Wow, that was fast. The trainer comment on the OSHA ruling I just posted made mention of an e-mail to employees from SeaWorld Parks & Entertainment President and CEO Jim Atchison. And, poof, someone sent me an e-mail to employees from Jim Atchison.
This is not the original e-mail in response to Judge Welsch’s OSHA ruling, mentioned by the current trainer in the previous post, but apparently a follow-up e-mail Atchison sent employees regarding news coverage of the OSHA ruling. If the tone of the original e-mail was similar, you can see why some employees might have got the impression that the OSHA ruling was favorable to SeaWorld. (Side question: Was Atchison simply counting on them not to read Judge Welsch’s decision, or believe the news coverage because he says different?]
As I wrote at Outside Online, Judge Welsch’s decision could sharply limit SeaWorld’s famed Shamu Show by preventing SeaWorld from returning to its most famous show practice: swimming and performing in the water with its killer whales, or waterwork. The decision also limits drywork contact with Tilikum, who was always subject to a waterwork ban due to his involvement in previous deaths, but was a popular star in side shows, such as the Dine With Shamu show which got Brancheau killed. And it similarly restricts close contact with the rest of SeaWorld Florida’s killer whales, even when trainers are on shallow ledges or at poolside, i.e. “drywork.”
But the language of the OSHA citation, which was issued in August 2010, for some reason references “waterwork” and “drywork” performances, as opposed to simply applying to any and all waterwork and drywork killer whale interactions involving close contact. Non-performance waterwork and drywork that occurs during training, exercise and (to an extent) animal care is virtually identical to that which is performed in the shows. And Atchison’s e-mail to SeaWorld employees suggests that SeaWorld may try to exploit that distinction.
Here is the text of Atchison’s internal e-mail (emphasis added):
To: All SeaWorld Parks & Entertainment Team Members
You may have seen news coverage over the last 24 hours concerning a ruling on OSHA’s citations against SeaWorld. While there has been much discussion of the implications of the decision, we view it as a positive that both the citation and the related fine were reduced substantially.
It is important to note that the judge agreed that caring for these animals requires contact between trainers and whales. As the judge indicates in his decision, the ruling applies only to show performances, and not to husbandry, exercise, learning, play and relationship activities.
While we view the overall decision as positive for us, we do disagree with some of the judge’s interpretations. We have every confidence in the safety of our extraordinary killer whale training program. Protecting the safety of our team members is a core commitment for SeaWorld, and our record in this area is exemplary.
The current show already includes many of the safety enhancements noted in the judge’s report. When we introduced the new “One Ocean” killer whale show, we voluntarily incorporated additional safety enhancements, such as barriers and proximity changes, which have now been in place for more than a year.
Our killer whale program is a model for marine zoological facilities around the world, and the additions we have made in the areas of personal safety, facility design and communication have enhanced this program further still. In addition to these existing safety measures, we also continue to progress on the development of prototypes such as a lifting pool floor.
I am extremely proud of the many men and women throughout our company who have represented and assisted us in this matter. They have demonstrated an unwavering dedication to safety, animal welfare and upholding our company’s long-standing reputation for excellence.
Apart from the oddity of describing the “overall decision,” which was in essence a denial of the key elements of SeaWorld’s appeal, as “positive for us,” what stands out is Atchison’s language regarding the scope of Welsch’s ruling.
Since Brancheau’s death, and during the lengthy process of appealing the OSHA citation, SeaWorld ceased waterwork at all its parks, and also changed how close trainers could get to killer whales, and how they would interact with them, during drywork (the “barriers” and “proximity changes” that Atchison mentions). But as Atchison notes, Welsch’s decision applies only to performances (following the language of the citation). So SeaWorld could in theory resume waterwork and close contact drywork with its killer whales outside of performances, and be in compliance with Judge Welsch’s decision.
If SeaWorld goes this route, which would help SeaWorld maintain its waterwork training even as it continues to hope to find a way to return waterwork to its shows, there will be risks. While Brancheau was killed while performing with Tilikum, Alexis Martinez was killed by a SeaWorld killer whale at Loro Parque two months earlier during a waterwork training session. So the same risks and dangers to trainers apply regardless of whether there is an audience or not. All that really matters is proximity. And the liability exposure if SeaWorld resumed non-performance waterwork and/or close contact drywork, and another trainer was injured or killed by a killer whale, would presumably be very high.
In addition, OSHA would be very unlikely to stand by if SeaWorld resumed the very practices–albeit not during performances–that OSHA deemed dangerous when it cited SeaWorld Florida in the first place. Les Grove, Area Director of OSHA’s Tampa Area Office, which issued the original citation, addressed this potential performance loophole during the hearings before Judge Welsch, when pressed by SeaWorld’s lawyer on whether the citation applied to non-performance waterwork and drywork, or just performances. Grove said that the citation applied only to performances, and added “But as a responsible employer, if you are aware of other interactions, where they’re exposed to the hazard, you should look at that and take action to materially reduce the hazard.”
In other words, if SeaWorld resumed waterwork and close contact drywork in exercise, play, and relationship-buuilding sessions that take place outside of performances, OSHA would view that as a danger to employees, and would almost certainly conduct a follow-up inspection that could result in another round of citations for endangerment of employees. SeaWorld, of course, could appeal those citations as well, which presumably would mean another lengthy legal proceeding.
It will be interesting to see how this all plays out, and how SeaWorld in the end chooses to address Judge Welsch’s decision. Atchison also mentions safety enhancements, including the fast-lifting pool floor that SeaWorld Florida is prototyping (which in theory could be used to beach a killer whale acting aggressively or attacking a trainer). The OSHA citation says that SeaWorld can abate the dangers cited through safety modifications, as long as the modifications “provide the same or a greater level of portection for the trainers” as avoiding close contact or staying out of the water. That is a very high standard, but SeaWorld has invested millions in developing the lifting pool floor, and has also been working on, and practicing with, personal air supply systems that trainers could wear in the pools. Making those investments doesn’t make much sense if SeaWorld doesn’t have plans to try and put trainers back in the water one way or another.
To close, here’s Atchison discussing SeaWorld’s plans, and press coverage, in the immediate aftermath of Dawn Brancheau’s death, just as the OSHA investigation was about to start. Amazing what a long and winding road has been traveled since then: