Secretary of Labor,
Complainant,
v.	OSHRC Docket No. 12-1617
Houston Aquarium, Inc.,
Respondent.

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 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 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

            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.

            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:

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 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:

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 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

            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^th Cir.1976). Accord Allis-Chalmers Corp. v. OSHRC, 542 F.2d 27 (7^th 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

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