Tag: OSHA

Perhaps A Shamu Pause To Install Some Fast-Rising Pool Floors?

SeaWorld has long been considering the use of fast-rising floors in its show pools to help alleviate safety concerns related to waterwork. Perhaps they are finally ready to proceed with the Florida installation:

“One Ocean,” SeaWorld Orlando‘s iconic killer-whale show, will be taking a break in early 2014.

The theme park will be doing routine maintenance on the main performing pool at Shamu Stadium, a SeaWorld official says. The work will begin in early January. “One Ocean” is currently on the park schedule posted on its website through Jan. 5.

The Dine With Shamu experience will also be suspended for the first part of next year.

During the closures, SeaWorld Orlando will offer “Shamu Up Close,” which will include above-water and underwater interactions and a look at training techniques.  It will be held in the Dine With Shamu space and accommodate hundreds of guests at a time, a spokeswoman says.

“One Ocean” and Dine With Shamu will return sometime in the spring, SeaWorld says.

Shutting down the cash-gushing Shamu show for a period of months is not “routine maintenance.” I have no knowledge that a fast-rising floor is on its way (previous on SeaWorld’s fast-rising floor here). But if I was a betting man….

[Also worth noting: this will be a very interesting experiment in how important the Shamu show is to SeaWorld’s gate revenue].

OSHA vs. SeaWorld: Hearing Update

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Local 6 was in the courtroom, and Local 6 has a report on how the day went:

In court Thursday, 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. Neither facility houses killer whales.

According to SeaWorld Animal Training Curator Kelly Flaherty Clark, trainers are now required to stay three 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 acknowleged 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 have been injured since Dawn Brancheau was drowned by a killer whale in 2010. “We haven’t even had a scraped knee.”

Judge Welsch must know more about SeaWorld and killer whales than he ever dreamed possible. Following the hearing he will rule on whether SeaWorld had a good excuse for missing last July’s deadline to be in compliance with his ruling that trainers must maintain a minimum separation or work from behind a barrier.

I don’t think he will care as much about whether SeaWorld has suffered any scraped knees, as he will about the question of whether SeaWorld had any legal justification to ignore his ruling and avoid compliance. Some judges might take that hard.

Trainer Corner: John Hargrove On “Drywork” Risk

As SeaWorld and OSHA continue their backroom and courtroom dealings over what sort of interactions SeaWorld trainers should be allowed to have with SeaWorld’s killer whales, the question of the risks inherent in drywork is central.

“Drywork” is when trainers interact with the killer whales on slideouts, stages, and shallow ledges. That is in contrast to waterwork, which is interactions in which trainers are in the pools with the killer whales. SeaWorld stopped performing waterwork after Dawn Brancheau was killed by Tilikum (even though Brancheau was in fact doing drywork according to SeaWorld’s definition). Given the OSHA citations and court rulings so far, it doesn’t seem likely that SeaWorld will feature waterwork again anytime soon.

However, SeaWorld, it appears, would like to work out a deal that would modify OSHA’s stipulation that trainers maintain a minimum distance or work from behind a barrier, and allow SeaWorld trainers during shows to have close contact with killer whales when the trainer (and often the killer whale, too) is out of the water on the stage or a slideout.

I think that we can stipulate that a trainer in the water with a killer whale is much more vulnerable than a trainer out of the water. But even if that is so, OSHA’s main concern has to be what sort of risks to trainers exist during drywork. OSHA’s expert witness when it faced off against SeaWorld in court in 2011, Dr. David Duffus (who also features in Blackfish) has long been of the view that a killer whale’s speed, power and intelligence means that the risks to trainers are inversely correlated to the distance that exists between a trainer and a killer whale. No distance = higher risk. Greater distance = lower risk.

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As OSHA ponders how much risk there is in trainers getting close to killer whales, I thought I would ask an expert, John Hargrove, a former SeaWorld senior trainer with long experience at both the SeaWorld California and SeaWorld Texas parks.

Hargrove told me that the risk for trainers who are out of the water “is low.” But he also made clear that risks remain, and “that we have documented past incidents which prove trainers can be struck.”

He cited as an example an incident at SeaWorld California in which Orkid broke off a requested behavior underwater and instead came up on the stage and struck a trainer, sending her tumbling, and putting her in the hospital. “Orkid intentionally slid out and struck her,” Hargrove says, noting that any time a whale is sliding across the stage–which is a popular behavior–it has the opportunity to strike trainers. “The only safe place to be during a stage slide is far stage right or left, in a place where there is no set blocking the trainer from jumping back. Anywhere else the whale can crush you if they want to.”

Another time, during a sonogram, Orkid came up out of the water and struck that same trainer as she stood poolside, knocking her over a wall. Continue reading “Trainer Corner: John Hargrove On “Drywork” Risk”

Is Orca “Drywork” Risky

I’ve said before that I don’t have a problem with trainers taking risks, including waterwork, as long as SeaWorld is honest and transparent with trainers regarding the risks and the aggression history of any given killer whale.

But how much risk attaches to “drywork” is a big question as SeaWorld continues to try to reach a settlement with OSHA on what sort of close contact between killer whales and trainers should be allowed in shows.

I’ll have a few things to say next week about what orcas are capable of even if a trainer is out of the pool. But in the meantime, here’s a (somewhat in jest) reminder that while waterwork definitely puts trainers at greater wisk, the stuff that happens out of the water doesn’t always go as intended.

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SeaWorld Is Not In Compliance With OSHA

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.

Safety Bar?

Check out this picture which someone just sent me (not sure where it comes from; apologies in advance to any potentially outraged photographer).

I’m posting it as a follow-up to my post on SeaWorld whale interaction protocols, because it really captures the fact that the safety bars which are required for head tactile in shows really wouldn’t offer much protection to a trainer if a whale decided to go after the trainer.

It also illustrates that “close contact”–even with a barrier–can mean, well, REALLY close.

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Inside SeaWorld: Waterwork And Protocols For Working Killer Whales After Dawn

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.

So what are the protocols that trainers follow for such interactions? Interestingly, it is not at all clear that the OSHA citations and Judge Welsch’s ruling had Continue reading “Inside SeaWorld: Waterwork And Protocols For Working Killer Whales After Dawn”

SeaWorld and OSHA Are Headed Back To Court

Since administrative law judge Ken Welsch last May upheld OSHA’s citations against SeaWorld’s killer whale practices (full ruling is here), SeaWorld has been under obligation to “abate” the hazards OSHA identified: namely the danger of working in close proximity to killer whales.

In essence, OSHA’s citations combined and Welsch’s ruling (which applies to shows), mean that SeaWorld cannot have trainers swimming with the killer whales (aka waterwork), and even when the trainers are out on the pool decks they are supposed to maintain a minimum separation or have some sort of barrier between them and the killer whales.

SeaWorld has decided to take its appeal of the OSHA citations to the federal courts, but in the meantime SeaWorld has been negotiating with OSHA over when and how it must come into compliance with the citations. Since Judge Welsch’s order went into effect, SeaWorld has been asking for more time to figure out how it wants to abate the dangers OSHA cited, and has filed a Petition For Modification Of Abatement. OSHA has taken the position that SeaWorld should already be in compliance, so a new hearing has been scheduled for Jan. 15-17 in Judge Welsch’s court to hear testimony on the timing and method of abatement.

I’ve always thought that SeaWorld would like to be able to submit its fast-rising pool floors, and spare air systems (among other possible innovations) as safety modifications that abate the danger OSHA cited. That would allow trainers to get back into the pool during shows, and perform the waterwork that SeaWorld is famous for. I don’t know if this is the venue where SeaWorld will try to make that case, but it will be worth watching to see.

For its part, OSHA believes SeaWorld has been violating the citations during shows by not maintaining minimum separation and continuing to have trainers hug and touch the whales from the slideouts and pool decks without any protective barriers between them and the whales (OSHA also believes SeaWorld did not properly abate another citation regarding a stair railing). If SeaWorld is hit with two new failure to abate citations they could be looking at penalties of up to $7,000 a day for up to 30 days. That won’t break the SeaWorld bank, but it’s not small change, either.

So stand by for another court confrontation in the winter heat of Florida. Depending on what Judge Welsch decides, the federal appeal may be SeaWorld’s last chance to preserve the possibility of waterwork during killer whale shows at its parks.

SeaWorld’s Waterwork Timeline

Since hearing that SeaWorld will start waterwork desensitization, I’ve been trying to puzzle out SeaWorld’s waterwork gameplan and timeline.

Here is what I have learned so far, and maybe all you smart people out there–regardless of your views on captivity–can help figure out the strategy.

Waterwork desense will officially begin today (Monday) in the med pool at SeaWorld California. I don’t know if the other parks also have whales and trainers lined up to begin desense work, and are also starting today, but it seems likely, given that the SeaWorld parks tend to work in synch with one another on major program changes like this.

Apparently, this commencement of waterwork desense (the first step toward getting trainers and orcas back on track toward full waterwork capability in the big show pools) follows a tour of the parks that SeaWorld’s chief zoological honcho, Brad Andrews, conducted earlier this year. Andrews and a SeaWorld management team met with the Shamu trainers, and showed them a video of the prototype fast-rising floor that has been installed in SeaWorld Florida’s G pool (the Dine With Shamu pool in which Dawn Brancheau was killed). The floor took just under a minute to surface, and Andrews told the trainers that similar rising floors would be installed in the show pools at all the SeaWorld parks, a major construction program that could take something like 12 to 18 months.

In the meantime, Andrews said, waterwork desense would start up in the med pools. Normally, waterwork desense (for an animal that has been removed from waterwork, say for being too aggressive) is initiated in the med pool with the floor raised up high. Trainers work with the animal through a series of behaviors, and with each successful evolution the floor is lowered a bit, until the waterwork is in fact taking place in the water. From there, the desense moves into one of the smaller back pools alongside the med pool. That way, if anything goes wrong nets can be used to try and corral the orca back into the med pool, where the floor can be raised. And if the back pool desense regimen is successful, and the orca consistently executes the behaviors asked, the desense program moves back into the show pool. This process can take a number of months.

With the current desense program, however, Andrews told Shamu trainers that no waterwork would be performed in a pool that does not have a fast-rising floor. So desense will be conducted in the med pool, and then jump directly to the show pools once the floors are installed there (though Florida, with the G pool floor, will presumably have the option of using G pool as a bridge to the show pool). That means that the desense work with the whales and trainers selected, will progress very slowly and carefully in the med pools for a year or more, so that the orcas and trainers are ready to move into the show pools when they have fast-rising floors.

The big question, assuming my information is solid, is what SeaWorld’s waterwork gameplan is. Unless SeaWorld successfully appeals the OSHA ruling (the next step would be to file an appeal with the US Circuit Court Of Appeals), Judge Welsch’s decision means that waterwork is effectively banned from performances at SeaWorld Florida (the park cited by OSHA following Brancheau’s death). If they are successful, then all of SeaWorld’s parks, having desensed selected orcas, will be in a position to resume waterwork.

If the appeal fails (or is not filed), then it gets more complicated. The OSHA ruling applies only to performance waterwork, so SeaWorld is in theory free to resume training waterwork in all its parks whenever it likes. OSHA could, however, conduct a follow-up inspection and try to get the ban on waterwork applied to training as well. That would, no doubt, be a similarly contentious and drawn-out legal process.

But training waterwork does not really get SeaWorld back into show waterwork, which presumably is the goal. So another possibility is that SeaWorld finishes installing the fast-rising floors, and whatever other safety measures SeaWorld hopes will protect trainers (like spare air systems), and then goes before OSHA to argue that these safety innovations “mitigate” the dangers that OSHA identified. The mitigation measures have to provide protection that is equal or greater than maintaining distance between trainers and orcas, or the use of physical barriers between trainers and orcas. So that might be a hard case to make. But just because it is hard does not mean that it is unwinnable. And if SeaWorld succeeds in winning a decision that says the floors, spare air, and any other safety measures, mitigate the dangers, then they are back in the waterwork business.

The final, seemingly problematic, scenario that I can come up with, addresses what happens if SeaWorld DOES NOT win either an appeal, or succeed in an effort to mitigate the dangers with the floors and spare air. In that scenario, SeaWorld could, in theory, simply resume waterwork at the SeaWorld Texas and SeaWorld California parks, since they were not cited by OSHA. That would obviously open SeaWorld up to a massive liability and PR hit if another trainer was injured  or killed during waterwork. And OSHA could, and likely would(?), move to try and cite those parks for exposing tariners to dangers as well. So this scenario has lots of problems and risks for SeaWorld, and seems unlikely. But it is at least in theory possible.

So, that’s all my thinking on where this med pool desense work could go. Anyone else out there have thoughts, insights or comments on how this could all play out?

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