Instructor on Enriched Air

[scubasean]

AzAtty once bubbled...
However, from the OSHA proposed CDO change notice, it appears that instructors who breathe compressed air are exempt. I suppose that's as official as I'll get without a case on point.

Now, does compressed air include EAN mixtures?

Divers make the distinction. I doubt the law does, but it might be interesting to know whether they make the distinction.

--Sean the troublemaker

 

[AzAtty]

"Mixed gas" is defined by OSHA as a gas other than air. Nitrox is apparently considered to be a "mixed gas" by OSHA. The CDO revision will carve out an exemption for oxygen/nitrogen mixes specifically.

 

[Otter]

The students are doing their last two training dives on EAN36 right along with the instructors/assistants.

I was always under the impression that a prerequisite for Nitrox was open water certification.

Otter

 

[diverbrian]

I know that our agency will let you offer the courses in conjuction. This is much the same as IANTD Deep Diver is a prereq. for Advanced Nitrox but even the manuals will allow the courses to be taken concurrently.

 

[devilfish]

The way I understand it, an Instructor can teach nitrox, his/her students may, in fact if it a nitrox course should dive nitrox, but the Instructor may not dive nitrox during the course since he/she falls in to the "commercial" paid diver. It's really a gray area which may not have been tested yet.

 

[radagalf]

NetDoc and LUBOLD8431 are right on as to my reasons for diving Nitrox whilst training. This weekend alone I logged 7 dives to get my group of divers done safely.

I thank everyone for their replies and information. I just have two quick comments:

1) nothing has happened, but this thought occurred to me whilst contributing to another thread and as mentioned why wait till the s%*# hits the fan???

2) If someone ran out of air, the last thought on my mind would be my liability due to tank contents. My first action would be to give them my octopus so that they have air.

Again, thank you all for your contributions. I will be contacting higher authorities later this week, and then possibly moving on up the PADI chain to get a definite answer on this. Unfortunately, as instructors we do have to think about these things.

 

[Otter]

is what if you had a student go deep on you and you convulse on the way to get him. Ya, I know he/she shouldn't be that far from you.....like I said, it seems like its the only time when the Instructor would be in a worse position than the student. Probably more likely in an Advanced or Specialty Class than an O/W.

Otter

 

[perpet1]

AzAtty once bubbled...
Yes, I looked at it. What bugs me is the following language in a summary of proposed changes to the Commercial Diving Operations rules:

29 CFR 1910.401(a)(2)(i) is the exemption section to which I initially referred. What bothered me was the language in that section: "solely for instructional purposes." Absent a case interpreting that language, it seemed to me that "for profit" instruction might not qualify for the exemption. However, from the OSHA proposed CDO change notice, it appears that instructors who breathe compressed air are exempt. I suppose that's as official as I'll get without a case on point.

I know this is a dead thread but I have one point to make. I do think this interpretation has been made. Since OSHA entertained the idea of a variance granted to Dixie Divers Inc. then went so far as to propose a change I think the old regulations would apply to recreational divers until the change becomes effective. That in and of itself implies that an instructor does fall within the rules.

OSHA News Release quote
OSHA is basing its proposal on a variance granted to Florida-based Dixie Divers, Inc. in 1999. That variance exempted Dixie from OSHA's decompression-chamber requirements for recreational diving instructors and diving guides, under the same conditions mentioned above. The proposal will incorporate the terms and conditions of that variance into the standard itself.

I am not sure if the change has been made to the actual rule to allow this as this is from a press release but it looks like they have addressed the problem.

Interesting think to note, HOW have Tech Instructors been doing this for years? Even when the proposed change takes effect, would it apply to a tech instructor who is going beyond NDL's and deeper then 130feet on purpose and/or using trimix?

 

[IndigoBlue]

AzAtty once bubbled...
...there are several lawyers on the board. I'm one of them.

29 CFR 1910.401(a)(2)(i) states that the regulations propounded by OSHA governing commercial diving operations do not apply to "any diving operation: (i) Performed solely for instructional purposes, using open-circuit, compressed-air SCUBA and conducted within the no-decompression limits." I haven't researched the annotations to that section, but it appears that recreational scuba instruction could fall within that exception. On further consideration, though, scuba instruction may still be subject to the regulations. I'll have to do some more research on the topic.

29 CFR 1910.426 governs "mixed-gas diving." That section says nothing about particular training being necessary to use a mixed gas in commercial diving operations.

I also ran a quick search using the terms "nitrox" and "enriched air" separately on Westlaw using the ALLCASES database. That database covers every reported case in the United States. There were six "hits" on "enriched air" and eight hits on "nitrox." All of them were patent infringement cases. Not a single case involved an OSHA enforcement action or a personal injury case.

There may be other regulations that I did not find. Admittedly, I only spent about ten minutes looking, so you're welcome to do more research if you like.

Now, for my thoughts on radagalf's hypothetical:

I intentionally will not provide what I think is the "right" answer to the question. In my Quantitative Business Analysis course during my MBA program, the professor said on the first day that you cannot judge the quality of the decision based upon the result you get. That's really a profound statement, and it seems counterintuitive. People don't understand it unless they understand how to make decisions. Sometimes very good decisions have bad results, and very bad decisions have good results. The best you can do is analyze the data and information you have available to you, and settle on a course of action.

Analyze the situation yourself: the student will die if he can't breathe, and the student may suffer a toxic episode if he breathes enriched air. In either case you'll get sued, so make the decision that maximizes the chances of the student living and minimizes your chance of being sued. Keep in mind that there are standard emergency responses set by your agency to which you should adhere--at least if you want to be covered by their insurance policy. Following those standards may provide you with defenses to claims brought by the diver. At the same time, you need to know when to bend or break the rules.

Even if you make the "right" decision, you may be held liable on other grounds. How did the student run out of air? Were you down too long? Did you check tank pressure at the beginning of the dive? Did you check the equipment for any leaks? Did you notice any signs of distress or heavier than normal breathing? Did you signal your students to check their air every ten minutes? The list goes on and on.

Ultimately, the issue is whether you acted as a reasonable and prudent instructor would have acted under the circumstances. I can't provide an answer to that question, but you should look at the standards provided by your agency and other agencies. Those are probably the best place to start.

Great post, AZ, thank you.

I too always dive with EANx when I am teaching a basic O/W class. These classes are limited to 60 ft by the instructor standards. I cannot imagine a student toxing while air sharing at those depths, nor at any depths that I would be using EANx at.

The primary risk at 60 fsw and shallower is a lung expansion injury due to panic and breathholding while on scuba by the student. EANx has nothing to do with that particular risk.

 

[Rick Murchison]

radagalf once bubbled...
I am wondering if I could be legally pursued

Perhaps... but not likely very far. Personally I wouldn't sweat it.
Rick