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article imageOp-Ed: OSHA obligated to ensure SeaWorld's work environment is safe

By Elizabeth Batt     Mar 23, 2013 in Environment
Orlando - The tragic death of SeaWorld trainer Dawn Brancheau killed by the orca Tilikum in 2010, captivated global media. Brancheau's death sparked a high profile lawsuit between OSHA and SeaWorld, plus a book, then a movie. But where does OSHA stand now?
The Occupational Safety and Health Administration initially went after SeaWorld with guns blazing. At the conclusion of OSHA versus SeaWorld 2012, Judge Ken Welsch ruled that following the death of Brancheau (Feb. 2010), park staff and trainers had to be protected during their interactions with killer whales.
The ruling sidelined all orca-trainer interaction (called waterwork) during shows, and as the primary focus of SeaWorld's shows, the corporation wasn't happy. The ruling has prompted the company to fight the case with appeals and other legal maneuvers. Still ongoing, SeaWorld's actions imply that it will stop at nothing to get its shows back on track, and its trainers in the water.
With the passage of time, Brancheau's gruesome death has retreated from peoples' memories. Still, there is one last line of defense that needs to stay stalwart in its endeavors. When dealing with a corporation experienced in tweaking the system, it would behove OSHA not to capitulate. Past history shows that when OSHA capitulates, people die.
SeaWorld and OSHA have a history of opposite views
SeaWorld's massive bull orca Tilikum, first arrived at SeaWorld after his involvement in the 1991 death of Keltie Byrne at Sea Land of the Pacific, Canada. The Byrne attack was traumatic but deemed accidental by SeaWorld. For OSHA it had far more merit -- it established a pattern and timeline of the orca's behavior prior to Brancheau's death.
Two descriptions of the Byrne incident, one by the Seattle Times and another by a PBS Frontline special report, were used by OSHA in the case. These two reports the federal agency said, detailed the orcas' willful intent to keep Byrne in the pool with them.
Just last year, the video of a 2006 attack on trainer Ken Peters by the orca Kasatka blazed a trail in the media. The shocking video obtained by Death At SeaWorld author -- David Kirby, was used as evidence in the recent OSHA v SeaWorld court trial. Welsch described the video as chilling.
Kasatka hauled Peters around the pool and refused to let him go. Diving with him in her mouth -- at one point writes Kirby in Death at SeaWorld, she, "Laid her entire 5,000-pound body on top of the trainer, pinning him to the concrete for a minute or more."
Post Peters' attack, the subsequent 2007 Cal/OSHA investigation reached a startling conclusion. "Trainers have been bitten, rammed, dragged to the bottom of the pool and held underwater", the state agency said. Cal/OSHA prophetically concluded:
The contributing factors to the accident, in the simplest of terms, is that swimming with captive orcas is inherently dangerous and if someone hasn't been killed already, it is only a matter of time before it does happen.
The attack on Peters should have prompted action, but rather than sounding a warning bell for Cal/OSHA, the agency rescinded its report after SeaWorld complained. Less than three years later, Alexis Martinez was killed by the SeaWorld-owned orca Keto, during a training session at Loro Parque in Tenerife.
Brancheau's death occurred just two months later.
Dawn Brancheau was taking part in 'dry' waterwork when Tilikum grabbed her
As horrific as the attack on Peters was, the trainer was in the water when Kastaka grabbed him. Likewise, Byrne was exiting the pool after a performance when her foot was grabbed. But Dawn Brancheau was positioned on a slideout -- a shallow ledge with limited water. This type of work is defined by SeaWorld as "dry work."
There is conflicting testimony over how Dawn ended up in the water. At the end of the day, whether she was pulled in by her ponytail, an arm or her waist, Brancheau ended up in the water and suffered a brutal, avoidable death. As OSHA said in the court case, the orca's actions (like in the Byrne's incident), was yet another example of 'willful intent' by Tilikum.
Despite Brancheau's horrific death, slideout work is still being perfomed with the orcas at SeaWorld Orlando. Thus they remain within snatching distance of any killer whale determined to cause harm. This video captured last December, shows slideout work during the Florida show. It is currently posted on YouTube.
Orca attacks are rarely revealed
Orca attacks are far more common than one might think, we just don't hear much about them. Unless the attack causes significant severity or trauma, these incidents fly beneath the radar of mainstream media. Furthermore, rarely is the full history of orca attacks on trainers ever referenced, unless they are of equal magnitude.
Candace Calloway Whiting, recently published a list of known orca attacks on trainers that date back to the 1960s. It isn't a full list by any means, SeaWorld acknowledged during the OSHA hearing that it might have forgotten to log a few. There could be many more that we don't yet know about.
Still, courtesy of Orca Home, Whiting listed 106 recorded incidents between orcas and trainers at parks around the world. The majority of them occurred at SeaWorld facilities. The attacks highlighted in blue says Whiting, detail incidents that occurred out of water.
These incidents serve as yet another warning bell for OSHA. But will they take note?
The strange investigation into Brancheau's death
The investigation into Brancheau's death was a mish mash -- a mess. Those conducted by the Orange County Sheriff's Office (OCSO) -- and obtained through the Freedom of Information Act, show several discrepancies and strange incidents.
OCSO for example, was not notified of the attack on Dawn until 27 minutes after the incident first occurred.
The reason why it took so long to notify authorities remains unclear, but the image below compiled by Voice of the Orcas/VOTO, shows how trainers unsuccessfully attempted to extricate Dawn Brancheau from Tilikum in F-Pool. Considering the time it took, it is possible that these attempts added to the delay.
Still, Dawn's body was noted as lifeless at 7 minutes, and the 911 call was still chillingly around 19 minutes from being forwarded to the Sheriff's office.
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Courtesy Voice of the Orcas/VOTO
Other incidents that should also raise red flags include:
-- By the time OCSO responded to the scene, many of the "public" witnesses had been escorted away by SeaWorld.
-- OCSO claimed in its final report that many witnesses had been moved to an area called The Terrace (a dining area), for questioning. All those in attendance at The Terrace were SeaWorld employees, bar one, Susan DeWitt, a visiting tourist from the Netherlands.
-- Another female witness from Vermont who observed the incident, said she saw Tilikum impact Brancheau "squarely in the chest." But rather than being escorted to The Terrace, she was "escorted out of the area" by SeaWorld staff. The female finally gave her sworn statement to OSCO after contacting them, two days after the incident.
-- Orange County Sheriff's Office Investigative Report: Case Number 2010-016715 on the death of Dawn Brancheau listed 41 interviews conducted by OCSO. All but three of them were conducted with employees of SeaWorld. Only two interviews came from guests.
-- Visitors to the Dine with Shamu show are required to make reservations and sign-in upon arrival. Yet neither of these lists were provided by SeaWorld to OSCO, and OSCO never requested them for their investigation.
Further concerns involve the autopsy report on Dawn's death which states the primary course of death was drowning followed by trauma. Note the extent of the trauma in these images:
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Voice of the Orcas/VOTO
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Voice of the Orcas/VOTO
In essence, Tilikum had broken Brancheau’s jaw, broken her neck, dislocated one of her elbows, and, according to the autopsy report, torn part of her scalp "forcibly" from her head. The orca then swam around for some time with several of Dawn's body parts, primarily her arm and hair in his mouth. Brancheau's arm was torn and attached only by the wetsuit, so when scissors were used to cut the suit, it freed only her body. Her arm had to be retrieved afterwards.
SeaWorld refuses video testimony
Todd and Suzanne Connell along with 10-year-old Bobby were at Shamu Stadium watching Dawn Brancheau feed Tilikum when she was pulled in. Suzanne Connell captured the event on video and offered the film to SeaWorld for review. Remarkably SeaWorld refused the footage saying that they had cameras of their own.
During his interview with OCSO, trainer and safety spotter Jan Topoleski, originally testified that he was 20-30 feet from the attack and that Dawn Brancheau was pulled in by her pony tail. The latter statement led to SeaWorld blaming the attack on "trainer error."
This image compiled by VOTO, shows Topoleski positioned 70-feet from the event, meaning it's possible that he missed the take down altogether.
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Voice of the Orcas/VOTO
Another composite image below, is of the scene taken seconds before Dawn is pulled in. It sheds further light on the incident by offering a reconstruction -- plus a more comprehensive view of the scene, prior to the incident.
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Voice of the Orcas/VOTO
Connell's own testimony may indicate that Topoleski never saw the take down. The eyewitness said she had to yell at the spotter, "He took her down!" at least two or three times before he turned around and noticed Brancheau in trouble. You can watch Connell describe what she witnessed in the news report below.
The wrangling and legal arguments over how how Brancheau was pulled into the pool remain to this day, yet the end result is always the same. Tilikum grabbed Brancheau with 'willful intent' (OSHA 2012), proving that interaction with captive killer whales can be inherently dangerous (Cal/OSHA 2007).
SeaWorld's resentment of OSHA interference is clear
Despite the traumatic death of one of its own, SeaWorld appeared to resent OSHA's investigation from the start. Having escaped the ramifications of 2007 Cal/OSHA report, it would not be so lucky this time, and it was feeling the heat. At the beginning of the investigation, the park scalded OSHA, saying that it would comply with all federal investigations but raised "serious concerns" over the "course of this investigation."
VOTO cited SeaWorld's scathing response below this image of Dawn Brancheau:
SeaWorld lamented the OSHA investigation. Here  Brancheau s body draped in black  lies in the shade ...
SeaWorld lamented the OSHA investigation. Here, Brancheau's body draped in black, lies in the shade as Tilikum looks on.
Voice of the Orcas/VOTO
The picture is a sober one, one that should remain etched in memory; one that should haunt any company who truly cares for its workers. SeaWorld claimed it did care in this Sept. 2011 interview with CNN. SeaWorld spokesperson Becca Bides said, "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."
Yet the hearing itself was not so well received and rankled SeaWorld.
OSHA's case irked the park because it had never yet faced a challenge that it had not walked away from. After touting its "core values" Bides tendered (in the same statement given to CNN), that OSHA's "Allegations are completely baseless". Bides continued to say that the federal investigation by OSHA was, "Unsupported by any evidence or precedent and reflect[ed] a fundamental lack of understanding of the safety requirements associated with marine mammal care".
Welsch against the establishment
In his ruling Judge Welsch said that "SeaWorld’s operant conditioning program places an unrealistic burden on trainers to recognize precursors and react appropriately to forestall undesirable behavior."
Calling on a hazard exacerbated by the environment, Welsch ruled:
If people trained in emergency rescue are present when a person is seriously injured by a land animal, they likely will be able to quickly isolate the injured person from the animal and provide emergency medical care. Such is not the case with killer whales.
SeaWorld however, contended that working in close contact with killer whales did not present a recognized hazard to its trainers -- but then contradicted itself over the effectiveness of its training program during testimony. Jeff Andrews, SeaWorld's self-appointed expert testified:
My expert opinion is that SeaWorld can safely allow trainers to closely interact with killer whales, including waterwork, with the administrative and engineering controls that existed prior to February 24, 2010.
Yet the company argued that animal behavior, like human behavior, cannot always be controlled. OSHA said that SeaWorld’s narrative is that its killer whales are always predictable and all of their behaviors have identifiable precursors -- meaning that in any attack, the only person to accrue blame, is the trainer.
Still, the company continues to argue over their ability to predict whale behavior -- enough to keep their employees safe it says. This is despite an acknowledgement that operant conditioning has not, and does not, always work. Further evidence rests in the 106 attack incidents listed in Calloway's article.
OSHA's obligation
At the beginning of August 2012, just three months after Welsch's ruling, SeaWorld began reacclimating its killer whales to the presence of trainers in the water.
"This well-established process is intended to reduce the novelty of trainers and other caretakers working in close proximity to the animals, Sea World said in a release to Uts-SanDiego.com.
This process they said, "Contributes to team member safety and proper care for our killer whales," adding that the company needed "its trainers to be able to establish a physical presence in the water for medical and other animal husbandry purposes."
Has the company learned anything from the instances of people killed by captive orcas? Brancheau’s death was the fourth such death and followed Keltie Byrne's at Sea Land of the Pacific in 1991; Daniel Dukes in 1999, and Alexis Martinez at Loro Parque in 2009.
As SeaWorld continues to push to get its trainers returned to waterwork, OSHA has an equal duty to stand firm and protect SeaWorld's staff -- even if the decision is an unpopular one. The warnings are there, the concerns are valid. As David Kirby noted in this interview at CNN, you can't blame the whale -- it was either Dawn's fault or SeaWorld's fault. According to Kelly Flaherty Clark -- the curator of animal training at SeaWorld Orlando, Brancheau followed protocol.
Had Cal/OSHA acted on the Peters attack in 2007, Brancheau and perhaps even Martinez may have been alive and well today. So will OSHA be able to say that it did all could following Brancheau's gruesome, awful death?
As wounds continue to heal and the furor subsides, the justification for bringing this case to court still stands. Dawn Brancheau had her life cut short despite irrefutable warning signs. If OSHA capitulates from its original intent, it will not be tolerated lightly. The writing on the wall is there, the future is predetermined and apparent. OSHA simply cannot afford to allow another tragic incident.
This opinion article was written by an independent writer. The opinions and views expressed herein are those of the author and are not necessarily intended to reflect those of DigitalJournal.com
More about Osha, occupational safety and health administration, Seaworld, dawn brancheau and tilikum, OSHA versus SeaWorld
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