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.
[wpex more=”Click to read how OSHA determined the penalty…” less=”Read less”]
Here’s a look at the citations against Nature’s Capital, the potential fines, the reductions in those potential fines and the final amount the company will pay. In addition to the fines, OSHA got Nature’s Capital to produce a backcountry training and safety guide that can be used by other companies that employ workers in grizzly country.
Item 1
Nature’s Capital did not
— provide and require employees to carry bear spray
— provide and require employees to wear noise-making devices
— require employees to submit trip itinerary
— require check-out/in procedures
Gravity-based penalty: $7,000
Proposed fine reduced to: $4,410Item 2
Nature’s Capital did not adequately assess the workplace for hazards
Gravity-based penalty: $5,000
Proposed fine reduced to: $3,150Item 3a
Nature’s Capital did not train workers about when protective equipment was necessary
Gravity-based penalty: $7,000
Proposed fine reduced to: $4,410Item 3b
Nature’s Capital did not train employees on what protective equipment was necessary
Gravity-based penalty: $5,000
Proposed fine: $0Item 3c
Nature’s Capital did not train employees on limitations of protective equipment
Gravity-based penalty: $5,000
Proposed fine: $0Item 3d
Nature’s Capital did not train employees in use, maintenance, shelf life of protective equipment.
Gravity-based penalty: $5,000
Proposed fine: $0Item 4
Nature’s Capital did not train employees in first aid
Gravity-based penalty: $5,000
Proposed fine: $3,150Total potential gravity-based penalty: $39,000
Proposed penalty: $15,120
Negotiated settlement: $13,120
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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.
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.”
So why did the Forest Service allow him to go into the area alone and without bear spray? This company was contracted by the Forest Service. Did the Forest Service have bear safety provisions in the contract and the company did not follow them? The Forest Service people there know better than to allow him to go alone and without bear spray.
Kim Barber
Why is it a 3rd party’s responsibility (employer or government) to tell an adult what to do? Particularly regarding such a minor item as $40 bear spray when in the bush? Was this grown man so mentally impaired as to be incapable of buying his own can of bear spray? Was this adult incapable of thinking for himself & taking prudent precautions (2nd Amendment)? Time for Americans to put on their big boy pants & take personal responsibility for their own lives & stop adopting the irresponsible & neurotic habit of blaming a 3rd party.
It is my conclusion after reading only this article…As an experienced outdoorsmen and Corporate Safety Professional.That WY,OSHA has fined Nature’s Capital fairly, only because of the methods that all OSHA’s set forth for all employers and companies nationwide. It’ll never be enough citations for the life of Adam Stewart, my condolences to the Stewart Family. It was Adam’s individual choice to enter known bear country alone and unprotected. It was also Nature’s Capital duty and responsibility to educate and protect Adam. Everyone involved carries some accountability.
Frank Borjon
Again, adults who need to have their hand held, who can’t think for themselves, who assume their personal safety & self preservation is the responsibility of a 3rd party have a mindset I can’t reconcile w individual accountability nor can I relate to such naivete. Any loss of life is unfortunate & regrettable. But this adult chose to enter a potentially hazardous environment & chose not to personally invest in bear spray or a sidearm. He bears the ultimate duty for his own self preservation (no pun intended).
Thanks for following up on this. Once again, we see that the penalty scheme OSHA operates under is inadequate.
Dan Neal
OSHA has guidelines that have to be set and established by the Federal oversite. Though recent adjustments to the penalty based fines have increased dramatically. OSHA position is not to fined fault in civil or actions of fault in civil cases. We have rules and regulations that must be followed. A civil suit would still not be affected because OSHA found that company at fault. That case file could be used as evidence, but not as a sole evidence in the case. It is unfortunate and I was in Wyoming when this case came through.
There are a LOT of bears in the ecosystem. Where there are no resident grizzly, the black bears are concentrated. There is more zing in the wilderness experience than any time in my 45 years of Wyoming backcountry.
Keith Benefiel