SeaWorld Loses Appeal
In its next step in contesting administrative law judge Ken Welsh’s May 30th ruling upholding the safety violations cited by the Occupational Safety and Health Administration (OSHA), SeaWorld has been denied its appeal for discretionary review by the independent Occupational Safety and Health Review Commission (OSHRC). The Commission had until end of business Monday (July 16th) to decide whether it would review the case. By not acting, the commission has upheld the original verdict of judge Welsch.
SeaWorld has been mired in legal and regulatory challenges since August 2010 when OSHA issued a ‘willful’ citation against SeaWorld for safety violations --its most severe category--and a $75,000 fine following a six-month investigation of the February 2010 death of trainer Dawn Brancheau. SeaWorld originally contested the citation, and spent nearly two weeks in court providing testimony to oppose the OSHA ruling. The hearing concluded in November 2011. Although Welsch’s verdict downgraded the category of the violation and associated fine from ‘willful’ to ‘serious,’ it upheld the original citation against SeaWorld and required outlined safety measures be implemented within 10 days of the verdict becoming final.
It is now up to SeaWorld whether they wish to further appeal the judge’s order to the US Circuit Court of Appeals. The court ruled that SeaWorld must adopt safety abatements that provide equal or greater protection than staying out of the water altogether, and although in-water interactions have ceased for the time being, trainers are still exposed to safety hazards in the absence of physical barriers being utilized at the parks. They can choose to appeal either to the DC Circuit Court or the 11th Circuit Court in Atlanta. And if they fail there, SeaWorld can petition to have its case heard before the US Supreme Court.
If SeaWorld does not file with the Federal Appeals Court, it will have to certify immediately to OSHA that its new safety abatements (fast-rising pool bottoms, emergency oxygen systems, etc.) can offer equal or greater protection than keeping trainers out of the water entirely during performances. They have 60 days to file an appeal.