The state Industrial Commission voted Wednesday to impose the maximum permissible $559,000 penalty on the state Forestry Division after the deaths in June of 19 members of the Granite Mountain Hotshots battling the Yarnell Hill Fire.
Commission members said they found two serious violations of worker safety regulations.
One is that at the time of the blaze the state agency had vacancies in the positions of both safety officer and the planning section chief. Marshall Krotenberg, the lead investigator for the commission's Division of Occupational Safety and Health said that meant no one was available to pay attention primarily to the safety of the firefighters versus simply battling the blaze.
Commission members also said there was a failure to properly plan how to battle the blaze, especially after initial efforts at suppression failed.
But the most egregious violation, Krotenberg said, essentially came down to the Forestry Division having the wrong priorities.
“Folks were put in positions, overly hazardous positions, to protect property that was unprotectable under the current conditions of the extreme fuel, dryness, the drought and wind conditions,” he told the commissioners. “The employer implemented (fire) suppression strategies that prioritized protection of non-defensible structures and pastureland over firefighter safety.”
That, said Krotenberg, was a “willful” violation of worker safety laws and regulations and merited a penalty of $70,000 – 10 times that for serious violations.
Krotenberg stressed that, under state labor laws, it does not mean anyone at the Forestry Division intended to harm the firefighters or acted with a malicious intent. But what it does mean, he said, is that the Forestry Division knew what is required under the law, knew it was not following the requirement “and that they intentionally disregarded the requirement or acted with plain indifference to the safety of their employees.”
Carrie Dennett, spokeswoman for the Forestry Division, said late Wednesday her agency has not reviewed the findings and would have no comment.
That was also the response of Andrew Wilder, press aide to Gov. Jan Brewer. He said no decision has been made whether to challenge the fine or pay it.
Juliann Ashcraft, whose husband Andrew was one of the hotshots who died on June 30, said she cannot speak to the adequacy of the fine, but she said she was glad that some independent group was finally looking at what happened. And Ashcraft said she and the other survivors were finally getting answers that were not in a report prepared earlier this year by the Forestry Division itself.
Among the conclusions of division's own report was that the judgments and decisions of the organizations managing the fire were “reasonable.”
OSHA did its own probe, including hiring its own outside experts.
A report by the consulting firm of Wildland Fire Associates prepared for state OSHA as part of the inquiry, found plenty of things that had gone wrong before the site in the middle of chaparral where the hotshots were trapped was overrun by flames. That even included the possibility of fatigue, with the crew in the 13th day of a 14-day tour and having worked 28 out of the last 30 days.
But that report also found that the doomed firefighters did not panic, saying that up to their last radio transmissions they were “alert, unimaginably calm, thinking clearly and taking decisive actions.”
Commission members were more interested in whether worker safety laws and regulations had been broken. Krotenberg told them that a series of violations led to their deaths.
In many ways, he said, it can all be traced back to a lack of planning. That started with the failure to have safety officers available and on the ground.
Krotenberg said firefighters are, in some ways, too close to the action to watch out for their own safety. He said some of that is the heat of the moment; some is that they do not have all the information.
He said if the prime example of that lack of planning was the failure to have some idea of what to do in case of a thunderstorm.
“On that day, we had wind that was pushing the fire much faster than was expected,” Krotenberg said.
“A storm was anticipated, was forecasted, everybody knew it,” he continued, with the storm on the horizon.
“There was no plan to move folks out of the way of anticipated southerly wind flows until it occurred, until it was already too late,” Krotenberg explained. “It became an emergency because of bad planning.”
The fine actually works out to $4,421 for each dead firefighter. That is based on a $70,000 penalty for the "willful and serious” violation and $7,000 each for the violations determined solely as "serious.”
That remaining $475,000 is a special penalty the commission imposed on the Forestry Division – $25,000 for each firefighter that goes to a survivor or the person's estate. That penalty is allowed based on a separate commission finding that the willful violations led to the firefighters' deaths and that they did nothing that contributed to their own demise.
Commission Chairman David Parker said he is not questioning the intentions of those supervisors on the ground. Parker said he believes they were doing all they could both to fight the fire and protect the hotshots.
“The fire moved so quickly and changed so quickly that it just got beyond them,” he Parker said that did not excuse the Forestry Division from responsibility for its poor planning and ignoring basic safety considerations, saying the deaths “should not have happened.”
The commission separately concluded that while the hotshots were technically employed by the City of Prescott, it was the state Forestry Division that should pay the fine. Krotenberg said that is based on contracts between the city and the state which put the hotshots under the state's control, effectively making it the responsible employer.
Ashcraft, who sat through Krotenberg's report and the commission vote, said the findings provide a little bit of closure.
“I need to be able to tell my four children why their father isn't coming home,” she said. More to the point, Ashcraft said she felt like the Forestry Division's own report left the impressions that the hotshots themselves were to blame.
“It didn't make sense to blame them for everything,” she said.
“I knew it was an incident command issue,” Ashcraft continued, saying she's not blaming any one person. “I just know that the problem came from the complete lack of organization and communication from the people that should have been in control of the fire.”
One thing that did surprise her was Krotenberg telling the commission that the U.S. Forest Service prevented members of a separate hotshot team at the site from being questioned. Ashcraft said she had presumed that OSHA had absolute authority to question whoever the agency felt was necessary.
OSHA did get to interview the one surviving member of the Granite Mountain Hotshots who was on lookout separate from his colleagues.