Attorneys representing the Occupational Health and Safety Administration said in court Thursday that SeaWorld's attempts to keep killer whale trainers safe is still not adequate.
SeaWorld insisted, however, that the company was in compliance with OSHA's mandate that trainers remain behind barriers or stay a safe distance away from killer whales during the park's famous Shamu show.
Last summer, an administrative law judge upheld a series of OSHA safety violations against SeaWorld and ordered the park to pay $12,000 in fines. In his order, the judge indicated that OSHA could require SeaWorld to "install physical barriers between its trainers and killer whales" or "require its trainers to maintain a minimum distance from the killer whales." Those safety improvements were required to be in place by July 27.
That same day, SeaWorld filed a petition with OSHA asking for an extra six months to implement new safety protocols, pointing out that OSHA did not specify an exact "minimum distance."
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, although neither facility houses killer whales.
According to SeaWorld Animal Training Curator Kelly Flaherty Clark, trainers are now required to stay 3 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 acknowledged 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 has been injured since Dawn Brancheau was drowned in Orlando by a killer whale in 2010. "We haven't even had a scraped knee."
At the completion of this week's hearing, Judge Kenneth Welsch must decide whether SeaWorld was justified in missing OSHA's deadline by six months to implement new safety procedures.
OSHA investigators will later determine whether SeaWorld's new protocols are an acceptible means of protecting its employees. OSHA conducted a re-inspection of SeaWorld in October to investigate whether the marine park was in compliance. The results of that re-inspection have not been made public, although in court Thursday OSHA lawyers indicated SeaWorld's current safety protocols are still inadequate. If OSHA finds SeaWorld has jeopardized its employees' safety, the agency could issue additional citations and fines.