Six years ago, the Environmental Protection Agency issued an urgent warning to first responders about their potential environmental liability. The alert, as part of an ongoing educational process relating to CBRN environmental issues, discussed whether emergency responders can undertake necessary emergency actions to save lives without fear of liability, even where the fire department's actions have unavoidable and adverse impacts on the environment. The bulletin didn't answer the issue directly, but instead discussed the Good Samaritan and liability provisions of federal environmental and state immunity laws. Ultimately, the bulletin recommended that first responders “consult legal counsel in their states to discuss authority, status as an agent of the state, immunities and indemnification.”

Several Legal Matters columns have focused on possible liability claims based on violation of various federal laws. An environmental response is just one more operational area that may now result in a lawsuit.

On July 7, 2006, a New York State Appellate Court dismissed a lawsuit filed by Cataract Metal Finishing Inc. against the City of Niagara Falls, its fire department and the department chief. Cataract Metal Finishing, Inc. v. City of Niagara Falls, N.Y.S.2d, 2006 WL 1868516 (N.Y.A.D. 4Dept), 2006 NY Slip Op. 05422, arose from a fire that had destroyed the finishing plant six years earlier after a contractor allegedly ignited materials being used to replace the roof. The corporation argued that the fire department and chief were negligent in using water rather than foam to extinguish the fire. The corporation further alleged that hazardous chemicals stored in the plant were released into the local area, including the local sewer system, as a direct result of the acts or omissions of the Niagara Falls defendants.

The court dismissed the case because the corporation's claim for damages was premature because at that point only the New York State Department of Environmental Conservation had paid for the cost of cleaning up and remediating the chemical spill resulting from the fire.

In CAMW Materials Testing, Inc. v. Town of Babylon, 348 F.Supp.2d 4, 59 ERC 1677 (E.D.N.Y. 2004), the fire department wasn't as fortunate. The North Amityville (N.Y.) Fire Company was sued by AMW Material Testing Inc. when toxic chemicals were released into the environment as a result of a fire caused by the corporation's highly flammable solvents.

On Oct. 9, 2000, a fire broke out at the AMW facility inside the paint room, where employees were cleaning a tube with methyl ethyl ketone. The president of the corporation entered the paint room and noticed a small flame on the floor. He and other employees then attempted to extinguish the fire themselves. These efforts failed.

While the employees were attempting to extinguish the flames, the automatic fire alarm company contacted the corporation to notify them that the alarm system indicated a fire in the building. The corporation's secretary confirmed the existence of fire and then left the building with other employees. The alarm company notified the fire department, which then responded.

The first assistant fire chief arrived approximately eight minutes after the ignition and confirmed that the facility was on fire. Two minutes later, the fire chief arrived on scene and assumed command. Two minutes after his arrival, the chief requested that additional fire departments, the town fire marshals, the town fire coordinators and the New York State of Department Environmental Conservation respond to the scene.

The company president claimed that almost immediately after he exited the building, the chief arrived. The president claimed that he informed the chief about the location of the fire and offered to help. The chief allegedly declined the offer and requested that the president and his employees move to a safe location. The chief testified at his deposition that when he arrived at the scene the building was fully involved.

Firefighters testified that due to the heavy smoke condition in the immediate area, they had to inch their way down the street to the fire building. Once on the scene, they began to enter the structure and to search for victims, but they were unable to apply any water on the fire due to the thick black smoke and high heat. Firefighters determined that the fire had extended to such a point that there was a serious risk of building collapse. Pictures taken on the scene confirmed the firefighters' descriptions of the building's condition.

Due to the intensity of the fire, the chief decided to abandon the offensive attack and ordered defensive operations though the use of elevated platforms. By the time the platforms were placed in operation, the roof had collapsed and the flames were burning well above the top of the building. As the fire continued to burn, a storage trailer adjacent to the building disintegrated, causing the 55-gallon drums it contained to explode and shoot into the air.

As the fire progressed, the chief ordered additional equipment to help in extinguishment and containment of both the fire and the water runoff that contained toxic chemicals. Many of the chemicals in use at the plant included those defined as hazardous substances under the Comprehensive Environmental Response, Compensation and Liability Act, 45 U.S.C. Section 9607 (2004). As a result of the fire, the building and its contents were destroyed and contaminated with hazardous materials.

Post-fire testing revealed that the soil was contaminated with numerous toxic substances. In addition, numerous nearby storm drains were adversely impacted by the runoff of the water used to control the fire. The corporation alleged that it spent in excess of $1 million in environmental cleanup efforts. As a result, the corporation filed a lawsuit against the fire department and other public officials seeking to hold them liable for the damages that resulted from the fire. The corporation also sought (under CERCLA) to recover its lost profits and punitive damages.

Pursuant to federal law, a party is potentially responsible for costs associated with a toxic spill at a site if:

1. The site is a “facility,”

2. A release or threatened release of a “hazardous substance” from the site has occurred,

3. The release or threatened release has caused the plaintiff to incur response costs, and

4. The defendant falls within at least one of the four classes of responsible persons described in Section 9607(a) of CERCLA.

The corporation argued that the fire department was responsible for the cleanup costs and that the fire department — not the corporation — actually operated the facility under the meaning of CERCLA. Under federal law, both current operators of a facility and operators at the time of releases are responsible parties regardless of who caused the release of the hazardous substances. The term “operator” in this case means “any person who … operated, or otherwise controlled activities at such facility immediately beforehand.” (42 U.S.C. Section 9601(20)(a))

Under CERCLA, “any person who operates a polluting facility is directly liable for the cost of cleaning up the pollution,” per United States v. Bestfoods, 524 U.S. 51, 65 (1998). For purposes of the federal law, “[a]n operator must manage, direct, conduct operations specifically related to pollution, that is operations having to do with leakage or disposal of hazardous waste, or decisions about compliance with environmental regulations.”

The actions of a governmental entity at a site may give rise to liability. Municipalities, states and other political subdivisions fall within the definition of persons who may incur such liability under CERCLA, and these political subdivisions are held to the same strict liability standard as any other potentially responsible party. However, if a governmental entity was responding to an emergency caused by the release of hazardous substances, it's only liable for gross negligence or willful misconduct, as determined in B.F. Goodrich Co. v. Murtha, 958 F.2d 1192, 1198 (2d Cir. 1992).

AMW argued that the fire department operated the facility because it exercised authority over the property during the course of the fire. Specifically, the plaintiffs argued that the fire department had exclusive control of the property during the fire, conducted “operations” at the site, and prohibited employees from re-entering the facility during the course of the fire. The corporation pointed out that the chief directed the placement of water streams into the fire, told the president to relocate to a safe location off the property and directed the use of various pay loaders during the fire.

The trial court found that the corporation's allegations alone were insufficient to support the claim that the fire departments were “operators of the facility.” The court noted that to safely and effectively respond to an emergency, fire departments need to have some control over emergency situations. Failure to control the fire scene could be considered negligence and could subject the fire department to liability. The trial court concluded that the uncontroverted evidence revealed that the corporation, and not the fire department, was operating the facility immediately before the release, during the release and within the meaning of the CERCLA statute.

The corporation also sued the fire department for negligence, claiming that a “special relationship” existed based on prior conversations with fire company officials, site visits by the town fire marshals, and previous responses by the fire department to the facility for false alarms. The corporation claimed that it detrimentally relied on prior site visits by the fire chief and the chief's knowledge of the hazardous chemicals in the building. The president of the corporation argued that had they not listened to the fire chief, the employees could have used fork lifts to remove the material during the fire and minimize the damage to the land.

The trial court ruled that the corporation's detrimental reliance argument was “absurd.” The president argued that a special relationship existed because he relied on the chief's direction to stay out of the building and keep a safe distance from the fire. The court noted that, incredibly, the president claimed that “absent those instructions he would have ordered his employees back into a fully fire-engulfed building that was about to collapse.”

A special relationship requires reliance to the claimant's detriment in New York State. The court wrote: “As a matter of law, fact, and common sense, [the corporate president's] reliance on [the chief's] instructions not to send employees back into a burning building filled with hazardous and flammable chemicals cannot be considered detrimental.” The corporation also sought to hold the fire department liable based on a theory of an alleged violation of New York State navigation law. The trial court rejected these arguments as well.

However, on March 28, 2006, the U.S. Court of Appeals for the Second Circuit reversed the decision of the trial court as it pertained to the defendant fire department. (AMW Materials Testing, Inc. v. Town of Babylon, 2006 WL 851772 (C.A.2, N.Y.), 62 ERC 1400.) The appellate court ruled that it was incorrect for the trial court to find that the defendants were not “operators” as a matter of law. The court noted that although CERCLA does not contain a helpful definition of “operator,” it has been defined through case law, citing Bestfoods. Based on this case law, an “operator” is simply someone who “directs the workings of, manages, or conducts the affairs of a facility.”

The appellate court noted that this definition has been interpreted broadly, and that a person may be an “operator” “regardless of whether the person is … even a saboteur who sneaks into the facility at night to discharge its poisons out of malice.” Therefore, with respect to the claims against the fire department, the appellate court gave the corporation the benefit of every inference, as it was required to do so on appeal, and determined that a factual dispute existed as to whether the town and its fire department were “operators” of the facility while they were controlling the premises to extinguish the fire.

The court acknowledged that the parties disputed how much control was exercised by the defendants and whether and to what extent hazardous substances were released under the fire department's control. However, the appellate court determined that these issues were most appropriately addressed by a jury, and not a judge on a motion for summary judgment. Likewise, the appellate court found that it was improper to find as a matter of law that the town and fire department were statutorily immune from liability under CERCLA. The court also noted that immunity doesn't exist for gross negligence or willful misconduct, and in this case it was inappropriate to find such culpability absent as a matter of law.

In this case, the trial court found as a matter of law that there was no duty owed to the plaintiff. The appellate court noted that a legal duty or obligation made to a plaintiff may arise under New York law in three different ways:

1. When a municipality violates a statutory duty enacted for the benefit of a particular class of persons of which the plaintiff is one;

2. When a municipality voluntarily assumes a duty that generates justifiable reliance;

3. When a municipality assumes positive direction and control in face of known, blatant and dangerous safety violations, citing Pelaez v. Seide, 2 N.Y. 3d 186, 199 (N.Y. 2004).

In determining that no duty was owed to the plaintiffs, the appellate court found that the trial court made many factual assumptions unsupported by the record. For example, the trial court determined that by the time the defendants arrived on the scene, the fire already had extended throughout the building. The appellate court found that this conclusion of fact was not clear and, according to the plaintiffs, the fire department's actions actually caused the fire to spread and worsen.

According to the appellate court, the trial judge made similar assumptions during the lower court's discussion of the reliance element, as well as its conclusion that the alleged reliance by the owner was “absurd.” The trial court also improperly required “detrimental” reliance, as the case relied on by the trial court simply required reliance, not detrimental reliance. The appellate therefore vacated and remanded the plaintiff's negligence claim to proceed to a jury trial if the trial court determined that, given the new legal perimeters imposed by the appellate court, the plaintiffs could still maintain their claim.

Finally, the appellate court also vacated and remanded the plaintiff's claims based on the fire department's alleged violations of New York navigation law. The appellate court noted that any person who discharges petroleum into the environment is strictly liable for his or her actions. However, under New York law, fire departments are only liable if they are grossly negligent or willful in discharging the substance. Again, the appellate court found that it was improper to find such culpability lacking as a matter of law because there remained a question of fact as to whether the fire department's actions actually caused the fire to spread and worsen.

The risk of liability for fire departments is greatest where a death on the fireground occurs, where there are large financial losses not covered by insurance, or where an insurance carrier has a right to seek reimbursement (subrogation) for payments made to its insured as a result of a significant fire or other large loss. Fires or other incidents that result in environmental pollution can result in catastrophic financial losses due to federal and state regulations related to environmental cleanup. Businesses and insurers will seek to pass these costs onto other parties, including fire departments.

There are many ways to prevent or mitigate these claims and their associated risks from a fire department's standpoint. First, train, train and train again. The old adage “practice makes perfect” is true with respect to all areas of fire department operations. To quote Deputy Chief John Coleman of the Toledo (Ohio) Fire Department: “When people are put in stressful situations, they will revert to what is customary and routine.” Let your response reflect your training.

Additionally, any training should reflect the state and federal hazmat response requirements. These standards require, among other things, the use of incident command and that the incident commander perform a size-up. This training should be documented thoroughly so that it can later be used to support the decisions of the incident commander and the operations of firefighters at the scene.

Fire departments also should preplan the hazmat facilities within their jurisdictions. The preplan for fixed facilities should require the installation of NFPA 704 placards; the availability of Material Safety Data Sheets for quick reference; and the installation of all fire protection systems, including automatic sprinkler systems, private hydrants and ventilation systems. Engine companies located nearby also may visit and tour these facilities, at which time the plant manager or owner should be questioned regarding the type, quantity and location of hazardous materials on the property; the type of fire protection systems in place; and the operator's plans to fight fires or mitigate toxic releases.

Given the operational history of the facility and the working relationship between the fire agency, police department and operator, the fire department also may wish to include the manager in the response plans. All of these precautionary measures should be well documented. To the extent that the facility doesn't operate to code, local governments shouldn't hesitate to pursue code enforcement. I've seen more than one occasion where fire departments gave every break to the owner, only to have the owner sue the department for alleged negligence.

Fire departments must respond intelligently. Although I'm in favor of aggressive responses at fires, no firefighter's life is worth trying to fight a toxic hazard aggressively to avoid clean up or litigation expenses. Fires or other incidents involving hazardous materials should be approached cautiously and conservatively, and decisions should be based on known facts. Approaching the fires with the attitude that firefighter safety is first and foremost in importance will be supported by any jury as long as the logic behind the fireground decision can be explained. Where possible, fire chiefs also should confer with other specialists or officers on the scene to make sure that operational decisions are appropriate. Detailed explanations as to why certain actions were taken will help the officer in court should litigation result.

When recording specific factors or conditions faced on the scene, an officer should always keep in mind those issues that may relate to issues of proximate causation. Factors that may relate to the issue of proximate cause would include the status of the fire upon arrival, contents located within the building, the threat of explosions, weather conditions, manpower and apparatus or other available equipment. There are many other factors that will influence a fireground commander's decision, and as many of these as possible should be considered when writing the post-incident report or critique. It's important that these factors be written down as soon as possible after a large incident, as a detailed narrative may help many years later. Both of the cases discussed in this article resulted in court decisions six years after the incident, and now fire officers in North Amityville will be required to recall events from many years earlier.

Additionally, in an era where civilians are contacting legal counsel at the speed of light, fire chiefs should consider immediately contacting their insurance carriers and legal counsel to review operations where large losses or deaths have occurred. If it appears from the insurance carrier's, risk manager's or legal counsel's review of the facts that litigation is likely, a vigorous defense can be prepared early, and the facts necessary to build the defense's case can be gathered when they are fresh in everyone's mind. In addition to CERCLA, there may be state environmental laws that may apply to the incident, and each state's laws will differ as to the applicability to the fire department's actions.

The fire department's legal counsel can provide a quick overview regarding areas of concern that may result in departmental liability as a result of an on-scene operation, and therefore the fire department's post-incident accident action plan should address these state law issues accordingly.

Finally, legal counsel can assist in the retention of an independent expert to support the fire department's operation at the scene. Often, the scene itself is changed or destroyed following a fire, which makes it more difficult for an expert to render an opinion years down the road. Retaining an expert early also will serve as an insurance policy should a motion to dismiss or a motion for summary judgment be overruled, and the fire department is faced with the worse-case scenario — trying to explain its operations to a jury.

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David C. Comstock Jr., CFOD, is an attorney specializing in fire litigation and the defense of government entities, including fire departments. He's also chief of the Western Reserve Joint Fire District, Poland, Ohio.