Well, we knew that already. What’s new is that Judge Welsch–the Administrative Law Judge who upheld OSHA’s prescription that SeaWorld’s trainers maintain a safe distance from the killer whales unless there was a safety barrier between them–and local Florida media just noticed:
A federal judge believes SeaWorld had a duty to begin implementing new safety improvements required by workplace safety regulators last July, even while the theme park was fighting the Occupational Safety and Health Administration in court.
Meanwhile, Local 6 has learned SeaWorld trainers continue to have extremely close physical contact with the killer whales, despite new OSHA requirements that trainers must remain behind a barrier when interacting with the animals during performances…[snip]
…Yet since July, Sea World trainers have continued to have close physical contact with killer whales. During Tuesday’s 2:30 p.m. performance of “One Ocean” at Shamu Stadium, Local 6 cameras recorded SeaWorld trainers touching, petting and dancing alongside killer whales without any barriers separating them.
In one segment of the show, a trainer standing on a submerged ledge leans his entire body on the killer whale and rubs its back with both arms.
Whew, it’s a good thing Local 6 finally “learned” what everyone who has been to a SeaWorld show has known since Welsch’s order was issued. And you have to wonder about a regulatory system that SeaWorld has been so good at either manipulating or ignoring.
With OSHA and SeaWorld headed back to Judge Welsch’s court in January to discuss the timing and specifics of the abatement of the dangers OSHA identified in its 2010 citations of SeaWorld Florida, I thought it would be interesting to take a look at what protocols SeaWorld has been using to define how trainers should interact with killer whales since Dawn Brancheau was killed in February 2010.
The protocols will presumably be a part of the January hearing. And what comes out of that hearing–what Judge Welsch decides regarding SeaWorld’s desire for more time to work out a comprehensive abatement plan and what he does in response to OSHA’s contention that SeaWorld has not been adequately abating the dangers and needs to be in compliance–could have a big impact on what SeaWorld’s killer whale shows will look like in the coming year and beyond, particularly if Welsch decides that the practices that are in place right now are not adequate protection for trainers.
Moreover, as a backdrop to the approaching abatement hearing, SeaWorld continues to move steadily forward in its waterwork desensitization program. I reported over the summer that SeaWorld was going to initiate waterwork desensitization in its medical pools, where the floors can be raised. And I also pondered SeaWorld’s potential strategy and timeline for trying to restore waterwork to its shows. That waterwork desensitization has now progressed to the point where the med pool floors have been left completely down, so that both killer whales and trainers are not beached or standing, but swimming. In California, for example, at least four whales (including Orkid) have been in the med pool, and held under control on a hand target, while a trainer floats nearby. In Texas, they have had Tuar, for one, conduct a perimeter swim past a floating trainer. SeaWorld management has told trainers it will not conduct waterwork in a pool that doesn’t have a rising floor. That makes me wonder whether and when SeaWorld Florida might consider moving waterwork desense and training to G pool (which is where the first rising floor was installed).
But back to the January abatement hearing. To set the context, here are some excerpts from Judge Welsch’s ruling last May upholding OSHA’s citations of SeaWorld:
As with Tilikum, the Secretary proposes that for performances, SeaWorld either install physical barriers between its trainers and killer whales, or require its trainers to maintain a minimum distance from the killer whales. This proposed abatement is technologically feasible; SeaWorld has been using it since February 24, 2010. SeaWorld has banned waterwork with its killer whales during performances, and trainers perform drywork from behind barriers.The proposed abatement is also economically feasible. SeaWorld did not argue that performing drywork from behind barriers or banning trainers from waterwork during performances affected it economically. SeaWorld’s killer whales, including Tilikum, have continued to perform in shows at Shamu Stadium without the presence of trainers in the water with them. Trainers perform drywork from behind barriers or at a minimum distance.
Later in his ruling he writes:
Prohibiting waterwork and using physical barriers and minimum distances eliminate the trainers’ exposure to the recognized hazard of working with killer whales. Proximity to the killerwhales is the factor that determines the risk to the trainers. Dr. Duffus stated, “The fundamental fact with captivity is the proximity. . . . The fact of the matter is simple proximity. . . If you’re close to a killer whale, they can potentially inflict harm” (Tr. 851).
Welsch, as far as I can tell, never defines a minimum distance the trainers should maintain if they are not separated from a killer whale by a barrier. But he clearly seems to believe that maintaining some sort of gap is both proper and feasible abatement. OSHA’s view seems to be that the minimum distance should be whatever distance is required to keep trainers safe. What that distance is, and what Judge Welsch believes it needs to be, presumably is something that the January hearing might clarify.
What Welsch might not know as the hearing approaches is that despite his apparent belief that SeaWorld trainers have EITHER been working from behind barriers during shows since February 2010 OR maintaining a minimum distance , the reality is not quite so clear-cut; that in fact there continue to be plenty of instances in which SeaWorld trainers have direct contact with the whales during drywork, with no barrier and no minimum distance. The Side By Side segment of the SeaWorld One Ocean show, for example, regularly features trainers rubbing down, and hugging, whales on the slideout.
Here’s a sequence from an August 2012 show at SeaWorld Florida:
This is from an October 2012 show, also at SeaWorld Florida.
As a follow-up to my Outside post, I want to call out Judge Welsch’s decision, and urge you to read it. I don’t want it to get lost in all the back and forth over SeaWorld and the future of waterwork, and whether SeaWorld can successfully appeal or implement sufficient safety measures to allow trainers back in the water.
It is 47 pages, and in my view a relentless and powerfully argued deconstruction of SeaWorld’s corporate culture, training regime, and safety strategy. And because, for the first time, SeaWorld was compelled to put on the record its personnel and its internal documents, it is one of the most revealing looks inside killer whale captivity that you can read. If you have any interest in this topic you will find it a fascinating document.
With OSHA and SeaWorld 
The Earthist Chronicles 