Nitrox workshop dings - Divers Alert Network

Rubicon Foundation Archive (http://rubicon-foundation.org)Lang (ed.): DAN Nitrox Workshop, Divers Alert Network, November 2000OSHA does not want to get involved. I know this for two reasons. One, Steve Butler,OSHA Division of Maritime Compliance, told me he does not want to be forced to becomeinvolved. Only if I he is forced to become involved would he recommend any prosecutioneven if there was an accident that occurred outside of these parameters. Second, there havebeen two cases that I've been involved in where I've represented individuals, agencies orcompanies that have been sued where OSHA has stepped in. In these two particular cases,the instructor died along with the student. One was a sport diving case within commonlydefined recreational limits, about a 70 foot dive. The other case, which is in ongoinglitigation was a technical diving situation. In the first case, the OSHA regulator was veryinterested in bringing an action. It was not until the Department of Justice got involved andspoke to a U.S. attorney that I could turn the dogs off and get the case dismissed. Theregulator didn't understand what was going on in scuba diving. This happened to be inWisconsin. The second case is more interesting, a technical tri-mix dive, where clearly itwas beyond the scope of the variance or the original exemption for sport diving. There was adual fatality, a student and an instructor. One phone call was made by OSHA, they knewabout it. They spoke to the proprietor of the store and knew there was an employer/employeerelationship in January of 1998. There has not been any follow-up whatsoever in nearly threeyears. We doubt there will be. OSHA simply doesn't want to get involved. I should sayfrom a legal perspective that if you are outside the parameter of the variance and you areteaching nitrox diving in an employer/employee relationship, you might be outside of the"law". The fact is even if there were an accident, the odds of there being seriousrepercussions are not very great from what we've seen so far.K. Shreeves: The employer relationship is interesting with respect to the variances. Forexample, it's not only if your instructor is teaching an enriched air class. It's if your instructoris breathing enriched air no matter what he's teaching. On the other hand, the instructorcould be teaching an enriched air class, but using air, in which case it's not an issue at all.The other area where the industry might have some concern with regard to OSHA is not anaccident, but a complaint. OSHA is required to investigate a complaint. Were there to be anemployee who, say, is terminated and wants to get back at the employer, looking for anangle, such a hot-headed employee could create some issue by alleging that there's a problemwith following the exemption or the variance, depending on situation. How far and seriouslyOSHA would take that we don't know.B. Gilliam: It was reported to the TDI headquarters office that the state of Hawaii is notrecognizing this variance. Do you know anything about that?K. Shreeves: The person at PADI who would be following that would be Jeff Nadler. Youhighlight the point that once OSHA puts a variance into place, that's on the federal level.Every state implements it on its own. Some states literally copy what OSHA says word forword and adopt the federal guidelines as theirs. Other states, California and Hawaii amongthem, look at it separately. I haven't heard anything in particular about Hawaii saying no, butit doesn't surprise me that they're not automatically accepting it because they usually don't.D. Dinsmore: Does the variance specifically talk about instructional purposes?K. Shreeves: Yes, and this has nothing to do with scientific diving. This has to do withrecreational scuba instruction.D. Dinsmore: Does it state that right in there, recreational and for instruction only?106