Judge rules SeaWorld made good faith effort to protect trainers

By Mike DeForest, Reporter, mdeforest@clickorlando.com
Published On: Aug 12 2013 06:14:01 PM EDT
Updated On: Aug 12 2013 07:33:46 PM EDT

An administrative law judge has ruled that SeaWorld has made a good faith effort to protect its trainers from the dangers posed by working with killer whales.

ORLANDO, Fla. -

An administrative law judge has ruled that SeaWorld has made a good faith effort to protect its trainers from the dangers posed by working with killer whales.

The judge also indicated that SeaWorld has more expertise than the Occupational Safety and Health Administration in determining how close trainers can safely work alongside killer whales. However, OSHA investigators still have concerns the marine park is jeopardizing the safety of its employees.

Following the 2010 death of SeaWorld trainer Dawn Brancheau, who was drowned by a killer whale named Tilikum, OSHA issued citations against SeaWorld and ordered the company to take steps to better protect its employees. Last summer, Judge Kenneth Welsch ordered the company to pay a $12,000 fine and abate the hazards. OSHA recommended that trainers be kept behind barriers or remain a safe distance away from killer whales during show performances.

SeaWorld immediately notified OSHA that it could not implement the safety improvements by the judge's July 27, 2012 deadline and requested a 6 month extension. As the company awaited a court ruling on the extension, OSHA conducted a re-inspection of Shamu Stadium at SeaWorld in October 2012. The agency later found SeaWorld to be in repeat violation and issued an additional $38,500 fine.

In April 2013, SeaWorld took OSHA to court to retroactively seek the 6 month extension. Company officials testified that they had developed and implemented 26 new safety protocols to protect killer whale trainers. Under SeaWorld's new rules, trainers must remain 18 inches from the edge of the killer whale pool when standing and 3 feet when kneeling. Trainers may stand alongside and touch the whales as long as they approach the animal from the side near its blowhole, avoiding the head and tail that could knock the employee down, according to SeaWorld officials. Company officials said they consulted with marine mammal experts at the Georgia Aquarium and Atlantis Hotel in the Bahamas to set the new rules, a time-consuming process they claim required a deadline extension.

Last week, Judge Welsch retroactively granted SeaWorld's request for an extension. "It is determined SeaWorld made a good faith effort to comply with the abatement requirements of the citation," wrote Welsch. "It continued its suspension of waterwork and implemented minimum distance requirements. It added security and emergency response equipment. It also consulted independent experts in order to get their opinions on appropriate abatement measures."

Judge Welsch noted that neither himself nor OSHA has expertise in training killer whales. "The determination of what constitutes a safe minimum distance is best left to experts in the training and behaviors of captive killer whales," ruled Welsch.

Although the judge agrees that OSHA's recommendations that trainers be kept a safe distance from whales or behind barriers are feasible ways to protect employees, his ruling acknowledges that "SeaWorld is not limited to only those abatement methods. The company may implement another method or methods of abatement designed to protect trainers from struck-by and drowning hazards."

During the April court hearing, attorneys representing OSHA argued that SeaWorld's new safety procedures still expose trainers to injury or death. OSHA has the authority to conduct a future re-inspection of SeaWorld and issue more citations if it finds the company is still jeopardizing employee safety, according to court testimony.

An OSHA spokesman has not returned phone calls seeking comment on the agency's future plans. It is unclear whether OSHA's recent citation and fine stemming from their October 2012 re-inspection of Shamu Stadium will now be thrown out, since the judge has ruled SeaWorld was no longer required to be in compliance at that time.

"We are encouraged by Administrative Law Judge Ken S. Welsch's decision last week in our favor," said SeaWorld spokesman Fred Jacobs. "In particular, Judge Welsch noted that SeaWorld - 'a world leader in the training of killer whales' - is not limited to the abatements proposed by OSHA in those citations if the company can demonstrate that other protective measures are as or more effective. We have repeatedly stressed that the safety of staff and guests and the welfare of animals are our highest priorities."

SeaWorld is appealing its original OSHA citations and fines issued after Brancheau's death. The company recently hired Washington D.C. attorney Eugene Scalia, the son of U.S. Supreme Court Justice Antonin Scalia.

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