OSHA fines SeaWorld $38,500 for safety violation

Fine comes 3 years after Dawn Brancheau killed by whale at Orlando park

ORLANDO, Fla. – The Occupational Safety and Health Administration has fined SeaWorld Orlando $38,500 and labeled the park a repeat offender, saying the entertainment giant continues to operate a workplace that can "cause death or serious physical harm to employes."

The fine is the result of a follow-up inspection OSHA conducted at Shamu Stadium on December 11, 2012. 

In order to protect its employees, OSHA has recommended that SeaWorld take steps such as "prohibiting animal trainers from working with killer whales ... unless the trainers are protected through the use of physical barriers or the trainers are required to maintain a minimum safe distance."

The fine, which was issued Friday, comes amid a three-year fight between OSHA and SeaWorld after trainer Dawn Brancheau was drowned in Orlando by a killer whale in 2010.

In April, attorneys representing OSHA said in court that SeaWorld's attempts to keep killer whale trainers safe is still not adequate.  SeaWorld insisted, however, that the company was in compliance with OSHA's mandate that trainers remain behind barriers or stay a safe distance away from killer whales during the park's famous Shamu show.

Last summer, an administrative law judge upheld a series of OSHA safety violations against SeaWorld and ordered the park to pay $12,000 in fines. In his order, the judge indicated that OSHA could require SeaWorld to "install physical barriers between its trainers and killer whales" or "require its trainers to maintain a minimum distance from the killer whales." Those safety improvements were required to be in place by July 27.

That same day, SeaWorld filed a petition with OSHA asking for an extra six months to implement new safety protocols, pointing out that OSHA did not specify an exact "minimum distance."

SeaWorld lawyers said the company consulted with marine mammal experts from the Georgia Aquarium and Atlantis Resorts in the Bahamas to establish its own minimum distances trainers can interact with killer whales, although neither facility houses killer whales.

According to SeaWorld Animal Training Curator Kelly Flaherty Clark, trainers are now required to stay 3 feet away from killer whales if they are kneeling on a flat surface. Trainers must be 18 inches from the edge of the pool if they standing near the whales, she said.

Clark testified that trainers may still touch a killer whale or rub its back while standing next to the animal on a submerged ledge in the pool, as long as the trainer is positioned along the side of the animal's body between its blowhole and tail. The trainer must stay away from the whale's mouth and tail and have an escape route if the whale were to move, said Clark.

Under cross examination by OSHA lawyers, Clark acknowledged a killer whale can potentially spin 360 degrees on the submerged ledge as a trainer stands next to it. OSHA lawyers point out that it is up to the employees themselves to determine whether the whale might attempt to hurt them.

"Everything we did was about making sure my employees were safe," testified Clark, who said no SeaWorld trainers has been injured since Brancheua's death. "We haven't even had a scraped knee."

SeaWorld released a statement on Monday, which reads as follows:

"SeaWorld has received a citation from the Occupational Safety and Health Administration (OSHA) concerning the manner in which trainers currently interact with killer whales in Orlando.  The citation is related to the prior citation that is currently on appeal before the United States District for the D.C. District.  The safety of guests and employees and the welfare of animals are SeaWorld's highest priorities.  Since 2010 the company has voluntarily implemented significant changes to the training protocols for its killer whale program that have proven to be safe and effective.   OSHA's enforcement activities and the new citation demonstrate the agency's continued and fundamental misunderstanding of how to properly and safely care for and work around these animals. "