PSD Teams and OSHA, NFPA compliance

[Thalassamania]

My apologies for adding a question, but the steaming pile of glue that once was a horse leads me to seek clarification.

Am I correct in believing, from reading here, that:

1. Acting as a local volunteer PSD team member, performing PSD work such as search and recovery, keeps me exempt from Federal OSHA?

It is not quite that simple. Yes, in most cases you are free from Fed OSHA, but you are likely covered by a state OHSA, and, in any case, you incur the same liability in court via the reasonable person test, just as if Fed OSHA was applicable. Keep in mind that liability may be personal, and as a volunteer you may not be indemnified by the jurisdiction.

2. That my team, even if not 100% NFPA compliant, can perform our PSD duties.
2.a. This is said with the understanding that we will make reasonable efforts to attain and maintain NFPA compliance with all relevant standards.

Thanks!

Leam

The same holds true here.

 

[stimpy4242]

Just to clarify, when you say volunteer, do you mean just a group of people going around trying to do dive rescue, or do you mean a volunteer fire department.

i think it is important to clarify, because as the volly fire department you are part of the "governmental" control...

If its just some people who are trying to help, you most likely are not covered.

 

[leam]

Stimpy, volunteer FD. We do mostly search and recovery. Not set up for rescue and that's part of what I'm trying to understand with the regulations. I know they have different levels of capability but I've not gotten into them for a year or two.

I've not researched what the State OSHA, etc, requirements are in GA, either. However, from a governmental perspective, the state seems pretty decent. More like "follow best practice and don't do anything stupid". My kind of place!

Thanks!

Leam

 

[tc]

We had asked about the volunteer aspects some time back, the key point was that if their is any control exerted by a the government agency (Background checks done, ID cards issued, uniforms, any control or oversight provided during an operation) then the "volunteers" are actually employees as far as OSHA is concerned.

To remove the employer/employee relationship they told us that the agency would have to sever ALL ties with the volunteer organization. Effectively all they could do is call on the volunteer group to provide a specific task/service and then leave the alone to their own discretion in how to best accomplish the task.

 

[leam]

If OSHA had been around during Creation they'd have raised heck about God co-locating a waste facility with an entertainment complex.

Leam

 

[DMarelli]

OSHA is a necessary agency because employers will not voluntarily maintain safe workplaces. Only where labor has been strong do workplace standards increase.

The problem with OSHA is that they never want to write or say much definitively. For that reason I don't think anyone is justified in saying that PSD are completely exempt from OSHA standards. What about the requirement for hazardous materials training and protection (including for compressed gas handling and filling)? How about training, which is clearly not search, rescue, or related public-safety purposes?

And how about recovering submerged vehicles? I don't think PSD divers are exempt from 1910 Subpart T for that. I would take the approach that if you are in a gray area you would be better off following OSHA or ADCI standards. It may be safer and you are not giving anything up by doing so.

 

[BladesRobinson]

...What about the requirement for hazardous materials training and protection (including for compressed gas handling and filling)?

...How about training, which is clearly not search, rescue, or related public-safety purposes?

...And how about recovering submerged vehicles?

I took the liberty to break the previous post into three parts so I could address each individually.

POINT 1
The OSHA standard covering "Hazardous waste operations and emergency response" is 1910.120.
1910.120(a) covers "Scope, application and definitions"
1910.120(a)(1)(v) the scope includes "Emergency response operations for releases of, or substantial threats of releases of, hazardous substances without regard to the location of the hazard."

The OSHA standard for "hazardous waste operations and emergency response" does not exclude emergency responders and goes so far as to specifically INCLUDE them under the "scope" of this regulation.

On the flip side, the commercial diving standard administered by OSHA specifically EXCLUDES public safety divers. The language is clear and it accurately describes who is exempt from commercial diving standard (again) ... "1910.401(a)(2)(ii). Diving solely for search, rescue, or related public-safety purposes by or under the control of a government agency. "


Public Safety Divers are exempt from the commercial diving standard but are not exempt from the standard for hazardous waste operations and emergency response.
POINT 2
We know what OSHA states (see above) but the author of the original post asks if "training" is a "related public safety purpose." I think it is. I base my opinion on the fact that many line of duty deaths (37%) have happened in the training mode. A review of recent NIOSH reports do not reference the OSHA standards for commercial diving. These reports can be viewed at:
http://www.cdc.gov/niosh/fire/pdfs/face200529.pdf
http://www.cdc.gov/niosh/fire/pdfs/face200436.pdf
http://www.cdc.gov/niosh/fire/pdfs/face200215.pdf
The NIOSH reports list various PSD manuals and recreational SCUBA manuals as references; nothing related to the 1910.401 commercial diving standard. Since NIOSH and OSHA are so closely related, wouldn't it be prudent if the investigators referenced specific commercial diving standards that were violated, if in fact PSD "training" was not also excluded from the commercial diving standard?

POINT 3
Recovering a submerged vehicle can be a public safety function in some cases and may be a commercial diving function in other cases.

If the vehicle contains a victim or evidence, then the public safety function may extend to the recovery of that vehicle.

If a vehicle has been submerged for 20 years and slowing the flow of water through a canal, then recovery will likely require that the divers comply with the commercial diving regulations.

There are always exceptions, especially as it relates to vehicle recovery and PSD teams better make certain they either;
1) comply with the commercial diving standard
OR
2) make certain they are clearly exempt and that their efforts are in the best interests of "public safety."

In summary, the Federal Registers from the 1970s exclude public safety diving functions from the OSHA commercial diving standards; the public safety diving exemption is clearly written into the current OSHA standard; the OSHA Directive Number CPL 02-00-143 dated August 11, 2006 reinforces that public safety diving is exempt from the OSHA 1910.410 commercial diving standard; past PSD training fatality investigations conducted by NIOSH do NOT reference the OSHA commercial diving standard when making their recommendations; I am not aware of any PSD fatalities related to recovering a vehicle other than a 1998 incident where a volunteer team was recovering a boat and there were no citations by OSHA against the team in this case. Vehicles are regularly recovered by public safety diving teams and there has never been an enforcement action (to my knowledge) against a public safety diving team performing a vehicle recovery.

The forum readers can draw their own conclusions based on the facts stated above. While some may argue points about rules, regulations and standards, I am a proponent of using common sense, staying safe, using proper equipment, having good training, and most importantly, not getting hurt/killed.

 

[Mphill9929]

I have been absent from this group for far too long.... I have read this thread from beginning to here with great interest. The issues that have been addressed are issues that have been discussed for at least the last thirty years. And the issues, while gracefully argued and explained here are not necessarily about NFPA Compliance or OSHA Exemption. There is an end issue that is missing.

Some of you have written that you have tried to contact Butler at OSHA and are still waiting to hear back. I am very interested to see if you get the same response I did. I personally talked with S. Butler at OSHA a couple of years ago and he was surprised that there was still questions about the OSHA Exemption. The bottom line, according to him was - If there is a chance of saving life or limb - there is an exemption in place. By his explanation, if we are recovering a vehicle that has nothing to do with saving life or limb, we fall under OSHA. The extension of this explanation would apply even to a drowned victim.

The difference though and why, in my opinion, we are still debating this issue is that PSDs are not on the OSHA radar because they recognize that we are not commercial divers. Yet if our teams started doing underwater repairs or other work - even for our municipalities - we cause the red flags to come up; but we know that. When the bridge collapsed, local divers were on scene soon after it happened - and so was OSHA. When it was obvious rescue was no longer a possibility and the navy divers showed up, it is my understanding (I could be wrong) that the local divers were no longer allowed to dive. ~ If I am wrong - there is no need to start a thread to tell me so, it has nothing to do with the point of my post....

OSHA has the ability and authority to levy fines. NFPA does not. But if OSHA is not in the habit and does not have the desire to punish PSD teams, we get a "pass". That is why so many folks have come to the conclusion that the exemption is complete.

NFPA is a for profit entity. They do not do what they do for free. Fire departments follow NFPA standards because it gives them standards to use that help guide action and reduce liability. NFPA is a fire service business and law enforcement has a really hard time with being told they should follow NFPA standards. So if by being compliant, an agency needs to follow all aspects of NFPA including the referenced standards, a law enforcement team would be hard pressed to do so. As a result, we see progressive PSD teams taking the parts of each standard that they can apply and use effectively and that is not always every line of each standard.

So what we are really looking at is not necessarily being NFPA compliant or OSHA Exempt, we are looking for justification of what we do. And it is justification for what we do that we will be held responsible for if we are called into court for a criminal or civil law suit. That is the end all of the arguments that has been missing.

If you get hurt or killed or get someone hurt or killed during a dive call, you will have to justify what you or your team did. This is not a position any team wants to be in. So if you work to be NFPA compliant and / or follow OSHA standards with the "Rescue life or limb" clarification of the exemption, you will have a viable position to defend. If you do any less, and you have to testify and justify your actions and these two standards are introduced - you will not do well.

One thing continues to surprise me. We still do not have a diving standard specifically FOR what we do. Of all the diving disciplines mentioned in a previous post, PSD is the only one that does not have an independent standard and we are forced to travel through the maze of OSHA and NFPA.

Mark Phillips
Editor / Publisher
PSDiver Monthly
PSDiver.com

 

[BladesRobinson]

The NFPA 1670 and 1006 are standards.

 

[Mphill9929]

Sure they are - I never said they were not. But at the same time, I find it difficult to use or recognize NFPA 1670 and 1006 as THE definitive standard for Public Safety Diving. In my opinion, NFPA only offers a piece of what we need, and is not going to be or be capable of becoming, the equivalent provider of a standard that meets or exceeds the standards of the other diving disciplines.

Mark Phillips
Editor / Publisher
PSDiver Monthly
PSDiver.com