SeaWorld Appeals Judge's Decision

The company has appealed ALJ Ken S. Welsch's decision, which reduced the total penalty to $12,000 and lowered the main violation from willful to serious but found OSHA's proposed abatement measures are feasible.

SeaWorld has appealed the May 30, 2012 decision by Ken S. Welsch, an OSHRC administrative law judge, in which he sided mainly with OSHA in the case involving a SeaWorld Orlando trainer who was killed by one of the park's killer whales in February 2010, The Orlando Sentinel reported July 10.

If the OSHRC commissioners do not grant a review, Welsch's decision will become final July 16, the newspaper's Jason Garcia reported.

Welsch reduced the proposed penalty from $75,000 to $12,000 by reducing two general duty clause citations from willful to serious violations, but he upheld OSHA's argument that SeaWorld of Florida LLC should have provided effective barriers to prevent trainers from being harmed when they interact with killer whales. The trainer killed in 2010, Dawn Brancheau, was lying on a platform at the edge of a pool at Shamu Stadium and expecting a 12,000-pound whale named Tilikum to mimic her behavior when the whale instead grabbed her, pulled her underwater, and killed her.

Welsch held a nine-day hearing in the case in late 2011 after SeaWorld contested the citations. SeaWorld claimed that working with killer whales is not a recognized hazard for its trainers, but Welsch firmly disagreed after citing numerous cases of injuries, and some deaths, involving trainers.

At the time of the hearing, Welsch noted, Tilikum's performances had resumed in Orlando, but trainers were not allowed in close proximity to his tank during them and were protected by a Plexiglas barrier. But because he concluded SeaWorld is a safety-conscious employer and not plainly indifferent to employees' safety, the judge reduced the main violation from willful to serious. He also concluded OSHA's proposed method of a physical barrier to protect trainers is feasible.

Welsch's decision said Tilikum was involved in the 1991 death of a part-time, 20-year-old trainer at a since-closed water park in British Columbia; the decision says this case was the first recorded human death from a killer whale, and that SeaWorld bought Tilikum in 1992 and moved him to the Orlando park.

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