Turbeville: ...I will tell you from personal experience, however, that regardless of what the variance says, the fact is that 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 havebeen 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/employeerelationship 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.
Shreeves: ...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 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 seriouslyOSHA would take that we don't know.
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Turbeville: That brings us to the point of administrative and prosecutorial discretion...The fact is OSHA doesn't want to get involved in that much of a knitpicking of a variance because it causes too much work for them. They're rather under staffed 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.
