Nineteen months after an animal trainer was killed by one of its killer whales, SeaWorld Parks & Entertainment heads to court next week to fight for the future of its iconic Shamu shows.
SeaWorld is challenging the results of a federal investigation triggered by the Feb. 24, 2010, death of veteran trainer Dawn Brancheau, who was pulled underwater and killed by Tilikum, a 6-ton killer whale.
The U.S. Occupational Safety and Health Administration wants to fine SeaWorld $75,000, but far more than a financial slap on the wrist is at stake for SeaWorld, a $1.2 billion-a-year business with namesake marine parks in Florida, California and Texas. Legal experts say the case, which will be heard in a Seminole County courtroom, could dictate whether SeaWorld is able to put trainers and whales in the water together ever again.
Some within the zoological and amusement-park industries fear the results could also reverberate far beyond SeaWorld and into zoos, aquariums and other facilities where employees work closely with large, potentially dangerous animals. The International Association of Amusement Parks and Attractions said it is "monitoring" SeaWorld's case.
"A lot of people are following this," added Jack Hanna, the celebrity biologist and director emeritus of the Columbus Zoo in Ohio, who occasionally works with SeaWorld. "I'm concerned about the outcome. And I think anybody in our business should be."
At the heart of the case is a citation issued by OSHA last August after a six-month investigation of SeaWorld's killer-whale program. The agency has accused SeaWorld of committing a "willful" safety violation — its most severe classification — for not adequately protecting trainers from the danger of being struck or drowned by killer whales.
But most troubling for SeaWorld is how OSHA has proposed that the violation be fixed, or "abated." In its citation, OSHA recommends that trainers be prohibited from working with the whales — either in the water or from the edges of pools — unless they are protected by a physical barrier.
OSHA indicated in the citation that — at least for whales other than Tilikum, the largest and most dangerous animal in SeaWorld's collection — it might accept other means of abatement, such as decking systems, emergency oxygen supplies or other engineering changes. But even then, it suggested it would only accept those measures if they provide "the same or a greater level of protection" than a physical barrier.
It is such a high bar that it could effectively prevent SeaWorld trainers from swimming with the whales.
"Nothing's going to protect better than a barrier," said Jim Laboe, a lawyer with Orr & Reno in Concord, N.H., who represents companies facing OSHA inspections. "I just don't know how you're going to find an equivalent level of protection."
Although SeaWorld has forbidden trainers from getting in the water with its killer whales since Brancheau's death, company executives have made it clear that they want to resume such "water work" at some point. SeaWorld says water work is essential to adequately caring for the highly social animals — in addition to being the company's most marketable thrill to vacationers around the world.
SeaWorld has pledged to spend tens of millions of dollars making safety improvements to its killer-whale facilities in Orlando, San Diego and San Antonio. In Orlando, for instance, the company is testing a fast-rising, false-bottom floor that has been installed in the same pool in which Brancheau was killed. If the tests are successful, SeaWorld plans to install the floors in every killer-whale pool it owns.
SeaWorld has also designed vests for trainers to wear that contain emergency air supplies in case they are pulled underwater. Trainers have been conditioning the whales to ignore the vests when they are in the water.
But even if SeaWorld successfully implements all of its changes, they may not be adequate to meet OSHA's "physical barrier" recommendation. And if SeaWorld resumes water work anyway, it risks a far stiffer penalty — one that could reach as much as $7,000 a day.
Art Sapper, a partner in the OSHA practice group of the Washington law firm McDermott Will & Emery, said one of the primary reasons companies contest OSHA citations is because they don't think — or simply aren't sure whether — they can resolve the cited condition to the extent that OSHA has proposed.
"You can't effectively promise the federal government, at the risk of jeopardizing your company, that you're going to abate if you're not sure you can," Sapper said.
SeaWorld has other reasons to contest OSHA's citation. The "willful" finding, for instance, could increase the company's exposure to civil lawsuits. And it is a stain on the reputation of a business that depends on a positive brand image to help it lure millions of visitors through its gates every year.
"Any company that has respect for its reputation does not want the federal government to say it willfully took a man's life," said Buzzy Riis, an Alabama lawyer with the firm Hand Arendall who specializes in defending companies against OSHA.
SeaWorld declined to discuss its challenge in detail, though it called OSHA's findings "unfounded."
"These allegations are completely baseless, unsupported by any evidence or precedent, and reflect a fundamental lack of understanding of the safety requirements associated with marine-mammal care," the company said in a statement. "The safety of our guests and employees, and the welfare of our animals, are core values for SeaWorld and areas in which we do not compromise."
The public hearings, which will take place in the Seminole County Criminal Justice Center in Sanford, are scheduled to last a week. A ruling from the administrative law judge overseeing the case may not be issued until several weeks or months later.
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