This section contains the nature of the case and procedural background.

On February 24, 2010, SeaWorld trainer Dawn Brancheau was interacting with Tilikum, a killer whale, during a performance before a live audience. The killer whale grabbed her and pulled her off the slideout platform into the pool, refusing to release her. She suffered traumatic injuries and drowned as a result of Tilikum's actions. P issued three citations after an investigation by an Occupational Safety and Health Administration (OSHA) compliance officer. The second citation is at issue. It alleged two instances of a 'willful' violation of the general duty clause for exposing animal trainers to the recognized hazards of drowning or injury when working with killer whales during performances. In SeaWorld's terms, when trainers are out of the pool or on submerged ledges called 'slideouts' in water no deeper than their knees, their interactions with killer whales are called 'dry work.' Any interaction in deeper water is 'waterwork.' P stated that no trainers should have any contact with Tilikum unless they are protected by a physical barrier. P held that animal trainers should not work with killer whales, including 'waterwork' or 'dry work,' unless the trainers are protected through the use of physical barriers or through the use of decking systems, oxygen supply systems, or other engineering or administrative controls that provide the same or greater level of protection for the trainers.' P proposed a penalty of $70,000. Based on evidence regarding three previous deaths involving killer whales (beginning in 1991 with Tilikum), D's written training manuals and safety lectures as implemented specifically to Tilikum, and D's incident reports, the ALJ found that P had established by 'abundant' record evidence that 'D recognized the hazard created when its trainers worked in close contact with Tilikum during dry work performances,' satisfying the second element of a violation. The ALJ concluded that D's claim that 'it was unaware working with killer whales presents a recognized hazard is difficult to reconcile with numerous comments made over the years by D management personnel, including [two] corporate curators of animal training . . . [whose] comments were documented and circulated among all of D parks.' The ALJ also found that P had established the fourth element of a violation: feasible abatement of the hazard for trainers working with Tilikum and other killer whales. The ALJ found that P had met her burden to show D's safety program is inadequate. The ALJ determined that since OSHA has 'no specific standard' regulating employees working in close contact with killer whales, and that P had presented no evidence D had a 'heightened awareness of the illegality of its conduct' or manifested 'plain indifference to employee safety,' the violations were 'serious,' not 'willful,' and imposed a fine of $7,000 for the general duty clause violation. D unsuccessfully sought discretionary review by the Commission, whereupon the ALJ's decision and order became final. D petitioned for review of the general duty violation.

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