THE BUZZ: Discounting Death

By on September 23, 2015

After bear kills son, father deems $13,120 fine ‘a joke’

Adam Stewart worked as an outfitter at Zion National Park and as a river guide. Before a bear, or bears, killed him during a solo work trip in the Teton Wilderness, he told his boss he was worried about hiking alone into remote grizzly country. (Photo: Courtesy/Wyofile.com)

Adam Stewart worked as an outfitter at Zion National Park and as a river guide. Before a bear, or bears, killed him during a solo work trip in the Teton Wilderness, he told his boss he was worried about hiking alone into remote grizzly country. (Photo: Courtesy/Wyofile.com)

A father whose son was killed by a bear while working in the Teton Wilderness said this week Wyoming OSHA’s $13,120 fine against the company involved in the death is “a joke.”

Tom Stewart made his comments after hearing that the penalty had been reduced from $15,120 as originally proposed. The father learned of the fine through Wyoming Occupational Safety and Health Administration documents obtained by WyoFile following a public records request.

Wyoming OSHA penalized Nature’s Capital after a bear killed Adam Stewart, 31, in 2014. The Boise, Idaho firm will pay the penalty to Fremont County, where Adam Stewart died. A bear killed Adam Stewart in the Bridger-Teton National Forest while he was alone and inventorying vegetation for Nature’s Capital, a Forest Service contractor.

The documents and an interview outline how Wyoming OSHA considered up to $39,000 in fines then reduced that by 66 percent before resolving the case. The final reduction in the penalty came after Nature’s Capital challenged the citation and requested a negotiation.

OSHA discounted the penalty according to formulas that account for the significance of worker-safety rules the company violated and the size of the business, among other things. Stewart’s father, of Brentwood, Tennessee, criticized the penalty in a statement and interview.

“As for the harm a $39,000 penalty would represent to Nature’s Capital and its owners — how does that equate to the loss of my son?” he asked. “How does that equate to six days of parents and sisters not being able to sleep or eat, hoping beyond hope for their son/brother to be found safe?

“The penalty of $39,000 seems low to begin with given the magnitude of the violations committed by Nature’s Capital that resulted in my son’s death and put the well-being of other employees at serious risk,” Stewart said. “A final penalty settlement of $13,120 is a joke.”

OSHA and its parent agency Wyoming Department of Workforce Services is sympathetic with Tom Stewart and his family’s loss, said John Ysebaert, Workforce Services’ administrator for standards and compliance who oversees Wyoming OSHA.

“It certainly was a tragedy,” he said Monday. “My thoughts and respect for Mr. Stewart certainly continue to this day.”

OSHA does not have the ability to impose fines “based on the outcome” of an incident, he said. “It’s simply [based] on the hazard. The outcome, whether a fatality or a near miss — the penalty doesn’t vary.”

That structure “has been a longstanding point of contention from safety advocates across the nation,” Ysebaert said. “Our authority is limited to the hazard involved and the federal fines that are in place.”

A legislative effort to allow for higher fines for OSHA violations that result in a fatality failed in the 2015 session.

A perilous journey made alone

Adam Stewart set out from the Brooks Lake trailhead on Togwotee Pass the morning of Sept. 4, 2014 after expressing reservations to his boss about traveling alone, according to an email provided by his family. A bear — likely a grizzly — killed him that afternoon. Searchers found his remains eight days later on Sept. 12, without any sign of defensive bear spray.

In May, 2015 OSHA cited Nature’s Capital for seven “serious” workplace-safety violations. The agency requires a workplace “free from recognized hazards” that could injure or kill.

A worksheet OSHA used to determine the proposed penalties for the seven violations shows how it arrived at the dollar amounts for the death of Adam Stewart. The agency derived a “gravity-based penalty” according to two factors.One was a “severity” factor — high severity designating an infraction that could result in death or permanent disability. Another was a “probability” assessment — either “greater” or “lesser” accounting for the number of workers and exposure to a danger.

The “gravity-based penalty” for the seven cited infractions amounted to a total of $39,000, according to the OSHA worksheets. For three of the seven citations, OSHA sought only abatements — corrections to company policies — instead of $5,000 penalties each.

Those three infractions were similar to one another and involved training about protective equipment. “They’re so very closely related, if they did go to a contested hearing, they would not hold up,” and justify a $5,000 fine each, Ysebaert said.

That reduced the potential penalties by $15,000. OSHA then adjusted the remaining $24,000 figure according to the size of the company and its history of infractions. Having fewer than 26 employees entitled Nature’s Capital to a 30 percent reduction. OSHA deducted 10 percent because Nature’s Capital had no previous OSHA record.

The result was a proposed fine of $15,120 — 38 percent of the potential of $39,000.

Before OSHA began its investigation, an interagency board of review compiled a detailed report of the bear attack that killed Adam Stewart. This map shows how Stewart was attacked just feet from where a bear had a day bed and where two deer carcasses were cached by predators. (Interagency Grizzly Bear Committee)

A week after receiving the citations, Nature’s Capital appealed. “…Nature’s Capital denies the validity of each allegation contained in the Citation, and every item within the Citation and contests the method and date of abatement proposed for the citations and items,” a letter from Holland & Hart attorney Jere C. “Trey” Overdyke said. The lawyer requested a closed-door “informal conference” as allowed by OSHA rules.

Neither Overdyke nor Nature’s Capital owner Steve Rust responded to voicemail messages requesting comment.

WyoFile received no documents about that conference, but on July 2, 2015, Rust agreed to pay $13,120 by the end of this year. That amounts to a third of the potential gravity-based penalty.

Rust also agreed to several conditions, including developing an OSHA-approved backwoods-training program. Nature’s Capital promised that all employees will be certified in first aid and to discipline workers who do not keep in touch and check out and back in during trips. Among other provisions, Nature’s Capital also must maintain and audit a written safety and health program.

As a result of the informal consultation between OSHA and Nature’s Capital, several citations were downgraded from “serious” to “unclassified.”

Wyoming gets a backcountry worker manual

OSHA sought to get as much as it could from Nature’s Capital given the penalty framework, Ysebaert said. “In general, the penalties we follow are the federal requirements on them,” he said. “The fine structure – that’s based on what the federal requirements on the citation amounts per hazard are. We do have some leeway — leeway based on what extra do we get out of it from the employer.”

In the case of Nature’s Capital, Wyoming OSHA got “a good base-training program for all workers in the industry,” Ysebaert said. “Nature’s Capital developed a program that can and will be shared with other employers [whose workers are] exposed to these hazards in the backcountry.

“These are things that are over and above the OSHA requirements,” he said. “We feel strongly this program can and will protect other workers.”

Rust filed a form that showed he had made the required improvements to company operations. The Company Comprehensive Health and Safety Program is more than a half-inch thick. It requires special approval for solo travel and mandates regular reports from the field. All Nature’s Capital employees must carry bear spray in areas “known or suspected to be occupied by grizzly bears,” the plan says. Worksheets outline how to assess hazards and register travel plans.

Nature’s Capital had eight employees in 2014, according to the OSHA investigation. After completing the reforms required by OSHA — sometime after June, 2015, Rust added a note. “Nature’s Capital LLC currently has no employees.”

WyoFile.com is a nonprofit news organization focused on Wyoming people, places and policy.

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