OSHA Takes a Pass on FirePASS; Firm's VP Cites 'Uphill Battle'

• May 28, 2008

At the behest of U.S. Sen. John E. Sununu, R-N.H., OSHA recently published an interpretation letter clarifying its denial of New York-based FirePASS Corporation's request for a permanent variance on its patented hypoxic air system. The system is designed to prevent fires by physically reducing the oxygen concentration in a workplace, creating an environment similar to that of commercial airline cabins during flight, in which the air is safe to breathe but prevents fire ignition in common materials. OSHA declined the company's request for variance in December 2007. On Jan. 9, on behalf of FirePASS Vice President William Costello, Sununu wrote OSHA, asking it to provide the scientific rationale for the denial. Without the variance, specifying engineers typically cannot or will not recommend a product or technology.

In his letter dated May 1 and posted to the agency's Web site May 12, OSHA chief Edwin G. Foulke, Jr., responded to Sununu's letter by first noting the pertinent requirements specified in the agency's Respiratory Protection Standard (29 CFR 1910.134) related to oxygen-deficient atmospheres. Typical sea level atmosphere contains 20.9 percent O₂ by volume, and the standard considers any atmosphere containing less than 19.5 percent O₂ as, "generally," being immediately dangerous to life or health (IDLH), Foulke wrote. The standard also requires employees to wear a supplied side air respirator in atmospheres with O₂ content of less than 19.5 percent by volume. The FirePASS technology, which uses a controlled environment and bypasses the use of respirators, creates atmospheres with O₂ content between 15 percent and 16 percent, roughly the same as that of a commercial airline cabin in flight.

"In its variance application, FirePASS proposed to expose employees to an oxygen-deficient atmosphere without providing them with the respirators required by the Standard," Foulke wrote. "Under the OSH Act, FirePASS must set forth a means of compliance that provides the same level of safety as the Standard." Foulke then outlined what he described as "serious scientific and technological concerns about the FirePASS system." He added that for "certain employees," namely the elderly and those with health conditions such as pulmonary or cardiovascular disease, the FirePASS system “could result in serious adverse health effects," citing observations of Dr. David N. Weissman of NIOSH who in April 2007 provided "medical and scientific considerations concerning work in low-oxygen settings" but not on FirePASS's technology.

Reached for comment, FirePASS's Costello said NIOSH actually supports the company’s variance request, and that for workers with serious health conditions such as emphysema, the point is moot because they would already have physician-prescribed respirators with their own oxygen mixtures. Foulke's letter of interpretation was frustrating, Costello said, primarily because the OSHA standard's basis for measuring an atmosphere's O₂ content by volume is wrongheaded. The scientific community, including NIOSH, considers the partial pressure of O₂ as the most important factor affecting health, he added, because, unlike OSHA's percent-by-volume method, measurements taken by the partial pressure of O₂ show the actual amount of oxygen available to the respiratory system and reflect exact decreases with increasing altitude under ambient air conditions. In his letter, Foulke recognized this crucial difference in methodology but also noted that OSHA is sticking with the percent-of-O₂-by-volume method so that “employers do not have to perform the additional step of calculating the oxygen partial pressure using a complex formula that, if not performed correctly, could have serious consequences for employees."

Costello said this statement was "bureaucratic nonsense," "double talk," and one of a number of contradictions in OSHA's respiratory standard. "It's a scientific fact that you don't measure oxygen availability for breathing in the oxygen concentration, because if you did, then you could have the office at the top of Mt. Everest," he said. "We've gone back and forth with these [OSHA employees] for two years now, and the bottom line is they've been wrong. They've been fully aware of our technology that's out there for two years, and they are slowing a great technology that can prevent fires and explosions—one of the number one causes of killing people today that we can prevent in the workplace. You would think OSHA would hop on our bandwagon, but they have refused to meet with me for over two years now. Two years."

Meanwhile, Costello added, OSHA continues citing and fining employers "on the wrong respiratory standard. It's the number four thing that they fine people for, and they don't even know how to measure it." Despite OSHA's denial of variance, Costello said FirePASS is already installing at the Smithsonian and working with the Library of Congress, among other sites. "People want to protect their lifeblood, whether it's a data center, critical facilities, refineries, or silos, so when it comes to our technology, people are moving forward without OSHA. . . .

"We've proved our case. We don't need to prove our case anymore. It's been an uphill battle to get OSHA to understand new technologies and that the way they're measuring for the respiratory standard is not correct in the scientific community," Costello said. "We can save lives today, and [OSHA is] preventing it from happening, and it seems as though they don’t care." To read Foulke's interpretation letter, click here. For more information about FirePASS, visit www.firepass.com.