Pro-Drive, Inc.
Four commercial-diving safety items affirmed
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This order from 1995 bound only the parties to this case; it isn't precedent. Ezel answers your situation under the current OSHA standards and Commission precedent, with citations.
Plain-English summary
Pro-Drive, Inc. performed a commercial dive to seal an underwater valve at a power plant in Illinois. The diver died after completing the repair, and the pathology and coroner report attributed the death to asphyxia caused by malfunctioning diving equipment. Administrative Law Judge Sidney J. Goldstein credited the Coast Guard investigator's reconstruction and found that the breathing-gas pressure and flow were insufficient. He affirmed items concerning dive planning, use of a depth gauge, helmet ventilation, and the primary breathing-gas supply. He vacated the item alleging that the diver lacked proper nourishment or rest because the record did not establish either condition. The citation's recommended penalties were left unchanged, but the amounts are not stated in the decision text.
Decision snapshot
- Cited standard(s): 29 C.F.R. §§ 1910.410(b)(3), 1910.421(d)(3), 1910.430(g)(1), 1910.430(h)(2), and 1910.425(c)(3).
- Outcome: Mixed. One item was vacated, four items were affirmed, and the recommended penalties were left unchanged.
- Key point: The judge relied on contemporaneous pressure logs and a witnessed Coast Guard reconstruction to find that the diver received inadequate breathing gas.
Full text (OSHRC public release)
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW
One Lafayette Centre
1120 20th Street, N.W. -9th Floor
Washington, DC 2003&3419
SECRETARY OF LABOR
Complainant,
v. OSHRC DOCKET
NO. 92-2532
PRO-DRIVE, INC.
Respondent.
NOTICE OF DOCKETING
OF ADMINISTRATIVE LAW JUDGE’S DECISION
The Administrative Law Judge’s Report in the above referenced case was
docketed with the Commission on April 13, 1995. The decision of the Judge
will become a final order of the Commission on May 15, 1995 unless a
Commission member directs review of the decision on or before that date. ANY
PARTY DESIRING REVIEW OF THE JUDGE’S DECISION BY THE
COMMISSION MUST FILE A PETITION FOR DISCRETIONARY REVIEW.
Any such etition should be received by the Executive Secretary on or before
May 4, 19B5 in order to permit sufficient time for its review. See
Commission Rule 91, 29 C.F.R. 2200.91.
All further pleadings or communications regarding this case shall be
addressed to:
Executive Secretary
Occupational Safety and Health
Review Commission
1120 20th St. N.W., Suite 980
Washington, D.C. 20036-3419
Petitioning parties shall also mail a copy to:
Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004 .
200 Constitution Avenue, N.W.
Washington, D.C. 20210
If a Direction for Review is issued by the Commission, then the Counsel for
Regional Trial Litigation will represent the Department of Labor. Any party
having questions about review nghts may contact the Commission’s Executive
Secretary or call (202) 606-5400.
FOR THE COMMISSION
Date: April 13, 1995
DOCKET NO. 92-2532
NOTICE IS GIVEN TO THE FOLLOWING:
John H. Secaras, Esq.
Re ‘onal Solicitor
O&e of the Solicitor U.S. DOL
230 South Dearborn &.
Chicago, IL 60604
iZ!it%ikefffES#*K Seigler,
Ltd.
434 Pearl Street
Ottawa, IL 61350
Sidney J. Goldstein
Administrative Law Jud e
Occupational Safety an f Health
Review Commission
Room 250
1244 North S eer Boulevard
Denver, CO tY0204 3584
00103199451:05
UNmED SIxTEa OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVtEW COMMISSION
1311N. Spew Boulevad .
Room 250 .-
Denvw, Colwado 802044582
I
SECRETARY OF LABOR, I
I
Complainant, I
I
v. I 6SHRC DOCKET .
I NO. 92-2532 - .
PRO-DlS&, INC., I
I
Respondent. I
I
APPEARANCES:
For the Complainant:
Lisa R Williams, Esq., Office of the Solicitor,
U.S. Department of Labor,Chicago, IL
Darrell K Seigler, Esq., Ottawa, IL
.
.
DECISION AND ORDER
Goldsteti, Judge:
This is an action by the Secretary of Labor against Pro-Dive, Inc. to enforce a citation
issued by the Occupational Safety & Health Administration for the alleged violation of five
safety regulations relating to commercial diving adopted under the Occupational Safety &
Health Act of 1970. The controversy arose after an industrial hygienist of the
Administration inspected a work place of the Respondent, concluded that it was in violation
of the regulations and recommended that the citation be issued. The Respondent disagreed
. with this determination and filed a notice of contest. After a complaint and answer were
filed with this Commission, a hearing was held in Chicago, Illinois.
Preliminary facts disclose that the Respondent is engaged in the commercial diving
business and contracted with Commofiwealth Edison Company to seal an underwater valve
at its plant in LaSalle County, Illinois. To reach the repair site, the diver was to descend
approximately sixty feet, move laterally about twenty feet and then ascend about twenty feet
to reach the valve. The dive team consisted of Randy Jacobs, president of the Respondent
who acted as dive supervisor and standby diver; Terzy Navarro, the diver; and Mark Parisot,
the dive tender.
After the repair job was completed, it appeared that Mr. Navarro, the diver, was in
distress. The team attempted to pull Mr. Navarro to the surface by the line attached to him.
However, there was an apparent snag, and Mr. Jacobs immediately went to Mr. Navasro’s
rescue. The diver was lifted to the surface where emergency treatment was administered
to no avail. Mr. Navarro passed on in a hospital on April 18, 1992. According to a
pathology and coroner report, the cause of death was asphyxia - malfunctioning diving
equipment.
Citation No. 1, Item 1 29 CFR 1910.410&)(3]
Item 1 of the citation charged that:
The employer permitted a dive team member to dive or be
othetise exposed to hyperbaric conditions during a temporary
physical impairment or condition which was known to the
employer and was likely to affect adversely the safety or health
of a dive team member:
Commonwealth Edison, LaSalle County Station -
Dive team members had not had proper
nourishment or rest prior to the dive.
in violation of the regulation which provides:
(3) The employer shall not permit a dive team member to dive
or be otherwise exposed to hyperbaric conditions for the
duration of any temporary physical impairment or condition
which is known to the employer and is likely to affect adversely
the safety or health of a dive team member.
2
The evidence in this connection is to the effect that the dive team arrived at the work
site about 1O:OOp.m. on April 16,1992, but did not commence operations until about lo:45
a.m. the following day. Messrs. Jacobs and Parisot testified that they did not know what, if
anything, Mr. Navarro ate prior to the dive, but they saw him drink coffee. There was a
vending machine on the premises available to anyone in the group. No one on the team
noted that Mr. Navarro was hungry or weakened from lack of food. The pathologist found
no food in his stomach and was, therefore, unable to state when Mr. Navarro consumed his
last meal.
So far as sufficient rest prior to the dive is concerned, there is nothing in the record
to establish that Mr. Navarro was unusually tired at the time of the dive. He made no
complaint to this effect; indeed, he remarked that he felt fine at the time he commenced his
descent.
Since Mr. Navarro’s fellow employees and apparent only witnesses to his physical
condition at the time of the dive noted no impairment due to lack of food or rest, I conclude
that the Complainant failed to establish that Mr. Navarro did not have proper nourishment
or rest prior to the dive. This item of the citation is vacated.
Citation No. 1. Item 2 - 29 CFR 1910.421(d)(3]
Item 2 of the citation alleges that:
Planning of a diving operation did not include an assessment of
the safety and health aspects of the breathing gas supply:
Commonwealth Edison, LaSalle County Station -
The employer did not determine if the air supply
to the diver would be adequate for the proposed
dive.
in violation of the regulation which appears at 29 CFR 1910.421(d)(3) which provides:
(d) Planning and assessment. Planning of a diving operation
shall include an assessment of the safety and health aspects of
the following:
(3) Breathing gas supply (including reserves).
The record discloses that on April 22, 1992, Mr. John Maronic, the Administration’s
3
industrial hygienist, commenced an investigation of the accident. He intetiewed Mr. Jacobs
and was told Mr. Navarro died because of a buildup of carbon dioxide in his diving helmet.
Mr. Maronic also spoke with Mr. Dave Clark of Scott Diving who informed him that there
were concerns about the air flow to the helmet due to a plugged diffuser.
To assist in the investigation, the Agency contacted Lt. Commander Allan Harker of
the U.S. Coast Guard, a seventeen year veteran of that service and a highly experienced
diver and investigator of marine accidents. Two months after the mishap, Lt. Commander
Harker visited the accident scene and reenacted on videotape the events of the fatal day in
the presence of IMr.Jacobs and his attorney, Mr. Maronic, representatives of Commonwealth
Edison Company and the manufacturer of the Desco helmet, and Mr. Navarro’s brother.
Lt. Commander Harker duplicated the work set up as closely as possible to the actual events
of April 17, 1992. With Mr. Jacobs’ guidance, Lt. Commander Harker disassembled the
helmet and explained to the observers what he was doing and what he found. No one
*
present objected to his procedures, theories, and interpretations. In his written report, he
stated that the apparent ca,use of the tragedy was insufficient volume of air supplied to the
decedent at the time of the casualty, most likely resulting in an excessive amount of carbon
dioxide. There was no doubt that the air pressure was below the minimum of 125 psi.
The Respondent retained Mr. Robert Wass to do a similar study. Mr. Wass is
president of Island Divers and a teacher of sport through commercial diving. He is also an
electrician by trade and was employed as a foreman in this occupation. Mr. Wass had
extensive experience in the investigation of diving fatalities, but did not participate in any
fatality due to a Desco helmet or elevation of carbon dioxide. He also tried to duplicate the
events of the diving accident. In his report, Mr. Wass disagreed with Lt. Commander
Harker’s opinion and concluded that the Respondent did not violate the regulation relating
to the ventilation rate. Mr. Wass also faulted the Commander’s methodology and procedure.
Based upon his study, Mr. Wass concluded that the diver was supplied with air pressure
between 125 and 150 psi, an amount more than sufficient for the dive.
In this connection, Mr. Jacobs testified that Mr. Navarro was highly experienced in
his field and well acquainted with the Desco helmet, although this equipment had not
previously been used in dives of sixty feet. Mr. Jacobs made a visual inspection of the
4
equipment and relied on his experience that the air flow was normal, but he did not know
the actual air flow or cubic feet per minute supplied to the diver. Mr. Jacobs believed the
air pressure was between 125 and 150 psi and acknowledged that 100 psi would be
insufficient. The company’s diving systems standard operating procedures called for air
pressure to be between 125 and 150 psi.
In its brie& the Respondent criticizes Lt. Commander Harker’s conclusion regarding
the amount of air pressure supplied to N[r. Navarro, and requests that the Court look closely
at Exhibits R-5, R-6 and R-7 as confirmation that, on the day of Mr. Navarro’s death, the
pressure relief valve was set at 200 psi and had a working pressure of 170 psi. I looked at
these exhibits which are dated May 11 and May 12,1994, approximately two years after the
accident and find nothing to indicate the exact psi on April 17, 1992. On the other hand,
logs kept by Commonwealth Edison Company disclose that on the fatal date the air pressure
ranged from 109 to 111 psi, amounts considered below the minimum to sustain Mr. Navarro
at the sixty foot depth.
Inasmuch as there was insufficient air pressure supplied to pvlr. Nav;irro on the
accident date, the Respondent was in violation of this regulation, and this item of the
citation is, therefore, affirmed.
Item 3 of the citation stated that:
Gauges indicating diver depth, which can be read at the dive
location, were not used for all dives:
Commonwealth Edison, LaSalle County Station -
a depth gauge was not used for this dive.
in violation of the regulation found at 29 CFR 1910.430(g)(l) providing:
(g) Gauges and tiineke epingdevkes. (1) Gauges indicating diver
depth which can be read at the dive location shall be used for
all dives except SCUBA
The evidence is undisputed that the Respondent had a pneumofathometer available
at the job site, but decided not to use this gauge during the dive in issue. The Respondent
urges that on hand at the dive was the umbilical hose which was marked with increments of
5
distance, and that the marking satisfied the regulation. A Fathometer is used as a sonic
depth finder. Inasmuch as the diver was required to move laterally as well as vertically, the
hose would not be as effective in measuring depth as the sonic depth finder. A gauge is
generally considered to be an instrument, not a hose.
Respondent’s Exhibit No. R-1 is entitled “Operations Safety Procedure Manual.” In
its Appendix IV, II headed “Diving”, paragraph 6 provides “A pneumofathometer or equally
accurate method will be provided for measuring depths or dives * * *.” In this case, it has
not been demonstrated that the umbilical cord measurement would be as accurate as a
gauge, especially in view of the fact that the diver was required to move lateral&. Thus, the
Respondent was in violation of this regulation, and this item of the citation is affirmed.
Citation No. 1 - Item 4a - 29 CFR 1910.430(h@J
Citation No. 1 - Item 4b - 29 CFR 1910.425kM3)
Items 4A and 4b are related and read as follows:
The alleged violations below have been grouped because they
involve similar or related hazards that may increase the
potential for illness.
4a
Surface-supplied air masks and helmets did not have a
minimum ventilation rate capable of 4.5 a&n at any depth at
which they are operated:
. Commonwealth Edison, LaSalle County Station -
The dive helmet did not deliver 4.5 acfin of air to
the diver.
- 4b
Surface-supplied air diving operations did not have a primary
breathing gas supply sufficient to support divers for the duration
of the planned dive including decompression:
Commonwealth Edison, LaSaIle County Station -
The primary breathing gas supply was not
sufficient to support the diver for the planned
dive.
in violation of the regulations found at 29 CFR 1910.430(h)(2) and at 29 CFR 1910.425(c)(3)
copied below:
(2) Surface-supplied air masks and helmets shall have a
minimum ventilation rate capability of 4.5 acfin at any depth at
which they are operated or the capability of maintaining the
diver’s inspired carbon dioxide partial pressure below 0.02 ATA
when the diver is producing carbon dioxide at the rate of 1.6
standard liters per minute.
(3) Each diving operation shall have a primary breathing gas
supply sufficient to support divers for the duration of the
planned dive including decompression.
These two regulations concern surface-supplied air masks and helmets and the
primary breathing gas supply. Again, there is a conflict between Lt. Commander Harker’s
studies and Mr. Wass’ conclusions. These reports have been discussed previously. As a
result of his investigation, Lt. Commander Harker concluded that there was insufficient
amount of surface supplied air to Mr. Navarro, well below the required 4.5 a&n, resulting
in a build up of carbon dioxide beyond the demands of the regulation.
Lt. Commander Harker explained that the regulation has two alternatives. Either
there must be a 4.5 a&n ventilation rate which requires that amount of air going into the
helmet or the carbon dioxide rate would be no more than .002 or two tenths of one percent.
In the latter case, there could be no guesswork. The carbon dioxide must be measured.
This expert was of the opinion that neither alternative of the regulation was satisfied. On
the other hand, Mr. Wass had a contrary view and was of the opinion that the Respondent
complied with the regulations.
With this diversity of opinion, I am placing more reliance upon the testimony and
conclusions of Lt. Commander Harker because tests a few hours after the accident disclosed
deficient air quanti~, because Lt. Commander Harker conducted his tests approximately two
months after the tragedy and set up the equipment, including the black box, as Mr. Jacobs
informed him were in place at the time of the mishap; because Lt. Commander Harker
conducted his tests witnessed by Mr. Jacobs and his attorney, the industrial hygienist,
representatives of Commonwealth Edison Company and the manufacturer of the Desco
helmet, and Mr. Navarro’s brother; because the demonstrations, explanations and comments
were recorded on videotape with no objection to the procedures; because Mr. Wass
conducted his investigation over a year after the accident without observers; because the
7
deceased was an experienced diver and well acquainted with the Desco h&net; because
there is no proof that Mr. Navarro varied his work habits on this particular dive; because
there is nothing in the record to indicate Mr. Navarro violated safety regulations or that his
death was caused by his own misconduct or disregard of safety procedures as alleged by the
Respondent in its brief.
I, therefore, find that the Respondent was in violation of the regulations recorded in
Citation No. 1, Items 4a and 4b.
The parties made little, if any, reference to the recommended penalties in the
citation, and they, therefore, will not be disturbed.
In sum, Citation No. 1, Item 1 is vacated. The remainder of the citation is affirmed.
Dated: April 7, 1995
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