TESTIMONY OF
DAVID M. UHLMANN
JEFFREY F. LISS PROFESSOR FROM PRACTICE
DIRECTOR, ENVIRONMENTAL LAW AND POLICY PROGRAM
UNIVERSITY OF MICHIGAN LAW SCHOOL
BEFORE THE
UNITED STATES SENATE COMMITTEE ON
HEALTH, EDUCATION, LABOR AND PENSIONS
“THE PROSECUTION OF WORKER ENDANGERMENT CASES AND
THE NEED FOR STRONGER CRIMINAL PROVISIONS OF THE
WORKER SAFETY LAWS TO PROTECT AMERICA’S WORKERS”
APRIL 29, 2008
Thank you Chairman Kennedy, Senator Enzi, and Members of the Committee for holding
today’s hearing and for giving me the opportunity to testify before you.
My name is David Uhlmann. I am the Jeffrey F. Liss Professor from Practice and the
Director of the Environmental Law and Policy Program at the University of Michigan Law
School. Prior to joining the Michigan faculty in July 2007, I served for 17 years in the United
States Department of Justice, the last seven as Chief of the Environmental Crimes Section.
During my tenure at the Justice Department, we prosecuted a number of environmental
criminal cases involving worker injuries and deaths. Based on those successful prosecutions, we
developed a worker endangerment initiative to highlight the fact that environmental crimes
frequently place America’s workers at risk of death or serious bodily injury – and to prosecute
companies that systematically violate both the environmental laws and our worker safety laws.
The Justice Department’s worker endangerment initiative has produced a number of
high-profile prosecutions involving companies such as BP Products North America, McWane,
Inc., Motiva Enterprises, LLC, and W.R. Grace & Co. The worker endangerment initiative has
focused on companies where profits have taken precedence over compliance with the law and
workers have been treated as if they were expendable. Criminal prosecution of those companies
protects American workers, upholds the rule of law, and ensures that corporate outlaws do not
have a competitive advantage over companies that make compliance a priority.
The success of the Justice Department’s worker endangerment initiative, however, has
highlighted the woeful inadequacy of the criminal provisions of our worker safety laws. Most of
the cases brought by my former colleagues charged violations of the endangerment provisions of
the environmental protection statutes1 and Title 18 of the United States Code, which makes it a
crime to make false statements,2 obstruct justice,3 and commit conspiracy to defraud the United
States by impeding the effective implementation of government regulatory programs.4
Typically, the crimes charged were felonies, punishable by up to 15 years in jail for knowing
endangerment and 20 years in jail for some forms of obstruction of justice. The endangerment
provisions of the environmental laws and Title 18 also cover a wide range of misconduct in the
workplace.
Only one case brought to date under the worker endangerment initiative, the prosecution
of McWane for a worker death at its Union Foundry plant, has utilized the criminal provisions of
the Occupational, Safety, and Health Act (the “OSH Act”).5 Prosecution under the OSH Act is
extremely limited, because the OSH Act only covers (1) willful violations of worker safety
regulations that (2) result in worker death. Even if a willful violation occurs that results in death,
the crime is only a Class B misdemeanor, with a maximum sentence of six months in jail.
The criminal provisions of our worker safety laws are so weak that they do little to
protect America’s workers. Limiting prosecution to willful violations makes ignorance of the
law a defense, contrary to the time-honored maximum of American jurisprudence that ignorance
of the law is not a defense. Focusing exclusively on violations involving worker deaths ignores
the pain and anguish that results from serious injuries, which also may warrant criminal
remedies. Misdemeanor violations provide little deterrence and minimal incentive for
prosecutors and law enforcement personnel, who reserve their limited resources for the crimes
that Congress has deemed most egregious by making them felonies (with significant maximum
penalties). Finally, only “employers” can be prosecuted for criminal violations of the OSH Act,
which means that the mid-level managers who have the greatest day-to-day responsibility for
unsafe working conditions often are immune from criminal prosecution under the OSH Act.
In my testimony today, I will explain why Congress should strengthen the criminal
provisions of our worker safety laws by enacting the Protecting America’s Workers Act.
First, I will describe one of the cases that I prosecuted at the Justice Department that
helped lead to our worker endangerment initiative and exposed the inadequacy of the criminal
provisions of our worker safety laws. Second, I will explain why a stronger criminal program
under the OSH Act would promote greater compliance with our worker safety laws. Third, I will
1
See, e.g., 42 U.S.C. § 7413(c)(4) (negligent endangerment under the Clean Air Act) and 42
U.S.C. 7413(c)(5) (knowing endangerment under the Clean Air Act).
2
18 U.S.C. § 1001.
3
18 U.S.C. §§ 1503, 1505, 1512, and 1519.
4
18 U.S.C. § 371.
5
29 U.S.C. § 666(e).
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suggest possible changes to the OSH Act and the Protecting America’s Workers Act to provide a
more effective criminal enforcement scheme and ensure compliance with our worker safety laws.
The Cyanide Canary6
In August 1996, Scott Dominguez collapsed and nearly died inside a 35,000 gallon steel
storage tank while working at Evergreen Resources, a fertilizer manufacturing facility in Soda
Springs, Idaho. The owner of Evergreen Resources was Allan Elias, a Wharton graduate and
attorney who had a long history of environmental and worker safety violations. Elias previously
used the 35,000 gallon tank for a cyanide leaching operation and to store phosphoric acid.
Cyanide and phosphoric acid react to form deadly hydrogen cyanide gas; expert testimony at
trial established that there was enough cyanide in the storage tank to kill thousands of people.
Elias nonetheless ordered Dominguez and his co-workers to clean out the tank and dump
the cyanide-laced sludge from the bottom of the tank. Elias ignored the pleas of his workers for
safety equipment and for tests to determine whether it was safe to go inside the tank. Elias
refused to prepare the required “confined space entry permit” detailing the steps that were being
taken to protect the workers and enable them to be rescued if someone was injured inside the
tank. Elias did so even though he had been warned for years by the Occupational Safety and
Health Administration (“OSHA”) about the dangers of sending workers into confined spaces like
the tank without safety equipment and appropriate testing. When the workers complained of
sore throats and difficulty breathing, Elias told them to finish the job or find work somewhere
else.
Dominguez, a recent high school graduate without significant work experience, felt like
he did not have any choice. So, on August 27, 1996, wearing just jeans and a t-shirt, Dominguez
descended into the tank on a ladder, a 20-year old with his whole life ahead of him. Two hours
later, covered in sludge and barely breathing, Dominguez emerged from the tank on a stretcher,
his life shattered by Elias’s blatant disregard for the health and safety of his workers.
In the frantic minutes before paramedics rescued Dominguez, firefighters asked Elias
whether there was anything in the tank that could explain what had happened to Dominguez or
put the rescuers at risk. Elias lied and said there was nothing but mud inside the tank.
After the ambulance rushed Dominguez to the hospital, the emergency room doctor, John
Wayne Obray, called Elias twice to ask what was inside the tank. On the second call, Dr. Obray
asked Elias whether there was any possibility that cyanide was in the tank. Elias lied and said
no.
6
JOSEPH HILLDORFER AND ROBERT DUGONI, THE CYANIDE CANARY: A STORY OF INJUSTICE
(2004). Former EPA Special Agent Hilldorfer and co-author Dugoni provide a first-hand
account of the prosecution of United States v. Elias, 269 F.3d 1003 (9th Cir. 2001), for
environmental crimes that left the victim permanently brain-damaged. Multiple worker safety
violations occurred, but no worker safety crime, because of the deficiencies of the OSH Act.
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The next day OSHA inspectors interviewed Elias, who lied again and said that he had a
confined space entry permit for the tank cleaning operation. Later that morning, Elias went to a
neighboring facility operated by Kerr McGee Chemical Corporation and borrowed a safety
manual, which included instructions about how to prepare a confined space entry permit. He
then prepared and backdated a confined space entry permit for the tank cleaning operation and
submitted the false permit to OSHA, claiming it had been prepared before Dominguez was hurt.
The United States charged Elias with three felony counts under the environmental laws,
including knowing endangerment under the Resource Conservation and Recovery Act
(“RCRA”), which carries a maximum penalty of 15 years in prison. In addition, the United
States charged Elias with one felony count under Title 18 of the United States Code for
submitting the fabricated confined space entry permit to OSHA.7 During the 31⁄2-week trial,
Dominguez testified that he did not know there was cyanide in the tank, and that he entered the
tank without safety equipment because “I really, really, really did, really did trust Allan.”8
After less than six hours of deliberations, the jury convicted Elias on all counts on May 7,
1999. United States District Court Judge B. Lynn Winmill sentenced Elias to 17 years in prison,
which until recently was the longest sentence ever imposed for environmental crime.
The Justice Department hailed the Elias conviction and the resulting sentence, because it
demonstrated that “environmental crimes are real crimes, and those who flout our environmental
laws will go to prison for a long time.”9 The proof of knowing endangerment in the Elias case,
however, was based as much upon evidence that Elias violated OSHA regulations governing
confined space entries as it was on the accompanying unpermitted disposal of hazardous waste in
violation of RCRA. Indeed, the Elias case was as much a worker safety case as it was an
environmental case under the federal pollution prevention laws.
Yet Elias did not commit a criminal violation of the worker safety laws.
7
The United States charged the falsified permit as a violation of 18 U.S.C. § 1001, instead of
the OSH Act’s false statement provision, 29 U.S.C. § 666(g), because a false statement under
Title 18 is a felony, punishable by up to five years in jail. A false statement under the OSH Act
is a Class B misdemeanor, punishable by up to six months in jail. Elias was convicted and
sentenced to the statutory maximum penalty of five years in jail on the Title 18 false statement
charge.
8
United States v. Allan Elias (D. Idaho, CR No. 98-00070-E-BLW), Trial Transcript at 3499
(Testimony of Scott Dominguez, May 3, 1999).
9
“Idaho Man Given Longest-Ever Sentence for Environmental Crime,” United States
Department of Justice Office of Public Affairs Press Release (Statement of Assistant Attorney
General Lois J. Schiffer, April 29, 2000).
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Elias did not commit a worker safety crime, even though OSHA cited Elias for willful
violations of worker safety regulations. Elias did not commit a worker safety crime, even though
the jury found unanimously that Elias knew he was placing his workers in imminent danger of
death or serious bodily injury. Elias did not commit a worker safety crime, even though he was
convicted of multiple environmental felonies, including knowingly endangering his workers.
Allan Elias did not commit a worker safety crime, because Scott Dominguez did not die.
Elias committed egregious crimes and deserved the 17-year prison sentence imposed by
Judge Winmill. The Elias case provides a stark contrast, however, between the strength of the
criminal provisions of the environmental laws and the weakness of the criminal provisions of the
worker safety laws. It is appropriate that endangering workers during a hazardous waste
violation carries a 15 year maximum sentence per count; it is illogical that the same conduct
during a worker safety violation is not a crime unless a worker dies – and even then only is a six-
month misdemeanor per count (which, in all likelihood, means six months per worker death).
The criminal provisions of the environmental laws are not an effective antidote for the
weakness of the criminal provisions of the worker safety laws. Most environmental crime occurs
in a workplace setting and involves the mishandling of hazardous substances or pollutants, which
can place workers at risk. However, many cases involving danger to workers cannot be
prosecuted under the environmental laws, because they do not involve mishandling of hazardous
wastes, or unlawful releases of hazardous air pollutants into the ambient air, or illegal discharges
of pollutants into waters of the United States. Relying on the environmental laws to protect
America’s workers means that, in many cases, America’s workers will be left unprotected.
Moreover, even when environmental laws apply, their enforcement can raise complicated
regulatory issues. Elias challenged his convictions on the grounds that the applicable definition
of hazardous waste was too vague to be criminally enforced. While the Ninth Circuit did not
agree with Elias, his ability to make such an argument shows the limits of environmental
criminal enforcement as the primary method of addressing worker endangerment cases.
In sum, while the Elias prosecution was successful, and the worker endangerment
initiative has excelled because of the extraordinary efforts of career prosecutors at the Justice
Department, criminal investigators at the United States Environmental Protection Agency
(“EPA”), and oft-maligned compliance officers within OSHA, the environmental laws cannot
make up for the inherent weaknesses of the criminal provisions of our worker safety laws.
The Need for a Strong Criminal Program
Most companies in the United States comply with the law and care about protecting their
workers. For those companies, worker safety is more than a legal requirement; it is a moral and
ethical obligation. But experience teaches that there always will be companies that take a
different approach, companies with owners like Allan Elias who think that the law does not
apply to them or that, if they get caught, they can either avoid penalties or simply pay a modest
fine.
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Sadly, under the existing OSH Act, the companies that think there are not significant
penalties for violating OSHA regulations probably are correct. Willful or repeated violations
carry a statutory maximum of $70,000 per violation,10 a number which has not been increased in
decades and pales in comparison to the cost of an effective corporate compliance program.
Criminal penalties can be much higher than administrative penalties under the OSH Act,
because Title 18 sets a maximum penalty of $500,000 for misdemeanors that are committed by
organizational defendants and result in death11 or twice the gain or loss associated with the
offense12 (whichever is greater). As discussed above, however, criminal violations only apply if
a willful violation results in worker death. Even if the criminal provisions apply, most United
States Attorney’s Offices – faced with the challenge of prosecuting cases across a wide range of
federal regulatory programs, in addition to drug and gun crimes – focus on felony cases and are
unable to devote limited prosecutorial resources to misdemeanor cases for regulatory crime.
The net result is a worker safety program where most violators – even willful violators –
will face only administrative violations and relatively modest penalties if they are cited. That
makes it easy for companies to put profits before compliance and to view any penalties that may
result as a “cost of doing business.” A company that epitomized that approach is McWane.
McWane is a privately owned company that operates pipe manufacturing facilities across
the United States. Although pipe manufacturing is inherently dangerous, McWane facilities
were particularly hazardous places to work. From 1995 to 2003, at least 4,600 workers were
injured at McWane plants,13 giving McWane one of the worst safety records in the United States.
Yet, despite McWane’s alarming record of worker injuries and deaths, the company’s
only criminal conviction prior to 2005 was a single misdemeanor count in July 2002 under the
OSH Act for willful violations of the worker safety laws that resulted in a worker being crushed
to death at McWane’s Tyler Pipe facility in Tyler, Texas. McWane paid a fine of $250,000.
In January 2003, as a pilot project for the worker endangerment initiative, the Justice
Department and EPA began a criminal investigation of environmental and worker safety
violations at five McWane facilities: Atlantic States Cast Iron Pipe Company in New Jersey;
McWane Cast Iron Pipe Company in Alabama; Pacific States Cast Iron Pipe Company in Utah;
Tyler Pipe in Texas; and Union Foundry in Alabama. The investigations revealed a company
that was a persistent violator of worker safety and environmental laws, and which made it a
10
29 U.S.C. § 666(a).
11
18 U.S.C. § 3571(c)(4).
12
18 U.S.C. § 3571(d).
13
David Barstow and Lowell Bergman, “A Dangerous Business: At a Texas Foundry, an
Indifference to Life” (N.Y. Times, January 8, 2003).
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practice to lie to and deceive OSHA inspectors and federal and state environmental officials to
conceal its illegal activity.
McWane eventually pleaded guilty in September 2005 to criminal charges under the
OSH Act at its Union Foundry facility, and received a criminal sentence of $4.25 million.
McWane also pleaded guilty to Clean Air Act crimes at Pacific States, with a criminal sentence
of $3 million, and at Tyler Pipe, with a criminal sentence of $4.5 million. McWane chose to
stand trial for the violations committed at its Atlantic States and McWane Cast Iron Pipe
facilities, where multiple McWane officials were charged. After lengthy trials, however,
McWane and most of the individual defendants were convicted, although final sentences have
not been imposed.14
While the criminal cases against McWane have not ended, the multi-million dollar
criminal fines imposed against McWane and the years of adverse publicity resulting from the
criminal investigations and prosecutions may have changed McWane’s approach to worker
safety. In a follow-up piece to the exposé that launched the McWane investigations,15 Frontline
interviewed dozens of McWane employees who describe a “new McWane” where worker safety
and environmental compliance are now a priority. Former OSHA Administrators and senior
Justice Department officials now advise McWane about its regulatory compliance programs.
Only time will tell whether there is a new corporate attitude at McWane. It is revealing,
however, that the company ignored worker safety in the face of years of worker injuries and
deaths, and accompanying administrative penalty actions (and a single criminal conviction).
McWane only began to make changes when the United States launched a concerted, national
investigation and prosecution effort, with multiple indictments for felony violations and multi-
million dollar criminal penalties for those crimes. The McWane prosecutions therefore speak
volumes about the role of a strong criminal program in promoting worker safety and compliance.
A strong criminal program, particularly one where individual corporate officials may face
significant jail time if they commit criminal violations, sends a message to the regulatory
community about the need to make compliance with worker safety laws a priority. Companies
that do not care about worker safety for its own sake will pay far more attention to worker
protection if they fear criminal sanctions and possible jail time for corporate officials who put
workers at risk.
14
Sentencing in the Atlantic States case has not occurred more than two years after the trial
ended (which lasted seven months and was the longest environmental crimes trial ever in the
United States). A new trial may be necessary in the McWane Cast Iron Pipe case after the
United States Court of Appeals for the Eleventh Circuit reversed the convictions on Clean Water
Act jurisdictional grounds, United States v. Robison, 505 F.3d 1208 (11th Cir. 2007), reh’g en
banc denied (2008), unless the United States seeks and obtains Supreme Court review of the
case.
15
“A Dangerous Business Revisited,” Frontline (February 5, 2008).
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Criminal enforcement also provides benefits beyond punishment and deterrence of
criminal activity. In regulatory programs where there is a credible criminal enforcement threat,
companies are quicker to resolve administrative penalty actions and respond more productively
to regulatory inspections. The OSHA inspectors trained as part of the Justice Department’s
worker endangerment initiative describe many companies that are indifferent or hostile to OSHA
compliance officers. That would not be the case if the OSHA enforcement scheme included a
more significant criminal enforcement threat than the current OSH Act provides.
Finally, companies that make worker safety a priority should not feel threatened by a
stronger criminal enforcement program. Stronger criminal provisions would not be used to
criminalize accidents, which sometimes happen despite the best efforts of employers and
employees. Criminal enforcement only would occur in situations where there was a knowing
violation of a worker safety requirement. Only companies that routinely violate our worker
safety laws would be at risk. Those companies should not have a competitive advantage over
companies that devote the necessary resources to worker safety, and we want companies that are
chronic violators to be worried about criminal prosecution, so that they will comply with the law.
The Protecting America’s Workers Act
The criminal provisions of the Protecting America’s Workers Act would be a substantial
improvement over existing law. First, the Protecting America’s Workers Act makes most
criminal violations of the OSH Act felonies, which is consistent both with the Act’s emphasis on
public health and safety as well as the approach taken in most other federal regulatory programs.
Second, the Protecting America’s Workers Act expands the criminal provisions to reach
violations that cause serious bodily injury but not death. In this regard, the Protecting America’s
Workers Act acknowledges the devastation and suffering that can result from serious injuries.
There is no question that criminal violations of the OSH Act should be felonies. It is a
felony to commit criminal violations of the environmental laws; it is a felony to commit criminal
violations of our hazardous transportation laws and many wildlife laws. Insider trading, customs
violations, tax crimes, antitrust violations, food and drug violations, and transportation of stolen
vehicles are felonies. False statements, mail and wire fraud, obstruction of justice, perjury, false
declarations, and conspiracy in violation of Title 18 all are felonies. The list goes on and on, but
the point is simple: when criminal worker safety violations occur, they should be a felonies too.
Otherwise, the message that is sent is that the United States does not care about worker safety.
Upgrading OSH Act violations to felony status also is essential if Congress wants to see
meaningful criminal enforcement of our worker safety laws. From 2003 to 2007, only eight
criminal cases were brought for violations of the OSH Act. Absent action by Congress, criminal
cases will remain infrequent because federal prosecutors will not devote significant resources to
cases that Congress relegates to misdemeanor status. Prosecutors occasionally will accept plea
agreements to lesser included misdemeanor charges, but they rarely will initiate complex
investigations and prosecutions if the most serious, readily provable offense is a misdemeanor.
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There also is no question that criminal prosecution under the OSH Act should be possible
even in cases where death does not occur. The Elias case is a classic example of a situation
where death did not occur but a criminal prosecution under the OSH Act should have been
possible. The fact that the emergency room doctors were able to save Scott Dominguez’s life
had no bearing on the extent to which Elias violated the worker safety laws or his mental state
when he committed those violations. While the fact that a worker dies may be relevant to the
sentence that is imposed, it should have no effect on whether a criminal violation has occurred.
The Protecting America’s Workers Act could be improved, however, by criminalizing
endangerment and knowing violations of the worker safety laws, and by addressing the role of
individual liability. The Act also should address resources for criminal investigations.
Worker Endangerment: The Protecting America’s Workers Act would promote
worker safety more effectively, if it were expanded to cover violations that endanger workers.
As noted above, there is no difference in the nature of the violation committed by a defendant or
the defendant’s mental state if a particular outcome occurs, whether that outcome is death,
serious bodily injury, or the intervention of some good fortune that prevents any harm. Criminal
culpability should be determined based on the risk associated with a defendant’s misconduct and
the degree to which the defendant is aware of that risk, not whether the risk becomes a reality.
The environmental laws again are instructive, since they make knowing endangerment a
crime whenever a defendant commits a Clean Water Act, RCRA, or Clean Air Act violation and
“knows at the time that he [or she] thereby places another person in imminent danger of death or
serious bodily injury.”16 If a similar provision were added to the Protecting America’s Workers
Act, the new law would do more to prevent violations that put American workers at risk.
Knowing Violations: The Protecting America’s Workers Act also would provide greater
protection for workers if “knowing” violations of the worker safety laws that endangered
workers (or caused serious bodily injury or death) were covered. Most federal environmental
crimes and most federal regulatory crime address knowing violations of the law, which require
that the defendants knowingly engage in the conduct that is prescribed.17 In other words,
knowledge of the facts is required (e.g., that a confined space entry is occurring without a
confined space entry permit, appropriate testing, and/or safety equipment), but knowledge of the
law is not (e.g., that OSHA rules require a confined space entry permit, appropriate testing, and
safety equipment).
The problem with the current version of the OSH Act and the Protecting America’s
Workers Act is that both are limited to “willful” violations. The use of willfulness places the
16
33 U.S.C. § 1319(c)(3)(A) (the Clean Water Act); 42 U.S.C. § 6928(e) (RCRA); and 42
U.S.C. § 7413(c)(5)(A) (the Clean Air Act). The Clean Air Act also contains a negligent
endangerment provision. 42 U.S.C. § 7413(c)(4).
17
Bryan v. United States, 524 U.S. 184, 191-199 (1998).
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worker safety laws outside the mainstream of federal criminal law. More importantly, by
requiring willfulness, the OSH Act and the Protecting America’s Workers Act make ignorance
of the law a defense. It is a long-standing principle of American jurisprudence that ignorance of
the law is not a defense, and ignorance of the law should not be a defense where the health and
safety of America’s workers are involved. Employers who are covered by the OSH Act have a
duty to know the law. They should not be able to escape criminal liability for knowing
violations that place workers at risk by claiming that they did not know that safety measures
were required.
Individual Liability: The Protecting America’s Workers Act also should address the
scope of individual liability for criminal violations of our worker safety laws. As noted above,
individual liability plays a central role in any criminal enforcement scheme, since the threat of
jail time is arguably the single greatest deterrent provided by the criminal law. Unfortunately,
the current version of the OSH Act applies only to "employers," which are defined under the Act
as “a person engaged in a business affecting commerce who has employees. . . .”18 The limited
definition of employers absolves most, if not all, mid-level managers of criminal responsibility,
even though they are likely to be the individuals with knowledge of worker safety violations.
A better approach to individual liability would be to impose criminal responsibility on all
supervisory personnel who are responsible for the violations, which can occur in two ways.
First, supervisors who are directly involved or order that the misconduct occur should be
criminally liable, which is standard in federal criminal cases. Second, supervisors who (1) know
that the conduct is occurring; (2) have the authority to prevent the conduct from occurring; and
(3) fail to prevent the conduct should be held responsible under the “responsible corporate
officer” doctrine (although its scope extends beyond individuals with corporate titles to include
all persons who meet the three elements of the doctrine). The responsible corporate officer
doctrine also is used in criminal prosecutions under the environmental laws.19
Investigative Resources: A final issue for the Protecting America’s Workers Act is the
need for law enforcement resources to investigate worker safety crimes. OSHA compliance
officers do an outstanding job investigating worker safety violations. They are not criminal
investigators, however, and Fourth Amendment concerns would be raised if they obtained
evidence for purposes of a criminal investigation. Moreover, once a criminal investigation
begins, witnesses must be interviewed, evidence reviewed, subpoenas issued, and, in some cases,
search warrants executed, all of which must be done by law enforcement officials.
18
29 U.S.C. § 652(5).
19
The “responsible corporate office” doctrine originated in a Supreme Court case
interpreting the Federal Food, Drug, and Cosmetic Act. United States v. Dotterweich, 320 U.S.
277 (1943). Its use in the environmental crimes context has been considered by a number of
courts, most notably in United States v. Iverson, 162 F.3d 1015, 1022-25 (9th Cir. 1998).
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During the Justice Department’s worker endangerment initiative, we relied upon EPA’s
criminal investigators to provide law enforcement support. In cases that are not environmental
crimes, however, federal prosecutors would require another source of investigative support.
There are two alternatives: first, the Federal Bureau of Investigation (“FBI”) could provide
agent support; and, second, a criminal investigation division could be established within OSHA.
Unfortunately, the FBI has few resources today for crimes other than counterterrorism, and
hiring criminal investigators at OSHA would take time and political will that may be lacking. At
some point, however, the need for investigative resources for OSH Act violations must be
addressed.
Conclusion
The criminal provisions of the environmental laws and the OSH Act were enacted during
the 1970's when much of the modern regulatory state was created. Within a decade, Congress
had changed the environmental laws – which also began as misdemeanor violations – because
federal prosecution resources are generally reserved for felony cases, and Congress recognized
that the benefits of a strong environmental crimes program would be lost without felonies.
It has been 20 years since Congress amended the environmental laws, and it is long past
the time for Congress to take the same approach to our worker safety laws. Some workers do not
have a choice about where they work, either because jobs are scarce in their communities or they
have not had the educational opportunities that would enable them to seek higher-paying and
safer jobs. But all of us deserve a safe place to work and the ability to come home to our
families in good health each night. We can do more to protect our workers and ensure that all
companies in the United States honor our best traditions of caring for our workers, neighbors,
and friends.
By passing the Protecting America’s Workers Act, with the improvements suggested
during my testimony today, we can make good on the promise of a safe workplace made 30
years ago when Congress first enacted the Occupational Safety and Health Act.
Thank you again for the opportunity to testify before you today.
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Testimony of Donald Coit Smith
Senate Committee on Health, Education, Labor and Pensions
April 29, 2008
Good morning Senators and thank you for having me at this hearing.
My name is Donald Coit Smith. My official title is the Division Safety Manager
for a polyurethane manufacturer with responsibilities for manufacturing plants in
Texas, Oklahoma, and Colorado. This function I’ve held for over 19 years, with 30
years in the manufacturing field altogether. My specialties include inspecting and
investigating to OSHA standards.
I also have the title of father to a son killed on the job.
Section one
I will begin by addressing my experiences with the Occupational Safety and Health
Administration from the employer standpoint. Having been through several OSHA
inspections, planned and otherwise, the courtesy and professionalism of those
inspectors have been exemplary. I can safely say with reasonable accuracy that the
knowledge gleaned from those inspectors has been a worthwhile activity. While
reading the code of federal regulations can be sometimes tedious, if not altogether
aggravating, the times I’ve needed interpretations has been met with understanding
and patience. I think a salute to those men and women is in order.
I have unfortunately seen citations and fines issued in some of our plants for
various things, none of which were major but nonetheless were citations, and are
what I consider violations of the law. Those violations were abated post haste,
documents drafted reflecting the abatements, and a plea entered for immediate
withdrawal of all fines levied. In all cases that I remember, every fine was reduced
at least by half and some altogether dismissed.
This “process” is what was explained to me by my mentor as the proper way to
deal with OSHA.
But I did not understand why these reductions were so easy to attain. I attributed it
the good nature and “helping hand” of those inspectors in their willingness to
“settle” the account with the least possible effort. I also came to the opinion of
viewing it as a possible revenue-generating function of the agency. To this date, I
am still uncertain of the motivation to settle for less.
I spoke of fines for citations. In my opinion, what the fines represent is called a
“cost of doing business” among corporate America. The pittance remitted for those
fines seem, well pretty much just that... a pittance... or maybe more adequately
stated, a nuisance settlement. I do not say they aren’t justified, but rather the
standpoint of OSHA as I’ve experienced is not one of grit but one of pacification
and conciliation. On the OSHA website the mission statement in part is as follows:
OSHA's mission is to assure the safety and health of
America's workers...
Let’s look at the word “assure” closely. Webster’s says it is to “make certain.”
Senators, OSHA doesn’t make certain of anything from what I’ve been through. If
I had to change one thing that could make a profound difference in OSHA, it
would be to make fines and punishment so severe that employers would tremble at
the thought of violating the code.
SECTION TWO
I told you at the beginning that my second title is father to a son killed on the job. I
do not possess the capacity to adequately describe the horror that possesses my
soul from my son’s death. To lose him caused me to reflect on faith in my God. I
still to this day have issues with Him over my loss. However, I have come to
believe He took him for a reason of His own, possibly to foster events that led me
to being here today. To this I must yield to a higher authority and is why I do what
I do. I have a mission. That mission is to do what it takes to strengthen the law that
will prevent what happened to my son from happening to anyone else. Looking at
the statistics on America’s job deaths, you’ll see that about 6,000 people die in
America from job-related activities each year. That is a figure that is 6,000 too
many.
You know that I’ve dealt with OSHA from the employer standpoint, but let me tell
you that dealing with them from a parent’s standpoint is dreadful. I have been met
with resistance at virtually every corner I’ve had to turn. It started with the
inspection of the death facility and getting information on the why and how of my
son’s death. I’m not talking about the fact that he was electrocuted...that was
obvious. But how could this have happened? And why weren’t the events that led
up to his death avoided? In my study of the situation from the information I’ve
obtained, the root problems that surfaced were really simple and stood out. A blind
man could see them in a minute.
There was no commitment. There was no deterrent.
There were citations issued to the offending company by OSHA on my son’s
death. The original set totaled seven... all within 29 CFR 1910.147, which is the
OSHA lockout regulation.
After the well-versed and experienced OSHA inspector painstakingly reviewed the
case, making absolutely sure what he was indicating were true violations of federal
law, the lawyers for OSHA and the offending company got together and
“negotiated” out all but two citations.
The original 7 citations called for a combined penalty of $31,000 with two of the
seven citations not having any amount assigned. In the end, a fine of $12,000 was
paid. It is interesting to note that, according to the OSHA website, one of the
original 7 citations that had zero dollars assigned was placed at $7,000 in the end,
but the violation summary has the total penalty at $5,000. If I hadn’t seen the pay
off check with my own eyes I wouldn’t know for sure myself.
The one thing I know for sure is that my son died and there was nothing I could do
about it. The laws of this nation couldn’t protect him. Fear of violating OSHA
standards couldn’t protect him. The value for human life couldn’t protect him.
How do the OSHA penalties given out for my son’s death affect me? Well, frankly
mad doesn’t describe it. And every American should be mad as well. The system
I’ve worked in for all these years, of which I had great faith, seems to have literally
bargained his life. For one thing the penalties are no real incentive for compliance.
As I said, the penalties are a “cost of doing business,” What makes matters worse,
if it can be, is the workers comp system which allows the state and the insurance
industry (at least in Texas) to benefit from his death. Now to me that’s just morally
wrong. But that’s another issue I’m working on.
SECTION THREE
My presence here is two-fold. To let you know how frustrated I am about OSHA’s
role in prevention of injury in the workplace and to urge you to do whatever it
takes to get this job death atrocity under control.
I would suggest placing severe penalties, both monetarily and criminally, on
operations violating federal standards where job deaths occur. Current legislation is
not a deterrent. Any review of the topic will show too well how little attention is
paid to it.
SECTION FOUR
Excerpt from The Family Bill of Rights: Item 5
Family members should have the opportunity to interview co-workers and
management that have knowledge of the facts of the case and any signed
affidavits should be submitted, obtained, and applied by OSHA during
investigations.
“In viewing what is “right” and what is “wrong” with how families are treated in
job related deaths, I believe one must look at our current laws. To the naked eye it
is obvious the law favors corporate America with regards to keeping information
hidden. A closer viewpoint reveals just how this is done. All OSHA documents and
local law enforcement investigations are kept from families’ eyes (in part) via the
Freedom of Information Act. This includes “negotiations” and OSHA/company
meetings, even though families follow procedures in filing documents to have
access to these meetings. Seems as though, at least in my case, OSHA was not
willing to follow the law and no one was there to make them. While securing
production secrets for the good of the company is important to lever any market
advantage, when items are covered that would lead to revealing criminal- type
actions, the whole legal system (and those who made the law) should be revised.
Part of that revision should be allowing families of workers killed on the job
access to ALL information available, including negotiations and
meetings/correspondence. Even investigating law enforcement is blocked from
getting this part (ref: Bell County Sheriffs Office).
However, all this is virtually meaningless unless something is done to allow
successful prosecution of negligent employers. Right now the only avenue is
“gross” negligence and that is akin to the employer holding a gun to the
employee’s head and pulling the trigger. I believe what is happening in this
country is just that... only the employer’s gun is their apathy and greed. And the
law protects them!
Now at some point OSHA will render its investigation “public” but that is only a
very small and insignificant document redacted to be almost useless. One can read
the citations on the Web. This document does not have the interviews and reasons
why OSHA “fines” are levied. These interviews go deeper to the root cause of job
deaths. They can point to individuals and company policies that contribute/cause
the job death. But let’s review: the law protects these people. If a company is a
subscriber to workers comp, they are untouchable and unless OSHA proves “gross
negligence,” federal law keeps them safe. The maximum penalty for gross
negligence? A fine and six months in jail (for someone... and you can bet it’s not
the boss).
I will sum with the viewpoint of parents of dependents killed on the job. Unless
laws are changed to allow prosecution and legal actions to be filed by parents
outside of workers comp, protection, we will continue to see job deaths on a
regular basis. But knowing exactly what happened to their loved ones is important.
Just the knowledge may help. Allowing this knowledge to escape government/legal
cover up is a step in helping families of workers killed on the job cope with their
loss.”
SECTION FIVE: CLOSING
Thank you very much for this opportunity to have input and, in closing this
address, I’d like to leave you with what I’ve told my sons each time we part.
To them I say: “te amo, mi hijos.”
And to all of you here I say:
May God bless you and may God bless America.
Donald Coit Smith

Safety

Testimony of Peg Seminario, Director Safety and Health. AFL-CIO Before the Senate Committee on Health, Education, Labor and Pensions Hearing on Penalties for Worker Fatalities under the Occupational Safety and Health Act.
April 29, 2008

Senator Kennedy, Ranking Member Enzi, and other members of the committee,
I appreciate the opportunity to testify today on the issue of penalties for workplace fatalities under the Occupational Safety and Health Act.

Yesterday, April 28, was Workers Memorial Day – a day unions and others here and around the globe remember those who have been killed, injured and diseased on the job. Here in the United States, it also marked the 38th anniversary of when the Occupational Safety and Health Act went into effect.

Nearly four decades after the job safety law was passed we find that the promise of safe jobs for American workers is far from being fulfilled. Without question, progress has been made in improving protections and in reducing job fatalities, injuries and illnesses. But in recent years that progress has come to a halt, and for some groups of workers the situation is getting much worse.

The Number of Workplace Fatalities Has Increased - Fatality Rates Remain Unchanged. For Some Workers Jobs Are More Dangerous.

This month, the Bureau of Labor Statistics (BLS) issued revised workplace fatality statistics for 2006, which showed that job deaths increased in 2006 to 5,840, as opposed to declining as originally reported. The job fatality rate for 2006 was 4.0/100,000 workers –essentially the same as it has been for the past five years. (Attachment 1)
.
For some groups of workers, the situation is getting worse. In 2006, the number of fatalities among Hispanic workers jumped to 990, the highest number ever reported since BLS began the Census of Fatal Occupational Injuries (CFOI) in 1992. (Attachment 2).
The fatality rate among Hispanic or Latino workers also increased to 5.0/100,000 (from4.9/100,000 in 2005), twenty-five percent greater than for the workforce as a whole.
Deaths among immigrant workers also increased to 1,046 fatalities. This increase in Latino and immigrant worker deaths was due almost entirely to increased deaths in theconstruction industry.

The latest fatality report also shows other disturbing news. In 2006, the number of workplace deaths from falls, exposure to harmful substances or environments (such as confined spaces) and fires and explosions increased significantly. The number of deaths from falls reached an all-time high with 827 deaths reported, with most of the increase in fatalities coming in the construction industry. (Attachment 3). These trends are particular
disturbing since these hazards are subject to OSHA standards and oversight.

In fact, a close review of the job fatality data since 1992 when the fatality census began, shows that the only significant decline in the job fatality numbers has been for deaths due to assaults and violent acts. For all the other major causes of workplace deaths, the number of fatalities have remained essentially the same or have increased. (Attachment 4).

The vast majority of workplace deaths could be prevented if protective safety and health measures were followed. But the fact is that for too many employers, the safety of workers is secondary, taking a back seat to production. For some employers, there is a total and blatant disregard for workers. Worker safety requirements and other worker protections are totally ignored.

These include employers like McWane, Inc., one of the largest producers of steel pipe in the U.S., where over the course of a ten-year period (1995- 2005), 11 workers were killed and thousands were injured at multiple facilities around the country. This persistent violator racked up violation after violation in dozens of OSHA investigations. But in virtually every case, penalties were reduced and citations dropped, resulting in enforcement actions that were little more than a slap on the wrist. It wasn’t until the New York Times exposed McWane’s pattern of abuse and violations in 2003, and criminal prosecutions were pursued largely using environmental statutes, that McWane was moved
to change its manner of operating.

The Occupational Safety and Health Act is Too Weak to Create an Incentive to Improve Conditions and Deter Violations.

The Occupational Safety and Health Act places the responsibility on employers to protect workers from hazards and to comply with the law. The law relies largely on the good faith of employers to address hazards and improve conditions. For this system to work, it must be backed up with strong and meaningful enforcement. But at present, the Occupational Safety and Health Act and the OSHA enforcement program provide little deterrence to employers who put workers in danger. OSHA inspections and oversight of workplaces is
exceedingly rare. There are no mandatory inspections even for the most dangerous industries or workplaces. Between federal OSHA and the states there are approximately 2,100 inspectors. OSHA has the capacity and resources to inspect workplaces on average once every 92 years -- once every 133 years in the federal OSHA states. Over the years OSHA’s oversight capacity has been diminished. Federal OSHA has fewer staff today than it did in 1975, but a much bigger job with twice as many workers and workplaces and new hazards to cover.

Since there is no regular oversight, strong enforcement when workplaces are inspected and violations are found is even more important. But the penalties in the OSH Act are weak. Serious violations of the law (those that pose a substantial probability of death or serious physical harm to workers) are subject to a maximum penalty of $7,000. Willful and repeated violations carry a maximum penalty of $70,000 and willful violations a minimum of $5,000. These penalties were last adjusted by the Congress in 1990 (the only time they
have been raised). Unlike all other federal enforcement agencies (except the IRS), the OSHAct is exempt from the Federal Civil Penalties Inflation Adjustment Act, so therehave not even been increases in OSHA penalties for inflation, which has reduced the real dollar value of OSHA penalties by about 39%. For OSHA penalties to have the same value as they did in 1990, they would have to be increased to $11,500 for a serious violation and to $115,000 for a willful violation of the law.

By comparison, the Mine Safety and Health Act requires mandatory inspections - four per year at underground mines and two per year at surface mines. As a result of Congressional action following the Sago mine disaster and other disasters in 2006, the Mine Act now provides for much tougher penalties. The MINER Act increased maximum civil penalties for violations to $60,000 (from $10,000), which may be assessed on an instance-by- instance basis. The 2006 mine safety legislation also added a new provision for “flagrant” violations, with a maximum civil penalty of $220,000.

The maximum civil penalties provided for under the OSHAct are rarely assessed. Indeed, just the opposite is the case. In FY 2007, the average penalty for a serious violation of the law was $906 for federal OSHA and $913 for the state OSHA plans combined. Again this is the average penalty for violations that pose a substantial probability of death or serious physical harm. For violations that are “other” than serious, which also carry a statutory maximum of $7,000, the average federal OSHA penalty was just $40. Clearly, for most employers these levels of penalties are not sufficient to change employer behavior, improve workplace conditions or deter future violations.

Even in cases where workers are killed, penalties are abysmally low. According to OSHA inspection data, the average serious penalty in fatality cases for FY 2007 was just $2,343 for federal OSHA and $3,988 for the state plans combined. The average total penalty assessed in fatality cases was just $10,133 nationally ($12,226 for federal OSHA and $7,525 for the OSHA state plans). These averages include open cases, which when finally resolved, will result in a reduction in these average penalty levels. Average penalties in fatality cases for FY 2003 – 2006, where most cases have been resolved, show a national average of $6078 ($6646 for federal OSHA and $5363 for the state plan states). All of these average penalties include several high penalty cases, which increase the averages. (Attachment 5).

A state-by-state review shows that there is wide variability in penalties assessed in cases involving worker deaths, with the penalties in some states exceedingly low. For example, in FY 2007 Alaska’s average penalty in worker fatality cases was just $750, and in Oregon the average penalty was $793. (Attachment 6).

OSHA highlights the few cases where it imposes high penalties. These cases are the subject of press releases that are posted prominently on the agency’s website. But these high penalty cases are the exception. The norm in most fatality cases is minimal citations and penalties of just a few thousand dollars, with these cases receiving little attention. For example:

In 2004, two Pennsylvania sewer workers, Robert Hampton, 43 and Larry Dunning, 61, were asphyxiated and died while working in a 10-foot deep manhole. No confined space entry procedures were followed or protection provided. The contractor, Rittenbaugh, Inc., was cited for one serious violation of the general duty clause (since there still is no confined space entry standard for construction) and one serious violation of safety training requirements, with an initial penalty of $1,500. The case was settled for $1,000.

In New Jersey, Jose Duran Painting was cited for one serious violation and penalized $2,000 in the death of an immigrant worker, for failing to provide fall protection. The penalty was reduced to $1,400.

In Michigan, in 2006, Midwest Energy Cooperative, was fined $4,200 for 2 serious violations for excavation and safety program requirements in the death of Danny Young, 27, who was killed when a backhoe hit a gas line which exploded. The case was settled for $2,940.

In Austin, Texas, in September 2004, a worker was killed in a trench cave in. The sewer contractor, ID Guerra, was cited for one serious and one repeat violation of OSHA’s trenching standards, and penalized $8,400, including a $5,600 penalty for the repeat violation. Despite being cited by OSHA for a similar trenching violation in 2003, OSHA reduced the repeat penalty in the fatality case to just $2,800. (Under the Act, the maximum penalty for a repeat violation is $70,000).

What kind of message does it send to employers, workers and family members, that the death of a worker caused by a serious or even repeated violation of the law warrants only a penalty of a few thousands dollars? It tells them that there is little value placed on the lives of workers in this country and that there are no serious consequences for violating the law.

The OSHAct and OSHA Enforcement Policies Discount Penalties for Violations Even in Cases of Worker Death

So why are penalties for workplace fatalities and job safety violations so low? The problems are largely systemic and start with the OSHAct itself. The Act sets lowmaximum penalty levels, particularly for serious violations, which carry a maximum of $7,000. This is the most common type of violation cited in fatality cases and other enforcement cases. These penalty levels are then adjusted downward based on employer size, good faith, history, and gravity of the violation. Under OSHA policy, violations directly related to fatalities are supposed to be classified as high-gravity, but penalty reductions are still allowed for employer size and history. Reductions for employer size range from 20 percent (for employers with 101-250 employees) to 60 percent (for employers with 1-25 employees); and the reduction for no history of serious, willful or
repeat violations in the past 3 years is an additional 10 percent. So in many cases there is an automatic 30 to 70 percent discount in penalties, regardless of the gravity of the violations that are found.

OSHA’s general policy is to group multiple instances of the same violation into one citation, with one penalty. So, for example, if five workers are injured due to an employer’s failure to provide guarding for machines, the employer will only be cited once for the violation, even though five workers were hurt. This policy further minimizes the level of overall penalties in enforcement cases, including fatalities.

In 1986, OSHA instituted a policy to provide for instance-by-instance penalties in those cases where there was a flagrant and willful violation of the law. This “egregious” policy as it came to be known, was designed to penalize employers who put workers at risk and to send a message to other employers about the potential consequences of not complying with the law. Over the years, the egregious policy has had some positive impact, particularly when used as part of an industry-wide enforcement initiative, as was the case in the 1980’s
and early 1990’s, when it was used for widespread injury reporting and ergonomic hazard violations. But in recent years, the impact of the policy has been reduced, as the Bush appointees to the Occupational Safety and Health Review Commission (OSHRC) have taken an exceedingly restrictive view of the types of violations that may be cited on an instance-by-instance basis. For example, OSHRC ruled that an employer could not be cited on a per-employee, instance-by-instance basis for failing to provide respirators or training to workers exposed to asbestos.

The initial citations and penalties in OSHA enforcement cases, weak to begin with, are reduced even further in the resolution of cases. Due to limited staff and resources, OSHA area directors and Department of Labor solicitors are under tremendous pressure to settle cases and avoid time consuming and costly litigation. In both informal settlements by the agency, and formal settlements after employer challenges to OSHA citations, penalties are
routinely cut by another 30 – 50 percent. Indeed, it is OSHA practice to offer employers an automatic additional 30 percent penalty reduction at the time the citations are issued, no questions asked, if the employer agrees to correct all violations. (Attachment 7). The effect of these policies and practices in most cases is to reduce penalties to a level too minimal to have any effect.

A recent in-depth investigation by the Las Vegas Sun of construction worker fatalities on the Las Vegas Strip highlighted the weakness of OSHA enforcement in responding to and preventing workplace fatalities. Over the past 16 months, nine construction workers have died on a massive construction project overseen by some of the nation’s largest contractors. In more than $30 billion dollars worth of currently ongoing building projects along the Strip, construction workers are facing massive speedup pressure to complete
projects on time amid unsafe conditions, including inadequate fall protection measures, faulty equipment, and lack of required safety training that led to some of the deaths.

The Sun reported that Nevada OSHA inspections of the nine fatalities initially resulted in findings of serious violations of safety standards and penalties, albeit fairly low. However, in case after case during informal conferences with the contractors, the agency withdrew many citations and reduced the penalties, in some cases removing all the citations and penalties in their entirety. For example, in a case involving the death of Harvey Englander, a veteran operating engineer, who was killed when struck by a man-lift in August 2007, Nevada OSHA issued 3 serious violations with $21,000 in penalties against the Pernini
Building Company for lock-out and training violations. The citations and penalties were later withdrawn. Just a few months later, in October 2007, Harold Billingsly, a 46 year-old iron worker fell to his death, falling 59 feet through an unguarded opening. SME Steel Contractors was issued three serious citations and penalized $13,500 for failing to provide fall protection and other violations. But, as in the Perini case, following an informal conference with the company, Nevada OSHA withdrew all the citations and penalties.

As a result of the Sun expose, federal OSHA and the Nevada legislature are examining Nevada OSHA enforcement practices, which already are changing. The public scrutiny has also led to much greater attention to safety requirements at the Las Vegas construction projects on the Las Vegas strip. But, if it hadn’t been for the enterprising work of the Sun reporters, it’s unlikely likely that these dangerous practices and conditions would have changed.

Another way the impact of OSHA enforcement in fatality cases is minimized is through downgrading the classification of citations from willful to serious, which greatly undermines any possibility of criminal prosecution under the OSHAct. In some cases OSHA has utilized a practice of changing the characterization of willful or repeat violations to “unclassified,” even though the OSHAct makes no provision for the issuance of such citations. For example, in a fatality investigation of a worker death at McWane Inc. Atlantic Cast States Iron Pipe Company in March 2000, OSHA downgraded four repeat violations to “unclassified” violations, even though the company had been cited previously for serious violations in a fatality that occurred at the same facility the year
before.

Employers will seek “unclassified” violations, particularly in fatality cases, not only to undermine the potential for criminal prosecution, but to lessen the impact of the violations in any civil litigation and to keep willful or repeat violations off their safety and health record. The use of these “unclassified” violations may allow for settlements with higher monetary penalties or additional safety and health requirements. But these “unclassified” violations greatly weaken the deterrent effect of OSHA enforcement to prevent future
occurrence of similar violations.

In FY 2003 there were 50 unclassified violations in federal OSHA fatality cases and in FY2004 there were 49 such violations. In recent years that number has dropped, and for FY 2007, OSHA inspection data shows no unclassified violations associated with fatality cases. But the OSHA policy of allowing unclassified citations, even in fatality cases, is still on the books.

Enhanced Enforcement Program - A Limited Step in the Right Direction

In 2003, in response to the New York Times expose on McWane, Inc’s history and pattern of worker deaths and OSHA’s weak enforcement actions, OSHA adopted a new Enhanced Enforcement Program (EEP). The purpose of the program as described by then-OSHA Assistant Secretary John Henshaw was to target “employers who are indifferent to their obligations under the OSHAct. Under the program, employers with worker fatalities with high gravity serious, willful or repeat violations, or other inspections resulting in multiple serious, willful or repeat violations, are subject to enhanced oversight. This enhanced
scrutiny includes follow-up inspections and/or inspections at other facilities of the employer and may result in stricter settlement practices and enforcement actions in future cases.

In FY 2007, there were 719 inspections involving EEP cases, compared to 467 EEP cases in FY 2006, 593 EEP cases in FY 2005 and 313 EEP cases in FY 2004. Many of these cases were among small employers (25 or fewer) who had workplace fatalities with a serious violation, but no prior OSHA history. In 2008, OSHA modified the EEP program for cases involving fatalities with a serious violation to include only those employers who had a history of similar serious, willful or repeat violations or another workplace fatality in the last three years.

This increased oversight of more serious violators by OSHA is welcome, but the program is limited in its impact in terms of deterring future violations and affecting employer behavior. The program includes no provisions for actually enhancing penalties against serial violators or even changing practices for informal settlements or penalty reductions in future cases. For example, in one EEP case at ADM Milling in Nebraska, in 2003, the employer was cited for serious and repeat violations of lock-out/tag-out, machine guarding and electrical safety requirements. Initial penalties of $124,000 were proposed, reduced to $62,000 in an informal settlement. Two years later a follow-up inspection at the same plant found 2 repeat violations for machine guarding standards. Penalties of $50,000 were proposed, but were later reduced by OSHA to $32,500 in an informal settlement -- clearly not a deterrent for a company the size of ADM, which had $44 billion in sales in 2007.

Under the EEP, expansion of investigations to other facilities of the same employer is not automatic, and only occurs in limited cases. Thus, the program provides little leverage to force employers who have similar violations and unsafe practices at multiple facilities to change the behavior and address hazards on a corporate-wide basis.

OSHA keeps an internal list of employers who are targeted for this enhanced enforcement and notifies employers that they have been targeted for enhanced scrutiny. But there is no public disclosure of the list of companies that are being targeted under the EEP due to their history of fatalities and serious, willful or repeat job safety violations Publicizing this list could increase public awareness and scrutiny of these companies and create an added incentive for these companies to change their safety and health practices.

OSHA Criminal Penalties Are Weak and Provide Almost No Deterrence

If the civil penalties under the Occupational Safety and Health Act provide little deterrence or incentive for employers, the criminal penalties are even weaker. Under the Occupational Safety and Health Act, criminal penalties are limited to those cases where a willful violation of an OSHA standard results in the death of a worker, and to cases of false statements or misrepresentations. The maximum period of incarceration upon conviction is six months in jail, making these crimes a misdemeanor.

The criminal penalty provisions of the OSHAct have never been updated since the law was enacted in 1970 and are weaker than virtually every other safety and environmental law. For example, since 1977 the Mine Safety and Health Act has provided for criminal penalties for willful violations of safety and health standards and knowing violations for failure to comply with orders or final decisions issued under the law, and the Mine Act makes these violations a felony. Unlike the OSHAct, these criminal penalties are not limited to cases involving a worker’s death.

Federal environmental laws have also been strengthened over the years to provide for much tougher criminal penalties. The Clean Air Act, the Clean Water Act, and the Resource Conservation and Recovery Act all provide for criminal prosecution for knowing violations of the law, and for knowing endangerment that places a person in imminent danger of death or serious bodily harm, with penalties of up to 15 years in jail. Again, there is no prerequisite for a death or serious injury to occur.

The weak criminal penalties under the OSHAct result in relatively few prosecutions. With limited resources, federal prosecutors are not willing or able to devote significant time or energy to these cases. According to information provided by the Department of Labor, since the passage of the Act in 1970, only 68 cases have been prosecuted, with defendants serving a total of 42 months in jail. During this time, there were 341,000 workplace fatalities according to National Safety Council and BLS data, about 20 percent of which were investigated by federal OSHA. In FY 2007, there were 10 cases referred by DOL for possible criminal prosecution, but to date the Justice Department has
not acted on any of them.

By comparison, according to EPA in FY 2007 there were 340 criminal enforcement cases initiated under federal environmental laws and 226 defendants charged resulting in 64 years of jail time and $63 million in penalties – more cases, fines and jail time in one year than during OSHA’s entire history. The aggressive use of criminal penalties for enforcement of environmental laws, and the real potential for jail time for corporate officials, serve as a powerful deterrent to environmental violators.

The contrast between the weak enforcement provisions of the OSHAct and the stronger environmental law provisions can be seen starkly seen in cases involving both workplace safety and environmental violations.

The case of Eric Ho is one example. In 1998, Ho was engaged in a building renovation project in Houston, Texas. The building contained asbestos. Ho hired 11 undocumented workers from Mexico to remove the asbestos, and failed to provide them with any training, respirators or protective equipment. A city building inspector stopped the work due to the lack of proper permits, but Ho continued to do the work secretly at night to avoid detection. Two months into the job, an explosion from a gas line occurred at the site, releasing asbestos into the air.

OSHA inspected and issued serious and willful citations against Ho for failing to provide workers with respirators and training required by the OSHA asbestos standard. But these violations could not be criminally prosecuted under the OSHAct, because despite the flagrant violations, no workers were killed. At the same time, however, Ho was criminally prosecuted and convicted for violations of the Clean Air Act for his illegal asbestos- removal activities.

It is worth noting that OSHA proposed significant civil penalties against Ho, citing him on an instance-by-instance, per employee basis for exposing the 11 workers to asbestos hazards without respirators or training. But the Occupational Safety and Health Review Commission struck down these instance-by-instance violations, and greatly reduced the penalties, finding that OSHA’s respirator and asbestos training standards did not allow for
per-employee, instance by instance violations.

In recent years the Justice Department launched a new Worker Endangerment Initiative that focuses on companies that put workers in danger while violating environmental laws. The Justice Department prosecutes these employers using the much tougher criminal provisions of environmental statutes. Under the initiative, the Justice Department has prosecuted employers such as McWane, Inc. a major manufacturer of cast iron pipe, responsible for the deaths of several workers; Motiva Enterprises, which negligently endangered workers in an explosion that killed one worker, injured eight others and caused major environmental releases of sulfuric acid; and British Petroleum for a 2005 explosion at a Texas refinery that killed 15 workers.

These prosecutions have led to major criminal penalties for violations of environmental laws, but at the same time underscore the weaknesses in the enforcement provisions of the Occupational Safety and Health Act.

In the Motiva case, the company pleaded guilty to endangering its workers under the Clean Water Act and was ordered to pay a $10 million fine. The company also paid more than $12 million in civil penalties for environmental violations. In contrast, in 2002 following the explosion, OSHA initially cited the company for 3 serious and 2 willful violations with proposed penalties of $161,000. As a result of a formal settlement, the original serious and
willful citations were dropped and replaced with “unclassified” citations carrying $175,000 in penalties, greatly undermining any possibility of criminal enforcement under the OSHAct.

In the BP Texas City refinery disaster, where 15 workers were killed and another 170 injured, under a plea agreement, the company pleaded guilty to a felony violation of the Clean Air Act and agreed to pay $50 million in penalties and serve a 3-year probation. BP also agreed to pay $100 million in criminal penalties for manipulating the propane market. But BP paid no criminal penalties under the OSH Act, even though 15 workers died and OSHA issued hundreds of civil citations for willful, egregious violations of the law. And
under the OSH Act, even if BP had paid criminal penalties, it would have been a
misdemeanor, not a felony. Cases like this send a terrible message to workers about the value our laws place on their health and safety on the job.

Congress Must Act - The Occupational Safety and Health Act Should be Strengthened.

In 1970, the Congress enacted the Occupational Safety and Health Act, declaring that workers’ lives were important and protecting workers’ safety and health was a national priority. That same kind of commitment and Congressional action is needed today.

The Occupational Safety and Health Act must be strengthened to provide for strong, meaningful enforcement that will deter violations and serve as an incentive to improve conditions and protect workers from harm.

The OSHA civil penalties should be increased – significantly. The enhanced penalties for mine safety adopted by Congress in the MINER Act in 2006 - $60,000 for serious violations and $220,000 for flagrant violations - provide a good guide. There should also be a floor for penalties in fatality cases, to take into account the harm that has been done. These increased penalties should be automatically adjusted for inflation, as is the case with other federal laws, so their impact is not diluted with the passage of time.

OSHA’s authority to issue violations and assess penalties for each instance of a violation should be made clear and unambiguous. The greater the number of workers put at risk or in danger or who have been injured or killed due to workplace violations, the greater the penalty should be. The use of ‘unclassified” citations should be prohibited.

Consideration should also be given to adopting special provisions to address safety and health practices at the corporate level. Presently, the enforcement structure of the OSHAct is focused primarily at the establishment level, which as the Committee heard at a hearing earlier this month, is inadequate to change the practice and culture at the corporate level. Requirements for corporate officials to address identified violations and hazards on a corporate-wide basis would greatly enhance the Act’s effectiveness, and result in improved workplace conditions and greater protection for workers.

The criminal enforcement provisions of the Act must also be strengthened and expanded. At a minimum, criminal violations should be made a felony carrying a significant prison term and monetary fines, and expanded to cover cases where violations cause serious injury to workers. The law should make clear that responsible corporate officials are subject to prosecution in appropriate cases. As a matter of fundamental fairness and sound public policy, the criminal provisions of the Occupational Safety and Health Act should be strengthened so that violations of workplace safety laws carry at least the same potential consequences under our criminal justice system as violations of federal environmental statutes.

For these legislatively improvements to be effectively implemented, OSHA and the Department of Labor must be given additional resources to enforce the law.

The Committee has before it legislation that would accomplish most of these
recommendations. The Protecting America’s Workers Act (S.1244), introduced last year by Senator Kennedy with the support of many others, would improve the foundation for worker’s job safety protections. It would strengthen OSHA enforcement by increasing civil and criminal penalties and expanding their scope. It would also put in place a mandatory minimum penalty in cases involving worker deaths, so that we would no longer see the current meager fines of a few thousand dollars in fatality cases. Family members of victims would also be given rights in OSHA fatality investigations.

In addition to strengthening enforcement, the Protecting America’s Workers Act (PAWA) would extend the Act’s coverage to state and local public employees, flight attendants and other workers who currently lack OSHA protection. It would enhance the anti- discrimination provisions of the OSHAct to better protect workers from retaliation, by bringing the law into line with other federal whistleblower statutes.

The Protecting America’s Workers Act is a good, sound bill that should be enacted into law.

Four decades after the passage of the Occupational Safety and Health Act, its time for the country and the Congress to keep the promise to workers to protect them death, injury and disease on the job.

Safety

TESTIMONY OF GEORGE W. JENSON III BEFORE THE SENATE COMMITTEE ON HEALTH, EDUCATION, LABOR AND PENSIONS.

Good Morning, Senator Kennedy and Senator Enzi. Thank you for inviting me here this morning to talk about the very important issue of worker safety. My name is George W. Jenson III. I am the President of Jenson Fire Protection, Inc., based in Laurel, Maryland. My company works in the homebuilding industry as a full service provider of fire protection systems. The bulk of our work involves the installation of residential sprinkler systems. We serve a number of national-level builders such as NVR, Ryan Homes, M/I Homes, and Toll Brothers. In addition we provide our services to custom homebuilders, tract house builders, and condominium builders. I have a workforce of approximately ten employees that travel and work on construction projects throughout the State of Maryland.

These are not easy times for any small business owner in the homebuilding industry. We are caught between rising home inventories and a decreasing number of qualified purchasers. Our answer to this situation, however, is not to cut corners, or work cheaper. Our answer is to work smarter. For example, in spite of the fact that this is not the best market, I continue to provide my employees with the full range of benefits including largely company-paid health insurance. I continue this practice even during tough times not only because it is the right thing to do – it is also the smart business thing to do. Like every other good businessman, I know that the most valuable asset of my company is the people that work there. I want to recruit and retain the best people I can, because they directly affect my bottom line.

I have the same view when it comes to the safety of my employees on the job. I want to make sure they are working and traveling in safe conditions not only because it’s the right thing to do, but because it is also the smart business thing to do.

Concern over a possible inspection by OSHA or Maryland State OSHA, or concern over a fine that might be imposed as a result of an inspection is not what motivates me to make working conditions as safe as I possibly can. Over my years in the business I have rarely seen an inspector on the jobsite, I have never been cited, and I honestly don’t know how much an employer can be fined by the government for a safety violation. However, I devote effort and resources every day to ensuring that my workers are safe. I spend tens of thousands of dollars on safety equipment, make sure my people are properly trained in safety practices, monitor our procedures and work practices, and do everything else I can to make sure our employees work safe. As I said, I do this first and foremost because I am genuinely concerned about my employees. Fortunately I have never had an employee who has been seriously injured or killed on the job. Frankly, I think that is something that I would never recover from if it happened. To me, anyway, there couldn’t be anything much worse than feeling you were responsible for something tragic like that.

Apart from my personal feelings, however, I place this emphasis on worker safety for very sound business reasons as well. From general liability, to workers’ compensation, my company’s insurance premiums are a huge cost of doing business. I cannot operate without insurance coverage, but it is a constant struggle to pay the cost of such insurance. A serious accident, or an on-the-job injury carries the real potential of raising my rates to the point that I could no longer remain in business. From a pure dollars and cents perspective, maintaining a safe workplace does not have much to do with avoiding a government fine. Fines don’t put you out of business, but insurance costs do.

As a small businessman, one thing that has helped me a great deal in maintaining a safer workplace is not the government, it has been my own insurance carrier. My carrier doesn’t want the huge cost of claims, or the exposure to increased liability any more than I do. Consequently, they are proactive about preventing accidents. At least once a year, my carrier actually comes and audits my work practices, procedures and equipment. They make practical suggestions about how to work safer, eliminate risk, and use training and equipment to make our employees safer. As I mentioned, I’ve rarely seen any government safety people on the jobsite, and I’ve certainly never seen them involved in this kind of preventative work.

There may be some employers out there that don’t care about safety, but I haven’t seen them. The truth is if they don’t care, they’re probably not going to be in business long enough for me to know them. Most all of the employers, large and small, that I deal with day to day are no different than I am. They want a safe workplace because it is right for their employees, and because it makes bottom line sense for their business. We are on the same page with government on this score.

Many of us are struggling these days to keep our heads above water and to keep our employees working. If the government wants to help, it should do what our insurance companies do – help us to work more safely – not just look to fine us when something goes wrong. Thank you.

Workers Safety

Testimony of Ron Hayes Senate Labor Committee Hearing,

April 29,2008

I would like to thank the Senate Labor Committee for allowing me the honor to

testify about OSHA issues. For fourteen years I have monitored, fought with and tried to change this agency for the better. As of this date we still have many problems and issues to correct. What I have learned over the years is there is no consistency within this agency; the only consistent part of this agency is the failure to protect the Great American worker. There is no honor or justice for the sixteen workers that are killed on a daily basis or the thousand of workers injured as well. The very agency given the task of safe guarding the American workplace by Congress fails to do so miserably every day.

My Fight with this agency started in 1993 when our nineteen-year-old son was
killed on the job. Pat was working for a company that had no regard for human life and had a long history with this agency, even the corporate safety director told OSHA his company worked under the roll of the dice plan we want change our ways until something bad happens. I can tell you something bad happened and they did change their ways but OSHA didn’t do it I had to, there was no help or justice for Pat. OSHA treated us like we were dirt. So Dot and I started our Fight project(Families in grief hold together) to help other families and try and make since out of this tragic experience. We found along the way many great people to work with and help, in fact we have helped hundreds of families over the past fourteen years, we have given hundreds of safety classes and have presented hundreds of proactive safety speeches. And yes we have
helped many OSHA folks as well, both state and federal. We continue to work toward an agency that will protect and serve the American workers and their families.

Losing a loved one on the job is very difficult to deal with but when the very
agency that is supposed to protect them, fails in correcting, investigating and prosecuting the company that killed your loved one, it is even harder to bare. This agency could and should do a better job. But day after day it fails.

Through the years I have heard many excuses of why this agency can’t do there
job. I know and will always believe it can do a better job. But it will take a huge measure of oversight by this committee and the entire congress to make it work. I truly believe that Congress did not mean for OSHA to fail, neither did Congress want a jack booted terrorist agency. But what has happened over the years, are lack of oversight and a culture of laziness, the only way to make this agency change is to change the way we handle it. Oversight and budget restraints is the way to move this agency forward, I will give you my ideas for change later in this document.

The number one question I have heard from every family member is (why can’t
OSHA do its job, why can’t OSHA fine the company more, Why can’t OSHA prosecute the company in a criminal manner. Why does OSHA reduce the penalties, these are all good and fair questions and someone should give us a strait answer but to date I have not heard one good reason for any reductions of fine for a fatality.

In 1995 while working with NBC Dateline show we told America, using OSHA’s
on records, how the agency only collects 50 cents on every dollar they fine a company, it still happens today and many companies simply never pay their fines at all and because no one seems to check or better yet care, OSHA continues to let violators walk away free.
All you have to do is check their records to see how low the fines are and truly how much a life is worth. Every year there are many cases that should be prosecuted for criminal standards but because of the poor investigating techniques and the reluctance of the Justice Department to prosecute, after all it’s just a misdemeanor to kill an employee.
These cases fall by the wayside and no one seem to care, except for the family. I can tell you I will never stop trying to get someone to listen and help correct a real travesty of justice we families experience on a daily basis. OSHA can and will be better, I hope I see it in my lifetime and with the help of this Great Committee we can have justice of all our fallen workers.

I am now going to tell you how you can have a better OSHA one that is compassionate as well as strong:

1 Make sure we have regular oversight hearing every six months. Make OSHA
appear and talk about issues raised during the past six months.
2 Have OSHA employees trained in criminal investigating techniques.
3 Have an ombudsman to represent and help families
4 Have a special fatality investigating team.
5 Take away the discretionary immunity clause that OSHA staff have and open
these people up to outside scureny
6 Tie OSHA’s budget to line items to be accomplished each year and make them
prove its outcome.
7 Set aside a special budget amount yearly, just for prosecuting and criminal
enforcements of bad actors.
8 Make all OSHA offices follow it’s policy and procedures to the letter
9 Make all state OSHA offices be equal to or better than federal offices.
10 Have a felony charge for willfully killing an employee, give OSHA some teeth
and make them bite.
11 Have the family present during all OSHA settlement meetings with the
companies.
12 Increase the fine structure to send a clear message of the importance of
human life and limb.

I will close by saying that even though I was thrust into this Fight I am so proud
of what has been accomplished over the past fourteen years and the many great people I have met and the great work that I have been privileged to see accomplished. It is not all gloom and doom. There are many great people that work tirelessly each and everyday in the OSHA agency to make a difference, there are as in every business bad folks but I feel the good out ways the bad, when we tap into the good and let these men and women shine we will see the agency we all need and deserve. I would be glad to answer any and all questions and will be glad to help with any OSHA issue you may have. I am deeply proud of my country and this great Committee. Thank you again for this great opportunity.

Ron Hayes Director and Founder of The Fight Project