Was the death of a trainer at SeaWorld Orlando due to a benign act by a killer whale or because of willful disregard for employee safety? That question is being asked in the appeal of an OSHA fine.

A year ago, OSHA fined SeaWorld $75,000 for three violations in connection with the Feb. 24, 2010, death of trainer Dawn Brancheau:

• one willful citation for exposing employees to struck-by and drowning hazards when interacting with killer whales ($70,000)
• one serious citation for exposing employees to a fall hazard by failing to install a stairway railing system on a stage ($5,000), and
• one other-than-serious violation for failing to equip outdoor electrical receptacles in the stadium with weatherproof enclosures (no monetary penalty).

Brancheau was dragged under the water by Tilikum, a 12,000 pound killer whale, at SeaWorld’s Orlando park.

OSHA has recommended — but it can’t mandate — that trainers never again be allowed to work in close contact with any of SeaWorld’s whales unless they are protected by a physical barrier.

However, at a hearing last week, an attorney for SeaWorld said if an administrative law judge upholds the OSHA fine, the park might be forced to end physical interaction between trainers and killer whales.

SeaWorld has painted Brancheau’s death as the result of the whale reacting to a novel stimulus when the trainer’s ponytail drifted into the whale’s open mouth. In other words, SeaWorld says this wasn’t an attack.

But OSHA and others say SeaWorld needlessly put Brancheau in danger by ignoring previous warnings about Tilikum’s and other killer whales’ behaviors.

Example: Tilikum was known for refusing to let go of objects he found in his pool.

In an effort to back up its claim that the whale acted violently against Brancheau, OSHA presented a SeaWorld security guard as a witness at the hearing.

The security guard said, from his vantage point that day, it appeared the whale had grabbed Brancheau’s arm, not her ponytail, when he submerged with her.

SeaWorld and other witnesses dispute that version of the trainer’s death.

Some other points from five days worth of testimony in last week’s hearing:

• Witnesses have been reluctant to say with 100% assurance how Brancheau was dragged under by the whale. The security guard says he can’t say for sure that it was by her arm, and other witnesses say they can’t be sure it was by her hair.
• Other trainers testified that they knew warning signs that the whale might become aggressive. However, OSHA says relying on training the trainers to be careful left unacceptable gaps in safety for the employees.
• One trainer testified that they were told if they fell in the water with Tilikum, they might not survive. Another trainer admitted that rescue procedures SeaWorld had in place did not work the day of Brancheau’s death. It took 45 minutes before Brancheau’s body could be recovered from the whale which held the body under water most of that time.
• A different killer whale bit down on another trainer’s thigh in an incident in 2006. The trainer says she wrote up an incident report but was surprised to learn from federal lawyers that SeaWorld did not include her report in the killer whale incident log provided to OSHA.
• In 1991, a trainer at Sealand in Victoria, Canada, was killed in an incident that involved Tilikum. An investigator who looked into that fatality said he was struck by the similarities between the two tragedies.

While OSHA can’t order SeaWorld to stop allowing trainers in the water with the killer whales, it’s clear from the statement from the park’s lawyer that if the federal fine sticks, it would be difficult for the facility to go back to that practice.

On the one hand, this case appears to be extremely unique. However, it has an application for virtually any business in the U.S. because of OSHA’s use of the General Duty Clause (GDC) to issue the willful fine against SeaWorld.

OSHA doesn’t have occupational safety regulations that apply to marine animal parks. And that makes this case no different from any other one where there’s no OSHA regs that apply: In these cases, the agency uses the GDC.

The hearing took longer than expected and is in recess until mid-November when it’s expected to conclude. The decision might not come for a few months after that.

Should SeaWorld face OSHA fines in this case? Let us know what you think in the comments below.

Tags: Dawn Brancheau, fatal whale attack, General Duty Clause, SeaWorld, Tilikum