OSHA Hits SeaWorld with Fine and Safety Violation – AGAIN

THIS ARTICLE  FIRST APPEARED AT WWW.TAKEPART.COM TODAY, JUNE 10, 2013

The Occupational Safety and Health Administration (OSHA) has issued a “repeat violation” and a fine of $38,500 against SeaWorld Florida for ignoring a federal court order and continuing to run a workplace with “recognized hazards that were causing or likely to cause death or serious physical harm to employees in that employees were exposed to struck-by and drowning hazards.” (OSHA CITATION HERE)

The move, a major blow to SeaWorld, is the park’s latest losing volley in the more than three-year-long, bitter battle between SeaWorld and OSHA that began in February, 2010 when the orca Tilikum killed Orlando trainer Dawn Brancheau in front of horrified park guests.

The citation, issued on Friday, was obtained today by TakePart, which has covered this legal saga extensively, including here and here.

Following the death of Dawn Brancheau at SeaWorld, OSHA hit the entertainment giant with a “willful” violation, a $75,000 fine and orders to keep all orca trainers out of the pools (something known as “water work,)” and to maintain a safe distance or physical barrier between trainers and the ocean’s top predator when the whales sidle up to the stage or haul themselves out of the water in the slide-out area, (or drywork.”)

SeaWorld agreed to end its water work, at least for now, but still allows trainers to come into extremely close physical contact with the killer whales (except Tilikum), as evidenced in numerous photos and television news accounts showing trainers hugging, kissing and massaging orcas – with no barrier or distance at all. According to OSHA, captive orcas could easily hit or grab a trainer and drag them into the water.

“At the Shamu Stadium pools, animal trainers working with killer whales other than Tilikum were exposed to struck-by and drowning hazards in that they were allowed to engage in drywork performances with the killer whales without adequate protection,” the OSHA citation reads.

“Sea World of Florida, LLC was previously cited for a violation of this occupational safety and health standard,” it added.

In 2010, SeaWorld sued OSHA to overturn the original violation and the ban on water work and close-proximity dry work. But the judge in the case refused, chastising SeaWorld for putting its workers at risk, just for the sake of entertainment. He did reduce the violation from “willful” to “serious,” however, and lowered the fine.

In his scathing rebuke to SeaWorld, Judge Ken Welsch ruled that, “Proximity to the killer whales is the factor that determines the risk to the trainers,” and cited cases where “killer whales seized trainers during waterwork or pulled trainers into the water during drywork,” and where “the injured or deceased trainer was not recovered until the killer whale decided to release the trainer.”

At trial, the government presented documentation of numerous cases where trainers had been injured, dragged into the water or whacked by a whale while doing “dry work.” Dawn Brancheau herself was doing dry work (she was on a shallow ledge with about 6-8 inches of water) when Tilikum grabbed her and wouldn’t let go.

SeaWorld appealed Judge Welch’s decision to a Labor Department commission, which refused to hear the case.

Despite its legions of talented, high-paid attorneys, SeaWorld is nonetheless a three-time legal loser in the Brancheau saga. First OSHA ordered its trainers to stay away from the orcas; then when SeaWorld sued, a federal judge enforced the order; and then when it appealed to the Labor Department, it lost again.  With nowhere else to turn, SeaWorld filed an appeal at the Federal Court of Appeals in Washington, DC. That court sent the matter into mediation, which apparently went nowhere, (SeaWorld argued that the whales where essentially rendered harmless when beached in the slide out area), leading to the new violation and fine.

Now OSHA is once again ordering the recalcitrant, scofflaw SeaWorld to abate the hazard and finally “prohibit animal trainers from working with killer whales, including drywork, unless the trainers are protected through the use of physical barriers or the trainers are required to maintain a minimum safe distance.”

SeaWorld has 15 business days to respond, though if history is any guide, it may well contest the citations and sue the feds once again, perpetuating the legal battle for a few years more. Meanwhile, there is still an appeal before the Federal Circuit Court of DC.

Why it is so important for SeaWorld to have its trainers cozy up to killer whales during the Shamu show is beyond me. Yet the company is willing to spend years in court, and millions of dollars in legal fees, just to show how “close” the relationship is between whale and human.

Except, of course, when it is not. Just ask the families of the four people already killed by orcas in captivity.

About David Kirby

DAVID KIRBY is the author of 'Evidence of Harm,' which was a New York Times bestseller, winner of the 2005 Investigative Reporters and Editors (IRE) award for best book, and a finalist for the New York Public Library Helen Bernstein Award for Excellence in Journalism, and 'Animal Factory,' an acclaimed investigation into the environmental impact of factory farms which NPR compared to Upton Sinclair’s classic work 'The Jungle.' His latest book, 'Death at SeaWorld,' was previewed by Library Journal, which wrote: “Lives are at stake here, and Kirby can be trusted to tell the story, having won a passel of awards for his investigate work.” Booklist called the book “gripping” and “hard to put down.”
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