BEATING THE SYSTEM TO DEATH: A CASE STUDY IN INCIDENT COMMAND AND MUTUAL AID

BEATING THE SYSTEM TO DEATH: A CASE STUDY IN INCIDENT COMMAND AND MUTUAL AID

WILLIAM C. NICHOLSON

Disclaimer: The following is not legal advice. It is presented for informational purposes only.

The incident command system–now commonly referred to as the incident management system (IMS)–and written mutual-aid agreements are designed to work closely together to promote safety for responding firefighters and the public and to ensure the efficient use of resources. The written mutual-aid agreement is generally found in the form of a Memorandum of Understanding (MOU) or Memorandum of Agreement (MOA). One key purpose of a mutual-aid MOU is to ensure that departmental standard operating procedures (SOPs) are observed in mutual-aid responses. Failure to correctly use these powerful management tools may result in tragedy.

BUTTRAM V. UNITED STATES

A recent case out of Idaho–Buttram v. United States, Civ. Cas. No. 96-0324-S-BLW (D. Idaho, Feb. 1999)–dramatically illustrates the fatal danger to firefighters that can result from failure to properly use the IMS and MOUs. The Buttram matter involved a brush fire on United States Bureau of Land Management (BLM) land near Boise, Idaho, on July 28, 1995.

The first responding BLM crew chief was designated as incident commander (IC), and his control of the responding units was guided by the BLM`s fire suppression policies. These policies dictated aggressive fire suppression efforts because of the proximity of a National Conservation Area. Conditions were very dry and hot, there was a heavy fuel load, and winds were up to 55 miles per hour (mph). The BLM deployed response resources greater than called for in its fire suppression policies, including five engines, a bulldozer, a tender, and a detection helicopter. The record does not reveal any section or sector commanders in addition to the overall IC.

Subsequently, the Kuna Volunteer Fire Department (VFD) verbally contacted the IC and offered assistance. The IC requested a brush truck and a water tender. The Kuna VFD dispatched two brush trucks and a water tender.

Kuna VFD policies stated that a firefighter was qualified to drive a vehicle as soon as he had learned to operate it. The Kuna VFD captain briefed the brush truck crews to obey the BLM IC, stay in safe zones, get into burned-out areas if trouble developed, and maintain radio contact with the BLM.

In the first brush truck, Unit 620, were two rookies, the driver Bill Buttram and Josh Oliver. They were experiencing their first wildfire season. In the second brush truck, Unit 622, were two experienced firefighters.

Evidence suggests that either Unit 620`s radio was not working properly or it was not operated properly. About 45 minutes after the units arrived at the fire, a “Red Flag Warning” was issued by the BLM dispatch office, indicating an approaching thunderstorm with winds in excess of 50 mph.

Unit 620 may have stepped on the Red Flag transmission. At the time the Red Flag Warning was issued, Unit 620 radioed that it was “basically doing mop-up.” Buttram asked, “Is it okay for Josh to get some drive time just doing mop-up?” The Kuna VFD denied the request but did not inquire if Unit 620 had heard or understood the Red Flag broadcast. The Court found that this exchange meant that either the two volunteer firefighters in Unit 620 did not hear the Red Flag Warning or they did not understand its serious nature.

The IC directed Unit 620 to refill in an area where winds were likely to drive the fire, the Court determined. The brush truck never arrived at the refill location. Instead, the truck was spotted in a burned black area. As the wind increased, Buttram and Oliver attempted to move to a fence break, traveling in zero visibility caused by the wind`s kicking up debris and ash. The truck overshot the fence break and drove into unburned brush. The wind fanned the flames, and the firefighters found themselves trying to outrace the fire.

Unit 620 stalled in the unburned brush, and Buttram sent radio messages stating “We`ve got fire coming hard; this thing has died … it`s not going to let us out of here.” Kuna VFD asked the brush truck to identify its problem, and Buttram responded, “We`re surrounded by fire …. The truck has been overtaken by fire.” This was the last anyone heard from Buttram and Oliver. The two rookie volunteers were found dead in Unit 620`s front seats. Oliver was survived by his parents. Buttram left a wife and a one-year-old son.

QUESTIONS RAISED

The Buttram case leaves several troubling questions in the mind of a concerned firefighter:

•Were the deaths of these two volunteer firefighters unavoidable?

•Who was responsible for these deaths?

•What steps can be taken to help ensure that such a tragedy does not befall other firefighters?

DUTIES OWED TO THE VOLUNTEER FIREFIGHTERS

The Buttram Court answered these questions in words we can all understand. Applying Idaho law, the Court stated the following:

— An employer has the duty to exercise reasonable care commensurate with its business in order to protect employees from hazards incident to the employment and to provide them with safe tools, appliances, machinery and working places. —

This requirement is similar to the general duty clause found in Occupational Safety and Health Administration (OSHA) law. The Court held that the BLM had a duty to protect Buttram and Oliver from the foreseeable hazards incident to fighting the fire.

The IC, in particular, had the duty to ensure that the firefighters were assigned duties commensurate with their abilities and the qualifications of the Kuna VFD. The IC had supervisory control and information about the fire superior to the knowledge of a rural VFD. As the emergent nature of the fire may cause the IC to make quick decisions, he may rely on indicators of qualifications. As the firefighters were operating a brush truck, he reasonably assumed that they were qualified by Kuna VFD standards. When the IC operates under assumptions about responders` qualifications; however, he has a higher duty to provide for their safety.

The IC also has the duty to fully instruct rural fire district volunteers, before they are committed, in a safety briefing about the fire`s nature, fuel conditions, weather, safety factors, command structure, and radio use. The IC must ensure that firefighters understand and obey warnings such as the Red Flag Warning. In this case, the IC (or a designated safety officer) did not hold a safety briefing or communicate the Red Flag Warning or its significance. The IC ordered Unit 620 into a position of danger, a location where he should have known that wind would drive the fire at the firefighters, the Court determined. The IC did not follow up when it became apparent that Unit 620 did not know or did not understand the Red Flag Warning.

The Kuna VFD had the duty to protect Buttram and Oliver from the foreseeable hazards incident to fighting the fire, including informing the IC that they were rookies and monitoring their communications. It also had the duty to provide them with adequate equipment, including properly functioning radios. The VFD also had the duty to send only qualified firefighters and to pair them in a manner that would provide for their safety, particularly since, in this instance, the VFD had sufficient resources to do so. The Kuna VFD had the duty to get a weather report and to ensure that the BLM IC gave the firefighters a safety briefing or to provide such a briefing itself. The Kuna VFD also had the duty to train its personnel to fight wildland fires in a safe and effective manner.

IMPROPER USE OF THE INCIDENT MANAGEMENT SYSTEM

The following characteristics are part of a good IMS: common terminology, modular organization, integrated communications, a unified command structure, consolidated action plans, a manageable span of control, designated incident facilities, and comprehensive resource management.

In the Buttram case, the IMS was improperly used in many ways:

•There was a lack of common terminology. The term “Red Flag Warning” may not have been understood by all participants. Clearly, if Firefighters Buttram and Oliver heard the term, they did not realize its significance.

•Modular organization was not utilized. All units reported to the IC instead of to sector or section leaders. Planning, logistics, and finance/administration were not pres-ent.

•There was a lack of communications. The radios were either malfunctioning or the firefighters were not trained in their use.

•The command structure was divided. The BLM IC and the Kuna VFD each had information the other lacked: The BLM knew the fire but not the firefighters, whereas the Kuna VFD knew the firefighters but not the fire.

•Tasks were not effectively delegated. Unified command would have been a superior way to address leadership responsibilities.

•No consolidated action plan was evident. The IC was reacting to developments instead of planning ahead.

•The IC had too many units for a proper span of control–eight BLM units and three Kuna VFD units.

•The IC was also apparently acting as safety officer. He was likely suffering from an information overload, which put him in a reactive, instead of a proactive, mode.

•The record does not reveal any designated incident facilities.

•Management of resources was uneven and superficial. The IC apparently did not appreciate the danger of the position to which he had directed Unit 620 for refilling, and the importance of the Red Flag Warning and its existence were not communicated. Further, evidently no safety officer was appointed, and no safety briefing was given to the firefighters.

RESULTS OF FAILURE TO HAVE A WRITTEN MUTUAL-AID MOU

Even though the IMS failed Firefighters Buttram and Oliver in their hour of need, a properly drafted mutual-aid MOU could have operated to protect their lives. Of course, a properly drafted MOU would have included following properly drafted SOPs. The Kuna VFD apparently did not have adequate SOPs.

A written mutual-aid MOU between the BLM and the Kuna VFD could have assisted these firefighters in several ways.

•Most importantly, it would have raised issues at the drafting stage about the adequacy of the SOPs.

•The MOU would have provided guidelines for response during a crisis. The lines of authority, including the use of the IMS, would have been defined and the miscommunication between the IC and the Kuna VFD might have been avoided.

•The VFD`s responsibility to provide tactical control under the IC would have been outlined, as well as the need to follow departmental SOPs.

•The fact of tactical control would have underlined to the VFD the need for reliable communication with its firefighters, as well as the requirement for proper training and experience. Proper personnel assignments also might flow from tactical control–not pairing up two rookies when experienced firefighters are available to be paired with the unseasoned personnel.

AVOIDABLE DEATHS

The Buttram case marks the sad intersection between an improperly functioning incident management system and the failure to have a written mutual-aid MOU and underlying SOPs. Working together, these management tools could have ensured that two rookie volunteer firefighters would not have been put into harm`s way without proper equipment, training, or supervision. Sadly, these two firefighters` deaths were very avoidable.

The Buttram case stands for several principles applicable to all firefighting companies and other emergency response entities. Such groups owe a duty to emergency responders to exercise reasonable care to protect them from hazards incident to their employment and to provide them with safe tools, appliances, machinery, and work- places. Of course, fires and other emergency response locations are often dangerous sites, but good SOPs will ensure that the maximum effort will be made to protect firefighters from the foreseeable hazards incident to a response.

Firefighting and other emergency response groups must ensure that responders have appropriate and current training for the duties with which they are entrusted. Further, these groups have the obligation to brief each responder on safety before they are dispatched to the scene; the briefing should make them aware of the particular hazards and give a general situational orientation. All parties involved should mandate a documented safety briefing prior to sending personnel to emergency and disaster sites, to avoid potential liability.

The most important priorities in all emergency responses are safety and preservation of life, and the Buttram case illustrates how easily these priorities may be misplaced. It should, however, also be noted that the damages that the BLM and the Kuna VFD must pay total approximately $2.5 million, of which the BLM owes 35 percent and the Kuna VFD 65 percent. Such a sum is beyond the resources of a volunteer fire department. Normally, the VFD provides protection through an agreement with the local unit of government, which is responsible for a judgment like this one against the Kuna VFD. The local unit of government often must raise tax rates to cover the unfunded liability of such a verdict.

The Court found that volunteer firefighters Buttram and Oliver were not at fault in their untimely deaths. They were following directions and trusting in those placed in authority above them. The firefighters were the victims of a failed IMS and the lack of a written MOU.

In the wake of the Buttram case, all departments should reevaluate their training in the use of the IMS and the state of their written mutual-aid MOUs and departmental SOPs. Only then will fire officers be able to feel confident that they have taken all possible precautions before putting their personnel in harm`s way.

Thanks to Tom Hinkle of the Office of the Indiana State Fire Marshal and Jan Amen of the Texas Forest Service for bringing this case to my attention.

WILLIAM C. NICHOLSON serves as general counsel for the Indiana State Emergency Management Agency, the Indiana Department of Fire and Building Services, and the Indiana Public Safety Training Institute, advising in areas such as fire prevention, building safety, and state and federal law as it applies to emergency response. Among his memberships are the following: the National Emergency Management Association`s Legal Counsel Committee, the Chemical Stockpile Preparedness Program Legal Issues Working Group, the Emergency Management Alliance of the Indiana Board of Directors (ex officio), the Indiana Terrorism Task Force, and the Indiana Y2K Consequent Effects Task Force.

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