Safety and OSHA News

Michaels: General duty clause holds up, abatement is key

(Denver, CO) For safety professionals and the companies they work for, the recent opinion by an administrative law judge upholding fines against SeaWorld Orlando for the death of a trainer pulled underwater by a killer whale upholds a key OSHA power.

Speaking yesterday (6/4/12) at the American Association of Safety Engineers’ Safety 2012 conference in Denver, OSHA administrator David Michaels said the SeaWorld decision once again validates the agency’s right to use the General Duty Clause (GDC).

“This is one more example that OSHA can use the General Duty Clause in most situations where we don’t have a standard,” Michaels said. “It’s no different than the WalMart crowd safety issue. There are many hazards we don’t have standards for.”

The GDC states OSHA must provide a place of employment which is free from recognized hazards that are causing or are likely to cause death or serious physical harm to its employees.

Recently, an administrative law judge upheld an OSHA GDC fine against SeaWorld in the death of trainer Dawn Brancheau who was working with the killer whale Tilikum in a performance.

OSHA also used the GDC against Wal-Mart when a day-after-Thanksgiving crowd trampled a worker to death.

In the SeaWorld case, the judge reduced the citation from willful to serious, reducing the fine from $70,000 to $7,000.

Michaels said the amount of the fine wasn’t important. What was important is that, since the judge upheld the citation, SeaWorld must now abate the hazard, Michaels said. So far, the park has been doing that by not allowing trainers in the water with killer whales during performances. The park is also looking into installing a raising floor for its marine arena which would immobilize a whale should a trainer in the water need to be quickly rescued.

On the matter of creating a standard that would mandate companies to have Injury and Illness Prevention Programs (I2P2), Michaels said the agency is still talking to stakeholders. Another reason why it’s taking a while to introduce the proposed standard: OSHA is aware that each new standard it creates is usually challenged in court. Therefore OSHA takes careful steps to make sure its standards will withstand court challenges.

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  1. If it was really about them abating the hazard then why cite a “Willful” on a GDC violation.

    There should never be a “Willful” citation for something that OSHA has not written a standard for.

    Let me explain why.
    The OSH Act requires that an employer knew or should have known about a hazard in order for them to receive a citation. This goes for ANY Citation (Serious, Other included). If the only criteria to receive a “Willful” citation is that the employer knew or should have known about the hazard, then any citation by definition is “Willful”.

    Willful is not defined in the OSH Act. It should be done away with until there is a firm definition. Stretching it to fit criteria that must already be proven for any other citation is ludicrous. I think it is ok to say that an employer knew there was a specific standard that applied, and chose not to comply. That seems to be a common sense definition for a willful, but that would throw out GDC violations becoming willful.

    If Michaels truly cared about them fixing the issue, then why did they have to cite “Willful” in the first place? Contest rates shoot through the roof once items are cited Willful, which in turn could extend the time that the company has to comply.

  2. SHERALROH says:

    To eleiminate this hazard completely, let’s not capture such beautiful creatures and keep them in small tanks. Imagine how irritated you would get if you were locked in the same room every day, with your sonar picking up your own pleas for company and help; Killer whales should not be kept in tanks for the pleasure of human beings. We should also look at the killer whale kept in Miami Aquarium for at least 25 years in a tank that is woefully inadequate. So cruel. I am sorry for the loss of the young woman who was just doing her job. I say throw the book at all Seaworld, Marineworld and any place that keeps these creatures in captivity.

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