PSD Teams and OSHA, NFPA compliance

[stimpy4242]

DMarelli beat me to it...basically whenever you are diving for rescue you are exempt, when its recovery you aren't.

That seems pretty simple.

 

[Tacman55]

I have heard quite a few state that the OSHA exemption only applies to PSD when it qualifies as a rescue..

Can someone quote here the specific standard that states such and reference how it applies to PSD???

 

[Thalassamania]

There's something to the effect that in cases of life and death or serious environmental damage all bets are off.

 

[tc]

OSHA standard-

http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=DIRECTIVES&p_id=3449

From Appendix C-

Search, rescue, and related public-safety diving by or under the control of a governmental agency. OSHA received a number of comments from persons engaged in diving incidental to police and public-safety functions, and the Agency concluded that an exclusion was appropriate for such applications. The purpose of the "by or under the control of a governmental agency" language is to make the exclusion applicable to all divers whose purpose is to provide search, rescue, or public-safety diving services under the direction and control of a governmental agency (such as local, State, or federal government) regardless of whether or not such divers are, strictly speaking, government employees. In excluding these search and rescue operations, OSHA determined that safety and health regulation of the police and related functions are best carried out by the individual States or their political subdivisions. It is pointed out that this exclusion does not apply when work other than search, rescue, and related public-safety diving is performed (such as divers repairing a pier). Diving contractors who occasionally perform emergency services, and who are not under the control of a governmental agency engaging their services, do not come under this exclusion. Such divers may, however, be covered by the provision concerning application of the standard in an emergency (see 29 CFR 1910.401(b)).

 

[Thalassamania]

TC: Fed OSHA exempts the whole kit and caboodle, the problem is State OSHAs do not, they tend to be more restrictive.

 

[Tacman55]

Thal and TC,

Thank you for both for your replies to my question. In the case of Thal's response the something he referred to I believe is (29 CFR 1910.401(b) Application in Emergencies.) that applies to commercial divers being given exemption from some of the standards in the event of an emergent situation. This does not apply to PSD as they are exempt already....



TC stated what I have understood to be true and what I have read the CFR to state in regards to PSD ops. Yes just as with LAW and REGULATION... there is Federal and there is State... and they seldom agree completely. So some things that are permitted by the CFR are not by certain state regulations or standards.

My question still remains unanswered by those that profess that the PSD exemption only applies to rescue operations and does not cover the more mundane tasks of PSD ops such as the recovery of bodies and evidence along with subsurface tasks that are immdiately necessary to public safety.

It seems as if 29 CFR 1910.401(b) Application in Emergencies.) is being understood by some to be applicable to PSD when in fact it is a completely different exemption from (29 CFR 1910.401(a)(2)(ii). Diving solely for search, rescue, or related public-safety purposes by or under the control of a government agency.) which in and of itself specifically states that PSD is not subject to the other standards under Subpart T.

I stand to be corrected on this if someone can document where it specifically states that anything other than a rescue operation does not fall under the exemption..... I am just looking to learn what if any part of the regulations substantiates those claims.


It seems as simple as saying.... The regulations state that PSD is exempt from the standards contained here.... however some want to try to apply other portions of the standards to PSD..... when PSD is effectively exempt....

 

[BladesRobinson]

I regret that I have been away from the ScubaBoard PSD forum for an extended period of time.

During my absence, some have posted information that is NOT based on fact ... i.e., that a PSD falls under the OSHA exemption only when conducting a rescue.

OSHA exempts public safety dive teams when they are conducting public safety functions PERIOD. For those who are not aware of what those PSD functions are, then possibly they are not public safety divers. Just know that because a person authors and posts on this PSD forum does not necessarily mean that he is a subject matter expert.

I do not profess to be an "expert" either but I can state that my opinion is based on my participation on the "State of Florida, Division of Safety, Public Safety Diving Task Force" where for nearly a year, members of the task force received some of the best legal counsel that the State of Florida could provide us while determining if the PSD exemption should, or should not be removed from the OSHA, Subpart T, 1910.401(a)(2)(ii) ... previously quoted.

If the OSHA commercial diving standard only covered PSDs working in the "rescue mode" then other language would apply. I have copied that language below for the online "ScubaBoard lawyers."

1910.401(b)

Application in emergencies. An employer may deviate from the requirements of this standard to the extent necessary to prevent or minimize a situation which is likely to cause death, serious physical harm, or major environmental damage, provided that the employer:
​

..1910.401(b)(1)

1910.401(b)(1)

Notifies the Area Director, Occupational Safety and Health Administration within 48 hours of the onset of the emergency situation indicating the nature of the emergency and extent of the deviation from the prescribed regulations; and
​

1910.401(b)(2)

Upon request from the Area Director, submits such information in writing.
​

The FACT is ... Public Safety Divers are EXEMPT when they are doing their jobs. They are NOT exempt if they are conducting "commercial" dive operations for their communities. When PSD teams are diving in the "commercial mode" they must follow the OSHA standard and should also follow the ADC standard.

With regrets, I doubt this will appease the nay-sayers. If one wants additional background, possibly they may consider adding the following Federal Registers to their library:
Friday, November 5, 1976 - Part V, Commercial Diving Standards, Proposed Standards and Hearing
Tuesday, June 15, 1976 - Part III, Diving Operations - Emergency Temporary Standards
Friday, July 22, 1977 - Part III, Commercial Diving Operations - Occupational Safety and Health Requirements
Thursday, November 16, 1978 - Part VI, Commercial Diving Operations, General Provisions

These Federal Registers provide background and identify the INTENT of the standard, IN DETAIL.

In additional to having some familiarity with the OSHA Standard, I have also attended the NFPA meeting where 1006 was discussed. You will find that the IADRS Watermanship Test is part of that document and I do not recall seeing any other ScubaBoard forum members in attendance. At no time was "2 in, 2 out" ever discussed as a viable option for the safety of PSDs.

I have placed a call to the Directorate of Enforcement for the OSHA Maritime Division to learn if OSHA has ever fined or penalized a PSD team for their failure to follow the Subpart T standard. I will advise if I receive a return call.

Respectfully,

Blades Robinson

 

[stimpy4242]

Blades I don't mean to jump into your technical quotations, but isn't what you just wrote saying that teams are exempt when performing life saving emergency operations?

When a team is partaking in a recovery....that certainly is not life saving and I would argue to no end that it would NOT be exempt from OSHA. Perhaps you stated that already, but since I am not a lawyer I don't do to well with the technical quotation.

So when you say they are exempt when doing their jobs, part of our jobs is recovery and I don't think a judge would consider that to be:
the extent necessary to prevent or minimize a situation which is likely to cause death, serious physical harm, or major environmental damage

Finding a body, a weapon or an anchor(not that we do this) certainly doesn't fall under those categories in my mind...please clarify.

 

[tc]

I've got a call in to CalOSHA to see if I can get their opinion on the topic.

 

[BladesRobinson]

... isn't what you just wrote saying that teams are exempt when performing life saving emergency operations?

Philip,

The OSHA standard is for COMMERCIAL DIVING, not public safety diving. The standard exempts COMMERCIAL divers if they are conducting a rescue or trying to mitigate an environmental hazard. COMMERCIAL DIVERS can violate the OSHA standards in the instances previously stated if they notify their area OSHA director within 48 hours.

Because the standards already exempts "rescue" type diving, why would OSHA exempt public safety diving if the only thing the exepmtion covered were divers working in the rescue mode?

Know that the federal government does not stutter or repeat itself when writting law or standards.

Know also that there are five disciplines of diving; recreational, commercial, public safety, scientific and military.

The OSHA Commercial Diving standards covers the commercial diving mode ... only.

This was stated in the federal registers back in the 1970s when they outlined the INTENT. It was further stated in the July 22, 1977 Federal Register (Vol 42, No. 141, page 37652 (lower right hand corner under section "V" ... "The standard applies to all diving operations conducted in connection with all types of work and employment within OSHA's jurisdiction unless specifically exempted."

In 1910.401, "public safety diving" is specifically excluded and "search" is listed as one of the functions of public safety diving. There is nothing that defines PSD as being in the "rescue mode" only. One can read the Federal Register for themselves as it is clearly stated on page 37654 and in the current document that is available online. Recreational, scientific and military diving (outside of OSHA's jurisdiction) were the other modes of diving that exempt from the commercial diving standard.

If public safety diving agencies were not covered by the OSHA exemption, they would be making a lot of notifications to the area OSHA directors every time they conducted a search or a recovery and there would be a lot of fines issued to dive teams.

Over the years (since 1977) Dive Rescue International and the IADRS has interacted with both OSHA and NIOSH. We have also interacted with tens of thousands (likely hundreds of thousands) of public safety divers over the past 33+ years and none of them have ever cited an instance where they were fined or found in violation for conducting recoveries or underwater searches for evidence.

I will encourage readers of this forum not to believe my opinion (or differing opinions offered by others) but to read the OSHA standard from themselves, read the Federal Registers cited earlier and consult with legal counsel. Only then can one form an opinion as strong as mine. OSHA has tried to correct the online rumors for years and addressed this exemption again in Directive Number CPL 02-00-143 dated August 11, 2006. ScubaBoard forum member TC has provided the quote from Appendix C. I copy it again at the conclusion of this post.... (Thanks TC!)

Respectfully,

Blades Robinson


Search, rescue, and related public-safety diving by or under the control of a governmental agency. OSHA received a number of comments from persons engaged in diving incidental to police and public-safety functions, and the Agency concluded that an exclusion was appropriate for such applications. The purpose of the "by or under the control of a governmental agency" language is to make the exclusion applicable to all divers whose purpose is to provide search, rescue, or public-safety diving services under the direction and control of a governmental agency (such as local, State, or federal government) regardless of whether or not such divers are, strictly speaking, government employees. In excluding these search and rescue operations, OSHA determined that safety and health regulation of the police and related functions are best carried out by the individual States or their political subdivisions. It is pointed out that this exclusion does not apply when work other than search, rescue, and related public-safety diving is performed (such as divers repairing a pier). Diving contractors who occasionally perform emergency services, and who are not under the control of a governmental agency engaging their services, do not come under this exclusion. Such divers may, however, be covered by the provision concerning application of the standard in an emergency (see 29 CFR 1910.401(b)).