SeaWorld seeks to settle with OSHA in death of killer-whale trainer

ORLANDO, Fla. — SeaWorld
has reached out to the federal agency investigating the February death
of a killer-whale trainer at SeaWorld Orlando about the possibility of
negotiating a settlement even before the safety probe is complete,
according to a source familiar with the inquiry.

The goal is to strike what is known as a “pre-citation settlement” with the U.S. Occupational Safety and Health Administration, which has been investigating SeaWorld‘s safety practices since Feb. 24, when trainer Dawn Brancheau was killed by a 6-ton killer whale named Tilikum.

Pre-emptive agreements with OSHA are rare, and reaching one would require Orlando-based SeaWorld Parks & Entertainment to agree to worker-safety changes. But a settlement could also allow SeaWorld
to effectively blunt any fallout from the closely watched probe by
ensuring that it ends as quickly as possible — and by avoiding the kind
of scathing indictment that investigators issued three years ago after
a separate incident at a SeaWorld in San Diego, when they declared it was “only a matter of time” before a killer whale killed a trainer.

It was not clear whether OSHA is willing to consider an advance settlement with SeaWorld. The agency has recently signaled a more aggressive enforcement approach for theme parks and other entertainment venues; OSHA’s top official, Assistant Labor Secretary David Michaels,
put the entertainment industry “on notice” last month after a string of
worker deaths and injuries, including deaths at SeaWorld Orlando and Walt Disney World.

The source familiar with SeaWorld‘s
interest in a pre-citation settlement spoke only on condition of
anonymity because the person is not authorized by either party to
discuss the issue.

In a prepared statement, SeaWorld said it is cooperating with OSHA.

“As part of this process, SeaWorld has communicated with OSHA on many occasions. SeaWorld has not entered into any type of negotiations with OSHA
at this time, however,” the company said. “Because the agency has not
yet concluded its inspection, it would be inappropriate to comment
further.”

OSHA, too, would not discuss the status of the probe. The agency has six months — until Aug. 24 — to complete its work.

“It’s an open investigation,” OSHA spokesman Mike Wald said.

Wald, though, did characterize pre-citation settlements as “very unusual.”

To represent the company in the OSHA probe, SeaWorld has retained Carla Gunnin, a lawyer formerly with the U.S. Labor Department’s Office of the Solicitor who is now a partner in the Atlanta-based law firm Constangy, Brooks & Smith. The firm’s OSHA Practice Group is led by Patrick Tyson, a former top official at OSHA.

Corporate lawyers say there are several reasons companies under investigation by OSHA would seek a pre-citation settlement.

For one, negotiating an advance agreement can help a business avoid a situation in which OSHA
might cite an entire string of safety violations, rather than focusing
one or two key issues. Even if a business successfully appeals some of
those violations, doing so involves both expensive litigation costs and
continued negative publicity.

With an advance settlement, “you can reach an agreement and separate the wheat from the chaff — before it comes out,” said Jim Lastowka, a partner in the Washington office of McDermott, Will & Emery and co-head of the firm’s OSHA, MSHA & Catastrophe Response Group.

Such agreements also ensure that OSHA’s
findings are framed in a more favorable light for the business being
scrutinized. Any announcement of citations also includes details of
agreed-upon remedies.

“There’s usually a more positive tone in the press release,” Lastowka said. “There’s agreement and finality.”

SeaWorld hopes to avoid a repeat of 2007, when OSHA’s state-level counterpart in California
broadly criticized the company after an investigation into the injury
of a SeaWorld San Diego trainer who was bitten on the legs while
performing with a killer whale. In a report issued after that probe,
Cal/OSHA investigators wrote that “swimming with captive orcas is inherently dangerous” and recommended that SeaWorld be prepared to kill one of its animals to save a trainer’s life.

“If someone hasn’t been killed already, it is only a matter of time before it does happen,” the agency warned.

SeaWorld angrily protested those findings — the
company blasted the report as “riddled with inaccuracies, speculation
and superficial suppositions” — and Cal/OSHA subsequently withdrew the document and issued a revised report. But the original version has been widely resurrected by SeaWorld opponents in the aftermath of Brancheau’s death.

SeaWorld‘s current case is complicated by the niche business at the center of OSHA’s probe: working with killer whales. Because OSHA
is unlikely to have any specific rules governing such an activity, any
citations will almost certainly stem from its vaguely worded “general
duty” clause.

Often described as a “catchall” clause for the
agency, the provision states only that employers must provide a
workplace “free from recognized hazards” that are likely to cause
serious injury or death.

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(c) 2010, The Orlando Sentinel (Fla.).

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