Document

THIS CASE IS NOT A FINAL ORDER OF THE REVIEW COMMISSION AS IT IS PENDING COMMISSION

REVIEW

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1924 Building – Room 2R90, 100 Alabama Street SW

Atlanta, Georgia 30303-3104

Secretary of Labor,

Complainant,

v. OSHRC Docket No. 12-1617

Houston Aquarium, Inc.,

Respondent.

Appearances:

Jennifer Johnson Esquire, U. S. Department of Labor, Office of the Solicitor, Dallas, Texas

For the Complainant

R. Edwards Perkins, Esquire, Sheehy Ware & Pappas, PC., Houston, Texas

For the Respondent

Before: Administrative Law Judge Sharon D. Calhoun

DECISION AND ORDER

Houston Aquarium, Inc., operates an entertainment complex in Houston, Texas, known

as the Downtown Aquarium. In response to an employee complaint, a compliance safety and

health officer (CSHO) from the Occupational Safety and Health Administration (OSHA) opened

an inspection of the Downtown Aquarium on January 10, 2012. On July 10, 2012, the Secretary

issued to Houston Aquarium a Citation and Notification of Penalty alleging serious violations of

six subsections of Subpart T, the Commercial Diving Operations standard, 29 C.F.R. §§

1910.401--.440. Houston Aquarium timely contested the Citation and Notification of Penalty.

Houston Aquarium stipulates the Commission has jurisdiction over this proceeding under

§ 10(c) of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651--678 (2014) (Act),

and that Houston Aquarium is a covered business under § 3(5) of the Act (Agreed Prehearing

Statement, ¶¶ E.1, E.2; Tr. 21-22). The Court held a three-day hearing in this matter on August

27, 28, and 29, 2013, in Houston, Texas. The parties filed simultaneous post-hearing briefs on

February 21, 2014. At the Court’s request, the Secretary filed a reply brief on April 14, 2014.

Item 1 of the Citation alleges a serious violation of 29 C.F.R. § 1910.422(c)(1)(i), for

failing to ensure that each surface-supplied air or mixed-gas diver and dive team member at the

dive location had a two-way voice communication system. The Secretary cites seven instances

((a) through (g)) of alleged violations of this subsection. The Secretary proposes a penalty of

$5,500.00 for Item 1. In the parties’ Agreed Prehearing Statement, filed August 23, 2013, the

Secretary withdrew Item 2, which alleged a serious violation of 29 C.F.R. § 1910.422(d), and for

which the Secretary proposed a penalty of $5,500.00 (Agreed Prehearing Statement, ¶ B.1; Tr.

9).

Item 3 of the Citation alleges a serious violation of 29 C.F.R. § 1910.424(c)(4), for failing

to provide each diver with a reserve breathing gas supply consisting of a manual reserve (J valve)

or an independent reserve cylinder. The Secretary cited five instances ((a) through (e)) of

alleged violations of this subsection, but withdrew Instances (a), (b), and (e) at the hearing (Tr.

10). The Secretary proposes a penalty of $5,500.00 for Item 3.

Item 4 of the Citation alleges a serious violation of 29 C.F.R. § 1910.430(g)(1), for

failing to ensure each diver used a gauge indicating diver depth which can be read at the dive

location. The Secretary cited five instances (a through e) of alleged violations of this subsection,

but withdrew Instances b through e in the Agreed Prehearing Statement (Agreed Prehearing

Statement, ¶ B.1.b.4; Tr. 10). The Secretary proposes a penalty of $3,300.00 for Item 4.

Item 5a of the Citation alleges a serious violation of 29 C.F.R. § 1910.430(j)(2)(i), for

failing to ensure each diver wore a safety harness with a positive buckling device. Item 5b of the

Citation alleges a serious violation of 29 C.F.R. § 1910.430(j)(2)(ii), for failing to ensure that

each diver wore a safety harness with an attachment point for the umbilical to prevent strain on

the mask or the helmet. The Secretary proposes a grouped penalty of $5,500.00 for Items 5a and

5b.

Houston Aquarium denies it violated the terms of each of the cited standards. Its primary

defense, however, is that the Commercial Diving Operations standard does not apply to its

workplace. For the reasons that follow, the Court determines the Commercial Diving Operations

standard applies to the cited conditions at the Downtown Aquarium. The Court affirms items 1,

3, 5a, and 5b of the Citation and vacates Item 4. The Court assesses a penalty of $1,500.00 each

for Items 1 and 3, and a grouped penalty of $1,500.00 for Items 5a and 5b.

BACKGROUND

The Downtown Aquarium Complex

The Downtown Aquarium, operated by Houston Aquarium, is a large entertainment and

dining complex. Located on the north side of downtown Houston, the Downtown Aquarium

complex covers several acres and offers a variety of attractions and amusements. Fairground-

type games and rides are located outside the main building along a midway, including a Ferris

wheel, a carrousel, and the Shark Voyage ride. The Shark Voyage ride “is a small train, which

guests get on and the train then takes them to the shark tunnel, which is across the property,

which houses [the] quarter-of–a-million-gallon” Shark Tank Exhibit, located in a building

separate from the main building (Tr. 144).

The main building on the premises is four stories high. The first floor consists mainly of

the Downtown Aquarium’s “exhibit chain,” where the majority of the facility’s freshwater and

saltwater tanks are located. The Downtown Aquarium’s exhibit tanks on the first floor include

the Entry Tank, the Gulf of Mexico Tank, the Grouper Tank, the Demi Tank, the Tower Tank,

and the Lionfish Tank (the Shark Tank is located in a separate building) (Exh. C-7). The exhibit

chain also includes exhibits showcasing reptiles, birds, a white tiger, and a touch-tank. In

addition, the facility’s retail gift shop is on the first floor (Tr. 143, 306).

The Secretary originally issued the instant Citation and Notification of Penalty to “Landry’s Inc. Dba Houston

Aquarium Inc.” In its Answer, Respondent stated, “Houston Aquarium, Inc., is a wholly owned subsidiary of

Landry’s, Inc., which is improperly alleged to be doing business as the Houston Aquarium, Inc. Houston Aquarium,

Inc., not Landry’s, Inc., operates the business at the location where the inspections in issue took place and is the

proper employer to whom the citation should have been addressed.” (Answer, ¶43). On October 12, 2012, the

Secretary filed an Unopposed Motion to Amend Citation and Complaint to name Respondent as “Houston

Aquarium, Inc.” The ALJ to whom this case was originally assigned granted the Secretary’s motion on June 10,

2013, two days before the case was reassigned to this Judge. In this Decision and Order, the Court refers to

Respondent as “Houston Aquarium” and to the physical facility located at 410 Bagby Street in Houston, Texas, as

“the Downtown Aquarium.”

At the close of the Secretary’s case, counsel for Houston Aquarium suggested it would be helpful to tour the

Downtown Aquarium, which is located two blocks from the courthouse where the hearing was held. The

Secretary’s counsel had no objection. Accordingly, the parties’ counsel, the court reporter, and the undersigned took

a field trip to the Downtown Aquarium on August 28, 2013. Jim Prappas, Houston Aquarium’s director of animal

operations, conducted the tour (Tr. 353-357).

The Downtown Aquarium prides itself on having the “only potential[ly] breeding pair of Microdon Sawfish,” an

endangered freshwater sawfish, in North America (Tr. 385).

The second floor of the facility consists predominantly of a restaurant, whose main

seating area forms a balcony around the Dining Room Exhibit, a large (90,000 gallons) saltwater

tank. The restaurant’s kitchen and service stations are also on the second floor (Tr. 143-144).

The third floor houses a large kitchen that is used to service the banquet hall. Customers rent the

banquet hall for “bar mitzvahs and weddings, quinceañeras, and things like that.” (Tr. 144).

The fourth floor is a “support floor,” where the main offices, the staff break room, and

the biology area are located. The biology area contains quarantine exhibits and a holding space

for birds and reptiles not on exhibition (Tr. 144). The fourth floor is also where the diver entry

to the Tower Tank Exhibit is located. The Tower Tank, which is 40 feet deep and holds 12,000

gallons of water, is the deepest tank in the Downtown Aquarium (Exh. C-7; Tr. 308).

Houston Aquarium employs a number of part-time and full-time employees as divers.

Diving occurs on a daily basis at the Downtown Aquarium for purposes of feeding the animals,

cleaning the tank windows, siphoning the gravel, and other required activities. Divers also

perform “event dives,” during which they may engage in activities such as dressing in costumes

and holding up signs for the purpose of entertaining the customers.

OSHA’s January 2012 Inspection

In late December of 2011, a Houston Aquarium employee filed a complaint with OSHA’s

Houston South Office. The complaint alleged that divers at the Downtown Aquarium “weren’t

doing anything scientific whatsoever” when performing their dives and thus should be

complying with the Commercial Diving Operations (CDO) standard, §§ 1910.401---.440 (Tr.

192). Since its inception, Houston Aquarium has conducted its operations based on the

understanding it is exempt from compliance with the CDO standard under the standard’s

scientific diving exception. Section 1910.401(a)(2)(iv) provides the CDO standard does not

apply to any diving operation “[d]efined as scientific diving and which is under the direction and

control of a diving program[.]”

OSHA’s Houston South Office assigned a CSHO to investigate the complaint. The

CSHO first arrived at the Downtown Aquarium on January 10, 2012, and met with Jim Prappas,

Houston Aquarium’s director of animal operations, and William Boyes, Houston Aquarium’s

dive master (Tr. 192, 195, 357). The CSHO informed Prappas and Boyes of the employee

complaint. They provided the CSHO with information and documents supporting Houston

Aquarium’s position that the diving performed at the Downtown Aquarium qualifies as scientific

diving within the meaning of the CDO standard (Tr. 193).

After reviewing the information, the CSHO met with his OSHA supervisors and

recommended that no citation be issued to Houston Aquarium. He testified, “I explained that to

my supervisors, telling them that, you know, they say they’re doing scientific diving and then

they provided me the information of the elements that are required. And based on that, I closed

the case out and no citations were issued at that time.” (Tr. 195).

OSHA informed the complaining Houston Aquarium employee of the CSHO’s

recommendation that no citation be issued. The complaining employee elected to elevate the

complaint to OSHA’s regional administration and to OSHA’s national office. After review,

OSHA’s national office instructed the area director for the Houston South Office to pursue the

employee complaint. The area director instructed the CSHO to reopen the investigation at the

Downtown Aquarium based on a new allegation by the complaining employee (Tr. 607-608).

The complaining employee alleged the information provided by Houston Aquarium during the

January inspection (upon which the CSHO relied in making his recommendation) was outdated.

The complaining employee claimed the information Houston Aquarium provided applied to

dives Houston Aquarium divers had performed some time previously, but not to dives performed

immediately prior to the December 2011 complaint. The CSHO testified he was informed that

Houston Aquarium was not “currently doing scientific studies at the time, and so I needed to go

back and reinvestigate that.” (Tr. 196).

OSHA’s February and June 2012 Inspections

On February 13, 2012, the CSHO returned to the Downtown Aquarium and held another

opening conference and conducted interviews with Houston Aquarium personnel (Tr. 196-197).

The CSHO returned on June 14 and 20, 2012, to observe dives at several of the tank exhibits (Tr.

273). Based on these inspections, the Secretary issued the instant Citation and Notification of

Penalty on July10, 2012.

Witnesses

Nine witnesses testified during the course of this proceeding. Eight witnesses appeared at

the hearing in Houston in August 2013. The testimony of the ninth witness, Houston

Aquarium’s proffered expert Derek Smith, was taken during a discovery deposition on May 23,

2013, in Portland, Oregon (Exhs. R-195a (deposition transcript) and R-195b (deposition video)).

The Court reserved ruling on the qualification of Smith as an expert until this Decision (Tr. 573,

591).

Both parties in their post-hearing briefs argue the testimony of certain witnesses should

be excluded or given no weight. Houston Aquarium argues the testimony of the hearing’s first

witness, a former Houston Aquarium employee, lacks credibility and should be discounted.

Houston Aquarium also contends the testimony of the CSHO should be given no weight because

it “failed to satisfy [Fed. R. Evid.] 702 because his opinion is not based on sufficient facts or

data, reliable principles and methods, or a reliable application of those principles and methods to

the facts of the case.” (Houston Aquarium’s brief, p. 24). The Secretary contends Derek Smith’s

testimony should be stricken from the record because it fails to meet the requirements for the

admissibility of expert testimony set out by the Supreme Court in Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579 (1993).

For the reasons that follow, the Court agrees with Houston Aquarium that the testimony

of its former employee should be accorded no weight. With regard to the testimony of the

CSHO, the Court concludes it is admissible and credible. Upon consideration of the relevant

Daubert criteria, the Court determines Derek Smith is qualified as an expert witness and denies

the Secretary’s motion to exclude his testimony.

Former Employee

The first witness who testified at the hearing had formerly worked for Houston Aquarium

as a diver. At the time of the hearing, he was employed as a veterinary practice manager at a pet

hospital (Tr. 34). The former employee had trouble recalling the specific beginning and ending

dates of his employment with Houston Aquarium, stating, “I have a terrible time with dates.”

(Tr. 35). He initially testified he was working at the Downtown Aquarium during the first

quarter and “the first part of” the second quarter of 2012 (Tr. 36). He testified he dived on an

almost daily basis during that time to perform maintenance tasks in the various exhibit tanks (Tr.

39).

Subsequently, Houston Aquarium established through its dive records that the former

employee had dived only once in 2012, on January 5. The 30-minute dive was supervised by

Houston Aquarium assumes (although the record does not establish it as fact) that the former employee filed the

employee complaint with OSHA in December 2011 that gave rise to the instant case (Tr. 288-289; Houston

Aquarium’s brief, pp. 21-22, 34).

dive master William Boyes, who was retraining the former employee on the procedure for an

emergency assist (Exh. R-194; Tr. 84-88, 627-628).

Upon redirect examination, the former employee asserted that, although he did not

perform dives himself during the first two quarters of 2012, he had observed numerous dives

during that time period when he had acted as a dive tender (Tr. 89). He was asked repeatedly

about dives he had observed as a dive tender “between January 10, 2012, and June 20, 2012,” the

time period at issue in the Citation. The former employee testified he had observed numerous

dives during those months during which Houston Aquarium failed to comply with the cited

subsections of the CDO standard (Tr. 89-105). When asked upon recross examination, however,

if it was true that he had left Houston Aquarium’s employment in April of 2012, the former

employee replied, “It sounds about right,” and he conceded he had no personal knowledge of

dives that occurred at the Downtown Aquarium in May and June of 2012 (Tr. 106).

Houston Aquarium argues the former employee’s testimony “is unreliable and should not

have been admitted over objection” and that [the former employee] “lied during his direct

examination.” (Houston Aquarium’s brief, p. 21). The Court disagrees with this characterization

of the former employee’s veracity. The former employee stated almost immediately upon taking

the stand that he is “terrible” with dates. The former employee continually qualified his

responses, saying, “I believe so,” when asked about certain dates, never categorically stating he

remembered a specific dive occurring on a specific date (Tr. 34, 61, 63, 74, 78, 84).

The Court agrees, however, that the former employee’s testimony is unreliable. The

alleged violation description (AVD) of each of the cited items begins with the words “[b]etween

January 10, 2012, and June 20, 2012.” It is the Secretary’s burden to prove Houston Aquarium

failed to comply with the CDO standard during the time period specified. The record establishes

the former employee made his last dive on January 5, 2012, before the time period at issue.

Therefore, he performed no dives during the pertinent time period. Any testimony regarding

observations that the former employee made while diving at the Downtown Aquarium will not

be considered.

It also is questionable whether all or some of the former employee’s observations made

while acting as a dive tender occurred during the time period cited in the Citation. The record

establishes he left Houston Aquarium at some point in April of 2012. No record documenting

the former employee’s schedule as a dive tender was adduced at the hearing. The former

employee never referred to a specific date when he testified regarding his observations, but

always responded affirmatively when asked if he observed a given dive “between January 10,

2012, and June 20, 2012.” His admitted difficulty in matching up his observations with specific

dates creates a gap in the evidence. The former employee’s inaccuracy in recalling when events

occurred compromises the probative value of his testimony.

For these reasons, the Court accords no weight to the former employee’s testimony His

observations will not be considered in deciding the issues of this case.

The CSHO

Much of the CSHO’s testimony consists of explanations of his reasons for recommending

that the Secretary cite Houston Aquarium for the alleged violations. Houston Aquarium argues

the Secretary failed to establish the opinions of the CSHO are admissible pursuant to Fed. R.

Evid. 702, which addresses testimony by experts:

Here, the Secretary did not offer any opinion from [the CSHO] on whether the

diving conducted at the Houston Aquarium was scientific or commercial in

nature. The failure to do so is not surprising because [the CSHO] had no

experience to determine if a dive is scientific or commercial. This failure to

adduce such evidence is fatal to the Secretary’s case. [The CSHO] did offer

testimony regarding the alleged commercial diving violations over objections by

Respondent. However, [the CSHO] is not qualified to offer this testimony. [The

CSHO] is only a recreational diver with no scientific training. He also has no

experience with either scientific or commercial diving.

(Houston Aquarium’s brief, p. 22-23) (footnotes omitted). Houston Aquarium concludes that the

CSHO failed to satisfy Rule 702 because “his opinion is not based on sufficient facts or data,

reliable principles and methods, or a reliable application of those principles and methods to the

facts of the case.” (Houston Aquarium’s brief, p. 24).

The former employee initially stated he left Houston Aquarium in 2011 (Tr. 34). When asked how long he had

worked at the temporary job he had between working at Houston Aquarium and his current job, he replied, “I left

there in February of this year, I believe, and I began employment very shortly after leaving the Aquarium. I believe

it was July of 2000—no, I guess it would be 2012, June—no, I’m sorry. I have a terrible time with dates.” (Tr. 35).

The former employee failed to remember correctly the approximate date of his dives by a fairly large margin. His

last dive occurred in the Tower Tank on January 5, 2012. Yet when asked if he dived in the Shark Tank Exhibit

“during the first two quarters of 2012,” Kelley replied, “I believe so.” (Tr. 74).

The Secretary did not proffer the CSHO as an expert witness, a fact Houston Aquarium’s

counsel acknowledged at the hearing during an objection (Tr. 211). Houston Aquarium’s

argument appears to be that, because the CSHO was not qualified as an expert in scientific or

commercial diving, it was impermissible for him to state that, in his opinion, Houston Aquarium

committed violations of the cited subsections of the CDO standard.

Opinion testimony must meet the requirements of Fed. R. Evid. 701, which provides:

If a witness is not testifying as an expert, testimony in the form of an opinion is

limited to one that is:

(a) rationally based on the witness’s perception;

(b) helpful to clearly understanding the witness’s testimony or to determining a

fact in issue; and

scope of Rule 702.

In Kaspar Electroplating Corporation, 16 BNA OSHC 1517 (No. 90-2866, 1993), the

Commission addressed at length the admissibility of opinion testimony by OSHA compliance

officers. In that case, the ALJ relied on testimony given by the compliance officer in finding

violations of the cited standards. The respondent argued that because the compliance officer was

not qualified as an expert, the ALJ should not have allowed him to give opinion testimony. The

Commission rejected the respondent’s argument, stating:

Under Commission precedent, opinion testimony by an OSHA compliance

officer may be admissible as non-expert testimony if it is “helpful to the

resolution of a material issue and is based on his personal knowledge.”

Harrington Constr. Corp., 4 BNA OSHC 1471, 1472, 1976-77 CCH OSHD ¶

20,913 p. 25,109 (No. 9809, 1976).

. . .

Kaspar argues that an OSHA compliance officer’s testimony that is based

on experience as a compliance officer or on-the-job training prior to becoming a

compliance officer necessarily constitutes expert testimony. This is incorrect. Of

course, [the compliance officer’s] experience and training might have qualified

him to give expert testimony on certain subjects. However, to say that such a

person may testify as an expert is not to say that the person may only testify as an

expert. As discussed above, under Fed. R. Evid. 701, a witness also may give a

non-expert opinion in court, where it is rationally based on the witness’s

perceptions. Kaspar has failed to show that [the compliance officer’s] opinion

testimony on the items we affirm here was expert testimony. Although it claims

unfair surprise, it could have anticipated from Commission precedent and the

Federal Rules of Evidence that the judge would receive non-expert opinion

testimony from [the compliance officer] on the nature of the alleged hazards.

Id. at 1520.

The Court finds that the CSHO’s testimony is helpful to the resolution of whether

Houston Aquarium committed violations of the cited subsections of the CDO standard and his

testimony is rationally based on his perception. The CSHO’s testimony is admissible in

accordance with Commission precedent and with Fed. R. Evid. 701.

Derek Smith

Derek Smith is the diving safety officer for the Albanian Center for Marine Research.

(Exh. R-195a, attachment 2). Houston Aquarium proffered Smith as “a SCUBA diving expert to

testify regarding applicable safety requirements for the premises in issue and more specifically

the aquarium exhibits that were cited by OSHA.” (Tr. 579).

Due to Smith’s unavailability at the time of the hearing, Houston Aquarium sought to

introduce Smith’s deposition testimony into the record (Tr. 562, 570-571). The Secretary had no

objection to the introduction of Smith’s testimony in the form of his deposition, but disputed

Smith’s qualification as an expert witness (Tr. 568, 593). The Court declined Houston

Aquarium’s offer to present the video recording of the deposition at the hearing, but admitted the

video recording and transcript of the deposition into the record contingent upon finding Smith to

be qualified as an expert (Tr. 573). Having reviewed the video recording and the transcript of

the deposition, the attached exhibits, and the arguments advanced by the parties in their post-

hearing briefs, the Court determines Derek Smith is qualified as an expert and finds his

testimony admissible.

Fed. R. Evid. 702 governs testimony by experts. It states:

In its post-hearing brief, Houston Aquarium anticipates a procedural argument from the Secretary and states that it

complied with disclosure requirements regarding expert witnesses and expert reports under Fed. R. Civ. P. 26

(a)(2)(A) and (B). (Houston Aquarium’s brief, p. 26). Since the Secretary does not object to Smith’s deposition on

procedural grounds, the point is moot. The Court points out to Houston Aquarium, however, that Commission Rule

52(a)(1)(iii) states, “In the absence of a specific provision, procedure shall be in accordance with the Federal Rules

of Civil Procedure, except that the provisions of Rule 26(a) of the Federal Rules of Civil Procedure do not apply to

Commission proceedings.”

A witness who is qualified as an expert by knowledge, skill, experience, training,

or education, may testify in the form of an opinion or otherwise, if:

(a) the expert’s scientific, technical, or other specialized knowledge will help the

trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based upon sufficient facts or data;

(d) the expert has reliably applied the principles and methods to the facts of the

case.

Smith has a BA in Marine Biology from the University of California, Santa Cruz, and an

MS in Zoology from the University of Hawaii. He was working on his PhD in Biology from the

University of Washington at the time of his deposition. Smith has worked as a dive safety

officer at the University of Southern California (Los Angeles), at the Caribbean Marine Research

Center at the Perry Institute for Marine Science (Lee Stocking Island, Great Exuma District, in

the Bahamas), and at the Aquarium of the Pacific (Long Beach, California). (Exh. R-195a, pp.

197, 210-211). He is past president of the Association of Dive Program Administrators. During

his tenure there, Smith worked on “trying to create a community standard amongst the aquarium

industry for diving operations.” (Id. at 216). From 2002 to 2007, Smith was a member of

standards committee for the American Academy of Underwater Sciences (AAUS) (Id. at 218).

At the time of his deposition, Smith had logged over 3,000 lifetime dives and approximately

1,500 hours underwater (Id. at 207).

The Secretary “does not object to Mr. Smith being designated as an expert with respect to

SCUBA diving and does not contest his general knowledge concerning aquarium science and/or

animal husbandry.” (Secretary’s brief, p. 59). The Court determines Smith is well qualified by

knowledge, skill, experience, training, and education as an expert in SCUBA diving and

aquarium science.

While the Secretary concedes Smith’s expertise in SCUBA diving and aquarium science,

he argues Smith’s testimony should be excluded because it is unreliable. The Supreme Court has

established gatekeeping principles designed to keep out unreliable expert testimony :

In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the Court

set forth a two-pronged analysis for determining the admissibility of expert

The Court of Appeals for the Fifth Circuit has suggested the gatekeeping standards are less stringent where, as

here, no jury is present. “Most of the safeguards provided for in Daubert are not as essential in a case such as this

where a district judge sits as trier of fact in place of a jury.” Gibbs v. Gibbs, 210 F.3d 491, 500 (5 Cir. 2000).

testimony under Rule 702. Under the first prong, the judge must consider whether

the expert's proffered testimony is sufficiently reliable to warrant admission. Id. at

590. In making this inquiry, the judge may consider factors including, but not

limited to: (1) whether the theory or technique can be tested; (2) whether it has

been subject to peer review and published; (3) the known or potential error rate;

and (4) the degree of acceptance within the relevant scientific community. Id. at

593-94. Under the second prong, the judge must determine whether the proffered

testimony is relevant, i.e., whether it “logically advances a material aspect” of the

case. Id. at 591. See also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 149

(1999) (Daubert also applies to technical and other specialized knowledge,

including that proffered by engineers).

Southern Pan Services Co., 21 BNA OSHC 1274, 1277 (No. 99-0933, 2005).

The Secretary contends Smith’s testimony is unreliable because he bases some of

opinions on his relationship with Todd Hall, Houston Aquarium’s corporate dive safety officer.

Specifically, Smith stated, “I’ve known Todd Hall for a number of years now, and I’ve had both

professional and personal interactions with him, and I feel that he runs a very safe and exemplary

diving program without any injuries and with no problems in the past.” (Exh. R-195a, pp. 57-58).

Smith also assumes, despite having no personal knowledge of the matter, that Houston Aquarium

is in compliance with AAUS standards because it is a member of the AAUS (Id. at 238).

The Supreme Court has recognized the reliability test set out in Daubert is necessarily a

flexible one. Kumho Tire, 526 U.S at 150. Reliability cannot always be predicated on testability,

peer review, or error rates. “But whether Daubert’s suggested indicia of reliability apply to any

given testimony depends on the nature of the issue at hand, the witness’s particular expertise, and

the subject of the testimony. . . . It is a fact-specific inquiry.” Seatrax, Inc. v. Sonbeck Intern.,

Inc., 200 F.3d 358, 372 (5 Cir. 2000) (citations omitted). The issue at hand is whether the cited

dives performed at the Downtown Aquarium were “scientific” within the meaning of the CDO

standard definition. This is not an issue that lends itself to verifiable testing. It may be clarified,

however, by testimony from an experienced diver with multiple certifications who has worked to

standardize diving operations in public aquariums.

Houston Aquarium is not required to demonstrate that Smith’s testimony is infallible,

only that it is rationally derived using empirical methods. “The proponent [of the expert

testimony] need not prove to the judge that the expert’s testimony is correct, but she must prove

by a preponderance of the evidence that the testimony is reliable.” Moore v. Ashland Chemical,

Inc., 151 F.3d 269, 276 (5 Cir. 1998) (brackets in original). Smith’s testimony and his

curriculum vitae establish that he has worked as a diving safety officer for at least twelve years

and he has two postsecondary degrees in science and is working on his doctorate in Biology. He

has done extensive field work. Smith was seated as a member on several boards and committees

dedicated to diving safety and marine conservation. (Exh. R-195a, attachment 2).

It is determined that Smith’s specialized knowledge, based both on his formal education

and his significant diving experience, will help the Court to resolve the issue of whether Houston

Aquarium’s divers were engaged in scientific diving. Thus it “logically advances a material

aspect” of the case. Daubert at 591. The Court qualifies Smith as an expert in SCUBA diving

and aquarium science. It is determined Smith’s deposition testimony is admissible. The Court

will determine the weight to give Smith’s testimony on a statement by statement basis.

Opinion Testimony of Jim Prappas, William Boyes, and Todd Hall

In the parties’ Agreed Prehearing Statement, under “Respondent’s Witnesses,” Houston

Aquarium listed (in addition to Derek Smith) the names of Jim Prappas, William Boyes, and

Todd Hall. Houston Aquarium states that each of the witnesses “will give opinion testimony”

relating to specified issues. (Agreed Prehearing Statement, ¶ 2). In Houston Aquarium’s

Supplemental Objections and Answers to Complainant’s First Set of Interrogatories, filed May 8,

2013, Houston Aquarium responded to an interrogatory asking it to identify every person who it

may call as an expert witness by stating:

Defendant also identifies [,in addition to Derek Smith,] several Non-Retained

Expert Witnesses, including but not limited to:

• William Boyes, Dive Board Member

• Todd Hall, Corporate Dive Program Manager

. . .

• Jim Prappas, Director of Biology

(Answer to Interrogatory No. 17, p. 13).

The Secretary also objects to Smith’s testimony “because it is a bald attempt to present a legal opinion through

expert testimony.” (Secretary’s brief, p. 64). At the hearing, the Secretary objected to the admissibility of Smith’s

testimony “pursuant to [Rule] 704, which concerns testifying to the ultimate conclusion.” (Tr. 567). On this point,

the Secretary is incorrect. Fed. R. Evid. 704 states, “An opinion is not objectionable just because it embraces an

ultimate issue.” At times, Smith testified regarding the applicability of the CDO standard to the dives performed by

Houston Aquarium employees, an ultimate issue in this case (his statements were often in response to questions

posed by the Secretary’s counsel). The Secretary seeks to exclude these statements, concerned that Smith “will

intrude on this Court’s role as the legal expert.” (Secretary’s brief, p. 66). The Secretary has no cause for concern.

The Court agrees with the Secretary that “the Court is fully capable of determining and interpreting the applicable

law,” and has no intention of allowing a witness to usurp that authority (Id.). It is unnecessary, however, to exclude

the statements in question. Rather, the Court will accord them little or no weight, depending on the circumstances.

The Court also finds no merit in the Secretary’s contentions that Smith’s testimony is irrelevant, duplicative, and

extraneous.

Although Houston Aquarium identified Prappas, Hall, and Boyes as potential expert

witnesses, they were never qualified as such at the hearing. Counsel for Houston Aquarium did

not move for their qualification as experts and the Secretary had no opportunity to object to their

designation as experts. The Court did not conduct a Daubert analysis of the admissibility of the

witnesses’ proffered expert testimony, nor reserve the analysis until this Decision.

It is therefore surprising that in its post-hearing brief, Houston Aquarium states, “The

Houston Aquarium presented expert opinion testimony from Jim Prappas, William Boyes, Todd

Hall and its retained expert, Derek Smith (all of whom are scientists as well as superbly

experienced scientific divers and aquarists). The Secretary objected only to the testimony of the

Houston Aquarium’s retained expert, Derek Smith.” (Houston Aquarium’s brief, p. 24). The

Secretary objected only to the testimony of Derek Smith because he was the only witness

proposed as an expert.

To be clear, Jim Prappas, William Boyes, and Todd Hall were not qualified as expert

witnesses at the hearing. Their testimony is regarded as opinion testimony by lay witnesses, in

accordance with Fed. R. Evid. 701.

CITATION NO. 1

The Secretary has the burden of establishing the employer violated the cited standard.

To prove a violation of an OSHA standard, the Secretary must show by a

preponderance of the evidence that (1) the cited standard applies; (2) the employer

failed to comply with the terms of the cited standard; (3) employees had access to

the violative condition; and (4) the cited employer either knew or could have

known with the exercise of reasonable diligence of the violative condition.

JPC Group Inc., 22 BNA OSHC 1859, 1861 (No. 05-1907, 2009).

Applicability of the CDO Standard to the Downtown Aquarium

Prior to and during the hearing, Houston Aquarium’s primary defense was that the CDO

standard does not apply to the Downtown Aquarium because its dives meet the requirements of

the scientific diving exception provided for in § 1910.401(a)(2)(iv). Under the “Disputed Facts”

section of the parties’ Agreed Prehearing Statement, Houston Aquarium listed: “Whether

Respondent is liable for any of the items cited in the Citation because it was performing

scientific and education diving activities and, therefore, was in compliance with OSHA

regulations.” (Agreed Prehearing Statement, ¶ B.2.c). The parties debated this issue at length

during the hearing. Houston Aquarium continues to argue this position vigorously in its post-

hearing brief, but it also raises another issue involving the applicability of the CDO standard to

the Downtown Aquarium.

In its post-hearing brief Houston Aquarium asserts, for the first time, that the CDO

standard does not apply to dives performed at the Downtown Aquarium because §

1910.401(a)(1) states that Subpart T “applies to every place of employment within the waters of

the United States[.]” (Houston Aquarium’s brief, p. 4). Houston Aquarium contends the

Downtown Aquarium is not “within the waters of the United States” and thus is outside the

scope of the CDO standard.

The question of whether the CDO standard applies to the Downtown Aquarium is one of

subject-matter jurisdiction. Subject-matter jurisdiction “can be raised at any time before or

after a matter has been adjudicated. It is always a question considered to be properly before any

adjudicative body.” Stevens Equipment Company, 1 BNA OSHC 1227, 1230 (No. 1060, 1973).

“If the court determines at any time that it lacks subject-matter jurisdiction, the court must

dismiss the action.” Fed. R. Civ. P. 12(h)(3).

Accordingly, the Court will address the issue of whether the CDO standard applies to the

dives performed at the Downtown Aquarium based on (1) the scope and application subsection

of § 1910.401(a)(1) and (2) the scientific diving exception of § 1910.401(a)(2)(iv).

(1) Scope and Application of the CDO Standard: Is the Downtown Aquarium

Covered under § 1910.401(a)(1)?

Both the Secretary and Houston Aquarium selectively quote from § 1910.401, the “Scope

and application” subsection of the CDO standard, in their post-hearing briefs. The Secretary

states that the CDO standard applies to “every place of employment . . . within any State . . .,

where diving and related support operations are performed.” (Secretary’s brief, p. 22). Houston

Aquarium frames the scope of the CDO standard as: “This subpart (standard) applies to every

place of employment within the waters of the United States, or within any State . . . where diving

and related support operations are performed.” (Houston Aquarium’s brief, p. 4) (emphasis

added by Houston Aquarium).

The Secretary did not address the issue of whether the Downtown Aquarium is “within the waters of the United

States” within the meaning of § 1910.401(a)(1) in his post-hearing brief. Because the issue was not raised prior to

or during the hearing by Houston Aquarium, the Court afforded the Secretary the opportunity, by Order dated March

21, 2014, to file a reply brief addressing only that narrow issue. The Secretary filed his reply brief on April 14,

2014.

The complete text of § 1910.401(a)(1) is:

This subpart (standard) applies to every place of employment within the waters of

the United States, or within any State, the District of Columbia, the

Commonwealth of Puerto Rico, the Virgin Islands, American Samoa, Guam, the

Trust Territory of the Pacific Islands, Wake Island, Johnston Island, the Canal

Zone, or within the Outer Continental Shelf lands as defined in the Outer

Continental Shelf Lands Act (67 Stat. 462, 43 U.S.C. 1331), where diving and

related support operations are performed.

Houston Aquarium asserts that “the Secretary must show that the cited activity was

occurring within the ‘the waters’ of the United States or of a State,” and since the Secretary

adduced no evidence on the definition of “the waters” of the United States or of a State, his case

must fail (Houston Aquarium’s brief, p. 4).

Section 1910.401(a)(1) lists three separate geographical areas to which the CDO standard

applies if “diving and related support operations are performed” there. The three geographical

areas are separated by a comma and the word “or” in the subsection. When set apart for the

purpose of clarity, the three areas to which the CDO standard applies are:

(1) Every place of employment within the waters of the United States where diving and

related support operations are performed, or

(2) Every place of employment within any State, the District of Columbia, the

Commonwealth of Puerto Rico, the Virgin Islands, American Samoa, Guam, the Trust Territory

of the Pacific Islands, Wake Island, Johnston Island, and the Canal Zone, where diving and

related support operations are performed, or

(3) Every place of employment within the Outer Continental Shelf lands as defined in the

Outer Continental Shelf Lands Act (67 Stat. 462, 43 U.S.C. 1331) where diving and related

support operations are performed.

Neither party argues that the third area (every place of employment within the Outer

Continental Shelf lands) is at issue here. Houston Aquarium contends the first area, “within the

waters of the United States,” is controlling and precludes application of the CDO standard to the

dives performed at the Downtown Aquarium. The Secretary argues the second area, “within any

State,” is the one at issue and that, because Texas is a state, he has established the CDO standard

applies to the dives performed at the Downtown Aquarium, located in Houston, Texas.

“Within the Waters of the United States”

In support of its argument, Houston Aquarium cites Rapanos v. United States, 547 U. S.

715 (2006). In Rapanos, the issue before the Supreme Court was whether the term “waters of

the United States,” as used in the Clean Water Act, 33 U.S.C. §§ 1251--1387 (2014), is limited to

interstate waters that are navigable, or if the term could be expanded to include wetlands adjacent

to navigable waters. The Supreme Court opted for a narrow reading of the term, defining

“waters of the United States” as “relatively permanent, standing or continuously flowing bodies

of water ‘forming geographic features’ that are described in ordinary parlance as ‘streams[,] . . .

oceans, rivers [and] lakes.’ See Webster’s Second 2882.” Id. at 739 (ellipsis and brackets in

original).

Houston Aquarium argues the Supreme Court’s definition of “waters of the United

States” excludes isolated water that is not navigable, including exhibit tanks in public aquariums.

“Here, an aquarium is an isolated tank, a closed system in a building that does not form

geographical features, does not connect to any naturally occurring body of water, is clearly not

navigable, and has no significant nexus to navigable water.” (Houston Aquarium’s brief, p. 6).

In his reply brief, the Secretary does not challenge Houston Aquarium’s position that the

Downtown Aquarium is not located “within the waters of the United States.” (Secretary’s reply

brief, p. 5, n. 2) (“Such an argument may be relevant if the Secretary sought to establish

coverage via the first or third modifying clauses of Section 1910.401(a)’s applicability

provision.”) Rather, the Secretary contends Houston Aquarium’s position is inapposite to the

issue of applicability because the Secretary is proceeding under the theory that the Downtown

Aquarium is located “within any State,” specifically Texas, where diving and related support

operations are performed.

“Within Any State”

The Secretary argues that the second geographical area, “within any State, the District of

Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, American Samoa, Guam, the

Trust Territory of the Pacific Islands, Wake Island, Johnston Island, [and] the Canal Zone,” is the

geographical area relevant to this proceeding.

In its post-hearing brief, Houston Aquarium consistently misquotes § 1910.401(a)(1),

rewriting it as “within ‘the waters’ of the United States or of a State’” (p. 4); “the waters of the

United States or within any State” (pp. 4-5); “waters of the United States or within any State” (p.

6; two separate references); and again, “the waters of the United States or within any State” (p.

8). In each instance, Houston Aquarium omits a crucial punctuation mark (and, on page 4, omits

two words and inserts “of a”), distorting the meaning of the subsection. Section 1910.401(a)(1)

states that the CDO standard applies to dives performed at places of employment “within the

waters of the United States, or within any State.” The comma separating “within the waters of

the United States” from “or within any State” limits the modifying phrase “within the waters of”

to the United States. The subsection cannot be read (as Houston Aquarium would have it) as

“within the waters of any State,” which, under the Rapanos holding, might be interpreted as

including only “relatively permanent, standing or flowing bodies of water ‘forming geographic

features’ that are described in ordinary parlance as ‘streams[,] . . . oceans, rivers [and] lakes.’”

Id. at 739.

The three clauses are separated by the word “or,” a disjunctive conjunction used to

indicate mutually exclusive alternatives. Reading the second clause of § 1910.401(a)(1)

separately from the first and third clauses, it becomes evident application of the CDO standard is

not determined solely by whether the employees are diving in “waters of the United States” (that

is, in navigable waters or in bodies of water forming geographic features) as defined by the

Supreme Court. The pertinent phrase of the second clause requires only that the dives be located

“in any State.” The second clause places no limitations on the dive location regarding the depth,

breadth, or volume of the water in which the employees are diving, or whether the body of water

is natural or artificial.

The Secretary’s intention to create a broad scope for § 1910.401(a)(1) is reflected in the

preamble to the final rule of the CDO standard. “[T]he preamble to a standard is the most

authoritative evidence of the meaning of the standard.” Superior Rigging & Erecting Co., 18

BNA OSHC 2089, 2091 (No. 96-0126, 2000). The first sentence in the preamble summarizing

the CDO standard states, “The standard applies to all diving operations conducted in connection

with all types of work and employment within OSHA’s jurisdiction unless specifically

exempted.” Commercial Diving Operations, 42 Fed. Reg. 37,650, 37,652 (July 22, 1977).

When directly addressing § 1910.401, the preamble is even more explicit regarding the

expansiveness of the CDO standard:

The standard applies wherever OSHA has statutory jurisdiction. Consequently,

unless specifically excluded from the standard, diving in any natural or artificial

inland body of water, as well as diving along the coasts of the United States and

possessions listed in Section 4(a) of the Act, 29 U.S. 655, or within the Outer

Continental Shelf surrounding them is covered.

Id. at 37,654.

The preamble reiterates the broad sweep of the CDO standard and emphasizes its

application across the general industry, construction, and longshoring standards, as well as the

standards specifically related to ship work:

The standard applies to diving and related support operations conducted in

connection with all types of work and employments over which OSHA has

jurisdiction, except in cases where exclusion from the standard has been explicitly

provided for. For this reason, and to avoid any possible ambiguity, the standard is

not only adopted as a subpart of Part 1910 of 29 CFR (general industry), but is

also incorporated into Parts 1915 (ship repairing), 1916 (shipbuilding), 1917

(shipbreaking), 1918 (longshoring), and 1926 (construction).

Id.

Given the expansive application of the CDO standard, Houston Aquarium’s focus on the

geographic location and artificial nature of aquarium tanks is misplaced. The CDO standard

does not concern itself with the size and location of the body of water in which employees dive.

Application of the standard is not conditional based on the depth or volume of water involved.

If, at any location where OSHA has statutory authority, an employee is required to dive in a body

of water, whether natural or artificial, the CDO standard applies, regardless of the dimensions of

the body of water.

This interpretation is supported by the definition of “diver” found in § 1910.402: “An

employee working in water using underwater apparatus which supplies compressed breathing

gas at the ambient pressure.” The definition does not in any way specify or limit the bodies of

water to which the CDO standard applies. It is the fact that an employee is working in water

using supplied breathing gas, not the characteristics of the body of water in which the employee

is working, that triggers the application of the CDO standard. Nothing in the CDO standard or

the preamble supports Houston Aquarium’s contention that the standard was intended to apply

only to “waters that are expansive and deep, may be murky and flowing, and may be used for

shipping.” (Houston Aquarium’s brief, p. 7).

The defining characteristic of dives covered by the CDO standard is a diver’s use of

“underwater apparatus which supplies compressed breathing gas at the ambient pressure.” In

discussing the hazards associated with diving, the preamble cites the dangers posed by using

compressed breathing gas:

Among the potential dangers, those associated with oxygen present the greatest

hazard in diving. If the partial pressure of oxygen in the breathing mixture is too

low, oxygen deficiency (hypoxia) will result; this condition can produce

unconsciousness without warning, and can be fatal if not corrected. Excessive

oxygen in the inspired breathing gas can cause convulsions resembling those of

epilepsy; prolonged exposure to somewhat lower levels of oxygen may cause lung

irritation which increases if exposure continues. In addition, excessive nitrogen in

the inspired breathing gas can produce narcotic or anesthetic effects which impair

the diver’s cognitive function.

The possible presence of contaminants in the breathing gas is another

hazard associated with diving. Several potentially harmful contaminants have

been found in air supplied to divers from engine-driven air compressors. These

contaminants can be picked up by a compressor intake or be produced by the

compressor itself. The most significant one is carbon monoxide, which combines

with the blood’s hemoglobin and interferes with oxygen transport to the tissues.

This can result in reduced cognitive function; if the level of carbon monoxide is

high enough, death can result. Carbon dioxide, while a normal metabolite and not

toxic at low levels, can cause unconsciousness and convulsion if it accumulates in

a breathing system, especially during exertion. Oil mist causes coughing and

nausea, and if it reaches a lung, can damage its sensitive lining and lead to the

development of lung edema.

Id. at 37,652.

The hazards associated with the use of compressed breathing gas exist whether the diver

is in an ocean, a river, a reservoir, or an aquarium tank. The diver must rely on a supply of

compressed breathing gas to safely perform the required task. The depth, volume, clarity, and

current of a body of water may affect the level of risk involved during a dive, but it does not

determine whether the CDO standard applies to a dive.

Conclusion

The Court determines the CDO standard applies to dives performed by Houston

Aquarium’s employees in the exhibit tanks located in the Downtown Aquarium. The second

clause of § 1910.401(a) states the standard applies to every place of employment within any

State where diving and related support operations are performed. The Downtown Aquarium is a

place of employment where diving is performed and it is located in Texas, a State of the United

States. The CDO standard applies to the cited conditions.

(2) Scientific Diving Exception: Are the Dives Performed at the Downtown

Aquarium “Performed Solely as a Necessary Part of a Scientific, Research, or

Educational Activity”?

Houston Aquarium claims that, even if the CDO standard does apply to its workplace,

dives performed there are exempt under the scientific diving exception provided for in §

1910.401(a)(2)((iv) (“[T]his standard does not apply to any diving operation . . . [d]efined as

scientific diving and which is under the direction and control of a diving program[.]”). The

Secretary contends Houston Aquarium has failed to establish the cited dives meet the

requirements of the scientific diving exception.

Burden of Proof

Houston Aquarium claims it is the Secretary’s burden to prove the company is not

exempt under the scientific diving exception (Houston Aquarium’s brief, p. 9). Houston

Aquarium is incorrect. As the party seeking the benefit of the exception, it is Houston

Aquarium’s burden to show that its employees were engaged in scientific diving, as defined by §

1910.401(a)(2)(iv). “A party seeking the benefit of an exception to a legal requirement has the

burden of proof to show that it qualifies for that exception.” C.J. Hughes Construction, Inc., 17

BNA OSHC 1753, 1756 (No. 93-3177, 1996).

Legislative History of the Scientific Diving Exception

On July 22, 1977, OSHA published its Final Standard for commercial diving operations,

codified as §§ 1910.401--441, Subpart T of 29 C.F.R. Part 1910. The original CDO standard did

not exempt diving operations performed for scientific research and education purposes.

Upon publication of the Final Standard, OSHA began receiving requests to reconsider

the CDO standard’s coverage of scientific and educational diving. The petitioners argued the

CDO standard was not well-suited to regulate scientific and educational diving, which differ

markedly from commercial diving. The scientific and educational diving community noted it

had an excellent safety record due to the effectiveness of its self-regulation in accordance with

well-established consensual standards of safe practice. These consensual standards are referred

At times Houston Aquarium needs to make structural changes or repairs in exhibits at the Downtown Aquarium.

Houston Aquarium designates these dives as nonscientific and requires the divers performing the structural work to

comply with the CDO standard. Diver #2 stated, “If there is a dive that requires any type of maintenance or any

type of construction or anything that is not scientific, we will dive under OSHA regulations for that dive in repairing

what needs to be repaired.” (Tr. 151). Prappas, Houston Aquarium’s director of animal operations, testified that he

would hire an outside company to do repair work and the outside company would be required to comply with the

CDO standard (Tr. 381). These nonscientific dives are not at issue in the instant case.

to as the “Scripps Standards.” From the beginning, advocates for the scientific diving exception

emphasized the importance of gathering data during dives.

The first set of consensual standards was developed by the Scripps Institution of

Oceanography of the University of California (Scripps) in the early 1950s. In

1973, diving safety boards and committees from ten major educational institutions

involved in scientific diving met and accepted the University of California Guide

for Diving Safety as a minimum standard for their individual programs. . . .

Therefore, it was contended that most educational institutions that had diving

programs were complying with this consensus standard with limited

modifications for regional and operational variations in diving before the

publication of the OSHA final standard. These educational institutions pointed to

their excellent safety record prior to OSHA, attributing it to the effectiveness of

their self-regulation.

Additionally, they noted that significant differences exist between commercial

diving and educational/scientific diving. For example, the educational/scientific

diver is an observer and data gatherer who chooses the work area and diving

conditions which will minimize environmental stresses and maximize the safety

and efficiency of gathering data.

They noted, in contrast, the commercial diver is an underwater construction

worker, builder and trouble shooter whose work area and diving conditions are

determined by the location and needs of the project.

Education/Scientific Diving, 47 Fed. Reg. 53,357, 53,357 (November 26, 1982).

On March 26, 1982, OSHA published a notice of proposed rulemaking to exempt from

Subpart T, diving “performed solely for marine scientific research and development purposes by

educational institutions.” Id. at 53,358. Following a comment period and an informal public

hearing, OSHA agreed to omit the word “marine” from the exemption, “since it may be

misconstrued as referring only to ocean-related diving.” Id. OSHA also determined that the

exception should apply to all scientific diving, “not solely scientific diving performed by

educational institutions.” Id. at 53,359.

The Carpenters Union, among others, “expressed the concern that it may be difficult to

clearly distinguish commercial diving operations from scientific diving operations” and wanted

to ensure that OSHA would not “draft an exemption that would be so broad that it would deny

protection under a standard that we worked many years to develop, to many of our members who

are working in the commercial diving community.” Id. OSHA responded that it “believes that its

definition of ‘scientific diving’ addresses the concerns expressed by the Carpenters Union and

others as to limiting the scope of the exemption, and virtually eliminates the potential for overlap

and confusion between scientific diving and commercial diving.” Id. at 53,359-53,360.

Despite the concerns of the Carpenters Union that the work performed by some of its

members “blur[s] any distinction between the segments within the diving community,” OSHA

determined the exception language of the Final Standard recognizes “that the tasks performed by

commercial divers are different than those performed by scientific divers.” Id. at 53,359. OSHA

distinguished the two types of diving:

Commercial diving activities necessitate the use of heavy tools and include such

tasks as placing or removing heavy objects underwater, inspection of pipelines

and similar objects, construction, demolition, cutting or welding, or the use of

explosives.

In contrast, the sole purpose of scientific diving is to perform scientific research

which includes such tasks as scientific observation of natural phenomena or

responses of natural systems, and gathering data for scientific analysis. The tasks

performed by scientific divers are usually light, short in duration, and if any

handtools are used, they are usually no more than simple non-powered handtools

such as screwdrivers and pliers.

Because of the differences in tasks performed, OSHA believes that clear

distinctions can be made between scientific diving and commercial diving and has

incorporated these distinctions in the definition of “scientific diving” in the final

rule.

Id.

In deciding on the language to use to define “scientific diving,” OSHA rejected the

recommendation of several commenters to adopt the language used by California/OSHA

(CAL/OSHA) to define the term. CAL/OSHA focuses on who is performing the dive, rather

than the tasks being performed, in its definition of scientific diving. OSHA determined,

however, that the proper focus of the definition should be “primarily on the types of tasks

performed and the objectives to be maintained. The record reflects that it is the actual work

being performed that forms the basis for distinguishing scientific from commercial diving.” Id.

OSHA further clarified that the scientific diving exemption applies to both public and

private entities:

OSHA’s definition of scientific diving, by focusing on tasks performed, makes no

distinction between scientific diving performed for profit or non-profit. The

scientific diving community consists of various types of entities such as

educational institutions, governmental organizations and private concerns, all of

CAL/OSH defines scientific diving as “all diving performed by employees necessary to, and part of scientific

research or educational activity; in conjunction with a project or study under the jurisdiction of any public or

research or educational institution or similarly recognized organizations, departments, or groups.” 47 Fed. Reg. at

53,362.

which have contributed to the scientific diving community’s safety record.

Commenters . . . and witnesses at the hearing . . . noted that those who perform

legitimate scientific diving, whether it is for profit or non-profit purposes, and

follow consensual guidelines, should be covered by the exemption. OSHA agrees

that if the sole purpose for diving is to perform scientific research tasks, then

further distinctions are not justified.

Id. at 53,363.

The Final Rule incorporating the scientific diving exception into the CDO standard

became effective on November 26, 1982. Id. at 53,357.

Section 1910.401(a)(2)(iv): The Scientific Diving Exception

Section 1910.401(a)(2)(iv) provides:

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:

. . .

(iv) Defined as scientific diving and which is under the direction and control of a

diving program containing at least the following elements:

(A) Diving safety manual which includes at a minimum: Procedures covering all

diving operations specific to the program; procedures for emergency care;

including recompression and evacuation; and criteria for diver training and

certification.

(B) Diving control (safety) board, with the majority of its members being active

divers, which shall at a minimum have the authority to: Approve and monitor

diving projects; review and revise the diving safety manual; certify the depths to

which a diver has been trained; take disciplinary action for unsafe practices; and,

assure adherence to the buddy system (a diver is accompanied by and is in

continuous contact with another diver in the water) for SCUBA diving.

In the Agreed Prehearing Statement, the parties stipulate that Houston Aquarium has a

diving safety manual and a diving control (safety) board in compliance with §

1910.401(a)(2)(iv)(A) and (B) (Agreed Prehearing Statement, ¶¶ E.5 and E.6).

Definition of Scientific Diving

Section 1910.402, the definition section of the CDO standard, defines “scientific diving”:

Scientific diving means diving performed solely as a necessary part of a scientific,

research, or educational activity by employees whose sole purpose for diving is to

perform scientific research tasks. Scientific diving does not include performing

any tasks usually associated with commercial diving such as: Placing or

removing heavy objects underwater; inspection of pipelines and similar objects;

construction; demolition; cutting or welding; or the use of explosives.

Appendix B Guidelines

Following publication of the Final Rule exempting scientific diving, the United

Brotherhood of Carpenters and Joiners (UBCJ) filed a petition challenging the exemption, under

§ 6(f) of the Act, for judicial review with the Court of Appeals for the D.C. Circuit. On April 4,

1984, the court ordered the Secretary to “authoritatively state guidelines that would indicate how

the ‘scientific’ and ‘commercial’ classifications will be applied to arguably ambiguous cases.”

Educational/Scientific Diving Guidelines, 50 Fed. Reg. 1046, 1046 (January 9, 1985).

After a comment period, OSHA issued four guidelines designed to “clearly distinguish

between the scientific diving community which should be exempt because of its effective system

of self-regulation and all other diving and diving programs.” Id. at 1047. OSHA explicitly stated

the guidelines are mandatory and not merely recommendations: “OSHA wants to emphasize that

a failure of a program to meet any part of the exemption criteria, including the guidelines, will

prevent the program from availing itself of the exemption. . . . Programs must meet all of the

criteria in the Final Rule as interpreted by the final guidelines to avail themselves of the

exemption.” Id.

Appendix B to Subpart T to Part 1910 (Guidelines for Scientific Diving) provides:

This appendix contains guidelines that will be used in conjunction with

1910.401(a)(2)(iv) to determine those scientific diving programs which are

exempt from the requirements for commercial diving. The guidelines are as

follows:

1. The Diving Control Board consists of a majority of active scientific divers and

has autonomous and absolute authority over the scientific diving program's

operations.

2. The purpose of the project using scientific diving is the advancement of

science; therefore, information and data resulting from the project are non-

proprietary.

3. The tasks of a scientific diver are those of an observer and data gatherer.

Construction and trouble-shooting tasks traditionally associated with commercial

diving are not included within scientific diving.

4. Scientific divers, based on the nature of their activities, must use scientific

expertise in studying the underwater environment and, therefore, are scientists or

scientists in training.

Houston Aquarium Has Met the Requirements of Guideline Nos. 1, 2, and 4

Houston Aquarium contends it has met each of the four enumerated guidelines found in

Appendix B. The Secretary concedes Houston Aquarium has met the first guideline (the Diving

Control Board consists of a majority of active scientific divers and has autonomous and absolute

authority over the scientific diving program’s operations), but argues it has failed to meet the

requirements of the remaining guidelines. The record establishes there is no real dispute

concerning the second guideline—the information and data resulting from the cited dives

performed by Houston Aquarium’s employees at the Downtown Aquarium were non-

proprietary.

With regard to the fourth guideline, the Secretary argues Houston Aquarium’s divers

were not engaged in studying the underwater environment and, thus, could not have been using

scientific expertise. The determination of whether the divers were engaged in studying the

underwater environment during their dives is contingent upon whether they were making

observations and gathering data, as required by the third guideline. The Court credits, however,

Derek Smith’s assessment that Houston Aquarium’s divers did use scientific expertise when

diving in the exhibit tanks:

The animal care staff at the Houston Aquarium are scientists or scientists

in training and therefore use scientific expertise in the –in conducting the animal

care in these exhibits. So that means that they have the background that’s

required to be able to enter the water with animal care and animal health being

one of the primary concerns.

So in order to do that they have to have both the schooling background in

animal husbandry, animal care, and then also exhibitory. So they have to have –

they have to use expertise, scientific expertise in order to be able to decide what it

is, what divers and operations can go on inside the exhibit that doesn’t endanger

the animal health.

(Exh. R-195, p. 77).

Did Houston Aquarium Meet the Requirements of Guideline No. 3?

It is the third guideline that raises the crucial issue here: “The tasks of a scientific diver

are those of an observer and data gatherer. Construction and trouble-shooting tasks traditionally

associated with commercial diving are not included within scientific diving.”

OSHA identifies a scientific diver as “an observer of natural phenomena or responses of

natural systems, and a gatherer of data for scientific analysis.” 50 Fed. Reg. at 1049. The issue is

whether Houston Aquarium’s divers made observations and gathered data during the cited dive

period consistent with the role of a scientific diver performing scientific research tasks. In order

to make this determination, the Court must examine the specific tasks performed by Houston

Aquarium’s divers.

Dive Plan and Facility Dive Log

At the beginning of each day, divers look at the dive plan created for that day by the

diving safety officer (DSO). (Tr. 116). Houston Aquarium Diver #1 explained that divers

consulted the dive plans to see “how much time was allotted for anything that we were required

to do and then we would see what needed to be done, who was going, and set up our equipment

and see if everything was in place.” (Id.).

After every dive, Houston Aquarium’s divers logged their dive information on their copy

of the Facility Dive Log. The Facility Dive Log requires the divers to fill in information for five

items: Date, Display (the name of the exhibit tank), Bottom Time (length of time underwater),

Method (surface supplied air or SCUBA), and Purpose (such as feed, clean, mortality, or event)

(Exh. C-6). No other information is recorded on the Facility Dive Log.

Feeding and Cleaning Dives

The great majority of the dives performed at the Downtown Aquarium are for the purpose

of feeding the animals and for “the regular maintenance routine of cleaning [the] exhibits.” (Tr.

114). Cleaning generally includes scrubbing the exhibit windows free of algae and siphoning the

gravel (Tr. 117). Diver #1 testified that siphoning is done to remove feces and food particles,

using “clear tubings with hoses. It creates a suction of gravity. That way, it pulls the water and

feces and other things that are lighter towards the top but leaving the gravel at the bottom.” (Tr.

118). All of the material siphoned out of the exhibit tank is immediately discarded “right outside

where there’s a Dumpster area with a hose.” (Id.). When asked if the divers keep a record of the

material siphoned out of the exhibit tank, Diver #1 responded, “No, because it’s usually the

same. We know what we’re disposing is going to feces and food particles.” (Tr. 118-119).

Houston Aquarium Diver #2 testified regarding the schedule for cleaning the Dining

Room Exhibit:

It would be Mondays through Thursdays—on Mondays, Tuesdays, and

Thursdays, we clean the exhibit. Wednesdays, we siphon the gravel. And then

Fridays are primarily just feeding. So each day, Monday through Friday, there is

a feeding. In the morning that’s the first thing that we do.

After the feeding, then we will prepare for any duties in the tank, like,

cleaning the windows, if there’s any—if there’s any type of circumstance in

which an animal would need to be captured or observed more closely, we would

do it at that time. And then, of course, we would exit the water.

. . .

For cleaning the windows—well, first of all, before any of the duties are

done, they’re talked about in very good detail about exactly how the windows

need to be cleaned and exactly what needs to be cleaned and what to avoid while

performing the window cleaning because there’s several things that you have to

be extremely careful of when you’re cleaning the windows so that, number one,

you don’t make the problem worse; and number two, that the job gets done in the

allotted time.

. . .

[E]ach person would have a certain window that they would clean. And

you, basically, start at the top, work from left to right and you go down in a very

methodical grid pattern to ensure that nothing is missed for—that nothing gets

through.

Since the windows—they do get dirty quite quickly, so we have to make

sure that the passes that are made are good and that once they’re done, then we

can move on to the rest of the exhibit.

(Tr. 147-149).

The Houston Aquarium divers take special care in removing aiptasia, a genus of sea

anemone, which reproduces both sexually and asexually. Because of its ability to reproduce

asexually, “if you were to scrub, say, the aiptasia off of the surface, any small part that comes off

of that aiptasia, if it lands somewhere else, it could potentially grow into another aiptasia. That

would create an explosion of that animal.” (Tr. 174). Aiptasia is a particularly persistent genus

that requires constant attention from the divers. “[T]here’s really no way to get rid of one

hundred percent of aiptasia because they are so invasive and they are so--they have the potential

to just kind of overrun exhibits. So we have to be very careful when we’re working around them

but there’s really no writing down of anything about aiptasia. It’s just kind of an ongoing

battle.” (Tr. 179).

Mortality Dives

At times Houston Aquarium requires its divers to perform “mortality dives” to remove

dead fish from an exhibit tank. Diver #2 testified, “If the fish is small enough, we can use small

plastic bags. If they’re large, we use rubber nets to get them out. But if they’re larger, then we

would even have to use something like a stretcher for, like, really large fish and sharks.” (Tr.

180). After the dead fish is removed from the exhibit tank, it is taken to the fourth floor

laboratory for examination. Diver #2 stated:

The dead fish are then taken to our laboratory where they are looked at by our

assistant curator or our curator to determine if there is any disease. We use

microscopes. We take samples of the gills and the scales and then we determine

if there were parasites or bacterial infections of any kind. And then, if it’s

deemed appropriate, the curator or assistant curator could provide necropsy,

which basically would be like a dissection of the animal to see if there was any

internal damage or anything that can be determined through that.

(Tr. 181-182).

Event Dives

Diver #3 worked as a diver for Houston Aquarium from October 2008 until February or

March 2012 (Tr. 296). He explained “event dives” at the Downtown Aquarium:

They could be several different things. Sometimes we would dive in the

Dining Room Tank with a sign for people getting engaged. And then we would

go in the tank for maybe about 15 minutes with a sign and go over to the table that

the couple was sitting at and turn the sign around. And then we’d also do—

sometimes we’d do event dives in the Tower Tank, which we would hold up the

sign. We’d enter and go to about the third floor and we would stay at that point

and we would hold the sign for—we’d usually stay in there for around an hour

and we would just hold the sign.

The other event dives I did—there were several for holidays. You know,

we’d dress up in, like Santa or an elf. I was always the elf. We’d hold a sign that

said Merry Fishmas or something like that.

(Tr. 300-301).

Diver #3 testified Houston Aquarium had signs printed up that “looked just like

posterboard.” (Tr. 349). Using yellow waterproof tape, divers could change the names on the

sign to “different people, to whoever was getting engaged. They did have quite a few signs for

different occasions,” including “printed logos from companies” and “a kid asking a girl to

Homecoming.” (Tr. 350).

Diver #3 stated that Houston Aquarium’s divers did not record data from the event dives.

“We didn’t collect any data during the dive. I’d say—we would just—you know, the only thing

we did was do the login, the same as the other dives we did. So we’d just keep track of how long

we were in the tanks.” (Tr. 301).

Testimony of Derek Smith

Derek Smith, Houston Aquarium’s expert in SCUBA diving and aquarium science,

testified that the dives performed by Houston Aquarium’s divers constituted scientific diving.

He was asked why he believes Houston Aquarium was in compliance with the third guideline for

scientific diving (“The tasks of a scientific diver are those of an observer and date gatherer.”) at

the time of the cited dives. He responded:

[A]ll divers that enter these exhibits are required to make observations of animal

health, animal behaviors, the type of food that they’re eating, the type of algae

that grows on the windows, the condition of the exhibitory, that is the collection

of data, and these people are observers.

That is their job is to go down there and ensure that animal care is

appropriate, and so it certainly seems to me that’s a pretty clear—that’s pretty

clear. Like these divers are—I know for a fact that these divers are required to

write down what they do in these exhibits, and do that is exactly what they do is

observing and collecting data.

(Exh. R-195a, p. 91).

When asked how he knows “for a fact” that the divers collect data during the dives,

Smith answered with a circular argument—Houston Aquarium is a member of the Association of

Zoos and Aquariums (AZA), which requires the collection of data, and so Houston Aquarium

must be collecting data during the dives, since it is a member of the AZA :

How do I know for a fact? Well, they’re currently—well actually they’re

currently accredited by [AZA], and that’s an [AZA] requirement to be accredited.

So, along the same lines as I can’t tell you whether every one of their board

members are active scientific divers at this exact moment, I can’t tell you that

they are—that they are actively collecting these data, but it is a requirement of the

[AZA] accreditation, and that is traditionally the job of divers that are going into

animal care—or exhibits for animal care is to collect data and observe the animal

health.

(Id. at 91-92).

Smith made a similar leap with regard to Houston Aquarium’s diving safety manual.

Smith testified that the AAUS must approve the diving safety manual of any of its member

aquariums. “It’s worth noting that that’s one of the tasks of the standard committee members of

the American Academy of Underwater Sciences is to review organization dive manuals and

ensure that they do meet the minimum standards.” (Id. at 222). Smith indicated that the approval

of the AAUS establishes the aquarium is in compliance with the scientific diving standards

recognized by OSHA (Id. at 221).

For an administrative review, we go through [the diving safety manual] line by

line and ensure that all of the standards that are in the AAUS manual are in the

applicant’s manual, and of course they can exceed those standards as well for

items that are specific for the context that they’re working in or the environment

In the transcript of Smith’s deposition, “AZA” is consistently transcribed as “ADA.” No one at the hearing

referred to an organization with the initialism “ADA.” In context, the initialism for the Association for Zoos and

Aquariums is more logical. Review of the video recording of the deposition establishes Smith was saying “AZA”

during his testimony (Exh. R-195b).

that they’re working. But yes, your manual has to be reviewed and approved by

that committee and then by the board of directors at AAUS in order to be

accepted as members.

(Id. at 223).

Smith extrapolated from the fact that he was unaware of any unsafe diving practices at

the Downtown Aquarium the conclusion that Houston Aquarium’s divers were in compliance

with the AAUS standards.

I think it kind of works in the same way like OSHA does, where they get a call

from somebody in a facility where AAUS is the standard setting body. . . . If

those organizations are not following those standards, unless somebody gets

injured oftentimes you wouldn’t necessarily hear about it. But at the same time,

the community is very small, and if there were some unsafe practices going on

between the AAUS and the ADPA [Association of Dive Program

Administrators], I’m sure we would have heard about it.

(Id. at 232).

Smith relied on Houston Aquarium’s status as an AAUS member in concluding that

divers at the Downtown Aquarium were following the scientific diving standards. “They are

current members of the AAUS, so by proxy they had to have their manual reviewed and accepted

and approved by the Standards Committee and the board of directors of the AAUS.” (Id. at 238).

Smith’s reliance on both Houston Aquarium’s membership with the AAUS and the

diving safety manual provided by Houston Aquarium is misplaced however. The diving safety

manual Houston Aquarium provided to Smith was not the diving safety manual that was in effect

at the time of the OSHA inspection. Houston Aquarium revised its diving safety manual

following the first OSHA inspection in an effort to gain admission to the AAUS (Exhs. C-21 and

R-1; Tr. 603-605). At the time of the OSHA inspection, Houston Aquarium was not a member

of the AAUS. Houston Aquarium did not apply to become a member of the AAUS until January

of 2012, after the initial OSHA inspection. The AAUS did not certify Houston Aquarium as a

member until September 2012, after the Secretary issued the Citation that gave rise to this case

(Tr. 535).

Smith is an experienced diver and is highly knowledgeable about diving safety and

aquarium science, as well as the applicable standards for scientific diving. His testimony

regarding the collection of data by Houston Aquariums divers is, however, grounded on

incomplete information. Smith did not visit the Downtown Aquarium in preparation for his

deposition. His only preparation was to review documents provided to him by Houston

Aquarium (Id. at 9-10). Smith relied on his personal relationship with Todd Hall, Houston

Aquarium’s corporate dive program manager, to infer that Hall “runs a very safe and exemplary

diving program.” (Id. at 57-58). Hall is not usually onsite at the Downtown Aquarium—he is

based in Denver, Colorado (Id. at 183-184; Tr. 500). Smith did not speak with William Boyes,

Houston Aquarium’s onsite dive master, in preparation of his deposition (Exh. R-195a, p. 179).

Smith had never met or spoken with any of Houston Aquarium’s divers who were working at the

Downtown Aquarium during the period at issue (Id. at 181-183). Smith had no personal

knowledge of Houston Aquarium’s requirements for its divers regarding observation and

gathering of data during dives.

The Court determines Smith’s testimony regarding the gathering of data by Houston

Aquarium’s divers is entitled to less weight than the testimony of the divers themselves, who had

personal knowledge of the dives and who corroborated each other’s testimony. The testimony of

Divers #1, #2, and #3 establishes that Houston Aquarium’s divers do not gather data for the

purposes of scientific research during their dives at the Downtown Aquarium.

Houston Aquarium’s Divers Do Not Gather Data from Dives

Diver #1 stated that no data is gathered regarding the siphoned material (Tr. 118-119).

The only information logged for a dive is written on the Facility Dive Log (Tr. 120). That

information, however, is not data gathered about the underwater environment or the animals. It

is merely information confirming the diver has completed the dive assigned him or her in the

daily dive plan (Exh. C-6). Diver #1 testified that if she observed something unusual, such as a

discoloration on a fish indicating an injury, that information “gets sent to the biologist who is in

charge of the exhibit at that time, and then it gets sent over to our managers.” (Tr. 134).

Diver #2 also stated that no data is gathered during cleaning dives relating to the

siphoned material (Tr. 150). He stated he would only record information about a cleaning dive if

he observed “scratches that were really bad, . . . I’ll report them to my supervisors in case, in the

future, there needs to be an OSHA regulated dive in order to be able to fix the scratch. So it is

reported, but I do not record it if I see a scratch or anything like that.’ (Tr. 151). Diver #2

testified he would notify his supervisor if he saw an injured animal or an animal exhibiting

Smith testified he had visited the Downtown Aquarium “twice in the last eight years” as “just a visitor.” (Exh. R-

95a, p. 184).

unusual behavior (Tr. 175). He stated he did not log the amount of aiptasia he cleaned after a

dive because “there’s really no way to measure how many there are or were. That would be way

too labor intensive.” (Tr. 179). When asked if he documented “at all” when cleaning aiptasia,

Diver #2 replied, “[W]e have to be very careful when we’re working around them but there’s

really no writing down of anything about the aiptasia.” (Tr. 179).

Diver #3 testified divers did not collect data during event dives. Instead, divers would

just login, “the same as the other dives we did. So we’d just keep track of how long we were in

the tanks.” (Tr. 301). Diver #3 was asked if the divers collected data during cleaning dives. He

responded,

No, we didn’t. I don’t think so. I don’t think we really collected any data or

anything. I mean, really the tank that—we would report things. I mean, besides

just logging the dives in that tank, in an tank we’d dive—we dove in, we’d log the

time and how long we were down there and what we did. But in terms of data, I

don’t think we did collect anything in that tank really.

(Tr. 315).

Jim Prappas testified that Houston Aquarium’s divers “know how to collect the data and

make the observations.” (Tr. 386). When asked what he meant by collecting data and making

observations, Prappas replied, “Well, the observations, animal observations. Every day, you

know, those animals are growing and they’re interacting. So, you know, whether there’s a raised

scale or cloudy eye or a ripped fin or if there’s some kind of parasite that would be seen on the

body, all of those are observations that have to be made close up.” (Id.). No evidence was

adduced showing Houston Aquarium’s divers gathered data during their dives or documented

data for later study.

Analysis

The third guideline set out in Appendix B to Subpart T to Part 1910 states:

The tasks of a scientific diver are those of an observer and data gatherer.

Construction and trouble-shooting tasks traditionally associated with commercial

diving are not included within scientific diving.

Scientific Research

The second sentence of this guideline may be dispensed with here. The record establishes Houston Aquarium’s

divers were not engaged in construction or trouble-shooting during the cited dives. When underwater construction

was required, Houston Aquarium either contracted that work to an outside company whose divers complied with the

CDO standard, or required its own divers to comply with the CDO standard.

Derek Smith spoke passionately about the importance of the aquarium industry in

educating the public and adding to scientific knowledge:

The entire aquarium industry shares information about animal care, exhibit

maintenance, aquarium diving operations, all kinds of things that is a community

standard that we all share—that they all share information like this. I mean, that

is the advancement of science, is taking scientific knowledge and sharing it

amongst the others so that we can move forward. Animal husbandry is a science,

and the care of animals in the exhibit is a science and requires scientific expertise.

(Exh. R-195a, p. 89).

The Court credits Smith’s opinion that animal husbandry is a science and the employees’

care of the animals in the Downtown Aquarium’s exhibits requires scientific expertise. Had

OSHA elected to use the definition of “scientific diving” followed by CAL/OSHA (“all diving

performed by employees necessary to, and part of scientific research or educational activity; in

conjunction with a project or study under the jurisdiction of any public or research or educational

institution or similarly recognized organizations, departments, or groups.” 47 Fed. Reg. at

53,362), Houston Aquarium perhaps could establish its employees were engaged in scientific

diving during the cited period. OSHA opted, however, to impose more stringent standards for

scientific diving, including the requirements that scientific divers dive for the sole purpose of

scientific research and that their tasks “are those of an observer and data gatherer.”

“Data” is defined as “[i]nformation, esp. information organized for analysis or used as the

basis for a decision.” American Heritage Dictionary (1982). The definition of “scientific” is

“[o]f, relating to, or employing the methodology of science,” and “science” is “[t]he observation,

identification, description, experimental investigation, and theoretical explanation of natural

phenomena.” Id.

In the Education/Scientific Diving preamble, the Secretary emphasizes the requirement

that scientific diving be performed by employees “whose sole purpose for diving is to perform

scientific research.” 47 Fed. Reg. at 53,359. Scientific research is an ongoing process designed

to advance the body of accumulated knowledge involving a specific branch of science. The

Supreme Court defined “scientific” in terms of the scientific method in Daubert:

The adjective “scientific” implies a grounding in the methods and procedures of

science. Similarly, the word “knowledge” connotes more than subjective belief or

unsupported speculation. The term “applies to any body of known facts or to any

body of ideas inferred from such facts or accepted as truths on good grounds.”

Webster's Third New International Dictionary 1252 (1986). . . . Brief for

American Association for the Advancement of Science et al. as Amici Curiae 7–8

(“Science is not an encyclopedic body of knowledge about the universe. Instead,

it represents a process for proposing and refining theoretical explanations about

the world that are subject to further testing and refinement” (emphasis in

original)). But, in order to qualify as “scientific knowledge,” an inference or

assertion must be derived by the scientific method.

509 U.S. at 590.

The scientific diving exception distinguishes between diving that is performed by

scientists who are engaged in routine maintenance tasks (nonscientific diving regulated by the

CDO standard) and diving that is performed by scientists who are observing and gathering data

for research (scientific diving exempt from the CDO standard). The scientific method requires

systematic observation and collection of data for analysis. It is an ongoing investigation designed

to test theories formulated from current knowledge.

The third guideline requires the scientific diver to engage in tasks consistent with those of

“an observer and data gatherer.” Observing phenomena and gathering data about it are two

separate procedures. The obligation imposed on a scientific diver to be a “gatherer of data”

requires the diver to actually document the data gathered. Otherwise gathering data is

indistinguishable from observation. Diver #3 appeared puzzled when questioned about

observations he made during cleaning dives, volunteering that he made “personal observations,”

but not scientific ones:

Q. What observations did you—did you make any observations while you were

cleaning the Gulf of Mexico Tank?

Diver #3: I made personal observations. I don’t know—is that your question?

Q. What type of personal observations would you make?

Diver #3: Just the behavior of the fish and, you know, which areas possibly

needed to be cleaned and things like that.

(Tr. 315).

Dive master Boyes conflated the two different procedures of observing and gathering

data in his testimony:

Scientific divers, whenever they enter the water, are collecting data and making

observations. They have to because the fish cannot get away from you like in the

ocean. You’re stuck there, sometimes with these very large animals, what some

would consider potentially very dangerous animals, sharks and eels. So they have

to be aware of the animal so no damage is done to the animals.

(Tr. 618-619).

The observations addressed by Diver #3 and Boyes are not the scientific observations

contemplated by the scientific diving exception. Any diver, scientific or not, diving in waters

inhabited by sharks or eels (or the venomous Lionfish) has to be aware of potentially dangerous

animals. Houston Aquarium contracts underwater construction work to outside companies who

are required to comply with the CDO standard. If they are required to dive in exhibit tanks

containing dangerous animals, they must be aware of the animals in order to dive safely, but their

awareness does not equal scientific observation.

Conclusion

(1) Mortality Dives Marginally Qualify as Scientific Diving

Of the dives performed by Houston Aquarium employees, only the mortality dives

conceivably meet the requirement that scientific divers must gather data. Although the primary

task of the diver in a mortality dive appears to be removing the dead animal and delivering it to

the laboratory, the laboratory personnel investigate the cause of death and sometimes perform a

necropsy. Houston Aquarium likely derives some data from the laboratory that can be attributed

to the mortality dive, although the record is devoid of such evidence.

(2) Event Dives Do Not Qualify as Scientific Diving

The event dives performed by Houston Aquarium’s employees clearly do not meet the

requirements of scientific diving. Dive master Boyes attempted to shoehorn the tasks of

observation and gathering of data into event dives, but the results are farfetched:

Whenever a scientific diver enters the water in an aquarium setting, they

have to be data collectors and observers. So if it’s an event dive—let’s say it’s a

sign dive, the diver, when he gets in the water with a sign, he has to consider the

kind of data he would collect, it would be like what’s the sign made out of, is

there anything that’s going to come off the sign that the fish can ingest.

Is the sign going to sink him to the bottom, is it mutually buoyant, is it

going to float him to the surface. He has to collect data on that sort of thing so we

know we have the right kind of signs.

Boyes claimed that the CSHO told him that event dives were “off the table” and OSHA was citing Houston

Aquarium only for cleaning dives (Tr. 608, 651). The AVDs of the Citation items do not reflect the exclusion of

event dives from the alleged violations. Houston Aquarium cross-examined the CSHO and did not inquire about

this claimed limitation. Houston Aquarium adduced no documentary evidence supporting Boyes’s claim. It is

determined that cited items apply to event dives as well as cleaning dives during the cited time period.

Houston Aquarium also contends the Secretary failed to establish that any event dives occurred during

the cited period. One of the pages of the Facility Dive Log, however, records a “proposal dive” for May 18, 2012, in

the Dining Room Tank (Exh. C-6, p. 2).

He has to pay attention to the fish, how are the fish reacting to the sign,

what’s going on with the animals as he’s carrying the sign over to the window,

and at the window then he’ll display the sign.

(Tr. 621).

The scientific diving exception requires that the dive in question be performed solely for

scientific research tasks. Holding up a sign featuring a corporate logo or a marriage proposal is

not a task consistent with scientific research. It is a task undertaken for the entertainment (or

potential marital bliss) of the Downtown Aquarium’s visitors. The diver’s hypothetical concern

about the sign’s buoyancy and floating letters relates to the presentation of the event, not to

scientific research.

(3) Feeding and Cleaning Dives Do Not Qualify as Scientific Diving

Finally, the dives performed by Houston Aquarium’s employees for the purposes of

feeding the animals and cleaning the exhibit tanks fall short of meeting the requirements for

scientific diving. Scientific diving must be solely for the purpose of performing scientific

research tasks. Scientific research requires the systematic collection and analysis of data. Other

than recording the minimal information listed on the Facility Dive Log (which shows only that

an assignment has been completed), the diver gathers no data about the animals or their

environment during a feeding or cleaning dive. The cited dives are for the purposes of

caretaking and routine maintenance. The dives foster the health and wellbeing of the animals in

the care of Houston Aquarium, but they are not part of “a process for proposing and refining

theoretical explanations about the world that are subject to further testing and refinement.”

Daubert, 509 U.S. at 590. Derek Smith conceded Houston Aquarium was not engaged in a

research project: “It wasn’t as if they were performing a scientific project in conjunction with a

university. They were just maintaining exhibits[.]” (Exh. R-195a, p. 90).

Houston Aquarium’s management personnel broadly asserted that the divers make

observations and gather data every time they dive, by virtue of their scientific background and

training. The testimony of the divers themselves, however, is unequivocal: Houston Aquarium’s

divers gathered no data whatsoever during the routine feeding and cleaning dives they performed

on a daily basis. Diver #3 stated, “[I]n terms of data, I don’t think we did collect anything in that

tank really.” (Tr. 315). If the divers observed an injured or sick animal, they would report it to

their supervisors so medical treatment could be administered. If they noted a scratch or other

damage to the exhibit, they would report it to their supervisors so it could be repaired.

No scientific information was recorded for the multiple dives made on a daily basis in

Houston Aquarium’s exhibit tanks. The divers performed feeding and custodial maintenance

assignments during their dives as part of the ongoing care of the animals (and the aesthetic

appearance of the exhibits). Rather than observing “natural phenomena or responses of natural

systems” and gathering “data for scientific analysis,” Houston Aquarium’s divers were

performing routine, repetitive (albeit highly skilled) manual labor during their dives. It is telling

that Houston Aquarium adduced no evidence documenting observations made or data gathered

about the animals during feeding or cleaning dives.

The Court determines the feeding and cleaning dives performed by Houston Aquarium’s

employees on a daily basis between January 10, 2012, and June 20, 2012, do not constitute

scientific diving within the meaning of § 1910.402. Therefore, Houston Aquarium has failed to

meet its burden of proving it is exempt from complying with the CDO standard under §

1910.401(a)(2)(iv). The CDO standard applies to the dives cited in the Citation.

Item 1: Alleged Serious Violation of § 1910.422(c)(1)(i)

Alleged Violation Description

Item 1 of the Citation alleges:

Between January 10, 2012, and June 20, 2012, the employer did not ensure that

divers had two-way communications with the surface while diving, using surface

supplied air, exposing employees to lack of communication and delaying reaction

time of personnel on the surface at:

a) Gulf of Mexico Tank (GOM)

b) Grouper Tank

c) Demi Tank

d) Tower Tank

e) Dining Room Tank

f) Lionfish Tank

g) Entry Tank

Cited Standard

Section 1910.422(c)(1)(i) provides in pertinent part:

The alleged violation description for each of the cited items originally read, “On February 13, 2012, and at times

prior thereto;” followed by the specific allegations for that item. On August 22, 2013, the Secretary filed an

Unopposed Motion to Amend Citation and Complaint to change the beginning of each of the alleged violation

descriptions to read, “Between January 10, 2012, and June 20, 2012.” On August 26, 2013, the Court granted the

Secretary’s motion, amending “the alleged violation descriptions in Citation No. 1, Item Nos. 1, 3, 4, 5a, and 5b” to

substitute the January 10 through June 20 time period for the original date.

An operational two-way voice communication system shall be used between:

(i) Each surface-supplied air or mixed gas diver and a dive team member at the

dive location [.]

Definitions

Section 1910.402 provides these relevant definitions:

Surface-supplied air diving: A diving mode in which the diver in the water is

supplied from the dive location with compressed air for breathing.

Mixed-gas diving: A diving mode in which the diver is supplied in the water with

a breathing gas other than air.

Dive team: Divers and support employees involved in a diving operation,

including the designated person-in-charge.

Dive location: A surface or vessel from which a diving operation is conducted.

Compliance with the Terms of the Standard

Divers diving in the cited exhibit tanks (the Gulf of Mexico, Grouper, Demi, Tower,

Dining Room, Lionfish, and Entry Tanks) used surface-supplied air (Tr. 257, 316-317, 322, 329,

331). The divers were not equipped with a two-way voice communication system to use with

the dive tender observing the dive (Tr. 222). Instead, the diver and the dive tender relied on hand

signals, flashlights, rattles, and dive slates to communicate with each other (Tr. 152-153, 504-

505).

The only exhibit tank in which a diver could vocally communicate while diving was the

Gulf of Mexico Tank. As part of “Dive Com” shows for aquarium visitors, a diver in the Gulf of

Mexico Tank wore a full face mask (known as an AGA mask) equipped with a radio hookup and

Houston Aquarium uses a type of delivery system for compressed air during dives called a Hookah system.

A Hookah system uses an air compressor to supply air through a hose directly to the second-stage of a SCUBA

regulator. Houston Aquarium’s dive safety manual in effect at the time of the OSHA inspection defined “Hookah

Diving” as “[a] type of shallow water surface-supplied diving where there is no voice communication with the

surface.” (Exh. C-21, p. 31). Despite this definition, Todd Hall and William Boyes stated that the dives performed

by Houston Aquarium’s employees using the Hookah system were not surface-supplied air dives and that Houston

Aquarium does not perform any surface-supplied air dives (Tr. 545, 656). Hall conceded at the hearing that he made

his statement based on how he was defining surface-supplied air “at this time,” and he acknowledged his definition

differed from OSHA’s definition (Tr. 545). Hall also substituted his own definition of “dive location” in lieu of the

one mandated by OSHA (Tr. 542). Houston Aquarium prepared a record of dive logs in compliance with the

AAUS’s requirements. Although it distinguishes Hookah dives from surface-supplied air dives, Houston Aquarium

documented 25 surface-supplied air dives in 2012 (Exh. C-22). Boyes asserted that the classification of the 25 dives

as surface-supplied air dives reflected “a mistake the divers were making.” (Tr. 657).

The redefining and reclassifying of dives appear to be part of a strategy at the hearing to shield the dives

performed by Houston Aquarium’s employees from the application of § 1910.422(c)(1)(i), which applies to surface-

supplied air. Houston Aquarium does not pursue this theory in its post-hearing brief and does not argue that §

1910.422(c)(1)(i) is not applicable to the cited dives. The Court finds the cited dives performed by Houston

Aquarium’s employees using the Hookah system were surface-supplied air dives.

ear phones so he or she could communicate with the tender, who had a microphone. (Tr. 310).

Diver #3 testified that for a Dive Com show, “one of the tenders or one of the biologists would

talk and ask us questions about the fish and then they would let the public ask us questions.” (Tr.

311-312).

The two-way voice communication system was only used in the Gulf of Mexico Tank

during Dive Com shows. Divers performing cleaning dives in the Gulf of Mexico Tank did not

wear the AGA mask. For regular cleaning dives, Diver #3 testified:

[The diver and dive tender relied on] the same sort of things as with all the tanks.

The tenders would carry a small flashlight and if they needed to get our attention,

they could shine the light, you know, shine it around where we were cleaning so

we would look over at them. They could give us hand signals, like, to surface,

you know, and different things like that or sometimes pointing at a nurse shark

telling us to get out of the way. . . . Just communicating with us about the

location of the larger fish in the tank.

(Tr. 314-315).

Houston Aquarium does not dispute it failed to provide a two-way voice communication

system for its divers using surface-supplied air. Instead, it argues that a two-way voice

communication system is not needed at the Downtown Aquarium.

Diving within an aquarium is a unique situation where divers are able to stay in

constant visual contact with someone on the outside, which is not the case with

commercial divers who do not have constant visual contact. This visual contact,

which does not exist in diving situations in natural bodies of water, gives the

benefit of instant reactions to any possible emergency scenario.

(Houston Aquarium’s brief, p. 17) (footnotes omitted).

Houston Aquarium’s belief that the use of a two-way voice communication system

between its divers and dive tenders is unnecessary does not excuse compliance with the cited

subsection. Having determined the CDO standard applies to the dives performed at the

Downtown Aquarium, the Court cannot now ignore that application based on Houston

Aquarium’s assurance that it exceeds the requirements of § 1910. 422(c)(1)(i).

[T]he standard's adoption was mandated by Congress, and the Commission may

not entertain any challenge to the wisdom of the standard. E.g., Loomis Cabinet

Co., 15 BNA OSHC 1635, 1640, 1991-93 CCH OSHD ¶ 29,689, p. 40,258 (No.

88-2012, 1992) (holding that Commission “lacks the power” to question the

wisdom of an OSHA standard).

Manganas Painting Co., Inc., 21 BNA OSHC 1964, 1971 (No. 94-0588, 2007).

Houston Aquarium argues the methods of communication used by its divers are approved

by the scientific diving community. “The American Academy of Underwater Sciences (AAUS)

standards permit all of the forms of communication used.” (Houston Aquarium’s brief, p. 17).

The Court is not free to set aside the requirements of the CDO standard in favor of the standards

Houston Aquarium prefers.

[A]lterations to OSHA's safety standards cannot, however, be obtained in

adjudicatory proceedings before the Commission, which only concerns itself with

the employer's alleged violation of an existing standard. In these proceedings,

employers cannot question a standard's wisdom. See Austin Engg. Co., 12 BNA

OSHC 1187, 1188, 1984–85 CCH OSHD ¶ 27,189, p. 35,099 (No. 81–168,

1985), citing Van Raalte Co. 4 BNA OSHC 1151, 1152, 1975–76 CCH OSHD ¶

20,633, p. 24,698 (No. 5007, 1976) (the Commission lacks power to question the

wisdom of a standard). See also Secretary of Labor v. OSHRC (CF & I Steel

Corp.), 941 F.2d 1051, 1059 n. 10 (10th Cir.1991) (“[a]n employer may not

simply substitute its judgment for that of OSHA ... despite its subjective belief

that an agency interpretation is invalid”); Phoenix Roofing, Inc. v. Secretary of

Labor, 874 F.2d 1027, 1031 (5th Cir.1989) (“[i]t would also be improvident for us

to ... send employers the message that they [can] ignore the obvious mandates of

the safety regulations and independently determine what, if any, measures should

be undertaken in a given situation”).

Carabetta Enterprises Inc., 15 BNA OSHC 1429, 1432 (No. 89-2007, 1991).

It is undisputed Houston Aquarium permitted its divers to perform dives in the cited

exhibit tanks without the use of two-way voice communication systems. The Secretary has

established Houston Aquarium failed to comply with the terms of § 1910.422(c)(1)(i).

Employee Access to the Violative Condition

The record establishes Houston Aquarium’s employees dived in each exhibit tank on a

daily basis without the use of two-way communication systems. The CSHO described the

hazard to which the divers were exposed:

The hazard is if the tender sees something, he can’t communicate it to them

verbally, which is your fastest way of communication, versus tapping or flashlight

signals to make them aware of the hazard that may be in the water or if the divers

have a problem and need assistance immediately. It’s a lot easier to say “help”

than to start tapping or reaching or anything of that nature.

(Tr. 225-226).

The Secretary has established Houston Aquarium’s employees were exposed to the

violative condition.

Employer Knowledge

Houston Aquarium does not dispute it had knowledge of the violative condition. The

decision to use nonverbal methods of communication between divers and dive tenders was a

policy decision made by Houston Aquarium’s diving control safety board. Dive master Boyes, a

supervisor for Houston Aquarium, testified he inspected the diving equipment daily at the

Downtown Aquarium. He stated, “I take a look at the divers when they’re suited up because I

oversee the divers. We have a meeting each morning at 7:15 in front of the dive locker.” (Tr.

615). “[W]hen a supervisory employer has actual or constructive knowledge of the violative

conditions, that knowledge is imputed to the employer, and the Secretary satisfies his burden of

proof without having to demonstrate any inadequacy or defect in the employer's safety program.”

Dover Elevator Co., 16 BNA OSHC 1281, 1286 (No. 91-862, 1993).

Houston Aquarium had actual knowledge of its failure to comply with the terms of §

1910.422(c)(1)(i). The Secretary has established Houston Aquarium violated the cited

subsection. Item 1 of the Citation is affirmed.

Serious Classification

The Secretary classified this item as serious. Under § 17(k) of the Act, a violation is

serious “if there is a substantial probability that death or serious physical harm could result from”

the violative condition. “[A] serious violation is established if an accident is possible and there

is a substantial probability that death or serious physical harm could result from the accident.”

Consol. Freightways Corp., 15 BNA OSHC 1317, 1324 (No. 86-0351, 1991).

The CSHO testified the lack of a two-way voice communication system could result in a

diver’s death by drowning if he or she were unable to hear sudden warnings or communicate

distress (Tr. 226). Item 1 is properly classified as serious.

Item 3: Alleged Serious Violation of § 1910.424(c)(4)

Alleged Violation Description

Item 3 of Citation No. 1 alleges:

The Court of Appeals for the Fifth Circuit holds that “a supervisor's knowledge of his own malfeasance is not

imputable to the employer where the employer's safety policy, training, and discipline are sufficient to make the

supervisor's conduct in violation of the policy unforeseeable.” W.G. Yates & Sons Const. Co. Inc. v. Occupational

Safety & Health Review Comm'n, 459 F.3d 604, 608-09 (5th Cir. 2006) (emphasis in original). The instant case

does not present a Yates situation; the foreseeability of Boyes’s own misconduct is not at issue.

Between January 10, 2012, and June 20, 2012, the employer did not ensure that

divers carried a reserve breathing gas supply while conducting dives on scuba

exposing divers to a drowning situation at:

c) Shark Tank

d) Dining Room Tank

Cited Standard

Section 1910.424 addresses SCUBA diving. Section 1910.424(c)(4) provides:

A diver-carried reserve breathing gas supply shall be provided for each diver,

consisting of:

(i) A manual reserve (J valve); or

(ii) An independent reserve cylinder with a separate regulator or connected to the

underwater breathing apparatus.

Definitions

Section 1910.402 defines “SCUBA diving” as “[a] diving mode independent of surface

supply in which the diver uses open circuit self-contained underwater breathing apparatus.”

“Diver-carried reserve breathing gas” is “[a] diver-carried supply of air or mixed gas (as

appropriate) sufficient under standard operating conditions to allow the diver to reach the

surface, or another source of breathing gas, or to be reached by a standby diver.” A “J valve” is

“a backup breathing supply that’s built into the actual tank.” (Tr. 259). A “pony tank” is a small

independent reserve cylinder (Tr. 345).

Compliance with the Terms of the Standard

Diver #1 testified that, between January 10, 2012, and June 20, 2012, she SCUBA dived

in the Shark Tank “doing the regular maintenance routine of cleaning our exhibits.” (Tr. 114).

She dived in the Shark Tank on Tuesdays and Thursdays (Tr. 116). She did not carry a reserve

breathing gas supply during these dives (Tr. 114-116).

The CSHO observed four SCUBA divers working in the Shark Tank (Tr. 265). He

stated, “The divers in the tank were not carrying the auxiliary tanks or the tanks that they had in

their possession did not consist of having J valves installed on it.” (Tr. 259). The CSHO also

observed a SCUBA diver in the Dining Room Tank who was not carrying a reserve breathing

gas supply (Tr. 267).

Diver #3 testified he SCUBA dived in the Dining Room Tank. He was asked if he

carried a pony tank with him. He replied, “I personally never did when I used SCUBA and I

don’t remember anyone ever bringing one with them (Tr. 345).

Houston Aquarium had reserve tanks available at the Downtown Aquarium. (Tr. 266). It

contends, “[S]hould divers choose to carry a reserve air supply, the equipment is available and

ready for their use.” (Houston Aquarium’s brief, p. 18). Houston Aquarium did not require its

SCUBA divers to use a reserve tank during their dives (Tr. 511). Section 1910.424(c)(4)

requires that a reserve air supply “shall be provided for each diver.” A standard that requires an

employer to provide a safety device to each employee also requires the employer to ensure that

each employee uses the safety device. Clarence M. Jones, 11 BNA OSHC 1529 (No. 77-3676,

1983).

Houston Aquarium contends that “carrying a reserve breathing gas supply is not safer

than an alternative method of air supply. When the risk of decompression sickness is minimal,

or non-existent as in this case, direct ascent to the surface is the preferred method of air supply in

an ‘out of air’ emergency.” (Houston Aquarium’s brief, p. 18). Houston Aquarium is again

questioning the wisdom of the standard. The Court cannot approve the company’s use of an

alternative method of air supply that is not found in the applicable standard.

Furthermore, Houston Aquarium’s preference for direct ascent to the surface in an “out of

air” emergency ignores scenarios where ascent to the surface is difficult or impossible. Divers at

the Downtown Aquarium are exposed to, in Boyes’s words, “very large animals, what some

would consider potentially very dangerous animals.” (Tr. 619). If a diver were injured or

entangled or prevented from reaching the surface by an aggressive animal, access to a reserve air

supply could be vital. The Secretary has established Houston Aquarium violated the terms of the

cited subsection.

Employee Access to the Violative Condition

The CSHO testified the hazard to which the divers were exposed was “[t]he possibility of

running out of air and not having a backup or reserve and drowning.” (Tr. 266). Divers #1 and

#3 testified they made weekly SCUBA dives in the Shark Tank and the Dining Room Tank. It is

established that they had access to the violative condition.

Employer Knowledge

Houston Aquarium had actual knowledge of the violative activity. Dive master Boyes

met with the divers every morning and inspected their equipment. He was aware the SCUBA

divers were not carrying a reserve breathing gas supply.

The Secretary has established Houston Aquarium violated § 1910.424(c)(4). Item 3 is

affirmed.

Serious Classification

The Secretary classified this item as serious. Houston Aquarium’s failure to ensure its

SCUBA divers carried a reserve breathing gas supply exposed the divers to the potential risk of

death due to oxygen deprivation or drowning . Item 3 is properly classified as serious.

Item 4: Alleged Serious Violation of § 1910.430(g)(1)

Alleged Violation Description

Item 4 of Citation No. 1 alleges:

Between January 10, 2012, and June 20, 2012, the employer did not ensure that

divers had gauges that indicate the diver depth at their location, exposing divers to

situations that cause the bends or decompression sickness at:

a) Tower Tank

Cited Standard

Section 1910.430(g)(1) provides:

Gauges indicating diver depth which can be read at the dive location shall be used

for all dives except SCUBA.

Compliance with the Terms of the Standard

Divers in the Tower Tank did not use gauges indicating diver depth which could be read

at the dive location (Tr. 268-270). The Secretary has established Houston Aquarium failed to

comply with the terms of § 1910.430(g)(1).

Employee Access to the Violative Condition

The CSHO testified that divers in the Tower Tank who were not using depth gauges were

exposed to a delay in medical treatment for decompression sickness. He stated, “[T]he divers

don’t know what their depth is or if that information can’t be relayed to the tender and they come

down with decompression sickness, or the bends, the information can’t be relayed to a doctor for

proper treatment.” (Tr. 271).

Derek Smith has done extensive research in decompression sickness and has worked with

diving physiology experts for over 15 years (Exh. R-195, p. 241). He stated that the “definition

of decompression sickness is bubble formation and growth.” (Id.). During a dive, nitrogen gas

dissolves in the diver’s bloodstream as a liquid. When the diver surfaces, he or she goes from a

higher state of compression or pressure to a lower pressure. “The gas that’s in your bloodstream

wants to come out of that. Like your bloodstream can’t hold in the amount of gas that you’ve got

absorbed there.” (Id. at 242). During decompression, bubbles from the nitrogen in the diver’s

bloodstream form. Occasionally, “those bubbles get larger and larger and can get stuck in places

around your body, various blood capillaries, your arteries, your veins, places like that. And

when these bubbles form, grow, and then cause symptoms, that’s what we refer to as

decompression sickness.” (Id. at 243).

Smith stated that “it is generally accepted amongst . . . the community of diving

physiology doctors and the scientific community that dives that are shallower than 20 feet deep .

. . do not potentially expose a diver to decompression risk.” (Exh. R-195a, p. 49). The only

exhibit tank deeper than 20 feet at the Downtown Aquarium is the Tower Tank, which is 40 feet

deep. (Exh. C-7).

Smith testified that for dives in aquariums, “the depth of the exhibit is known and the

maximum depth of that dive is used for decompression planning.” (Id. at 59). Todd Hall, the

corporate dive master for Houston Aquarium and the Denver Aquarium, agreed: “[A]ll

aquariums are a fixed depth so if you’re not using a depth gauge, you have to plan your dives to

the maximum depth that that exhibit will allow you to go. And you plan your decompression

prevention . . . on that.” (Tr. 520). Hall stated that the only additional information medical

personnel need to know to treat decompression sickness is the length of time the diver has been

underwater. That information is always available to the dive team (Tr. 521).

The Secretary has failed to show Houston Aquarium’s divers were exposed to a hazard.

The CSHO stated that the hazard was “the divers don’t know what their depth is.” Houston

Aquarium uses the maximum depth of 40 feet as the baseline for planning decompression

treatment. Divers suffering from decompression sickness would experience no delay in medical

treatment. Medical personnel assume the depth of the diver’s dive to be 40 feet and treat the

diver based on the amount of time the diver spent underwater, information that is always

available to the dive tender or other dive team member.

The Secretary has failed to establish a violation of § 1910.430(g)(1). Item 4 is vacated.

Items 5a and 5b: Alleged Serious Violations of §§ 1910.430(j)(2)(i) and (ii)

Alleged Violation Descriptions

Item 5a of Citation No. 1 alleges:

Between January 10, 2012, and June 20, 2012, the employer did not ensure that

divers wore safety harnesses with a positive buckling device, exposing divers to

delayed recovery in the case of a debilitating accident.

Item 5b of Citation No. 1 alleges:

Between January 10, 2012, and June 20, 2012, the employer did not ensure that

divers had attachment points for the umbilical cord to prevent strain on masks, or

Hookah devices while the divers are in the water, exposing employees to

damaging mask and not being able to breathe.

Cited Standard

Sections 1910.430(j)(2)(i) and (ii) provide:

Except when heavy gear is worn or in SCUBA diving, each diver shall wear a

safety harness with:

(i) A positive buckling device; [and]

(ii) An attachment point for the umbilical to prevent strain on the mask or

helmet[.]

Compliance with the Terms of the Standard

When the CSHO first inspected the Downtown Aquarium, Houston Aquarium’s divers

using surface-supplied air did not wear safety harnesses (and therefore no diver wore a safety

harness with a positive buckling device or an attachment point for the umbilical). Instead,

Houston Aquarium had devised a method for rescuing divers “using a backboard much like EMS

personnel would use, by putting that in the water and strapping the individual to it. And then

they had attached chains with a hoisting mechanism to the ceiling to retrieve divers from the

water.” (Tr. 275).

Following the CSHO’s initial visit, Houston Aquarium purchased safety harnesses for its

divers, making them available for use sometime in February or March 2012 (Tr. 613-614). Even

then, however, Houston Aquarium did not require its employees to wear safety harnesses during

their dives. Diver #3 testified he never wore a safety harness when performing cleaning dives

(Tr. 349).

Houston Aquarium contends its divers wore weight belts around their waists and that the

weight belts “served the same function as a safety harness.” (Houston Aquarium’s brief, p. 20).

Houston Aquarium instructed its divers to attach their air hoses to their weight belts. Todd Hall

stated that Houston Aquarium’s “policy has always been to have your airline clipped into your

weight belt. It’s as simple as that.” (Tr. 522). The CSHO took a photo of a diver performing a

cleaning dive (Exh. C-8). The diver did not clip his air hose to his weight belt. Instead, the diver

“had taken the hose and bent it in half and stuck it into [the] weight belt in lieu of having that

positive buckling device.” (Tr. 279).

The record establishes Houston Aquarium did not provide safety harnesses for its divers

until February or March of 2012, and that it did not require its employees to wear the safety

harnesses once they were purchased. The Secretary has proven Houston Aquarium failed to

comply with the terms of § 1910.430(j)(2).

Employee Access to the Violative Condition

The CSHO observed several divers who were not wearing the required safety harnesses

(Tr. 276). Diver #3 testified he never wore a safety harness during cleaning dives (Tr. 349). The

hazard of a diver failing to wear a safety harness with a positive buckling device is “delayed

removal from the water if [the diver] become unconscious.” (Tr. 275). The hazard of failing to

wear a safety harness with attachment points for the umbilical to prevent strain on the mask is

that the air hose inadvertently could be pulled from the diver’s mouth, depriving the diver of

oxygen (Tr. 277). The Secretary has established the divers had access to the violative condition.

Employer Knowledge

Houston Aquarium had actual knowledge of the violative activity. Dive master Boyes

met with the divers every morning and inspected their equipment. He was aware of when the

divers were not wearing safety harnesses. The Secretary has established that Houston Aquarium

committed a violation of § 1910.430(j)(2).

Serious Classification

The Secretary classified this item as serious. Houston Aquarium’s failure to ensure its

divers were wearing the required safety harness with a positive buckling device and an

attachment point exposed divers to a possible delay in the event of an emergency rescue and

drowning. Items 5a and 5b are properly classified as serious.

AFFIRMATIVE DEFENSES

Houston Aquarium argues the photographed employee was not following its policy of clipping the air hose to the

weight belt. This, Houston Aquarium asserts, is a case of unpreventable employee misconduct. The first element

the employer must prove in order to establish the affirmative defense of unpreventable employee misconduct is that

the employer had “established work rules designed to prevent the violative conditions from occurring[.]” Manganas

Painting Co., 21 BNA OSHC 1964, 1997 (No. 94-0588, 2007). Here, the violative condition is the failure to ensure

the diver is wearing a safety harness with a positive buckling device and an attachment point for the umbilical.

Houston Aquarium’s rule requiring divers to clip the air hose to the weight belt is irrelevant to the cited subsection.

Houston Aquarium’s unpreventable employee misconduct defense is rejected.

Houston Aquarium asserted a laundry list of defenses in its Answer, some of which are

recognized by the Commission (Answer, ¶¶ 9 through 42). By the time Houston Aquarium filed

its post-hearing brief, it had narrowed its primary affirmative defenses to infeasibility, greater

hazard, and vindictive prosecution. It is the employer’s burden to prove each of these

affirmative defenses. Houston Aquarium has failed to meet its burden of proof with regard to

each defense.

Infeasibility

In its post-hearing brief, Houston Aquarium conjoins infeasibility and greater hazard,

which are two separate defenses. Where Houston Aquarium alleges that compliance with the

cited subsections is infeasible, its supporting argument actually asserts compliance would result

in a greater hazard.

To prove infeasibility, Houston Aquarium must show by a preponderance of the evidence

that “(1) literal compliance with the terms of the cited standard was infeasible under the existing

circumstances and (2) an alternative protective measure was used or there was no feasible

alternative measure.” Westvaco Corp., 16 BNA OSHC 1374, 1380 (No. 90-1341, 1993).

Houston Aquarium fails to meet the first element of the defense. It concedes that on occasion it

needs to perform underwater construction work. When those occasions arise, Houston Aquarium

either hires an outside company to perform the dives or uses its own employees to perform the

construction work. In either case, the divers comply with the CDO standard. No evidence was

adduced demonstrating divers engaged in construction work were unable to literally comply with

the terms of the cited subsections of the CDO standard. Houston Aquarium cannot, therefore,

establish that literal compliance with the terms of the cited standard subsections was infeasible

under the existing circumstances.

Greater Hazard

Houston Aquarium’s real argument is that compliance with the cited subsections of the

CDO creates a greater hazard “to both the animals in the tanks and the divers.” (Houston

Aquarium’s brief, p. 31). It alleges three situations in which compliance with the cited

subsections will result in greater hazards:

(1) wearing more equipment does not necessarily make divers safer—requiring

scientific aquarium divers to use unfamiliar equipment . . . would present a safety

hazard for both animals and divers;

(2) most aquarium tanks are not very deep and there is not much room to move

around. Additional equipment would be more cumbersome and would cause a

potential entanglement hazard and interfere with egress from an aquarium tank;

and

(3) aquarium animals are attracted to electrical impulses in a nonposititve way.

Divers using electrical communications when diving in close proximity with these

animals would pose a risk because predatory and schooling behavior is based on

electrical impulses that would cause divers to become potential targets. Divers

would be particularly at risk while diving with sharks or groupers and would

potentially risk death if required to wear electrical equipment in tanks with these

animals. Wearing electrical equipment such as two-way voice communication in

all tanks at the Houston Aquarium, as suggested by the Secretary, is infeasible.

(Houston Aquarium’s brief, pp. 31-32) (footnotes omitted).

Houston Aquarium is being disingenuous with its third point. The testimony regarding

the attraction of the aquarium animals to electrical impulses related specifically to sharks (Tr.

407, 507). Jim Prappas testified it was not advisable to use a two-way voice communication

system in the Shark Tank because “it’s an electrical device and the animals are attracted to

electrical things and when you’re wearing an electrical device on your head, that could possibly

make you a target.” (Tr. 507). For that reason, Prappas asserted, divers in the Shark Tank use

SCUBA equipment when diving (Id.).

Section 1910.422(c)(1)(i), the subsection of the CDO standard that requires the use of a

two-way voice communication system, applies to divers using surface-supplied air or mixed-gas.

The Secretary did not cite Houston Aquarium under § 1910.422(c)(1)(i) for dives performed in

the Shark Tank based on its understanding that only SCUBA diving was performed in that tank

(Secretary’s brief, p. 84, n. 13). Abatement of Item 1 does not require Houston Aquarium to

implement a two-way voice communication system in the Shark Tank if it continues to permit

only SCUBA diving in that exhibit.

Houston Aquarium’s other two points amount to the same complaint—wearing the

additional equipment required by the cited subsections of the CDO standard creates a greater

hazard than not wearing it.

To establish a defense of greater hazard, an employer must prove that: (1) the

hazards created by complying with the standard are greater than those of

noncompliance, (2) other methods of protecting employees from the hazards are

not available, and (3) a variance is not available or application for a variance is

inappropriate. See Spancrete Northeast, Inc., 15 BNA OSHC 1020, 1022–23,

1991 CCH OSHD ¶ 29,313, pp. 39,356–39,357 (No. 86–521, 1991). These three

elements are now well-established in court precedent. Id. at n. 3 (listing cases).

An employer's proof of the unavailability or inappropriateness of a variance is

particularly important. E.g., PBR, Inc. v. Secretary of Labor, 643 F.2d 890, 895

(1st Cir.1981).

Seibel Modern Mfg. & Welding Corp., 15 BNA OSHC 1218, 1225 (No. 88-821, 1991).

Here, Houston Aquarium’s defense is fatally deficient because it failed to file a variance

or adduce any evidence that application for a variance is inappropriate. Houston Aquarium

does not refer to the elements of the greater hazard defense in its post-hearing brief and it does

not attempt to argue it established the “particularly important” third element of the defense.

Houston Aquarium is not excused from compliance with the CDO standard merely because it

disagrees with its wisdom.

An employer who disagrees with a standard, on the basis that its particular

requirements are arbitrary or inappropriate, has two options. The employer may

apply for a variance. See Walker Towing Corp., 14 BNA OSHC [2072, 2079 n. 11

(No. 87-1359, 1991] (discussion of the variance option); Stone Container Corp.,

14 BNA OSHC 1757, 1760, 1987–90 CCH OSHD ¶ 29,064, p. 38,817 (No. 88–

310, 1990) (other than a judicially-created defense or a settlement agreement that

excuses strict compliance, the only legal excuse for noncompliance is a variance).

The employer may also seek to have the Secretary alter her standard through rule-

making proceedings. See 29 U.S.C. § 665(b)(1) (“The Secretary may ... modify ...

any occupational safety or health standard ... [w]henever the Secretary, upon the

basis of information submitted ... by an interested person, [or] a representative of

any organization of employers[,] ... determines that a rule should be promulgated

...”).

Carabetta, 15 BNA OSHC at 1432.

Houston Aquarium did not apply for a variance from the cited subsections of the CDO

standard. Therefore, its affirmative defense of greater hazard must fail.

Vindictive Prosecution

During the comment period for the proposed scientific diving exception, the Carpenters Union suggested that

variances were a more appropriate means for determining whether the CDO should apply in specific circumstances.

The scientific diving community rejected this approach.

One of the issues addressed in this rulemaking concerns the appropriateness of the scientific

diving community seeking an exemption, rather than a variance, from Subpart T. The Carpenters

Union remarked that an exemption from the OSHA standards would be unprecedented by making

a broad incursion into a safety standard without considering the variance alternative.

. . .

Members of the scientific diving community expressed concern that the time involved in obtaining

a variance, the resultant delays in carrying out research activities, as well as the costs involved in

obtaining a variance or in requesting modifications of variances might curtail or eliminate

important research projects and thus be detrimental to their scientific research programs.

47 Fed. Reg. at 53,362, 53,363.

Houston Aquarium contends it “is apparently the subject of vindictive prosecution,

harassment, and selective enforcement. Following the complaint of . . . a disgruntled employee,

the Secretary decided to arbitrarily apply Commercial Diving Regulations to the Houston

Aquarium notwithstanding 30 years of OSHA policy to the contrary that has permitted the

aquarium diving community to self-regulate under scientific diving standards.” (Houston

Aquarium’s brief, pp. 33-34).

“Vindictive prosecution is a prosecution to deter or punish the exercise of a protected

statutory or constitutional right. United States v. Goodwin, 457 U.S. 368, 372 (1982). Although

there is no uniform test for proving that a prosecution was vindictive, a threshold showing

common to all tests is evidence that the government action was taken in response to an exercise

of a protected right.” National Engineering & Contracting Co., 18 BNA OSHC 1075, 1077 (No.

94-2787, 1997).

Houston Aquarium has not identified any protected right it exercised that caused the

Secretary to initiate this inspection or prosecution. OSHA conducted the January 2012

inspection pursuant to a formal employee complaint. Houston Aquarium has failed to make a

threshold showing of vindictive prosecution. Its defense is without merit.

PENALTY DETERMINATION

Under § 17(j) of the Act, the Commission must give “due consideration to the

appropriateness of the penalty with respect to the size of the business of the employer being

charged, the gravity of the violation, the good faith of the employer, and the history of previous

violations.” The principal factor in a penalty determination is gravity, which “is based on the

number of employees exposed, duration of exposure, likelihood of injuries, and precautions

against injuries.” Siemens Energy and Automation, Inc., 20 BNA OSHC 2196, 2201 (No. 00-

1052, 2005).

Houston Aquarium employs approximately 285 employees (Tr. 285). OSHA had

inspected the Downtown Aquarium and cited it for serious violations within the previous five

years (Tr. 238). The CSHO testified that Houston Aquarium cooperated fully with his

inspections and responded quickly to his recommendations: “Every time I brought something to

their attention, Mr. Boyes, he was actively making adjustments or purchasing equipment in good

faith to make the dives safer for the divers.” (Tr. 289). Houston Aquarium has demonstrated

good faith throughout this proceeding.

The Court recognizes that OSHA’s application of the CDO standard to the Downtown

Aquarium represents an abrupt departure from OSHA’s previous treatment of public

aquariums. The Court of Appeals for the Eighth Circuit has suggested that a reduction in

penalty may be appropriate when an employer is caught in the vanguard of OSHA’s change in

policy. “A steep fine for behavior consistent with an arguably longstanding interpretation from

the Secretary may well be untenable.” Perez v. Loren Cook Co., 750 F.3d 1006, 1013 (8th Cir.

2014).

The gravity of the violations cited in Items 1, 3, 5a, and 5b is low. The exhibit tanks at

the Downtown Aquarium are controlled environments not subject to the variables of weather and

unknown inhabitants. Houston Aquarium controls the temperature, lighting, current, and

configuration of the tanks. Unlike divers in virtually every other underwater environment,

aquarium divers are wholly visible to observers outside of the water for the duration of their

dives. Houston Aquarium’s divers dive with other dive team members and are always watched

from outside the water by a dive tender. Houston Aquarium’s divers are highly trained. The

dive master meets with the divers every morning and checks their equipment.

Although Houston Aquarium was not in compliance with the cited subsections of the

CDO standard, it had implemented alternative safety measures, including the use of the

nonverbal communication system, “buddy breathing” rescue training, and an emergency retrieval

procedure. The Secretary adduced no evidence of accidents or injuries occurring during dives

performed at the Downtown Aquarium. “The absence of a history of accidents . . . , while

irrelevant to whether a violation exists, may be considered in determining gravity. Brennan v.

Smoke-Craft, Inc., 532 F.2d 843 (9 Cir.1976). Accord Allis-Chalmers Corp. v. OSHRC, 542

F.2d 27 (7 Cir.1976) (while not determinative, an employer’s accident-free record may be

considered).” Monitor Constr. Co., 16 BNA OSHC 1589, n.8 (No. 91-1807, 1994).

Upon due consideration of the statutory factors under § 17(j) of the Act, as well as the

Downtown Aquarium’s status as the first public aquarium cited under the CDO standard, the

Court determines that the appropriate penalty for Item 1, Item 3, and grouped Items 5a and 5b is

$1,500.00 each.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Houston Aquarium did not assert as a defense that it lacked fair notice of the application of the CDO standard to

the dives performed at the Downtown Aquarium (Answer, ¶¶ 9-42), nor did it present a fair notice argument in its

post-hearing brief.

The foregoing decision constitutes the findings of fact and conclusions of law in

accordance with Fed. R. Civ. P. 52(a).

ORDER

Based upon the foregoing decision, it is hereby ORDERED:

1. Item 1 of the Citation, alleging a serious violation of § 1910.422(c)(1)(i), is

AFFIRMED and a penalty of $1,500.00 is assessed;

2. Item 2 of the Citation, alleging a serious violation of § 1910.422(d), was withdrawn by

the Secretary prior to the hearing. Item 2 is VACATED and no penalty is assessed;

3. Item 3 of the Citation, alleging a serious violation of § 1910.424(c)(4)(i), is

AFFIRMED and a penalty of $1,500.00 is assessed;

4. Item 4 of the Citation, alleging a serious violation of § 1910.430(g)(1), is VACATED

and no penalty is assessed; and

5. Items 5a and 5b of the Citation, alleging serious violations of §§ 1910.430(j)(2)(i) and

(ii), are AFFIRMED and a grouped penalty of $1,500.00 is assessed.

/s/

Date: August 18, 2014 Judge Sharon D. Calhoun