Haz-Mat Good Samaritan Legislation
Chief Warren Isman: ON HAZARDOUS MATERIALS
When a hazardous materials incident occurs, the officer in charge usually needs the assistance of an expert to provide advice on handling the incident. Generally, one of the first calls made is to CHEMTREC, the Chemical Transportation Emergency Center, sponsored by the Chemical Manufacturers Association.
The communicator at CHEMTREC will provide the incident commander with some basic information on the properties, special hazards, and general information about the chemicals. But remember, the communicator will not make decisions nor provide advice on such things as evacuation or extinguishment. The CHEMTREC communicator will, however, contact the manufacturer, shipper, and/or transporter and have them get in touch with the incident commander. In addition, CHEMTREC will activate any industry-wide special response groups, such as those for pesticides, chlorine, or hydrocyanic acid.
One of the key issues, though, is the time it takes these shippers, manufacturers, and special response individuals to communicate with the command post and to arrive on the scene. During this delay, the incident is continuing, and decisions must be made.
Liability: What about some local experts who might be available to you? Can you use these individuals for advice? Well, the answer is that you can use them, but they might be reluctant to give you any counsel because they incur a liability if anything goes wrong.
An individual who provides advice at an incident and was not the shipper, manufacturer, or transporter can be held liable for his actions at the scene.
It isn’t hard to think of an incident where a local “expert” comes to the scene and advises emergency personnel that the corrosive material really isn’t bad and that evacuation isn’t necessary. However, the fumes cause lung problems on several elderly people who weren’t evacuated. This individual could be sued by those who were injured, and he would have no protection from either the fire department, the municipality, or his employer. Is it any wonder that these experts are reluctant to give advice, except when their product is involved.
Well, several trade associations have recognized this problem and have started a movement to attempt to correct it. A coalition composed of the American Petroleum Institute, American Trucking Association, Association of American Railroads, Chemical Manufacturers Association, Compressed Gas Association, National LP Gas Association, and National Tank Truck Carriers has developed model state legislation that encourages the use of existing resources and expertise at hazardous materials incidents.
Legislation: The legislation encourages assistance at hazardous material incidents by protecting the voluntary expert from liability. However, it does not remove those responsible for the incident from any liability. In addition, any expert who is paid to provide advice is not protected from suit. The key is that an individual who voluntarily assists the incident commander is protected from suit, except in a case of “gross negligence.”
Without the protection of Good Samaritan legislation, the safest thing for an expert to do is nothing. In this way, he cannot be sued by third parties because of the advice he gave. Unfortunately, that attitude does not help the fire officer on the scene of an incident trying to determine the best course of action. So, the fire service needs to help this model legislation pass in the states that have not yet adopted it. It must be said here that nearly half of the state legislatures of our nation have, at this time, adopted a form of Good Samaritan legislation.
The model legislation is very simple and contains only four parts:
Section 1 establishes that no person who renders assistance at a hazardous material incident shall be subject to civil liabilities or penalties of any type.
Section 2 provides that Section 1 does not apply to the individual causing the spill or the individual who receives compensation for rendering assistance.
Section 3 defines discharge, hazardous materials, and person so that the law is very broad.
Section 4 states that a volunteer assistor is still liable for gross negligence.
A number of questions had been raised concerning the definition of the term expert; the establishment of training requirements; and the requirement that an individual must respond if requested, no matter what the liability. These questions have been answered by the coalition stating that it would narrow the scope of the protection and maintain the present lack of participation. Many cases would end up in court, with a judge deciding what was enough training or whether an individual was really an expert.
Fire service personnel need help quickly when an incident occurs. If an individual with the knowledge and experience is available, he should be encouraged to voluntarily assist. A Good Samaritan law will certainly help.
Good Samaritan legislation has been adopted in 24 states in one form or another. Of the 24 that have adopted this legislation, 19 cover hazardous materials in general. The other five states cover only specific items, such as compressed gas, or they require that an emergency response agency request expert assistance before the individual is protected from liability. The 19 states that cover hazardous materials are:
Arkansas
Colorado
Connecticut
Delaware
Florida
Illinois
Indiana
Louisiana
Maine
Massachusetts
New Hampshire
New York
North Dakota
Oklahoma
Pennsylvania
South Dakota
Tennessee
Texas
Washington
In those states without a Good Samaritan law, the firefighters’ association and the chiefs’ association should work with the state legislatures for passage.
Fire officers who are interested in a copy of the model legislation can obtain one by sending a stamped, self-addressed envelope to:
Chief Warren E. Isman Fairfax County Fire Department 4031 University Drive Fairfax, VA 22022
