If divers are employed from time to time on your projects, you should become familiar with OSHA regulations concerning diving operations. While this may be specialized work ordinarily done by subcontractors, remember that if you are the general contractor on a project, you may be liable under OSHA’S “multi-employer doctrine” (as the party with general supervisory control over the worksite) for violations exposing divers to hazards. The general contractor’s duty, as you know, runs not only to its own employees, but “extends to protection of all worksite employees.”
Section 1910.422 of the Code of Federal Regulations, “Procedures during dive,” sets forth the required safeguards. To abbreviate the rules slightly, the regulation addresses eight aspects of diving operations.
Water entry and exit. The first is entry to and exit from the water. There must be “means capable of supporting the diver” for entering and exiting the water. The means of exiting the water must extend below the water surface, and there must be means to assist an injured diver from the water, or into a bell.
Communications. Operational, two-way voice communication systems must be used between each surface-supplied air or mixed-gas diver and a dive team member at the dive location or bell, and (if used) the bell and the dive location.
Decompression. Decompression, repetitive, and no-decompression tables (as appropriate) shall be at the dive location.
Dive Profiles. A depth-time profile (including, when appropriate, andy breathing gas changes) must be maintained for each diver during the dive, including decompression.
Hand-Held Power Tools and Equipment. Such tools and equipment must be de-energized before being placed into or retrieved from the water. They must not be supplied with power from the dive location until requested by the diver.
Welding and Burning/ A current supply switch to the welding or burning electrode must be tended by a dive team member in voice communication with the diver performing welding or burning, and kept in the open position (to interrupt the current flow) except when the diver is welding or burning. The welding machine frame must be properly grounded. Cables, electrode holders, and connections must be properly insulated, and rated for the maximum current required by the work. Divers performing these operations must be furnished with insulated gloves. If closed compartments, structures or pipes which are to be welded contain flammable vapor, or if the work itself may generate such vapors, they must be vented, flooded, or purged with a mixture of gases which will not support combustion.
Explosives. If explosives are to be used in conjunction with diving operations, the regulation cross-references Sections 1910.109 and 1926.912 of the Code of Federal Regulations, which regulate the transport, storage, and use of explosives. The electrical continuity of explosive circuits must not be tested, until the diver is out of the water, and explosives must never be detonated while a diver is in the water.
Termination of the Dive. The working interval of a dive must be terminated if the diver requests it, if he fails to respond appropriately to communications or signals from a dive team member, or if communications are lost and not quickly restored between the diver and dive-team member at the dive location (or between the person in charge, and the person controlling the vessel in liveboating operations).
In Lanzo Construction Co., Inc. v. OSHRC, the contractor was employed by the Miami-Dade Water and Sewer Department to install a force main sewer pipeline. The work required a diver to go into excavated trenches, filled with murky water in which visibility was zero, to assist in connecting sections of the pipeline.
The OSHA compliance officer found the contractor’s diver under about ten feet of water in an excavated trench. The diver , using surface-supplied air diving equipment, communicated via pull and tug signals with a line tender at the surface.
Although parts of the excavation in which the diver was working were protected against cave-ins by trench boxes, the contractor considered that installing protection against cave-ins at the portion of the trench that intersected utility lines was more dangerous than using a trench box there. Of course, it was in this unprotected area that the OSHA inspector happened upon the contractor’s diver.
The published decision from the 11th Circuit U.S. Court of Appeals in Atlanta omitted a full list of the seventeen violations for which this contractor was cited. For purposes of the appellate case, the two that remained unresolved were the failure to provide a two-way voice communications system, and the failure to provide protection against cave-ins in the portion of the trench in which the diver was observed working.
In the Lanzo Construction case, a lawyer for the Department of Labor had, during proceedings prior to the hearing before the Administrative Law Judge, committed an ethical violation by twice contacting the diver, without the consent or knowledge of the employer’s attorney. Hoping, possibly, to downplay these incidents the ALJ found only “serious” and not “willful” violations of the two standards mentioned, even though (with reference to the two-way communications system) the employer had been cited three years previously for the same violation, the diver testified that an operational two-way voice system had not been in use for three years prior to the current citation, and the company’s own safety manual required it.
The OSH Review Commission upgraded the violations to “willful,” and rebuffed the employer’s attempt to fashion a defense of “good faith” to the violations
As for the unauthorized contacts by the government lawyer, these were criticized, but the Court of Appeals determined that they had not actually prejudiced the employer. Accordingly, the Court upheld the decisions below, which denied dismissal of the violations, based on these ethical violations.
The potential repercussions of a “willful” OSHA violation, of course, far surpass the small cost to the employer of providing the two-way voice communications for its diver. Having once been cited for this violation, this contractor effectively invited a second, “willful” violation. While, certainly, there are OSHA regulations that are complex and highly technical, the rules for diving rules are largely matters of common sense. If your company employs divers, or divers work at your jobsites, it’s in your interests to ensure that these rules are complied with.
Thomas H. Welby is a licensed professional engineer, as well as an attorney and managing partner of Welby, Brady & Greenblatt, LLP, a construction law firm with its main office in White Plains. Articles in this series are for general guidance only, and should not be relied upon as providing all information necessary for compliance with OSHA and other legal requirements.