ICAC Says Proposal Could Hamper Arson Investigations

A fire investigator’s ability to support a credible opinion regarding the possible origin and cause of a fire could be seriously diminished if a proposed change regarding the use of evidence gathered by visual observation is adopted by the National Fire Protection Association (NFPA), according to the Insurance Committee for Arson Control (ICAC).

Rendering such an “origin and cause” opinion is the very essence of a fire investigator’s task.

ICAC, a non-profit insurance industry organization dedicated to arson control, is reportedly concerned about a proposal to add new language to the NFPA’s code section dealing with fire investigations (Section 921) that addresses ignitable liquid burn patterns observed by investigators during the course of a fire investigation.

The proposal requires that “[t]he presence of an ignitable liquid should be confirmed by a laboratory and not by visual observation to determine the nature of the fire pattern.”

According to ICAC, other applicable standards related to fire investigation already address this issue or are at odds with the proposed change.

ICAC has submitted comments to the NFPA based on its concerns. These comments refer to standards established by the American Society for Testing and Materials (ASTM) that already address the use of laboratory results to confirm the presence of an ignitable liquid at the scene of a fire. Specifically, the ASTM standards make it clear that negative lab results should not be relied upon to conclusively rule out the presence of ignitable liquids.

“The ASTM acknowledges the fact that fire debris resulting from burning ignitable liquids will not always contain traces of that ignitable liquid,” Rick Hammond, attorney with the Chicago law firm of Chuhak & Tecson and general counsel for ICAC, commented.

ICAC’s comments also reference other NFPA code provisions which conflict with the recommended change, specifically provisions that state that a fire investigator should be qualified to “interpret burn patterns.”

Generally, a properly qualified fire investigator is deemed, as a matter of law, to be an expert that is qualified to render an opinion, i.e., an interpretation of his observations.

ICAC believes that fire investigators should be afforded the right to exercise a reasonable degree of discretion in the manner in which data is interpreted and that lab results should be used to help confirm or question such interpretations. ICAC is concerned that the proposed language may eliminate that right of discretion and diminish the investigator’s ability to rely on his experience, knowledge and observations to form an opinion or conduct an investigation.

Terry Lacy, vice chairman of ICAC and a member of the NFPA committee reviewing the proposal intends to relay ICAC’s concerns at a public committee meeting to take place April 30 – May 2, in Linthicum, Md.

“These changes, if allowed to go through, may have a serious negative affect on the investigator’s discretion to rely on visual observation of burn patterns during the course of a fire investigation,” Hammond noted. “The small minority of fire investigators that use visual identification as the only evidence or proof of cause and origin will be thoroughly impeached at trial and the prospect of such impeachment should act as the proper safeguard necessary to address the concerns of the proposed changes.”