By James L. Curtis and Craig B. Simonsen

Seyfarth Synopsis:  A recent active shooter incident at an international airport illustrates both how quickly an incident may be over, yet how ancillary impacts take much longer to resolve. While the shooter was apprehended in less than two minutes, the international airport was shut down for most of a full day, impacting over 500 employees and 10,000 customers, and 20,000 personal items were lost.  The after-action report offers some lessons learned.

At the World Safety Organization International Environmental and Occupational Safety and Health Symposium this week, William G. Thompson, IV, the Occupational Safety & Health Manager and Safety Management System Administrator at Broward County Aviation Department, including the Fort Lauderdale-Hollywood International Airport (Airport), presented the findings from the January 6, 2017 active shooter incident at the Airport.  Fort Lauderdale-Hollywood International Airport Active Shooter Incident and Post-Event Response January 6, 2017 After-Action Report (August 15, 2017) (Report or Findings).  Thompson was at the Airport that day, watched the events unfold, and cooperated in the resolution and the preparation of the Report.

The Report indicates that “on January 6, 2017, a lone gunman intentionally discharged a firearm at the Fort Lauderdale-Hollywood International Airport killing five and wounding six innocent bystanders.  Approximately 90 minutes after the initial incident, speculation of additional firearms discharged in other areas within [the Airport] caused panic and led to a chaotic self-evacuation of persons throughout the airport.”  The Report states that it was developed in accordance with the U.S. Department of Homeland Security’s Homeland Security Exercise and Evaluation Program.  Specifically, the Report analyzes the response, the emergency and operational coordination, and the facility recovery and post event activities.

Factually, the Report shows that the actual shooting event, in the Terminal 2 baggage area,  lasted less than 80 seconds and ended when the “perpetrator ran out of ammunition, laid down on the ground, and surrendered to law enforcement officers at the scene.”  Of the eleven people who were shot, six (6) were wounded, and five (5) were killed.  Approximately 40 others were injured in the panic during the initial shooting event (First Incident). Terminals 1, 3, and 4 remained operational at this time.

The Second Incident started at approximately an hour and a half later, when radio communications indicated unsubstantiated reports of additional shots fired in Terminal 1, and one of the parking garages. As a result, the “response among passengers, tenants, and airport employees triggered uncontrolled and unmanaged self-evacuation of personnel, many of whom ran into secured areas and onto active aprons. Some received minor injuries during the self-evacuation.”  Because of the breach of restricted areas on the airfield during the self-evacuation, and the ongoing investigation of the actual crime scene in Terminal 2, law enforcement began sweeping and clearing each of the four (4) terminals at the Airport to ensure that all areas were clear of any threats and to re-establish secure areas.

Because of the incurrence into secure zones, the FAA issued a ground stop notice closing the Airport to all but emergency flights.  Subsequently, airport operations were officially terminated and all airport roadways were closed to incoming traffic.  Law enforcement continued clearing the rest of the airport until approximately 8:30 PM, over seven hours later. The airport remained closed for the remainder of the day, but reopened to commercial flights early the following day.

This incident provides a good reference for business to consider in developing their own corporate active shooter programs.  For instance, in this case responding airport employees were initially denied access to areas to which access was required to support response operations.  In addition, while the actual shooting incident was over in ninety seconds, during the subsequent response approximately 500 airport employees were interrupted in their jobs, and 10,000 passengers were bused to a nearby facility for food and shelter, and to assist them in connecting to other means of transportation “As result of the chaos that ensued following the shooting, more than 20,000 personal items were left unclaimed at the airport.”  The active shooter incident response must be planned for as well as the incident itself.

The Report provides “Lessons Learned,” including several points to support preparedness within the aviation sector and among aviation stakeholders.  Many of their recommendations are well placed in any industry:

  • Ongoing periodic incident command system training and exercises, support capabilities-based planning, coordination with airport stakeholders, and development of competencies among airport personnel to support critical incident response.
  • Airport emergency plans should be updated and reviewed at least annually or when changes in resources, personnel, or threats occur.
  • Airport emergency plans and/or companion response plans should address a full range of hazards and threats, identify a concept of operations in an incident command system context, and address all areas of the airport including public areas and auxiliary properties, such as rental car facilities.
  • Building relationships with external response partners through advanced planning, training and exercises is vital to support a common understanding of roles, responsibilities, resources, facility design and layout, and communication procedures under single or unified command conditions.
  • Coordination between airports and jurisdictional (city/county/state) emergency management agencies supports emergency response operations through effective communications, resourcing and resource management.
  • Airports should consider developing a written description of airport operations and airport physical layout specifically for external emergency responders who may respond to airport emergencies. Periodic tours for external emergency responders are also recommended to support an effective understanding of resources, evacuation plans, and other potential response needs.
  • Exercises conducted at airports should include active shooter scenarios as well as other locally-relevant hazard and threat scenarios identified local emergency management agencies).

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Mark A. Lies, II, Adam R. YoungJames L. Curtis, and Benjamin D. Briggs

Seyfarth Synopsis:  It is imperative that employers develop and implement organized and clearly communicated procedures for responding to a disaster. A well-planned and executed emergency response program will provide orderly procedures and prevent panic, thereby minimizing employee injuries and damage to property.

Please see the entire Alert, After the Rain: Disaster Recovery and Employee Safety Following Hurricane Harvey, for the full article and recommendations.

By Benjamin D. Briggs, Adam R. Young, and Craig B. Simonsen

bottleSeyfarth Synopsis: In a challenge brought by trade associations for the farm supply and fertilizer industries, the D.C. Circuit vacates OSHA memorandum narrowing the retail exemption from the PSM standard.

The U.S. Court of Appeals for the District of Columbia Circuit recently ruled against OSHA on a Petition for Review of an OSHA interpretative memorandum in Agricultural Retailers Ass’n & Fertilizer Inst. v. United States Department of Labor, No. 15-1326 (D.C. Cir. Sept. 23, 2016).

In this case, the Agricultural Retailers Association and the Fertilizer Institute sought review of a July 22, 2015 OSHA memorandum and interim policy interpretation that had significantly narrowed the Retail Facilities Exemption to the Process Safety Management of Highly Hazardous Chemicals (PSM) standard, 29 C.F.R. § 1910.119.   The challenged interpretation had a dramatic effect on agricultural retailers that provide fertilizers to end users in the agricultural industry.  In that regard, the interpretation swept in many previously-exempt fertilizer and farm supply retailers into coverage under the onerous PSM standard.

OSHA issued the interpretation after a 2013 explosion at a West, Texas fertilizer supplier left 15 people dead and many others injured. Under the interpretation, OSHA retreated from the so-called “50 percent test” for determining whether a seller of highly hazardous chemicals qualified for the retail exemption.  Under that test, an establishment was exempt from PSM coverage if it “derived more than 50 percent of its income from direct sales of highly hazardous chemicals to the end user.”  Application of this test meant that fertilizer suppliers typically fell within the exemption despite having large quantities of highly hazardous chemicals at their establishments.  The challenged interpretation applied a different, much narrower, test to determine applicability of the exemption.  Under that test, retail facilities included only those “organized to sell merchandize in small quantities to the general public” as set forth sectors 44 and 45 of the NAICS Manual.  This definition precluded employers that sold or distributed large, bulk quantities of highly hazardous chemicals (i.e., farm and fertilizer supply businesses) from relying upon the retail exemption.

The thrust of the petitioners’ challenge to OSHA’s memorandum was that it was actually an OSHA standard, not an interpretation, and that, in turn, OSHA was required to follow rulemaking procedures, including notice-and-comment requirements. OSHA admittedly did not follow these procedures.  OSHA contended that rulemaking procedures did not apply because its action was a mere interpretation of a standard, and that its memorandum did not issue or modify a “standard.”  The D.C. Circuit rejected OSHA’s argument and agreed with petitioners.  In so doing, the court held that the memorandum amounted to a “standard within the meaning of the OSH Act” because its purpose was to correct “a particular significant risk,” rather than guide general enforcement.  Given that determination and OSHA’s admitted failure to follow rulemaking procedures, the court granted the petition and “vacated” OSHA’s memorandum.

For the time being, this means that employers (including agricultural retailers) may once again rely on the “50 percent rule” for determining applicability of the retail exemption to the PSM standard. How long that reprieve lasts remains to be seen given OSHA’s apparent commitment to this issue, but one thing is clear — any future change to the retail exemption will afford stakeholders the opportunity to be heard through notice-and-comment procedures.

In the meantime, we will continue to monitor and keep you updated on this issue as it develops.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the OSHA Compliance, Enforcement & Litigation Team.

By James L. Curtis, Adam R. Young, and Craig B. Simonsen

iStock_000011623330_MediumSeyfarth Synopsis: U.S. Chemical Safety Board offers recommendations and best practices for chemical facilities regarding emergency planning and response programs.

The U.S. Chemical Safety Board (the “Board”) is an independent federal agency charged with investigating significant chemical accidents. According to the Board, inadequate or poor emergency planning or response is a recurring finding in the Board’s investigations of chemical accidents.  To date, 14 Board investigations have found deficiencies in a community’s, facility’s or emergency responder’s response to an incident at a chemical facility

The Board recently announced that emergency planning and response will be added to the Board’s existing “Most Wanted Safety Improvement” Program.  The Board’s also provided 46 recommendations aimed to address the deficiencies the Board found during its investigations.  The Board’s recommendations concentrate on the following areas:

  • Training for emergency responders, including hazardous materials training;
  • Local emergency planning, and community response plans and teams;
  • Use of community notification systems;
  • Use of an incident command system and the National Incident Management System;
  • Conducting emergency response exercises; and
  • Information sharing between facilities, emergency responders and the community.

Employers who operate chemical plants may wish to review and evaluate company emergency planning and response programs, policies, and training initiatives to assess for compliance with the Board’s recommendations. OSHA frequently looks to the Chemical Safety Board for guidance on appropriate areas for enforcement efforts.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the OSHA Compliance, Enforcement & Litigation Team or Workplace Policies and Handbooks Team.

By James L. Curtis and Craig B. Simonsen

Representatives from the U.S. Environmental Protection Agency, the Occupational Safety and Health Administration, and the Department of Homeland Security spoke today at the Air and Waste Management Association’s Annual Conference, on their  collaboration on chemical facility safety and security.

The conference session speakers included Mathy Stanislaus, EPA’s Office of Solid Waste and Emergency Response, James Wulff, OSHA Region 9’s Assistant Regional Administrator, Enforcement Programs, and Todd Klessman, DHS’s Senior Policy Advisor for the Infrastructure Security Compliance Division.

We had blogged earlier this week about the EPA, OSHA, and DHS first joint Report for the President, “Actions to Improve Chemical Facility Safety and Security – A Shared Commitment.” June 6, 2014. The Report issued after recent catastrophic chemical facility incidents in the United States, which had, in August 2013, prompted President Obama to issue Executive Order 13650, Improving Chemical Facility Safety and Security. The EO was intended to enhance the safety and security of chemical facilities and reduce risks associated with hazardous chemicals to owners and operators, workers, and their neighboring communities.

The EO established a “Chemical Facility Safety and Security Working Group” to oversee the effort, which is tri-chaired by the EPA, DOL, and DHS, and included leadership and subject matter experts from many other federal departments and agencies. This their first Report summarized the Working Group’s progress, focusing on actions to date, findings and lessons learned, challenges, and priority next steps.

In his presentation Stanislaus reiterated and emphasized that industry must play a “critical role” in re-invigorating and participating in the Local Emergency Planning Committees (LEPC). The Working Group found the LEPCs vary considerably across the country, and in some areas don’t really even exist. When asked what facilities are to do when the LEPC doesn’t exist in their community, Stanislaus responded that the plant management have to step-in and fill that role — on an ongoing basis. It is a real problem. There is a need for plant management to “sit down with local government.”

Wulff noted that OSHA is taking steps to “modernize” its rules, citing to OSHA’s Request for Information on the Agency’s process safety management standard and other related chemical standards to determine, among other things, “whether these standards can, and should, be expanded to address additional regulated substances and types of hazards.” For instance, OSHA is considering a proposed rule for a process safety management standard for ammonium nitrate.

Klessman indicated that the sharing of information databases, like the DHS database of top screens, between the agencies, LEPCs, and first responders is critical and would facilitate getting needed, quality information to those that need it.

By Brent I. Clark, Meagan Newman, and Craig B. Simonsen

OSHA has scheduled a meeting for “stakeholders” on its consideration of standards for emergency response and preparedness. 79 Fed. Reg. 32199 (June 4, 2014).

OSHA notes that emergency response is one of the most hazardous occupations in the U.S. To support a need for proposed rules OSHA references the National Fire Protection Association report “Firefighter Fatalities in the United States—2012,” and the Federal Emergency Management Agency report “Firefighter Fatalities in the United States in 2012.” Emergency responders are defined as firefighters, emergency medical service personnel, hazardous material employees, and technical rescue specialists. Also, law enforcement officers are considered emergency responders as they often assist in emergency response incidents. OSHA notes that there are no standards that specifically address occupational hazards uniquely related to law enforcement activities.

OSHA had previously issued a Request for Information (74 Fed. Reg. 51735 (September 11, 2007)) to solicit comments on whether the Agency should take any action to address emergency response and preparedness. OSHA noted that recent events, such as the April 2013 ammonium nitrate explosion in West, Texas, that killed several emergency responders, and an analysis of the information provided in response to the 2007 Request for Information “make it clear that emergency responder health and safety continues to be an area of ongoing concern.” “OSHA plans to use the information received in response to the 2007 RFI and obtained at this stakeholder meeting when considering a proposed standard for emergency response and preparedness.”

The stakeholder meeting is scheduled for July 30, 2014, at 9:00 a.m., in Washington, DC. Register to request to attend by completing the online form at http://ersregistration.pec1.net. The deadline to request registration for the meeting is July 2, 2014.

By James L. Curtis, Meagan Newman, Patrick J. Bannon, Barry J. Miller

In a recent Client Alert, Jim Curtis and Meagan Newman discuss workplace safety issues in the wake of Hurricane Sandy. Employers need to keep in mind that storm cleanup poses significant hazards that must be addressed. Employees may be asked to perform tasks, or volunteer to undertake certain responsibilities, that are not within their regular job duties. Additionally, in the hurry to get our communities up and moving again, many unfamiliar hazards are easily overlooked by employers and employees. Even in these extraordinary circumstances, employers are responsible for the safety and health of their employees in the workplace and must take measures to prevent injury and illness. As the Occupational Safety and Health Administration urged in the days following Tropical Storm Isaac this summer, “Recovery work should not put you in the recovery room.”

By James L. Curtis and Meagan Newman

As much the East Coast of the U.S. is dealing with Hurricane Sandy it is important to keep in mind that the dangers of a storm of this magnitude persist long after the winds, rains and sleet have passed.

Storm and flood cleanup activities can present hazards to workers and volunteers. Before embarking on the cleanup, employers should ensure that proper safety precautions are taken and that potential hazards are thoroughly assessed.  These hazards may include: electrical hazards, Carbon Monoxide, musculoskeletal hazards, heat stress, motor vehicles, hazardous materials, fire, confined spaces and falls.

The CDC and NIOSH offer Emergency Response and Hazard Assessment tools that can assist employers in preventing work-related injuries and illnesses in the field.