PSD Teams and OSHA, NFPA compliance

[BladesRobinson]

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.

With all due respect, I believe that Butler misspoke when he spoke to Mark and others years back. Furthermore, it is likely that because of the confusion he generated that the OSHA Directive Number CPL 02-00-143 dated August 11, 2006 was issued.

I will point out the same thing that the attorneys representing the State of Florida pointed out back in 1994, and the same thing that other attorneys since then point out when asked for an interpretation.

For reference I copy the exemption language (again) ...

1910.401(a)(2)
This standard applies to diving and related support operations conducted in connection with all types of work and employments, including general industry, construction, ship repairing, shipbuilding, shipbreaking and longshoring. However, this standard does not apply to any diving operation:
1910.401(a)(2)(ii)
Diving solely for search, rescue, or related public-safety purposes by or under the control of a government agency.

Notice the punctuation that follows "search" and precedes "rescue" above. There is a coma. A coma is used to separate the elements in a series (three or more things), including the last two.

The OSHA document does not read "search and rescue" ... it reads, "search COMA rescue." In other words SEARCH is an exempt function and RESCUE is an exempt function. If a public safety diver is working "under the control of a government agency" and is conducting a "search" or "related public-safety purpose" he is EXEMPT from the OSHA standard for COMMERCIAL DIVING.

It is ridiculous to believe if a PSD is killed in the line of duty that OSHA is going to give someone a "pass."

When the PSD team is exempt, OSHA does not have the authority to issue a fine or give a legitimate PSD team a "pass" because exempt PSD teams are EXEMPT!

If a PSD team is working outside the exemption; i.e., repairing a pier, removing zebra mussels at the water plant on a monthly basis, removing debris from a water intake, etc ... and a member of the team gets killed, OSHA is going to be all over the agency if they have not followed the OSHA guidelines.

The post by TC earlier and the OSHA Directive Number CPL 02-00-143 dated August 11, 2006 spells out what is exempt and what isn't...

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)).

 

[Mphill9929]

With all due respect, I believe that Butler misspoke when he spoke to Mark and others years back. Furthermore, it is likely that because of the confusion he generated that the OSHA Directive Number CPL 02-00-143 dated August 11, 2006 was issued.

I caused the confusion and influenced OSHA? I did not know I had that kind of clout. At the time, there was so much confusion about the OSHA exemption, I am sure they felt the need to clarify it. If you recall, this was just a few years after the ADC pushed so very hard for the exemption to be changed or withdrawn because we were being identified in the commercial diving standards and even back then, what we do was being viewed as a separate diving discipline.

When I have questions about the meaning and intent of a written whatever and go to the source, I take what I am told as truth. So if you consider the explanation I was given personally, and not an interpretation I want to believe, the idea I was attempting to explain when I used the term "pass" might make sense. There are 6 pages here of folks telling us what the wording means and how it applies and trying to make sense of it. It is a common topic on other discussion groups as well. What I wrote of the exemption came from OSHA.

That does NOT mean I disagree with your argument or logic, I have been on that same page with you for a very long time. My solution was to develop a separate PSD Standard so that we could end this problem once and for all. NFPA is not going to be our fall back standard.

It is not that hard to reach people who have the ability to actually answer some of these questions and it gets frustrating after a time to argue a point that is based on opinions. I did not try to interpret the standard or explain each sentence, I simply offered the information I had obtained from the source. The rest was shared and identified as an opinion that makes sense to me.

The difficulty of this topic is trying to find sense in the wording of the exemption. As long as we fall under a commercial diving standard we will always have these issues. If we are indeed exempt from OSHA for search, rescue, or other public-safety purposes and know we are not exempt from work that could be considered commercial diving, where do we draw the line?

Even following your argument, we have to decide what it means after we search and find something. If we find an empty car are we exempt if we recovery it? If we find a shotgun on the river bottom at 60', diving in zero vis, we can be pretty sure it is not a threat to the public - The problem with the exemption - as you point out - reads search comma rescue ... it does not include recovery.

So if we acknowledge that if we search with the goal of saving life or limb or perform rescue with the goal of saving life or limb, then the explanation I was given makes sense. Convert the operation to recovery and the explanation I was given removes the exemption and forces us into commercial diving standards. And I do not like that anymore than you do -

I am not sure you get that I am not arguing with you about this - I agree with most of what you are saying but it does not match what I was told from the source. In your positions with IADRS and DRI you represent both a non-profit and a commercial entity. I would rather you argue FOR us to OSHA and get a written clarification FOR us so we can end this dispute once and for all.

Mark Phillips
Editor / Publisher
PSDiver Monthly
PSDiver.com

 

[BladesRobinson]

I caused the confusion and influenced OSHA? I did not know I had that kind of clout.

I did not indicate that Mark was responsible for the confusion. I think Butler (an OSHA employee) is responsible for the confusion (read my words in post #51).

I think it is important to mention that the National Institute for Occupational Safety and Health which investigates fire fighter (PSD) fatalities would site the commercial diving standards written by the Occupational Safety and Health Administration if the PSD exemption did not apply to training, recovery, etc. It is apparent that Jay Tarley, Steve Miles and others at NIOSH can read and interpret the OSHA standard properly and understand what is exempt (read my words in post #47, point #2).

Butler was correct when he stated that there was an exemption in place when divers are working to save a life. That is covered by paragraph 1910.401(b) (see post #17 and post #20). The language in paragraph 1910.401(b) covers ALL divers. The reason why public safety divers are exempt from the standard written (solely) for commercial divers is because OSHA believes "that safety and health regulation of the police and related functions are best carried out by the individual States or their political subdivisions." This was their opinion back in the 1970s when the standard was drafted and this was restated in the OSHA Directive Number CPL 02-00-143 dated August 11, 2006. (see post #14, post #20, and post #51).

The language is clear. Many people can read the information and and interpret the PSD exemption properly. (see post #6 from Tacman55, post #15, 27 & 41 from Thalassamania, post #22 from Muddiver, post 29 from stimpy4242, post #30 from TC). Notice that the poeple who have weighed in on the OSHA interpretation have been around the block several times and wear the titles of "ScubaBoard Staff, ScubaBoard Guide, Instructor, Divemaster, etc.

The "dead horse" is "hardened glue" at this point but I am available to answer any additional questions.

Regards,

Blades Robinson

 

[Thalassamania]

I always felt that:

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 ...

was pretty darned clear.

 

[Mphill9929]

The language is clear. Many people can read the information and and interpret the PSD exemption properly

OK - I give up. I cannot argue against your argument anymore. But if ALL of these people still have to interpret the PSD exemption properly, exactly WHOSE interpretation am I supposed to go with? How clear is it if it has to be interpreted?

We will have to agree to disagree on this once again. But again, in your position as a Director of Dive Rescue International and the Executive Director, International Association of Dive Rescue Specialists, why not ask for an official, written explanation of the intention of the exemption direct from OSHA? You have the standing in the industry to do that AND the knowledge and intelligence to argue your points directly. I asked and got a response that I shared. I can;t help it that it was not a popular response.

Again - I agree with most of your logic and your argument. I would rather have a document to fall to that clarifies the issue, not wording that has to be interpreted or opinions based on interpretations.

The worst that could happen is we are told that you are right and we are indeed totally exempt from OSHA.

Mark Phillips
Editor / Publisher
PSDiver Monthly
PSDiver.com

 

[joslynlara]

NFPA standards have become the global standards for those who respond to technical search and rescue incidents with the goal of ensuring effectiveness.

_________________
osha safety manual

 

[Mphill9929]

There is a great deal of incorrect, partially correct and wrong information concerning the relationship between OSHA and Public Safety Diving. We spent 9 months researching, writing and working with OSHA to get the definitive answers to the question. For instance, OSHA considers Public Safety Diving to be Commercial Diving. The exemption only applies under certain situations and IS NOT indefinate! Some dive teams ARE NOT covered by OSHA.

You can find all of the information for free in the latest issue of PSDiver Monthly. It is a FREE ezine and provides the final answer on the subject of OSHA and Public Safety Diving.

PSDiver Monthly Issue 112 is now available!
This issue went out as a Special Edition and finalizes the debate and uncertainty of the OSHA relationship to Public Safety Diving and the much interpreted Exemption. Get your free copy at PSDiver.com

---------- Post added November 6th, 2015 at 10:09 AM ----------

There is a great deal of incorrect, partially correct and wrong information concerning the relationship between OSHA and Public Safety Diving. We spent 9 months researching, writing and working with OSHA to get the definitive answers to the question. For instance, OSHA considers Public Safety Diving to be Commercial Diving. The exemption only applies under certain situations and IS NOT indefinate! Some dive teams ARE NOT covered by OSHA.

You can find all of the information for free in the latest issue of PSDiver Monthly. It is a FREE ezine and provides the final answer on the subject of OSHA and Public Safety Diving.

PSDiver Monthly Issue 112 is now available!
This issue went out as a Special Edition and finalizes the debate and uncertainty of the OSHA relationship to Public Safety Diving and the much interpreted Exemption. Get your free copy at PSDiver.com

---------- Post added November 6th, 2015 at 10:14 AM ----------

It turns out Blades and I were BOTH wrong. The concepts we have ALL presented of being exempt is wrong. It took 9 months but we were finally able to get the true answers. The results have been published as a special edition of PSDiver Monthly. It is issue 112 and can be found for free at PSDiver.com.

Mark Phillips
Editor / Publisher
PSDiver Monthly
PSDiver.com

 

[ReefGuy]

I'm glad to see your post, Mark. I've been eagerly awaiting the new PSdiver, but the last one on your site is for February? I used to receive these in my email monthly, but haven't recently. Do I need to do something?

Edit: I jumped the gun. Found the new newsletter.

Thanks for your work on this. Hopefully, we can put this issue to bed now.

 

[tc]

Mark, has OSHA reviewed the content and conclusions you present in issue 112?

 

[Mphill9929]

You can tell I do not get here very often... Sorry for the delay in responding Tom.

Yes - OSHA put together a team to work with me and the article went through a very detailed vetting process before it was ever released. They developed the graphs and charts specifically for the article.

I hesitated to respond because this discussion is so old but I did not want to leave that question lingering. It was addressed early on on other sites but I missed coming back here.

Our new project is centered on PSD and Public Safety Officer water related fatalities. At www.PSDiver.com we have made all of our published files freely available and numerous teams have contacted me to let me know they are using some of them as training tools for their teams. PSDiver Monthly also has a Facebook Page where I post updates and new releases.

Mark