BILL ANALYSIS                                                                                                                                                                                                    






                                                       Bill No:  AB  
          635
          
                 SENATE COMMITTEE ON GOVERNMENTAL ORGANIZATION
                       Senator Roderick D. Wright, Chair
                           2009-2010 Regular Session
                                 Staff Analysis



          AB 635  Author:  V. Manuel Perez
          As Amended:  April 2, 2009
          Hearing Date:  July 8, 2009
          Consultant:  Chris Lindstrom


                                     SUBJECT  

                    Fire protection: air purifying devices.

                                   DESCRIPTION
           
          AB 635 provides that a state or local agency, including a  
          city, county, city and county, or district, shall not  
          prohibit a firefighter from using an air purifying device  
          during a wildland fire.

                                   EXISTING LAW

           Existing law establishes the State Board of Fire Services  
          in the Office of the State Fire Marshal.

          Existing law requires the Board to recommend the  
          establishment of minimum standards with respect to  
          specified elements of fire protection, including fire  
          equipment.

                                    BACKGROUND
           
          Purpose of the bill.  According to the sponsor, California  
          State Firefighters Association, AB 635 "would provide  
          firefighters the right to wear respiratory protection, in  
          the form of an anti-pollution scarf and other related  
          accessories, during the course of their duty in fighting or  
          controlling outdoor wildfires (i.e., woodlands, forests,  
          grasslands, brush, and prairies).  The use of air purifying  




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          respirators could reduce harmful constituent exposures  
          listed under the California Division of Occupational Safety  
          and Health (CalOSHA) standards to more acceptable levels  
          for firefighters to enhance their safety."

          Background.  Wildfires are a growing hazard in most regions  
          of the United States, especially in California.  In the  
          past few years, California has seen some devastating  
          wildfires that have threatened life and property.

          Firefighters face varying levels of risk for smoke  
          inhalation, which depends on the intensity of the fire,  
          their proximity to the fire, their activity, weather  
          conditions, and the terrain.  Such inhalation exposes them  
          to smoke, gases, and even particulate matter that are  
          deemed extremely harmful to a person's health and well  
          being.  

          Smoke is composed mainly of carbon dioxide, water vapor,  
          carbon monoxide, particulate matter, hydrocarbons, nitrogen  
          oxides, trace minerals, and thousands of other compounds.   
          Particulates are the principle pollutant of concern,  
          because they can be inhaled into the deepest recesses of  
          the lungs.  Hot smoke and gases are another concern because  
          they can burn the passages of the nose, airways, and lungs.  
           Additionally, higher levels of carbon monoxide exposure  
          can also lead to headaches, dizziness, visual impairment,  
          and death.

          Any equipment used by firefighters, while performing their  
          duties, must first be approved by regulatory agencies.   
          Examples of regulatory agencies for firefighters are the  
          CalOSHA, Department of Weights and Measures, and the  
          California State Fire Marshall.  CalOSHA creates standards  
          for safety equipment and develops safety procedures for  
          specific workplace environments that are deemed hazardous.   


          CalOSHA Regulation - California Code of Regulations. Title  
          8. 5144. Respiratory Protection.  CalOSHA regulations  
          (link:   http://www.dir.ca.gov/title8/5144.html  ) related to  
          respiratory protection provides, "Respirators shall be  
          provided by the employer when such equipment is necessary  
          to protect the health of the employee.  The employer shall  
          provide the respirators which are applicable and suitable  
          for the purpose intended.  The employer shall be  




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          responsible for the establishment and maintenance of a  
          respiratory protection program."  The respiratory  
          protection program must contain worksite-specific  
          procedures and elements for required respirator use.  The  
          program may allow for the voluntary use of a respirator if  
          the employer determines that such respirator use will not  
          in itself create a hazard.

          CALFIRE Memorandum - wildland facial protector (not a  
          respirator).  According to CALFIRE, CalOSHA's regulations  
          for respiratory protection are based on Permissible  
          Exposure Limits (PEL).  The PEL is defined as the maximum  
          average concentration of a given airborne contaminant that  
          a worker can be exposed to for an 8-hour period.  Analysis  
          of breathing zone air for wildland firefighters shows that  
          the concentrations of airborne contaminants exceed the PEL  
          less than 5% of the time.  Because PELs for wildland  
          firefighting are relatively low, smoke exposure has been  
          managed through work practice controls.  No national  
          respiratory protection standard has been developed yet for  
          wildland firefighting.

          On December 7, 2000, CALFIRE issued a memorandum to its  
          department personnel authorizing the use of a supplemental,  
          commercially-manufactured wildland facial protector for  
          critical wildland fire situations.  The goal was to improve  
          the survivability of employees should they be overrun by  
          fire.

          The memo states that the wildland facial protector is  not  a  
          respirator nor is it a required item.  It is a permitted  
          option for the employee and the option will  only  be used  
          when the employee encounters critical fire behavior and  
          potential entrapment situations.

          Further, the memo states that wildland facial protectors  
          must be used within their design capabilities and  
          limitations.  Literature accompanying the product should be  
          read and understood by all users.  Finally, the memo states  
          that it is the responsibility of the supervisor to ensure  
          that employees using the facial protectors are  
          knowledgeable of their use and limitations, as well as,  
          their benefits.

          CALFIRE's memo did not authorize the voluntary use of a  
          respirator, although it did authorize the voluntary use of  




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          specific personal protection equipment for wildland fires  
          consistent with CalOSHA requirements.

          National Fire Protection Agency (NFPA) efforts.  Due to the  
          sometimes erratic and unpredictable nature of wildland  
          fires, firefighters can find themselves trapped in  
          situations where they need to escape from the heat and/or  
          smoke.  There is a need for an "escape use" respirator for  
          wildland firefighting, however, no such design standard has  
          been developed.  NFPA is in the process of developing a  
          proposed new Standard for Respiratory Protection for  
          Wildland Fire Fighting Operations.  The new standard is  
          scheduled to be completed in 2011 and would become the  
          first national standard for respirators used for wildland  
          firefighting.

          Arguments in support.  The sponsor states, "Currently,  
          there is no explicit statute that allows firefighters to  
          use air purifying respiratory devices while battling a  
          wildland fire.  Due to the lack of authorization from the  
          Legislature to use air purifying devices, certain fire  
          departments have prohibited their firefighters from  
          properly equipping themselves.  This holds true even if the  
          firefighter has purchased a purifying device.  AB 635 does  
          not mandate firefighters to use air purifying devices  
          during a wildland fire.  It simply provides our state's  
          firefighters with the option to use such devices if they  
          wish to further protect themselves."

          Arguments in opposition.  The California Department of  
          Forestry and Fire Protection (CALFIRE) writes, "CALFIRE is  
          deeply committed to the protection of its employees;  
          however, there are currently no accepted studies,  
          standards, or regulations demonstrating the safe use,  
          efficiency, or adverse effects of using air purifying  
          devices available on the open market.  It is not known if  
          more critical consequences may arise if and when these  
          devices are utilized.  These devices could cause visual  
          obscurity, communication impedance, or even increased  
          physiological stresses, which could increase the chances of  
          the wearer suffering a cardiac related event.

          "The topic of air purifying devices has long been a debated  
          one for several reasons.  The filters used on these devices  
          have no measuring mechanism that identifies when the filter  
          has limited or no filtering ability.  There is no gauge to  




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          measure its efficiency and no warning system to alert the  
          wearer when it can no longer filter out potentially  
          dangerous toxins.  The physiological effects of wearing  
          such a device may also create a greater hazard and subject  
          the wearer to an increased risk of injury or death.

          "The number one killer of firefighters in the United States  
          is sudden cardiac death.  Wearing such a device while  
          performing the necessary arduous work to control a wildland  
          fire would restrict breathing, require a greater degree of  
          effort to breathe in air through the filtering device and  
          would most certainly result in an increased rate of  
          breathing, increased body temperature, increased heart rate  
          and increased blood pressure, all of which expose the  
          wearer to a higher risk of experiencing a cardiac related  
          event.

          "Also, Federal and State OSHA regulations require employers  
          to provide any and all forms of Personal Protection  
          Equipment (PPE) to its employees in order to adequately  
          protect them from the hazards they will be exposed to.   
          Employers who choose to allow their employees to purchase  
          and utilize their own PPE are still subject to the  
          requirements of training, inspecting, and maintaining the  
          equipment.  There is no reasonable expectation, given the  
          number of make and models of these devices currently  
          available on the market, that an employer of over 6,000  
          firefighters could effectively coordinate such a task."

          Staff comments.  (1) Air purifying device.  There is no  
          definition of an "air purifying device" in CalOSHA or NIOSH  
          (National Institute for Occupational Health and Safety)  
          regulations.  The closest definition in existence is  
          CalOHSA's and NIOSH's definitions for an "Air Purifying  
          Respirator" which reads, "A respirator with an  
          air-purifying filter, cartridge, or canister that removes  
          specific air contaminants by passing ambient air through  
          the air-purifying element."

          Additionally, under the "purpose of the bill" section of  
          the analysis, the sponsor references "an anti-pollution  
          scarf and other related accessories."  There are many  
          different types of protective scarves - some are merely  
          fitted bandanas, some are bandanas with a pouch in front to  
          insert a filter, and some go over respiratory equipment.   
          The more common terms for these devices are face mask or  




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          face protector.

          As such, the term "air purifying device" could be broadly  
          interpreted and many pieces of equipment, both proven or  
          unproven, could be construed to fit within the parameters  
          of the bill.   The author may wish to consider defining the  
          term "air purifying device" to narrow the scope of the  
          bill  .

          (2)  Devices should meet some minimum safety performance  
          standard.  As currently written, there is no requirement  
          that the air purifying device, as broadly interpreted as  
          this term may be, must meet some minimum safety performance  
          standards.  As such, the use of some devices may actually  
          create a false sense of security for the firefighter and  
          may actually place the firefighter, his colleagues, and  
          potentially, the general public at greater risk of harm.  

          In addition to the potential additional risk to the  
          firefighter and others, it may create liability issues.   
          For example, what liability would the state or local agency  
          incur from not stopping the use of equipment that it should  
          have reasonably known was not effective?  Additionally, if  
          a firefighter is injured and the cause is tied to the use  
          of an unauthorized air purifying device, what ramifications  
          would it have on the firefighter's health coverage, medical  
          and employment benefits or unemployment insurance?   The  
          author may wish to specify that the devices must at least  
          meet some government or industry recognized standards for  
          safety  .  

          (3)  Require employers to establish policies and procedures  
          for training, inspecting and maintaining the equipment used  
          in wildland firefighting operations.  There is a constant  
          introduction of new products into the market.  It is the  
          employer's responsibility to ensure that unsafe products  
          are not introduced into the workplace.  In addition to  
          ensuring the safety of its employees and the general  
          public, the employer has a financial stake because they are  
          exposed to worker's compensation costs for occupationally  
          related illnesses and injuries.  Federal and State OSHA  
          regulations require employers to provide any and all forms  
          of Personal Protection Equipment (PPE) to its employees in  
          order to adequately protect them from the hazards to which  
          they will be exposed.  According to CALFIRE, employers who  
          choose to allow their employees to purchase and utilize  




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          their own PPE are still subject to the requirements of  
          training, inspecting, and maintaining the equipment.   The  
          author may wish to consider language to require the  
          employer to establish policies and procedures for training,  
          inspecting, and maintaining the equipment used in wildland  
          firefighting operations  .  

          SUPPORT:   As of July 6, 2009:

          California State Firefighters' Association, Inc. (sponsor)

           OPPOSE:   As of July 6, 2009:

          California Department of Forestry and Fire Protection

           DUAL REFERRAL:  Senate Appropriations Committee
           
          FISCAL COMMITTEE:   No.



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