Burning Question on the Use of Older SCBA

Today’s burning question: Given the newer NFPA/OSHA standards for our SCBAs, there’s a glut of the older “non-compliant” SCBAs for sale, Can they be used without liability issues? Can SCBAs do not meet current NFPA & OSHA standards even be used in IDLH environments? Specifically, I am wondering about using this equipment for training in live fire exercises?

Answer: Asking the dreaded “liability” question virtually guarantees the answer that an attorney will give: no, they cannot be used without liability issues! There will always be liability issues. Could a person give a starving man food – a thirsty man water- without liability issues? Of course not!!!!

However, there are presuppositions within the question you asked. The question supposes that SCBAs that do not meet the current NFPA standards are “non-compliant”… and that OSHA actually has “new standards” that regulate SCBA in a way that is comparable to the NFPA. Both presuppositions are false.

A more appropriate question is whether the liability concerns associated with using older SCBA units are excessive liability wise? Can they be properly managed, or should we be prohibited from using any SCBA except for those that comply with the current editions of NFPA 1981 & 1982?

Might I suggest a better approach than one that focuses on liability: Are the older units safe??? BTW… we only have a liability issue if something bad happens… and the best way to prevent bad things from happening is to focus on safety… not liability. Focusing on liability without considering safety is IMHO faulty thinking.

In a perfect world we would only use the absolute latest, safest, best, most advanced equipment available. And every firefighter would be trained to the latest edition of NFPA 1001, not the version that was in effect 5, 10, 20, or more years ago when we went through the academy. And every fire truck would meet the latest version of NFPA 1901… you get the point.

The reality is that as technology advances, the safety bar gets raised. That doesn’t mean the older technology is instantly “unsafe”. NFPA sets the minimum standards for fire service SCBA, and most other fire service equipment. NIOSH also plays an important role as well. All SCBA must be certified as meeting NIOSH standards. OSHA – on the other hand – has not changed its respiratory protection standards much at all so there really are no “newer” OSHA SCBA standards to contend with.

NFPA typically allows the use of older equipment provided it met the applicable standards when manufactured. Thus, NFPA does not automatically require fire departments to retire older SCBA simply because a new standard is issued.

From time to time NFPA technical committees will establish time frames for the retirement of certain equipment. A good example is turnout gear being retired after 10 years from the date of manufacture. Another is the requirement that fire hose manufactured prior to July of 1987 be retired. Yet another can be found in the 2013 edition of NFPA 1500 that states that all fire service SCBA must meet the 1992 or later Edition of NFPA 1982.

Contrary to popular opinion, there is a lot of science behind the decisions made by NFPA committees. When a committee such as the NFPA 1500 (TC on fire service occupational safety and health) or SCBA committee (TC on respiratory protection equipment) determines there is a need to prohibit the use of SCBA manufactured prior to a certain date, there are good reasons. Until that point, the use of the equipment that meets an earlier edition of the NFPA standards, and that still meets NIOSH, would not pose a major liability risk. The NFPA standards are generally considered to be evidence (strong evidence) of the standard of care.

But there is a risk. Is that risk acceptable? Each organization would have to make that decision for itself. Whether for live firefighting or even live fire training, risks need to be evaluated. I can envision some departments saying yes, we will continue to use SCBA so long as it complies with the 1992 Edition or newer standards; and other departments saying no, we insist our people be using only the latest SCBAs.

BTW – Who is in favor of sending every firefighter whose FF1 and FF2 certificates does not meet the current edition of NFPA 1001 – back to the academy?

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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