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The Occupational Safety and Health Review Commission held in a 2-1 decision that cleaning and feeding dives conducted by employees of a Houston aquarium’s complex were not considered “scientific diving” in order to fall under an exception to the U.S. Occupational Safety and Health Administration’s commercial diving operations standard.
In Secretary of Labor v. Houston Aquarium Inc., the commission on Friday affirmed an administrative law judge’s decision and penalty of $4,500 assessed against Houston Aquarium, which operates a four-story entertainment complex known as Downtown Aquarium in Houston. The aquarium, owned by Landry’s Inc., also based in Houston, employs divers whose primary duty is to feed the animals and clean the tanks, which includes scrubbing the windows, rocks and decorations to remove feces and food particles.
After an OSHA inspection, Houston Aquarium received five citations with proposed penalties of nearly $20,000 for violations of the administration’s diving standards in six of its aquatic tanks. The aquarium acknowledged that one of its diving activities was an event dive, but argued that its feeding and cleaning dives were actually “scientific diving” and therefore exempt. An administrative law judge found that some of the aquarium’s activities were covered by the standard but vacated other citations, assessing a total penalty of $4,500.
The judge held that the dives conducted at the aquarium fell short of meeting the requirements because scientific diving “must be solely for the purpose of performing scientific research tasks,” and found that the divers gathered no data about the animals or their environment.
To qualify as scientific diving under OSHA’s exemption, the dive must be a necessary part of a scientific, research or educational activity, conducted by employees whose sole purpose for diving is to perform scientific research tasks, and not include tasks usually associated with commercial diving.
The commission affirmed the judge’s decision in the split decision. Although the aquarium “vaguely” alluded to conducting research work, the commission’s majority said it failed to identify a single example of a study or research project it has performed, “much less one that is being performed while engaging in feeding and cleaning dives,” or to show that research was the sole purpose of its feeding and cleaning dives.
As a result, the majority found that the aquarium’s feeding and cleaning dives did not constitute “scientific dives” within the plain meaning of the diving standard. The commission affirmed the violations of the diving standard for its feeding and cleaning dives in addition to its event dives, as well as the $4,500 penalty.
Commission Chairman Heather MacDougall dissented from the majority, noting that the aquarium is a member of the American Academy of Underwater Sciences, and that its divers are all scientists “who receive extensive training and have diving certificates” and must perform dives in a way that does not disturb or disrupt the marine environment.
She said in her dissent that while it is undisputed that the commercial diving operations standard does not apply to scientific diving, it’s less clear what qualifies as scientific diving, and stated that her colleagues “unreasonably and unnecessarily reject the aquarium community’s longstanding interpretation of their institutional diving activities — a determination that not only impacts how Houston Aquarium must now conduct diving at its scientific institution, but also has the potential to impact” other American Academy of Underwater Sciences members.
“My colleagues’ decision today, reached as a result of their diminishing the world of science, is unfortunate for the entire scientific diving community, as it unravels layers of careful work that was reached through notice and comment rulemaking and included the participation of various stakeholders — including the scientific diving community, who will find that work was for naught,” wrote Ms. MacDougall.
Landry’s general counsel and executive vice president, Steve Scheinthal, says he believes OSHA has overstepped its bounds and plans to appeal the decision.
“Our procedures have been approved by the highest independent agencies that oversee aquariums and are in accordance with industry standards,” said Mr. Scheinthal. “OSHA has chosen to make a test case of us and have underestimated our resolve and that of the industry that supports us. We do expect to prevail.”
The Virginia Court of Appeals on Tuesday denied workers compensation benefits to one former Washington Redskins player while granting another player’s disability coverage.