CORRELATION BETWEEN MIXED-EXPIRED AND END-TIDAL Pco 2 : 1 ATA AIR
A. OSHA Recreational Nitrox Variance
///. Nitrox Risk Management Discussion
III. NITROX RISK MANAGEMENT
M. Lang: The first discussion will be a brief overview of the OSHA nitrox variance for recreational nitrox instructors. The second part will discuss several prioritized legal considerations for nitrox as we know them to date.
Lang (ed.): DAN Nitrox Workshop, Divers Alert Network, November 2000
OSHA 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 become involved. Only if I he is forced to become involved would he recommend any prosecution even if there was an accident that occurred outside of these parameters. Second, there have been two cases that I've been involved in where I've represented individuals, agencies or companies 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 commonly defined recreational limits, about a 70 foot dive. The other case, which is in ongoing litigation was a technical diving situation. In the first case, the OSHA regulator was very interested in bringing an action. It was not until the Department of Justice got involved and spoke to a U.S. attorney that I could turn the dogs off and get the case dismissed. The regulator didn't understand what was going on in scuba diving. This happened to be in Wisconsin. The second case is more interesting, a technical tri-mix dive, where clearly it was beyond the scope of the variance or the original exemption for sport diving. There was a dual fatality, a student and an instructor. One phone call was made by OSHA, they knew about it. They spoke to the proprietor of the store and knew there was an employer/employee relationship in January of 1998. There has not been any follow-up whatsoever in nearly three years. We doubt there will be. OSHA simply doesn't want to get involved. I should say from a legal perspective that if you are outside the parameter of the variance and you are teaching 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 serious repercussions are not very great from what we've seen so far.
K. Shreeves: The employer relationship is interesting with respect to the variances. For example, it's not only if your instructor is teaching an enriched air class. It's if your instructor is breathing enriched air no matter what he's teaching. On the other hand, the instructor could 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 an accident, but a complaint. OSHA is required to investigate a complaint. Were there to be an employee who, say, is terminated and wants to get back at the employer, looking for an angle, such a hot-headed employee could create some issue by alleging that there's a problem with following the exemption or the variance, depending on situation. How far and seriously OSHA would take that we don't know.
B. Gilliam: It was reported to the TDI headquarters office that the state of Hawaii is not recognizing this variance. Do you know anything about that?
K. Shreeves: The person at PADI who would be following that would be Jeff Nadler. You highlight 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 for word and adopt the federal guidelines as theirs. Other states, California and Hawaii among them, look at it separately. I haven't heard anything in particular about Hawaii saying no, but it 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 with recreational scuba instruction.
D. Dinsmore: Does it state that right in there, recreational and for instruction only?
///. Nitrox Risk Management Discussion
M. Lang: Of the four exemptions from the commercial diving standards this variance only applies to the first one, which reads: "However, this standard does not apply to any diving operation performed solely for instructional purposes, using open-circuit, compressed air scuba and conducted within the no-decompression limits." The variance was filed to modify the exemption for the recreational diving community to include a) nitrox, and b) rebreathers.
K. Shreeves: We did try to wrap in language that was implied in the original exemption that OSHA has accepted a philosophy on. A Divemaster leading an underwater tour for recreational divers is not specifically listed under the exemption as it was written in the 70's.
OSHA has always recognized part of the intent as that Divemaster working in the same safety envelope; he's providing education and information about the environment. We tried to put some language in the variance that was a little more specific to cover that activity as well.
B. Turbeville: That brings us to the point of administrative and prosecutorial discretion, which is that while there may be a strict reading of the rule, the variance may not allow supervision of recreational divers. The fact is OSHA doesn't want to get involved in that much of a knit picking of a variance because it causes too much work for them. They're rather understaffed and overworked as it is right now. The bottom line is if we don't make this an issue for them, they're not going to follow up on it.
K. Shreeves: That is the best form of risk protection we can have on a legal basis, good education and good diving practices. If you don't have accidents, you don't have problems.
M. Lang: There were qualifiers in the variance, such as the CO2 analyzers. Do you want to cover some of those for discussion?
K. Shreeves: There were several on the rebreather side. Since I was working primarily on the open-circuit side, I don't have all that information. It is published in the variance. Most of it did stay unfortunately for those who produce closed-circuit equipment. The bullets for nitrox were: PO2 of 1.4 atm, 130 feet maximum depth, dives within the no-stop limits, a maximum 40 percent mix, a stand-by diver and within one hour of a chamber.
B. Turbeville: The 1.4 atm came as a result of a compromise because at first OSHA wanted 1.3 atm. Where did OSHA find the 1.3 atm? From the U.S. Navy. Earlier there was a discussion of standards of care and community practice. Ed Thalmann indicated that this is what the Navy wants to do and it was just for Navy divers. Well, it's not that simple. The problem is, as a trial lawyer, I will be faced with expert witnesses saying, you think the standard of care is 1.6 atm, but guess what? Here is the U.S. Navy Diving Manual and by God, that's the bible for divers. This says 1.3 atm. Now we have OSHA saying it's 1.4 atm.
It's very important that if you're going to make a statement, or publish a standard based upon what you assume to be accurate data, that you make it very specific to the community to which it's directed. Otherwise, it will affect every other community out there at least on the legal end if there's a lawsuit. The way these standards are created within a courtroom is based upon which expert witness the jury believes is the most honest and the most experienced. We have a certain tool now that the Supreme Court has given us to keep out really ridiculous opinions, which is called a challenge. However, it doesn't weed all this nonsense out. The fact is we're going to see cases, not on the specific 1.3 versus 1.6 atm standard, but similar types of issues. If the Navy or NOAA wants to set up a particular standard of care for itself and it's much stricter than the community as a whole thinks is necessary, suddenly we have to defend in a microcosm in a courtroom that less strict standard
Lang (ed.): DANNitrox Workshop, Divers Alert Network, November 2000
that we think applies to recreational sport users. Somebody else, the plaintiffs side in this particular case, can point to a document and to other experts saying that's far too risky because at the Navy it says 1.3 atm. Theoretically, that is a potential problem.