Court's description of how another interest group managed to"'subvert'the consensus standard-
making process of the[NFPA],"though IAFF seems to have multiplied its efforts and its expenditures tenfold
over its predecessors':
[The interest group]recruited 230 persons to join[NFPA]and to attend the annual meeting vote
against the proposal[that the interest group opposed] . . .including employees,executives,sales
agents,the agents' employees,employees from two divisions that did not sell electrical products
and the wife of a national sales director. [The interest group]also paid over$100,000 for the
membership,registration,and attendance expenses of these voters. At the annual meeting,the
[interest]group voters were instructed where to sit and how and when to vote by group leaders
who used walkie-talkies and hand signals to facilitate communication. Few of the[interest]
group voters had any of the technical documentation necessary to follow the meeting. None of
them spoke at the meeting to give their reasons for opposing the proposal. . . . Nonetheless,with
their solid vote in hand,the proposal was rejected. . . . (486 U.S.at 496-97)
The Supreme Court in Allied Tube recognized the"advantages"of"safety standards based on the merits of
objective expert judgments and through procedures that prevent the standard-setting process from being biased
by members with economic interests. . . ,"but noted that abuses of these private processes could be illegal,
whether through violation of well-formed procedural or substantive rules,or through literal compliance with
rules not adequately protective of the integrity of the process or its results. 486 U.S.at 500,509.
92NFPA Conduct Guide§2(c).
9'NFPA Conduct Guide§3-1(f).
NFPA Standards Council
June 22, 2001
Page 24
development activities on sound technical and scientific bases and should act in the interest of
fire safety and NFPA's other purposes and goals."94
The Association represents that its codes and standards are based on "state-of-the-art
information."95 Not here. We do not ask the Standards Council to re-analyze some mass of
conflicting scientific conclusions that a properly constituted Technical Committee actually
considered and addressed. Here the Association has repeatedly concluded the"science"
purportedly relied on does not support the standard advanced. The Technical Committee has
provided no reliable, objective empirical or scientific basis to support its proposed inflexible
mandatory national standards, and reportedly resisted investigating or considering any. Under
these circumstances,the Council must intervene and either reject the baseless standard in
question,or alternatively return it to a Technical Committee more willing to confront and
consider the evidence and require that a fully informed and considered scientific analysis take
place.
1. The Association Has Previously Recognized The Lack Of Any Proper Basis
For Rigid Mandatory Nationwide Service Standards.
Due in large part to the lack of scientific evidence supporting specific nationwide
minimum service requirements,the Association has repeatedly rejected such requirements. The
Technical Committee considering the reconfirmation of NFPA 1500 in the early 1990s rejected
them, in significant part for their lack of proper empirical basis.96 The Standards Council
considering the TIA to NFPA 1500 considered whether any scientific basis existed for such
requirements,and rejected them; so did the Association's Board of Directors.97 An NFPA
membership vote in 1992,unencumbered by thousands of choreographed IAFF members
enjoying a free trip to Disneyland,rejected them by a better than 4-1 margin. The NFPA 1200
Technical Committee, citing the same empirical literature on which NFPA 1710 now purports to
rely, rejected them as well.98
The IAFF would now have this unbroken string of carefully considered consensus- and
scientifically-based decisions overturned. There is no basis to do so.
94NFPA Conduct Guide§3-3(d).
95NFPA 2001 Directory at p. 5.
96 See pp.6-7 above;Hoetmer Decl.(Ex.5)¶10-14.
97See pp.6-7 above.
98 See pp.7-9 above;Hoetmer Decl.(Ex.5)¶16-18.
NFPA Standards Council
June 22, 2001
Page 25
2. There Is No Reliable Empirical Or Scientific Basis For The Proposed
Standard.
As noted above, in 1993 NFPA's then-Director of Data Research John Hall wrote a
research memorandum to NFPA's current Assistant Vice President of Public Fire Protection
Gary Tokle emphasizing the absence of any empirical or scientific basis to conclude that
minimum crew size provides any significant benefits:
It would be possible to design a statistical regression study that would treat fire
fighter injuries as the variable to be predicted; fireground staffmg, crew size, and
deviations between authorized and actual staffing as primary predictive variables
to be analyzed; and other suppression provisions and differences in fire severity
analysis. Historical data could be used from a group of participating fire
departments, and the design of the study would be reasonably straightforward. No
such study has been done.99
Having reviewed and considered the few insufficient studies that had been completed regarding
somewhat related questions,the NFPA analysis concluded:
What is not so clear is(a)whether there is a relationship to crew size that goes
beyond the relationship to fireground staffmg; (b)how much the risk is related to
the planned level of fireground staffing and how much to operating at less than
the planned level(which is what people were trained on), whatever level that
might be; (c)whether the relationship to fireground staffing still shows up if you
control for all other relevant factors; and(d) whether there are particular levels of
staffing and/or crew size that correspond to major changes in the risk of fire
fighter injury,and if so,what those levels are.All of this means it is not clear how
much the risk of injury or death changes as a function of staffing.m°
The failure of NFPA 1710 or its Technical Committee to address or even cite this careful
analysis by NFPA's own highly competent professional staff is telling,to say the least. Any
examination of the references that NFPA 1710 does cite shows them to be irrelevant to or
inconsistent with the imposition of a rigid nationwide standard for minimum crew size or
maximum response time. To give just a few examples:
• A fair volume of the"science" on which the Committee purported to rely comprises
nothing more than operating procedures used by the Phoenix Fire Department,
commanded by Technical Committee Chair Alan Brunacini. While these documents
confirm that Phoenix ordinarily staffs four firefighters per apparatus and has adopted
some limits on structure fire and emergency medical response times,they do not even
99Ex. 27 at p. 2(emphasis added).
10°Ex.27 at pp. 9-10(emphasis added).
NFPA Standards Council
June 22, 2001
Page 26
purport to explain the reasons for the Department's choices. Nor do they address
whether,or why,those choices are provably optimal for the City of Phoenix, let alone for
every fire service jurisdiction in North America.101 If the actual practices of operating
fire departments are relevant,then the fact that the majority of operating career fire
departments in North America do not comply with the standards proposed should be
dispositive.
• Much of the remaining"science"on which NFPA 1710 purports to rely, including the
"fire propagation curve"and related material,102 establishes little more than that fire is
hot, and left unchecked gets hotter and spreads. Of course, not all fires burn the same.
The configuration and composition of a structure, and the existence of automatic
suppression devices like sprinklers, significantly affect a fire's spread rate.103 These
factors, as well as the time of discovery (itself affected by many factors, including the use
of heat and smoke detectors)and the efficiency of communications—not to mention the
service jurisdiction's density, topography, weather and traffic, as well as political
considerations such as budget and risk management—are all independent variables
bearing on the response time addressed in NFPA 1710. No study cited in NFPA 1710
scientifically determines that there is an optimum structure fire response time for every
fire department irrespective of these local variables; to the contrary,the studies cited
expressly recognize the dependence of response time on these and other factors.104
• The other references on which NFPA purports to rely similarly decline to dictate a single
minimum crew size as the only or best solution for every fire service. The National Fire
Academy, for example, advocates a"systems approach" in which"a community
determine[s] its level of acceptable risk . . . and identifies ways to minimize that risk,"
ways that invariably depend on local physical,political and fiscal conditions.105 In fact,
this publication suggests that comparing one department's approach under one set of
local conditions to another's under others is"not realistic and a waste of time," and
argues that"examination of fire suppression capability . . . should concentrate on
determining whether or not the suppression capability provided [in a particular
101 See Phoenix Fire Department,"Fire Department Evaluation System: Command Evaluation for a 3''
Alarm Structure Fire"(1993);Phoenix Fire Department, "Fire Department Evaluation System: Medical
Assignment-CODE"(1992); Phoenix Fire Department,"Fire Department Evaluation System: Benchmark
Structure Fire"(1992).
102See, e.g., NFPA 1710§A.5.2.1.2.1;National Fire Academy,"Fire Analysis: A Systems Approach"
(1984);U.S. Dept.of Commerce,"An Update Guide for HAZARD I Version 1.2"(1994).
103National Fire Academy,pp.3-7 to 3-8.
104See, e.g., National Fire Academy at iii,4-4, 5-3 to 5-7;Office of the Fire Marshal of Ontario,"Fire
Ground Staffing and Delivery Systems Within A Comprehensive Fire Safety Effectiveness Model"(1993)at
pp.42-43.
105National Fire Academy at pp.iii, 1-3,2-8,2-15,3-8,4-4,5-3 to 5-7.
NFPA Standards Council
June 22, 2001
Page 27
jurisdiction] is adequate or appropriate to deal with the risk."106 The Ontario Fire
Marshal's study freely and repeatedly counsels that"it is not possible to consider fire
f i g h t e r staffing in isolation" and that"there are . . . a broad range of factors which impact
on the effectiveness of fire protection services"; at least twenty such factors and sub-
factors are identified, including"the changing expectations being placed on the fire
service, and differences in local needs and conditions . . . ."107
All of these references existed when the Association rejected minimum staffing and
response time requirements in the context of NFPA 1200; indeed,NFPA 1200 cites many of
them as support for its flexible multi-factor staffmg standard.108 None is more recent than 1993.
And NFPA 1710 fails to mention that since 1988, fire incidents are down 28%,civilian deaths
are down 35%, fire fighter deaths are down 33%, civilian injuries are down 25%, fire fighter
injuries are down 15%and property damage adjusted for inflation is down 26%,all during a time
when cities and counties were spending less on fire suppression and response but increasing their
code requirements for automatic sprinklers and smoke detectors.109 Little wonder that NFPA
Assistant Vice President of Public Fire Protection Gary Tokle recently conceded that there was
106Id. at p.4-4.
107Office of the Fire Marshal of Ontario at pp.i-iii,v, 1-2,5, 15-16. The study points out that there are
many divergent views on the staffing issue(id. at pp.34-36);and observes that"[v]alid conclusions about the
number of fire fighters that should be dispatched and assembled on the fire ground are only possible following
comprehensive testing,simulation and field study"that has yet to be done(id. at p. 23;see id. at p. vii).
Ironically,a representative of the same Office that authored this study on which IAFF now relies to support
inflexible nationwide minimum staffmg standards represented to the Standards Council in 1997 that"if the
standard is not prescriptive and allows for flexibility,I believe the goals could be achieved,"but that those
goals"cannot be achieved by putting prescriptive detail in standards because those prescriptive details
certainly cannot match the diversity that is out there. . . ." Ex. 17 at p. 17(emphasis added).
Similarly,a 20-year-old publication NFPA 1710 cites appears to suggest that reducing crew size from
five to four increases fire"knockdown"time and property loss—until its details are examined. The study is
"limited to the elements of a fire occurring in a single family dwelling or apartment and handled by a single
fire company"under highly specific and rather unusual circumstances(such as no weather or traffic
complications);the study notes that"most fires are more complex than the example used here"and require
"several companies"of firefighters. J.C.Gerard&A.T.Jacobson,"Reduced Staffing: At What Cost,"Fire
Service Today(Sept. 1981)at pp. 17, 19,21 (emphasis added). As observed in the 1993 NFPA study quoted
above,because of the assumption of one-company response,this article can shed no light on any difference
between fireground staffmg at large and individual crew size. Given the many assumptions and limited data,
the authors themselves characterize the article as"preliminary,""two-dimensional,"and"only encompass[ing]
a limited number of factors." More to the point,the authors themselves do not conclude that fire departments
necessarily should increase crew size;to the contrary,they point out operational and training approaches by
which smaller crews can perform equally effectively,and suggest that a fire service implement plans
"[d]epending on the department's overall staffing and specific needs. . . ." Id. at p.21
1°8See NFPA 1200§A-8.
109Ex.7 at pp. 3;G.Hoetmer,"Diverting Dollars,"http://www.governing.coin/view/vu052301.htm.
•
NFPA Standards Council
June 22, 2001
Page 28
no empirical evidence supporting NFPA 1710's mandatory nationwide minimum staffing and
response time requirements.11°
3. There Is No Rational Or Scientific Basis For The Scope Of The Proposed
Standards.
As we have seen, the exclusion of volunteer fire departments from the inflexible
nationwide minimum standards of NFPA 1710 is based not on any scientific principle,but on the
political expedient that no volunteer department could meet rigid minimum service requirements,
and representatives articulating the interests of the localities served by such departments thus had
to be excluded from the discussion to create the illusion of"consensus." The IAFF repeatedly
represented to the Standards Council that it wished to set minimum service standards for a far
more limited service model—"urban"career fire departments"of a certain size."I'1 Whether or
not that would have been a feasible or prudent exercise,the IAFF quietly abandoned the
restriction as soon as a Technical Committee packed with its sympathizers was in place,holding
or rejecting proposals and comments consistent with the scope model IAFF had originally
presented to the Council. The proposed standard before the Council today thus imposes rigid
nationwide minimum crew size and response time requirements on every fire department whose
personnel are"substantially all" full-time paid employees, regardless of any other characteristic
of the department or the jurisdiction it serves.112
And if the configuration of a fire department or its service area and its effect on the
department's ability to meet a particular standard is properly considered in determining
appropriate crew size and response times,there is no conceivable scientific basis for treating
urban, suburban and rural service areas identically simply because their fire departments are
staffed with paid municipal employees as opposed to volunteers, irrespective of a jurisdiction's
size; budget or tax base; local regulatory requirements;population; density;topography; age,
composition or standards of construction; implementation of alternative means of fire
suppression such as automatic sprinkler systems; or any of the myriad other factors that, as just
discussed, the empirical literature has concluded are appropriately considered in formulating
service standards. Similarly,no rational or scientific basis was articulated for leaving staffing
and response times for specialized services such as marine fire and wildfire suppression flexibly
110ICMA Members Meet with NFPA/ICHIEFS Regarding Proposed Standard 1710,"
http://www.icma.org/go.cfm?cid=2&gid=8&sid=15&did=1052.
111 See footnotes 1-7 above and accompanying text.
112The irrational and uncertain interrelationship of the scope of NFPA 1710 and NFPA 1720 is another
independent defect of both proposed standards requiring their return to committee. NFPA 1710 applies to
"substantially all career fire departments." NFPA 1710§1.1.1. NFPA 1720 applies to"substantially all
volunteer fire departments." NFPA 1720§1.1.1. But what constitutes"substantially all"—85%? 90%?
95%? And by the respective terms of the two proposed standards,combination departments that are neither
"substantially all"paid nor"substantially all"volunteer apparently are not governed by either standard. No
rational or scientific basis for that result is immediately apparent,or suggested by either Technical Committee.
NFPA Standards Council
June 22, 2001
Page 29
dependent on local circumstances while imposing inflexible nationwide minimum requirements
on the most general and potentially varied fire suppression activities.13
Nor is there any indication that the Technical Committee considered any of the wide-
ranging and serious implications of its scope decisions, including:
• How many career departments met the proposed standard's mandatory minimums, and if
not,why not;
• What the logistical and financial costs might be for nonconforming career departments to
meet the proposed standard;
• Whether there were other,more cost-effective means of serving the goals of civilian and
firefighter safety and property protection, or what local conditions would influence that
determination in any particular case.
The lack of attention to these serious and pervasive concerns leaves NFPA 1710 a public
policy disaster in the making.
IV. STATEMENT OF RELIEF REQUESTED
For all of the foregoing reasons, Appellants respectfully request that the Council order
one or more of the following:
A. That proposed standards 1710 and 1720 not be issued, and their Technical
Committees be dissolved;or
B. That proposed standards 1710 and 1720 not be issued, and that further action on the
proposed standards be deferred pending a full public investigation of the documented and
alleged failures in the process that led to its recommendation; or
C. That proposed standards 1710 and 1720 not be issued, but rather(in addition to the
full public investigation described in the preceding request)be returned to one or more
Technical Committees whose jurisdiction has been re-evaluated, and whose membership
and leadership has been reconstituted to provide full and fair representative balance
among all affected interests, and instructed to labor sincerely and in good faith to achieve
"consensus" as described in the Association's Regulations and Conduct Guide,to
consider any or all of the following:
'3See footnote 8 above and accompanying text.
NFPA Standards Council
June 22, 2001
Page 30
1. Whether any absolute and inflexible nationwide minimums for crew size and
response times are appropriate for all career fire departments regardless of the wide
variations in the local conditions under which they operate;
2. Whether more flexible standards dependent on prevailing local conditions are
more appropriate than a single nationwide standard for all career fire departments
and, if so,how that standard should be defined;
3. Whether there are other definable characteristics of fire service jurisdictions that
would empirically justify multiple tiers of specific minimum service standards and, if
so, how those tiers might be defined and what service standards should be considered
for each tier;114 and
4. What quantitative empirical and scientific basis exists for any general or specific
performance prescriptions that the successor Committee or Committees may
eventually recommend.
We thank the Standards Council for its patient attention, and look forward to the
opportunity to address the Council directly at its meeting in July in San Francisco.
Respectfully,
Howard, Rice,Nemerovski, Canady,
Falk&Rabkin
A Professional Corporation
By
Bernard A. Burk
Counsel for the League of California Cities
cc: Chris McKenzie, Executive Director, League of California Cities
JoAnne Speers, Esq., General Counsel, League of California Cities
114For example,NFPA 1710 Comment No. 1710-224 suggested that different minimum service
standards should be imposed on career departments serving"urban,""suburban," "rural"and"frontier"
service areas.
Organizations Opposing NFPA 1710 and 1720
Joining in the June 5, 2001 Appeal
and the June 18,2001 Letter Brief to the NFPA Standards Council
Submitted on Behalf of the League of California Cities
As of June 18, 2001
National Organizations
International City/County Management Association
National League of Cities
National Association of Counties
U.S. Conference of Mayors
Public Risk Management Association
National Public Employer Labor Relations Association
International Personnel Management Association
California State Associations
League of California Cities
California State Association of Counties
Fire Districts Association of California
Howard Jarvis Taxpayers Association
State Municipal Leagues (No. of cities each League represents in parentheses)
Alabama League of Municipalities (425)
Alaska Municipal League (136)
League of Arizona Cities and Towns (87)
Arkansas Municipal League (484)
Colorado Municipal League (262)
Connecticut Conference of Municipalities(151)
Florida League of Cities,Inc. (402)
Georgia Municipal Association(463)
Association of Idaho Cities (184)
Illinois Municipal League(1,079)
Indiana Association of Cities and Towns (469)
Iowa League of Cities(875)
League of Kansas Municipalities(530)
Louisiana Municipal Association(295)
Maine Municipal Association(489)
Maryland Municipal League (151)
Massachusetts Municipal Association(349)
Michigan Municipal League(511)
League of Minnesota Cities(814)
Mississippi Municipal League (276)
Missouri Municipal League (605)
Nevada League of Cities and Municipalities (18)
New Jersey State League of Municipalities (563)