[Senate Hearing 110-895]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 110-895
 
  WHEN A WORKER IS KILLED: DO OSHA PENALTIES ENHANCE WORKPLACE SAFETY?

=======================================================================

                                HEARING

                                 OF THE

                    COMMITTEE ON HEALTH, EDUCATION,
                          LABOR, AND PENSIONS

                          UNITED STATES SENATE

                       ONE HUNDRED TENTH CONGRESS

                             SECOND SESSION

                                   ON

 EXAMINING THE OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, FOCUSING 
                ON PENALTIES RELATED TO WORKPLACE SAFETY

                               __________

                             APRIL 29, 2008

                               __________

 Printed for the use of the Committee on Health, Education, Labor, and 
                                Pensions


  Available via the World Wide Web: http://www.gpoaccess.gov/congress/
                                 senate


                  U.S. GOVERNMENT PRINTING OFFICE
42-210                    WASHINGTON : 2009
-----------------------------------------------------------------------
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov  Phone: toll free (866) 512-1800; (202) 512ï¿½091800  
Fax: (202) 512ï¿½092104 Mail: Stop IDCC, Washington, DC 20402ï¿½090001


          COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS

               EDWARD M. KENNEDY, Massachusetts, Chairman

CHRISTOPHER J. DODD, Connecticut     MICHAEL B. ENZI, Wyoming,
TOM HARKIN, Iowa                     JUDD GREGG, New Hampshire
BARBARA A. MIKULSKI, Maryland        LAMAR ALEXANDER, Tennessee
JEFF BINGAMAN, New Mexico            RICHARD BURR, North Carolina
PATTY MURRAY, Washington             JOHNNY ISAKSON, Georgia
JACK REED, Rhode Island              LISA MURKOWSKI, Alaska
HILLARY RODHAM CLINTON, New York     ORRIN G. HATCH, Utah
BARACK OBAMA, Illinois               PAT ROBERTS, Kansas
BERNARD SANDERS (I), Vermont         WAYNE ALLARD, Colorado
SHERROD BROWN, Ohio                  TOM COBURN, M.D., Oklahoma

           J. Michael Myers, Staff Director and Chief Counsel

                 Ilyse Schuman, Minority Staff Director

                                  (ii)

  
?



                            C O N T E N T S

                               __________

                               STATEMENTS

                        TUESDAY, APRIL 29, 2008

                                                                   Page
Kennedy, Hon. Edward M., Chairman, Committee on Health, 
  Education, Labor, and Pensions, opening statement..............     1
    Prepared statement...........................................     3
Enzi, Hon. Michael B., a U.S. Senator from the Stat8e of Wyoming, 
  opening statement..............................................     5
Isakson, Hon. Johnny, a U.S. Senator from the State of Georgia, 
  statement......................................................     8
Murray, Hon. Patty, a U.S. Senator from the State of Washington, 
  statement......................................................     9
    Prepared statement...........................................    10
Seminario, Peg, Director of Safety and Health, AFL-CIO, 
  Washington, DC.................................................    12
    Prepared statement...........................................    13
Uhlmann, David, Director of the Environmental Law and Policy 
  Program, University of Michigan Law School, Ann Arbor, MI......    26
    Prepared statement...........................................    28
Hayes, Ron, Director, Fight Project, Fairhope, AL................    35
    Prepared statement...........................................    37
Smith, Donald Coit, Resident, Temple, TX.........................    38
    Prepared statement...........................................    40
Jenson, George III, Owner, Jenson Fire Protection, Inc., Ellicott 
  City, MD.......................................................    42
    Prepared statement...........................................    44

                          ADDITIONAL MATERIAL

Statements, articles, publications, letters, etc.:
    Senator Obama................................................    56
    Textile Rental Services Association of America (TRSA), letter    58

                                 (iii)

  


  WHEN A WORKER IS KILLED: DO OSHA PENALTIES ENHANCE WORKPLACE SAFETY?

                              ----------                              


                        TUESDAY, APRIL 29, 2008

                                       U.S. Senate,
       Committee on Health, Education, Labor, and Pensions,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 10:01 a.m., in 
Room SD-430, Dirksen Senate Office Building, Hon. Edward M. 
Kennedy, chairman of the committee, presiding.
    Present: Senators Kennedy, Murray, Enzi and Isakson.

                  Opening Statement of Senator Kennedy

    The Chairman. We will come to order.
    This is our first hearing that we have had since my friend 
and colleague, Mike Enzi, announced that he was going to run 
for reelection in the State of Wyoming, and I wished him well. 
I am going to wish him well today. I do not know how long in 
the year I will continue to wish him well. Not sufficiently 
well so he will ever gain chairmanship of this committee again.
    [Laughter.]
    But we are always delighted to have a chance to work with 
him, and we do wish you all the best, Mike. You kept everybody 
in suspense here. Some of us were crossing our fingers and 
uncrossing them over time.
    This morning our committee considers the important issue of 
keeping the hard-working men and women of America safe on the 
job.
    Last year 5,840 workers went off to work and never came 
back. They were killed on the job. Each of these deaths is a 
tragedy for workers and their families. We should be doing more 
to respond to these tragedies by granting greater protection 
for the Nation's workers. Unfortunately, OSHA seems to be doing 
less.
    Julie Primeau's family in Fitchburg, MA, is an example of a 
family changed forever by such a tragedy. Last year her brother 
Christopher, a commercial diver, was killed on the job when a 
9-ton piling came loose and crushed him. As Julie learned 
later, two divers had previously been killed working for the 
same employer. Julie and her mother were devastated by 
Christopher's death, but their grief was intensified by OSHA's 
failure to prevent it after two earlier deaths.
    My office has issued a report today that OSHA is not living 
up to its responsibility for investigating dangers in the 
workplace and preventing them. The report shows, for example, 
that the median penalty for a workplace fatality last year was 
only $3,675. In other words, in cases investigated by OSHA 
where workers were killed on the job, half of all employers 
were fined less than $3,675.
    Workers' lives are obviously worth more than that. 
Employers who ignore their employees' safety should pay a 
penalty that will force them to change their negligent ways. It 
is the only realistic way to save lives. A mild slap on the 
wrist is not enough.
    The maximum civil penalty for a safety violation is only 
$70,000. By comparison, violating the South Pacific Tuna Act of 
1988 can lead to a fine of $325,000. Protecting tuna fisheries 
is important, but so is safeguarding workers' lives and we need 
to raise OSHA's penalties if we hope to deter unsafe working 
conditions.
    Unbelievably, the report also found that OSHA routinely 
downgrades the severity of violations or withdraws the 
violations entirely in the course of its investigating and 
often does not bother to collect the penalties it issues. In 
many cases where a worker is killed, the employer never has to 
pay anything. How can we expect workplaces to become safer if 
OSHA will not bother to collect fines from employers who break 
the law?
    Also, OSHA cannot effectively use the threat of prison as a 
deterrent because the maximum criminal penalty, when an 
employer willfully violates workplace safety laws and a worker 
dies, is 6 months in jail. If you improperly import an exotic 
bird, you can go to jail for 2 years. If you deal in 
counterfeit money, you are looking at 20 years. But if you 
gamble with the lives of your employees and one of them is 
killed, you risk only 6 months in jail. No wonder of the 10,000 
fatalities that OSHA has investigated in the past 5 years, only 
10--only 10--criminal prosecutions have resulted. That is why 
so many companies treat safety violation as another cost of 
doing business.
    What frustrates families like Julie Primeau is the 
knowledge that these tragic and needless deaths will continue. 
If we are serious about improving workplace safety, we need to 
raise penalties, create a serious threat of criminal 
prosecution in the worst cases. The point of a penalty is not 
retribution but deterrence. Deterrence is the only way to solve 
this problem.
    OSHA cannot detect and correct every violation. It would 
take OSHA 133 years to inspect every work site in its 
jurisdiction. Instead, we need a law with teeth so that 
employers will be vigilant about complying with safety laws. 
That should not be controversial. Experts from across the 
political spectrum agree, including Jerry Scannell who led OSHA 
during the first Bush administration. As he told our committee 
earlier this month, we need to increase the penalties and 
strengthen the criminal sanctions or we will never persuade 
CEO's to take OSHA and workplace safety seriously.
    A number of us have introduced the Protecting America's 
Workers Act to give OSHA the support it needs to change 
employers' behavior. It makes reasonable increases in civil 
penalties, especially in the most serious cases. It also 
creates a strong criminal penalty, including the possibility of 
felony charges and significant prison terms.
    Finally, we must help families frustrated by being left out 
of the process. Every year too many families get letters like 
the one the Primeau family received. They feel excluded and 
disrespected. Senator Isakson and I have offered an amendment 
to the Budget Act this year to require OSHA to give families a 
voice.
    The problem of worker fatalities is not going away. As the 
economy continues its decline, the pressure on American workers 
to increase productivity is growing. Achieving higher 
production often means cutting corners on safety. We all know 
where that leads: more accidents, more injuries, more deaths.
    Even in these difficult economic times, workers deserve to 
have their safety put first. This committee is committed to 
worker safety.
    We have an outstanding panel of witnesses here today, and I 
look forward to their testimony.
    Just before recognizing Senator Enzi, I will just show 
these charts here which illustrate the points that I was making 
earlier. This is a willful violation causing a fatality, 
$70,000. South Pacific Tuna Act is $325,000. Clean Air Act 
violation is $270,000. Willful violations for the Fluid Milk 
Promotion Act is $130,000.
    Not only are the penalties weak but the enforcement is too. 
If you look at what has happened with the enforcement--so you 
have weak penalties and then weaker enforcement--you see the 
decline. The initial penalty, $5,900. Then it went down $2,225. 
So the final penalty is $3,675. So we see that the supervisors 
cut the initial penalties. That is in the civil area.
    Now, if you look in the criminal area, it is just about the 
same. You have willful causing of worker's death, 6 months. And 
then you have unlawful hunting of migratory birds, 2 years; 
counterfeiting, 20; mail fraud, 30; piracy on the high seas, 
life. Here it is the loss of a life, willfully causing a 
worker's death. Willful, 6 months.
    And finally, this chart here which is sort of a summation 
of what happens. You have the OSHA fatality inspections. 
Between 2003 and 2008, it is 9,800. That is over the 5-year 
period. Now, of the willful violations eligible for referral, 
it is 237 made by OSHA. Cases OSHA referred to DOJ for criminal 
prosecution, of the 237, only 50. And the cases prosecuted by 
the Department of Justice over that 5-year period, 10. So this 
is a rather fierce indictment.
    The conclusion one has to reach--as one who was here at the 
time the OSH Act was passed and has seen the difference when we 
have good enforcement and an effective law--is that, boom, the 
numbers just go down like a stone. The violations go down. The 
loss of lives go down. Then when there is a relaxation of 
enforcement, we find out what happens out there in the 
workforce.
    So this is an important hearing and we are very grateful 
for our witnesses.
    [The prepared statement of Senator Kennedy follows:]

                 Prepared Statement of Senator Kennedy

    This morning our committee considers the important issue of 
keeping the hard-working men and women of America safe on the 
job.
    Last year, 5,840 workers went off to work and never came 
back. They were killed on the job. Each of these deaths is a 
tragedy for workers and their families. We should be doing more 
to respond to these tragedies by granting greater protection 
for the Nation's workers. Unfortunately, OSHA seems to be doing 
less.
    Julie Primeau's family in Fitchburg, MA is an example of a 
family changed forever by such a tragedy. Last year, her 
brother Christopher, a commercial diver, was killed on the job 
when a nine-ton piling came loose and crushed him. As Julie 
learned later, two other divers had previously been killed 
working for the employer.
    Julie and her mother were devastated by Christopher's 
death. But their grief was intensified by OSHA's failure to 
prevent it after the two earlier deaths.
    My office has issued a report today that OSHA is not living 
up to its responsibility for investigating dangers in the 
workplace and preventing them. The report shows, for example, 
that the median penalty for a workplace fatality last year was 
only $3,675. In other words, in cases investigated by OSHA 
where workers were killed on the job, half of all employers 
were fined $3,675 or less. Workers' lives are obviously worth 
far more than that. Employers who ignore their employees' 
safety should pay a penalty that will force them to change 
their negligent ways. It's the only realistic way to save 
lives. A mild slap on the wrist isn't enough.
    The maximum civil penalty for a safety violation is only 
$70,000. By comparison, violating the South Pacific Tuna Act of 
1988 can lead to a fine of $325,000. Protecting tuna fisheries 
is important, but so is safeguarding other workers' lives, and 
we need to raise OSHA's penalties if we hope to deter unsafe 
working conditions.
    Unbelievably, the report also found that OSHA routinely 
downgrades the severity of violations or withdraws the 
violations entirely in the course of its investigating, and 
often doesn't bother to collect the penalties it issues. In 
many cases where a worker is killed, the employer never has to 
pay anything. How can we expect workplaces to become safer if 
OSHA won't bother to collect fines from employers who break the 
law?
    Also, OSHA can't effectively use the threat of prison as a 
deterrent, because the maximum criminal penalty when an 
employer willfully violates workplace safety laws and a worker 
dies is 6 months in jail. If you improperly import an exotic 
bird, you can go to jail for 2 years. If you deal in 
counterfeit money, you're looking at 20 years. But if you 
gamble with the lives of your employees and one of them is 
killed, you risk only 6 months in jail. No wonder that of the 
10,000 fatalities OSHA has investigated in the past 5 years, 
only 10 criminal prosecutions have resulted.
    That's why so many companies treat safety violations as 
just another cost of doing business. What frustrates families 
like Julie Primeau's is the knowledge that these tragic and 
needless deaths will continue.
    If we're serious about improving workplace safety, we need 
to raise penalties and create a serious threat of criminal 
prosecution in the worst cases. The point of a penalty is not 
retribution, but deterrence. Deterrence is the only way to 
solve this problem. OSHA can't detect and correct every 
violation. It would take OSHA 133 years to inspect every 
worksite in its jurisdiction. Instead, we need a law with 
teeth, so that employers will be vigilant about complying with 
safety laws.
    That shouldn't be controversial. Experts from across the 
political spectrum agree, including Gerry Scannell, who led 
OSHA during the first Bush administration. As he told our 
committee earlier this month, we need to increase the penalties 
and strengthen the criminal sanctions, or we'll never persuade 
CEO's to take OSHA and worker safety seriously.
    A number of us have introduced the Protecting America's 
Workers Act to give OSHA the support it needs to change 
employers' behavior. It makes reasonable increases in civil 
penalties--especially in the most serious cases. It also 
creates a strong criminal penalty, including the possibility of 
felony charges and significant prison terms.
    Finally, we must help families frustrated by being left out 
of the process. Every year, too many families get letters like 
the one the Primeau family received. They feel excluded and 
disrespected. Senator Isakson and I offered an amendment to the 
budget this year to require OSHA to give families a voice.
    The problem of workplace fatalities isn't going away. As 
the economy continues its decline, the pressure on America's 
workers to increase productivity is growing. Achieving higher 
production often mean cutting corners on safety. We all know 
where that leads--more accidents, more injuries, and more 
deaths. Even in these difficult economic times, workers deserve 
to have their safety put first.
    This committee is committed to worker safety. We have an 
outstanding panel of witnesses here today, and I look forward 
to their testimony.

    The Chairman. I will recognize Senator Enzi.

                   Opening Statement of Senator Enzi

    Senator Enzi. Thank you, Mr. Chairman. I appreciate your 
kind comments before the official start. I too look forward to 
working with you.
    I appreciate your scheduling today's hearing. It is a very 
important topic. As the title of this hearing indicates, much 
of today's testimony will focus on how employers are punished 
after a death occurs at their worksite and is caused by 
negligent or even willful disregard of safety regulations. I 
think everyone would agree that such an employer should face 
appropriate sanction. However, I think America's employees 
would appreciate it even more if the hearing were focused on 
the prevention of all workplace accidents.
    When I was elected to the Senate, the reason I wanted to 
join this committee is I was interested in workplace safety and 
had run some safety programs. And when I first got here, that 
was the first bill I drafted. Being a novice in Washington, I 
thought that the way you did that was kind of the same as in 
the Wyoming legislature. So I asked members of the committee to 
sit down with me and go through the bill a section at a time. 
Even the ranking member of the committee, Senator Kennedy, did 
that. We went through that bill a section at a time. I did find 
out later that that was not normal.
    [Laughter.]
    I appreciated all the help, all the comments I got, and as 
a result of that, we made the first eight changes in OSHA since 
its inception.
    There are a lot of changes that need to be made yet. And 
there are ways that we can work together and do those. There 
are a lot of things that I proposed in that original 
legislation that I will bring up again because I am pretty sure 
that it would cut down on the number of deaths and, more 
importantly, the number of accidents. An accident is a very 
painful thing for an entire family as well. And the only way we 
are ever going to get at that is to examine the near misses. 
Sometimes people get away from an accident and nobody pays any 
attention to it. But we ought to be paying attention to those. 
We ought to be figuring out what caused the near miss, as well 
as an accident, as well as a death, and figuring out how we can 
keep that from ever happening again.
    I know one State had a policy that they encouraged 
families, as the dad or the mom left for work, to say, come 
home safely. And they found that even decreased accidents.
    I want to thank Mr. Hayes for all of the help that he has 
given and the consulting he has given on these issues over the 
years, and I appreciate everyone's testimony today.
    The experts at the Occupational Safety and Health 
Administration have developed extensive industry and hazard-
specific regulations designed to reduce the risk of workplace 
injury and death. In this day of electronic technology, I am a 
little disappointed in just exactly how that is compiled and 
how people are able to access it. I think there are a lot of 
different combinations of the numbers that would help us get 
down to the causes of these accidents.
    Mostly these reports, that have to be done by business, 
have extensive detail in them and are required to hang on 
bulletin boards but are not looked at by anybody. They look too 
technical. They look too bureaucratic. Then after they have 
been posted, they get mailed in. So, far as I can tell, they 
kind of get filed away at that point. We are missing a huge 
resource that, with today's technology, could help us cut down 
on accidents.
    Now, I did notice that the statistics show that the 
workplace fatalities are decreasing, that is, decreasing as a 
percentage of per 100,000 workers. It is an increasing number 
of deaths, and that is because we have more people in the 
workplace now than we have had before. And I do not know which 
is the best measurement. I do not know if it even makes any 
difference. What we want to do is eliminate deaths and 
injuries.
    Of course, if we have more people coming into the 
workforce, we have people who are less trained, and if they are 
in a particular job for a shorter period of time, there is a 
greater possibility that they will have an accident. There are 
two ends to that spectrum from the numbers that I looked at, 
and that is the first 6 months on the job are the most 
dangerous, and the time after 5 years is the most dangerous. 
People get a little complacent at some point in their work and 
figure that they know everything about the job, and then they 
have accidents. There is a lot that we can do to reduce that.
    Now, I did notice that only 1 in 4 of the deaths were 
workplace facilities, because many were highway or aircraft-
related accidents. Our highways are not a very safe place if 
you have to drive to work. I notice that in the Wyoming 
statistics--and we have a record of a lot of fatalities in 
Wyoming, but most of those occur on the highway on the way to 
work. So we have got to figure out something to do on that.
    I was pleased to see that the fatality rates also decreased 
among Hispanic employees, although it remains higher than the 
other demographic groups. And younger workers also see a 
significant decrease in fatality rates, and that is the group 
that considers themselves invulnerable. So that leads to a 
higher rate by itself.
    Now, despite this progress, more needs to be done to reduce 
the risk of fatalities in workplaces so that no family has to 
deal with the tragic loss of a loved one, as my friend, Ron 
Hayes, who is sitting on today's panel, had to do. What 
strategies work best? Penalties are a part of the equation, but 
just like the death penalty cannot deter every crime, so too is 
their utility limited.
    When it comes to workplace safety, I am willing to think 
outside the box. Over my career, I have introduced legislation 
to improve compliance with workplace safety and regulations and 
reward employers who go above and beyond to create a safe work 
environment. I like incentives. Programs such as the voluntary 
protection programs have been shown to make workplaces safer 
and save money. We should talk about expanding them to smaller 
employers and making them even more effective.
    Workplace drug testing is another important way to reduce 
risk of injury and death in the workplace. I think in my 
original bill, I suggested that anyone at the scene of an 
accident ought to be tested. That should be a part of the 
investigation. The investigations need to be thorough.
    All of the regulations and required compliance in the world 
are not going to work if an employer or manager disregards them 
because their judgment is impaired, which was the reason for 
the drug testing portion. I like the idea of the families being 
involved, too. We talked about that with the Sago Mine 
accident.
    The field of workers compensation in insurance has 
developed a long record of experimentation with strategies to 
make workplaces safer and has some measurable results. Every 
State creates its own workers comp regime. Let us look at the 
best practices out there and determine if there are new ideas 
that can be translated at the Federal level.
    The small business owner who is here today, Mr. George 
Jenson, I am sure will explain the multiple and significant 
motivations every businessman has to want to maintain the 
safest workplace possible. First and foremost, most businesses 
cannot operate without employees. So keeping them safe and 
satisfied that they are well treated is to the benefit of every 
employer.
    I think Mr. Jenson will also point out that the insurance 
coverage he must carry every single day focuses heavily on the 
company's safety program. While he has never had an OSHA 
penalty to pay, he is continually motivated by the insurance 
rates he has to pay to put safety first.
    We have a declining workforce in the United States and 
increasing needs. So I think employers are becoming ever more 
cognizant about the need to keep their employees safe. There 
will be bad actors and we need to do something about that.
    Finally, I know that this hearing was scheduled to coincide 
with Workers Memorial Day. I certainly join the rest of the 
committee in honoring all the lives that have been lost in 
workplace accidents no matter what the cause. Although the 
rates are improving overall, the presence of two witnesses 
today who have lost loved ones reminds us that every loss is 
one too many. By looking seriously at the whole issue and by 
making no subject off limits, we can pay them the best tribute 
of real progress in reducing workplace fatalities.
    Since Chairman Kennedy referenced his staff 's report, I 
would like to say a word about that too because it just came 
out yesterday. I have not read it yet, and I doubt any of 
today's witnesses have either. I understand that it is based on 
extensive and costly data requests from OSHA. Yet, I also 
understand that OSHA has had no opportunity to review and 
respond to the report's interpretation of the data. It seems to 
me that such an opportunity should be provided to provide clear 
and accurate information, give us more information, and to be a 
serious addition to the dialogue on workplace safety beyond 
political rhetoric. Worker safety is too important of an issue 
for anything less.
    I welcome today's witnesses and I look forward to your 
testimony.
    Thank you, Mr. Chairman.
    The Chairman. Senator Isakson, do you want to say a brief 
word? You are very much involved in this issue.

                      Statement Of Senator Isakson

    Senator Isakson. Well, thank you very much, Mr. Chairman. I 
had not planned to, but you know a politician will never pass 
up the opportunity to say something.
    The Chairman. That is what I was afraid of.
    [Laughter.]
    Senator Isakson. Let me just, first of all, welcome all of 
our witnesses and reiterate what both the Chairman and the 
Ranking Member have said. Our first and foremost, primary 
obligation is for workplace safety.
    Let me also observe that I ran a company for 33 years. It 
was a major sales organization, but I also operated two golf 
courses that had a lot of high-risk jobs, heavy equipment, 
people on the development side. I got up every morning 
recognizing that if I had an accident or I had a worker hurt, 
it was not in the best interest of the worker, but it sure as 
heck was not in the best interest of the company either. We 
spent as much time or more focusing on safety than any other 
single thing.
    So we want to do everything we can to prevent any accident 
from happening, but I know personally how hard business owners 
and operators work for the safety of their employees. I used to 
say that all my assets had two legs and they could walk out the 
door in a second either because of pay or because of security 
or because of safety. And that, in the end, is the best 
motivation we could possibly have.
    The last thing I will point out--again, this is not to 
minimize anything because we are here to talk about the 4.0 per 
100,000 fatalities in the workforce in 2006. But as a rate, 
that is the lowest in history. It has declined from 5.3 in 1994 
per 100,000 FTE to 4.0. My goal is to accelerate that to get it 
to 0.
    Thank you very much, Mr. Chairman.
    The Chairman. Thank you very much.
    Senator Murray has been a leader in this whole area on our 
committee as well. If she wants to make a comment, we always 
value her suggestions and ideas.

                      Statement Of Senator Murray

    Senator Murray. Thank you very much, Mr. Chairman, and 
thank you for holding this hearing today. I want to thank all 
of the witnesses for being here as well.
    Yesterday was Workers Memorial Day, and today we remember 
and honor those who have lost their lives on the job. I want to 
extend a special welcome to the witnesses with us today who 
have lost family members to tragedies on the job, and they are 
going to testify to us today about their experiences with OSHA 
and their fight for better workplace safety policies.
    I think, Mr. Chairman, that all of us here share the very 
same goal, to ensure that every worker who goes to work returns 
home safely to his or her family at the end of the day. But as 
we know, tragically thousands of workers are killed and 
millions more become hurt or sick each year on the job. In far 
too many of those cases, the cause of death or injury was 
preventable. According to the AFL-CIO's 2000 report on 
workplace injuries and illnesses, the number of deaths on the 
job has risen over the last year especially among Hispanic 
workers. We know that the most recent job fatality data shows 
that there were 5,840 fatal workplace injuries in 2006. That is 
up from 5,734 the year before. Among Hispanics, the fatality 
rate was 25 percent higher than that for other workers. On 
average, 16 workers died every day in 2006, and more than 
11,000 were injured or made sick on the job.
    Mr. Chairman, Monday was also the 37th anniversary of the 
Occupational Safety and Health Administration, which was 
created, we know, to ensure workplace safety laws and 
regulations to protect our workers on the job. I wish that we 
were here today to celebrate how OSHA is effectively holding 
employers accountable for maintaining safe working conditions, 
but I think the disturbing reality is that OSHA is not yet 
living up to its mission to make workers safer on the job. In 
the last year, we have held several hearings examining OSHA's 
performance and from my first oversight hearing on OSHA a year 
ago to the hearing I held on dangerous industries earlier this 
month, evidence shows us that for the last 7 years, OSHA has 
been dangerously ineffective.
    I am concerned that OSHA's enforcement strategy relies too 
heavily on voluntary employer compliance programs, and I am 
deeply concerned the fines that have been issued are far too 
weak. Records from last year show that the average OSHA penalty 
after a worker died on the job was just $10,133 nationwide. And 
the penalty for willful violations was just $36,720, about half 
the maximum allowable.
    So we know that OSHA is not as strong as it could be and 
should be if employers are able to consider the rules optional 
and if they believe that fines are just part of the cost of 
doing business.
    Now, Mr. Chairman, I have more that I would like to submit 
for the record from my opening statement.
    But I look forward to hearing our witnesses' testimony 
today, and I thank you, Mr. Chairman, for your leadership in 
trying to move us to a better direction. Thank you.
    [The prepared statement of Senator Murray follows:]

                  Prepared Statement of Senator Murray

    Thank you, Mr. Chairman, for holding this hearing. And, 
thanks to our witnesses for being here this morning. Yesterday 
was Workers' Memorial Day, a day we remember and honor those 
who have lost their lives on the job.&
    So I want to extend a special welcome to the witnesses with 
us today, who have lost family members to tragedies on the job, 
and who will testify about their experiences with OSHA and 
their fight for better workplace safety policies.
    Mr. Chairman, each of us here shares the same goal--to 
ensure that every worker returns home safely to his or her 
family at the end of each day.
    But tragically, thousands of workers are killed and 
millions more become hurt or sick each year on the job. In far 
too many of those cases, the cause of death or injury was 
preventable.
    According to the AFL-CIO's 2008 Report on Workplace 
Injuries and Illnesses, the number of deaths on the job has 
risen over the last year, especially among Hispanic workers.
    The most recent job fatality data show that there were 
5,840 fatal workplace injuries in 2006, up from 5,734 
fatalities the year before. Among Hispanics, the fatality rate 
was 25 percent higher than that for other workers. On average, 
16 workers died every day in 2006 and more than 11,000 were 
injured or made sick on the job.
    Mr. Chairman, Monday was also the 37th anniversary of the 
Occupational Safety and Health Administration, which was 
created to enforce workplace safety laws and regulations, and 
to protect workers from injury, illness, and death on the job.
    So, I wish we were here today to celebrate how OSHA is 
effectively holding employers accountable for maintaining safe 
working conditions.
    But the disturbing reality is that OSHA is not living up to 
its mission to make workers safer on the job.
    In the last year, we have held several hearings examining 
OSHA's performance.&
    From my first oversight hearing on OSHA a year ago to the 
hearing I held on dangerous industries earlier this month the 
evidence shows that for the last 7 years, OSHA has been 
dangerously ineffective.
    I am concerned that OSHA's enforcement strategy relies too 
heavily on voluntary employer compliance programs.&
    I am deeply concerned that the fines OSHA has issued 
against bad actors are far too weak.&
    Records from last year show that the average OSHA penalty 
after a worker died on the job was just $10,133 nationwide.
    The penalty for willful violations was just $36,720, about 
half of the maximum allowable penalty.&
    OSHA simply cannot be as strong as it could be, and should 
be, if employers are able to consider the rules optional and if 
they believe that fines are nothing more than a cost of doing 
business.
    We, in the congressional majority, are not the only ones 
sounding the alarm bell.&
    At a hearing of my Employment and Workplace Safety 
Subcommittee earlier this month, the former OSHA director under 
the first President Bush, Jerry Scannell, also said he believes 
that penalties must be significant to deter bad actors.
    That's why we're here today.
    We want to send a clear message that one worker's death, 
injury, or illness is unacceptable if it's preventable.&
    It's why I have co-sponsored the Chairman's Protecting 
America's Workers Act, which amends OSHA to expand coverage, 
increase penalties, and protect whistleblowers.
    It's why the Chairman and I have asked the GAO to 
investigate whether OSHA is doing enough to ensure employers 
are accurately reporting workplace injuries and illnesses.&
    Since my hearing last year, I've continued to hear stories 
about underreporting, and about OSHA's lax efforts to ensure 
that employers are reporting accurately.
    When it comes to the health and safety of American workers, 
we can't allow OSHA just to take employers at their word.&
    As policymakers, we must have accurate, sound data in order 
to ensure OSHA is doing its job.
    So I'm looking forward to seeing the results of this 
investigation.
    Mr. Chairman, I'm proud of the work we have done in this 
committee to increase oversight of OSHA.
    When it comes to worker safety, we have come a long way in 
this country.
    But clearly, we still have more to do.&
    Our economy was built on the backs of hard-working 
Americans.
    And they deserve a government that works as hard as they do 
to keep businesses honest about the dangers they face on the 
job.

    The Chairman. Thank you very much, Senator Murray.
    We will now hear from our panel. Peg Seminario, Director of 
Safety and Health, the AFL-CIO. She has served on numerous 
Federal agency and scientific advisory boards, holds an M.S. 
degree in industrial hygiene from the Harvard School of Public 
Health, and a B.A. in biological sciences from Wellesley 
College.
    Professor David Uhlmann, Director of Environmental Law and 
Policy at the University of Michigan Law School. Prior to 
joining the law school faculty, he was the chief of the U.S. 
Department of Justice's Environmental Crime Section. While at 
the Department of Justice, Professor Uhlmann created the Worker 
Endangerment Task Force within the Environmental Crimes 
Section.
    Ron Hayes is founder, with his wife, of Families in Grief 
Hold Together, or FIGHT, an organization that supports families 
that have lost a loved one on the job. He founded the 
organization after his son Patrick was killed in 1995 in an 
accident in the grain bin he was cleaning.
    Don Smith has spent the past 20 years as a workplace safety 
expert. In 2005, his son, 22-year-old Donald, was electrocuted 
while working in a poultry processing plant. Thank you for 
being here.
    George Jenson, President of the Jenson Fire Protection, 
Inc. based in Laurel, MD. His company has approximately 10 
employees that travel and work on construction projects 
throughout the State of Maryland.
    Welcome, all of you, here. We will start off with Peg 
Seminario.

STATEMENT OF PEG SEMINARIO, DIRECTOR OF SAFETY AND HEALTH, AFL-
                      CIO, WASHINGTON, DC

    Ms. Seminario. Thank you very much, Senator Kennedy, 
Senator Enzi, Senator Isakson, and Senator Murray, for holding 
this hearing today, but also thanks to all of you for your 
leadership over the years on this very, very important issue.
    As was pointed out, yesterday was Workers Memorial Day, the 
anniversary of when the OSHA law went into effect. At the time 
OSHA was passed, it did promise workers the right to a safe and 
healthful place of employment, and when you look over the 
years, there has been tremendous progress that has been made as 
far as the reduction in worker deaths in this country. But more 
recently what we have seen is that progress has halted.
    There was new data that came out of BLS about 2 weeks ago 
which gave us a fuller picture of what is going on, and what it 
showed was that workplace fatalities went up in 2006. It showed 
us that the rate did not go down. In fact, if you look over the 
last 5 years, the rate has essentially stayed the same. For 
some groups of workers it has gotten worse: Hispanic workers, 
Latino workers, immigrant workers, very, very major increases 
in workplace fatalities.
    And when you look closer as to what is going on, you also 
see some other things that are quite disturbing. You see that 
the fatalities from falls, fires and explosions, workers being 
caught in machinery, crushed, confined spaces. Those kind of 
fatalities are actually going up. What has been going down are 
the fatalities due to assaults. So the kinds of things that 
OSHA has standards to deal with that can be dealt with--these 
fatalities can be prevented. We have seen an increase in those 
fatalities in recent years, and to me that is quite, quite 
disturbing.
    So why is this happening? I think one of the reasons it is 
happening is that we are not doing enough to prevent these 
fatalities at all levels. One of the fundamental problems is 
that the Occupational Safety and Health Act and its enforcement 
is really too weak to create an incentive to either improve 
conditions or to deter violations, as has been pointed out by 
Senator Kennedy. There are not any mandatory inspections with 
OSHA. OSHA is rarely in America's workplaces. They are there, 
on average, once every 133 years. So that means that having a 
strong deterrence with enforcement is even more important.
    But then we look at the law itself, and it was pointed out 
the maximum penalty for a serious violation of a law is $7,000. 
The maximum penalty for a willful is $70,000. But you look at 
fatality cases, and by far the serious violations are those 
that are cited. And that is where we start. And then the OSHA 
law allows for and OSHA does apply reductions for size, 
reductions for good faith, reductions for history. And so where 
you end up in a typical fatality case is penalties, as Senator 
Kennedy said, on average were $10,000, but the median penalty, 
that in the middle as far as half the employers having that 
record of enforcement, is only $5,900 to begin with and $3,600 
after the fact.
    So what are the kinds of situations that are resulting in 
those kind of fatalities? When you look, you see it is cases 
such as occurred in Pennsylvania where two sewer workers 
working for a company digging a trench--it was unshored. The 
contractor was cited for a serious violation, cited for a 
violation of the General Duty Clause, no safety training. The 
initial penalty was only $1,500 for the death of two workers. 
It was settled for $1,000.
    A painting company in New Jersey, a violation for failing 
to provide fall protection in the death of an immigrant worker. 
The initial penalty, $2,000; settled to $1,400.
    And the list goes on and on. So that is what happens in 
typical enforcement cases.
    So why is that the case? It is the law. You start with low 
penalties, you reduce them further, and that is just to begin 
with, and then you settle out the cases for even less.
    There has been a recent series in the Las Vegas Sun that 
has been running, showing on the Las Vegas Strip a series of 
worker fatalities, 9 workers killed and another one last 
Saturday, 10 workers dead. Enforcement case after enforcement 
case. Penalties started out at $7,000, reduced to zero--zero--
in these workers' deaths. These are big companies. This is a 
big employer on a big construction job.
    And so we see essentially that the civil enforcement under 
OSHA is not strong enough to deter violations to begin with and 
only gets weaker as it proceeds.
    On the criminal side, the situation is even worse. David 
Uhlmann will speak to that. But one statistic on that that is 
worth citing by comparison. If you look at criminal enforcement 
under OSHA for the last 38 years, you see during that time only 
68 criminal prosecutions, 68 in 37 years, a total of 42 months 
in jail. There were 340,000 workplace deaths during that time. 
By comparison, last year alone, for environmental crimes there 
were 340 criminal enforcement actions for environmental crimes 
resulting in jail time of 64 years. So 340 for environmental 
crimes in 1 year, 68 over the entire time of OSHA. And I think 
that speaks volumes.
    Just in conclusion, there is legislation that is introduced 
that would address the major deficiencies in OSHA. We think it 
is a good bill, a sound bill, and we would encourage the 
committee to move on this legislation and to put in place a 
stronger structure and a stronger prevention for protecting 
workers in this country.
    Thank you.
    [The prepared statement of Ms. Seminario follows:]

                  Prepared Statement of Peg Seminario

    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 5 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 (from 
4.9/100,000 in 2005), 25 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 the construction 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 particularly 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 United States, where over the course of 
a 10-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 there have not even been increases in OSHA 
penalties for inflation, which has reduced the real dollar value of 
OSHA penalties by about 39 percent. 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 fiscal year 
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 fiscal year 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 fiscal year 2003-06, where most cases have been 
resolved, show a national average of $6,078 ($6,646 for Federal OSHA 
and $5,363 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 fiscal year 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 Web site. 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, TX, 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 low maximum 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 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 fiscal year 2003 there were 50 unclassified violations in 
Federal OSHA fatality cases and in fiscal year 2004 there were 49 such 
violations. In recent years that number has dropped, and for fiscal 
year 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 fiscal year 2007, there were 719 inspections involving EEP 
cases, compared to 467 EEP cases in fiscal year 2006, 593 EEP cases in 
fiscal year 2005 and 313 EEP cases in fiscal year 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 3 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 6 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 fiscal year 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 fiscal year 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 1 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 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, TX. 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 legislative 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 from death, injury and disease on 
the job.

                              ATTACHMENTS



















    The Chairman. Thank you.
    Mr. Uhlmann.

 STATEMENT OF DAVID M. UHLMANN, DIRECTOR OF THE ENVIRONMENTAL 
LAW AND POLICY PROGRAM, UNIVERSITY OF MICHIGAN LAW SCHOOL, ANN 
                           ARBOR, MI

    Mr. Uhlmann. Thank you, Chairman Kennedy, Ranking Member 
Enzi, and members of the committee.
    As the chairman indicated, I am currently a professor of 
the University of Michigan Law School, but I speak to you today 
as much as a former Federal prosecutor. I served for 17 years 
at the Justice Department, the last 7 as the chief of the 
Environmental Crimes Section. I am pleased to have the 
opportunity to talk to you today about the desperate need to 
strengthen the criminal provisions of the Occupational Safety 
and Health Act.
    Senator Enzi made comments that I think are very 
appropriate about the fact that we need to do what we can to 
get to a point where there are no accidents, no injuries, no 
deaths at the workplace. One of the people who led our efforts 
at the Justice Department to address worker endangerment issues 
was Senator Enzi's friend, Tom Sansonetti, the former Assistant 
Attorney General. I do not think it is a partisan issue.
    Our worker safety laws are laudable in many respects. We 
have very broad coverage, and I know we will hear about the 
fact that there is an awful lot that is regulated in the 
workplace.
    And certainly it is true, as Senator Isakson said, that 
most employers care deeply about making sure that there are not 
any accidents, there are not any injuries, there are not any 
deaths. And for most employers, worker safety is a top 
priority.
    But there always will be some employers who do not think 
the law applies to them, who do not value worker safety, who 
think that their workers are expendable. And for those 
employers, a credible criminal enforcement threat is essential 
if we are going to do something about worker injuries and 
worker deaths.
    I would like to quickly tell you about a case that I 
prosecuted at the Justice Department that I think exemplifies 
or highlights the shortcomings of the current law. It was a 
case in Idaho. It involved a facility called Evergreen 
Resources, ironically named because it was a facility that had 
a history of worker safety and environmental violations.
    In August 1996, the owner of that company, a man named 
Allan Elias, who went to Wharton and was an attorney I am sad 
to say, sent his workers into a tank of cyanide waste and a 20-
year-old man in his first job out of high school named Scott 
Dominguez suffered severe and permanent brain damage inside 
that tank. There was no safety equipment. There was no testing 
of the air inside the tank. There was no testing of the waste 
that was being dumped out onto the ground.
    When emergency response vehicles came out to the scene and 
asked what was in the tank, Mr. Elias said there was nothing in 
the tank that could hurt anybody, even though he was the person 
who put cyanide in it. When emergency room doctors were trying 
to save the victim's life, Mr. Elias lied to them and said 
there was no possibility that there was cyanide in the tank. 
The next day when OSHA showed up, Mr. Elias lied again, said he 
had a confined space entry permit and went down the street to 
Kerr McGee and got their safety manual and doctored up the 
confined space entry permit and submitted that to OSHA.
    Now, we were able to bring Mr. Elias to justice. We charged 
him with criminal violations of the knowing endangerment 
provisions of the environmental laws, and he was convicted 
after a 3\1/2\-week trial and sentenced to 17 years in jail.
    But he did not commit a criminal violation of the worker 
safety laws when he sent his workers into that cyanide tank. He 
did not commit a criminal violation of the worker safety laws 
even though OSHA cited him for willful violations, even though 
a jury unanimously found that he knowingly placed his workers 
in imminent danger of death or serious bodily injury. He did 
not commit a criminal violation of the worker safety laws 
because no one died that day. And it is only a crime under the 
worker safety laws if you willfully commit a violation of the 
Occupational Safety and Health Act and it causes death.
    Now, there is something wrong with the law if sending your 
workers into a tank of cyanide waste, ruining a young man's 
life is not a crime under the worker safety laws, and it is a 
17-year felony under the environmental laws.
    So it is time for Congress to act, and I would urge 
Congress to pass the Protecting America's Workers Act so that 
five things can happen with the law.
    First, violations of the worker safety laws, criminal 
violations, should be felonies. The reality of life as a 
Federal prosecutor and the priorities and the resource 
constraints that the Justice Department has is we are never 
going to see significant criminal prosecution if the laws 
remain misdemeanors.
    Second, the penalties today, 6 months in jail. The message 
we send about the value of a worker's life when it is 6 months 
in jail if a worker is killed through a willful violation of 
the law is the wrong message. The maximum sentence should be 
measured in years, not in months.
    Third, endangerment, as Senator Enzi talked about, should 
be a crime. If an employer knowingly violates the worker safety 
law and puts his or her employees at risk of injury or death, 
that should be a crime, regardless of whether some intervening 
event occurs that spares somebody's life as in the Elias case--
there were emergency room doctors--or regardless of the fact 
that nobody is injured because of some luck of fate.
    Fourth, the mental State requirement should be knowingly, 
not willfully. Willful violations mean that ignorance of the 
law is a defense, which is contrary of most American 
jurisprudence. Employers have a duty, should have a duty to 
know the law and when they act in ways that put their workers 
at risk in complete disregard of the law, it should not be a 
defense for them to claim that they did not know it was a 
violation.
    And last, it needs to be clear that individuals are 
responsible under this act. Supervisors who order their 
employees into dangerous situations, responsible corporate 
officers who know the violations are occurring and fail to 
prevent them all should be criminally liable.
    As has been said a number of times this morning, the 
Occupational Safety and Health Act was passed over 30 years 
ago. It is time to make the guarantee of a safe workplace 
promised by the act a reality. It is time to strengthen the 
criminal provisions of the law.
    I thank you for the opportunity to testify today.
    [The prepared statement of Mr. Uhlmann follows:]

                 Prepared Statement of David M. Uhlmann

    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 U.S. 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 statutes \1\ 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.
---------------------------------------------------------------------------
    \1\ See, e.g., 42 U.S.C. Sec. 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. Sec. 1001.
    \3\ 18 U.S.C. Sec. Sec. 1503, 1505, 1512, and 1519.
    \4\ 18 U.S.C. Sec. 371.
---------------------------------------------------------------------------
    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 6 
months in jail.
---------------------------------------------------------------------------
    \5\ 29 U.S.C. Sec. 666(e).
---------------------------------------------------------------------------
    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 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 CANARY \6\

    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, ID. 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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
    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 3\1/2\-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\
---------------------------------------------------------------------------
    \7\ The United States charged the falsified permit as a violation 
of 18 U.S.C. Sec. 1001, instead of the OSH Act's false statement 
provision, 29 U.S.C. Sec. 666(g), because a false statement under title 
18 is a felony, punishable by up to 5 years in jail. A false statement 
under the OSH Act is a Class B misdemeanor, punishable by up to 6 
months in jail. Elias was convicted and sentenced to the statutory 
maximum penalty of 5 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).
---------------------------------------------------------------------------
    After less than 6 hours of deliberations, the jury convicted Elias 
on all counts on May 7, 1999. U.S. 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.
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    Yet Elias did not commit a criminal violation of the worker safety 
laws.
    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 a 6-
month misdemeanor per count (which, in all likelihood, means 6 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 U.S. 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.
    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.
---------------------------------------------------------------------------
    \10\  29 U.S.C. Sec. 666(a).
---------------------------------------------------------------------------
    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 death \11\ or twice the gain or loss associated with the 
offense \12\ (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 U.S. 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.
---------------------------------------------------------------------------
    \11\ 18 U.S.C. Sec. 3571(c)(4).
    \12\ 18 U.S.C. Sec. 3571(d).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \13\ David Barstow and Lowell Bergman, ``A Dangerous Business: At a 
Texas Foundry, an Indifference to Life'' (N.Y. Times, January 8, 2003).
---------------------------------------------------------------------------
    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, TX. 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 
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\
---------------------------------------------------------------------------
    \14\ Sentencing in the Atlantic States case has not occurred more 
than 2 years after the trial ended (which lasted 7 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 U.S. 
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.
---------------------------------------------------------------------------
    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 expose 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.
---------------------------------------------------------------------------
    \15\ ``A Dangerous Business Revisited,'' Frontline (February 5, 
2008).
---------------------------------------------------------------------------
    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.
    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 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.
    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.
---------------------------------------------------------------------------
    \16\ 33 U.S.C. Sec. 1319(c)(3)(A) (the Clean Water Act); 42 U.S.C. 
Sec. 6928(e) (RCRA); and 42 U.S.C. Sec. 7413(c)(5)(A) (the Clean Air 
Act). The Clean Air Act also contains a negligent endangerment 
provision. 42 U.S.C. Sec. 7413(c)(4).
---------------------------------------------------------------------------
    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).
---------------------------------------------------------------------------
    \17\ Bryan v. United States, 524 U.S. 184, 191-199 (1998).
---------------------------------------------------------------------------
    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 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.
---------------------------------------------------------------------------
    \18\ 29 U.S.C. Sec. 652(5).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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.
    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.

    The Chairman. Mr. Hayes.

 STATEMENT OF RON HAYES, DIRECTOR, FIGHT PROJECT, FAIRHOPE, AL

    Mr. Hayes. Thank you to you great American heroes.
    This is 14 years that we are still talking about the same 
problems. Fourteen years ago, my son Patrick was killed. He did 
not have to die on the job, but he worked for a company that 
did not care about human life. The first person I reached out 
to, after I found out that OSHA was not going to do the job, 
was Senator Kennedy.
    Here is my Western Union telegram, the 3rd of May.

          ``OSHA does not want you to know the information I 
        have. Big business does not want you to know the 
        information I have. But my son called out from his 
        grave the information you need to make a decision on 
        OSHA reform. Please contact me.''

And you did, Senator Kennedy, and you started working and 
helping, and we have been working together for years.
    In 1999, I met my great friend, Senator Mike Enzi. He and I 
have been working together on many different things, and we 
think similar in a lot of issues.
    I still believe that OSHA has to have a felony charge. I 
will always believe that. And make no mistake about it. There 
is no amount of money that you can place on my child's life, 
not 1 penny. You could give me a million dollars today and it 
will not change the fact that Pat is gone. And I miss my little 
buddy.
    But I am going to tell you some ways to make OSHA better. I 
have said this for 14 years. I have studied OSHA. I have fought 
with them. I have beat them up. I have worked with them. We 
have done a lot of good, progressive and positive things. I 
still believe OSHA has to be a 50/50 mix. I believe OSHA has to 
be the educator and the enforcer. I am going to give you 12 
ideas that I have that is in my testimony that will make OSHA 
better. And this has come from years of studying OSHA.
    We have a systemic problem within OSHA. There are many good 
people that work in OSHA, but those people are not allowed to 
expand and work and help the worker. And I am going to promise 
you right now any worker in this country will tell you OSHA 
runs interference for big business, and that is it. There is no 
way to tell it to you any other way. I am telling you the 
truth. That is what the average worker in this country knows.
    The second thing they know is their life is worth diddly 
because OSHA is not going to prosecute, and it is ridiculous. 
We have prosecution in everything else. I can kick a mule in 
the rear in a park somewhere in this country and I am going to 
jail. But a small businessman can kill 9 of his 10 employees 
and still get a 70 percent discount on the penalties. That is 
wrong, guys. Wrong. I do not care whether you are Republican or 
Democrat. It is wrong and it is wrong to put these families in 
a grieving process.
    No. 1, make sure we have regular oversight hearings every 6 
months and make OSHA appear and talk about the issues raised 
the past 6 months.
    Have OSHA employees trained in criminal investigative 
techniques.
    Have an ombudsman to represent and help the families.
    Have a special fatality investigating team.
    Take away the discretionary immunity clause that OSHA 
employees have and open them up to outside scrutiny. Let me go 
after them. I tell you, we will get the truth.
    Tie OSHA's budget to line items to be accomplished each 
year and make them prove that outcome.
    Set aside a special budget amount yearly just for 
prosecuting and criminal enforcement of bad actors, not the 
good companies, the bad boys.
    Make all OSHA offices follow its policy and procedures.
    Make all State OSHA programs be equal to or better than 
Federal offices, and make sure that they are followed.
    Have a special mechanism where we can reopen a case because 
right now, folks, God cannot even reopen an OSHA case if it is 
closed. I want Pat's case reopened. And I can tell you if it 
was reopened, it would have been handled differently. We all 
know that now.
    Have a felony charge for willfully killing an employee and 
give OSHA some teeth and make them bite.
    Have the family present during all OSHA settlement meetings 
with the companies. I promise you, put me in front of those 
company lawyers and OSHA ain't going to back down. I will come 
across that table. They ain't backing down. But they will not 
allow me in the room with them. Put me in the room with them 
and see what happens.
    Increase the fine structure to send a clear message of the 
importance of human life and limb. In 1970, when the OSH Act 
was enacted, yes, the fines were okay. You could buy crystal 
for 10 cents. You could buy a loaf of bread for less than 50 
cents. Thirty-five thousand dollars at that time, that was a 
lot of money. That sent a clear message. But we are in a 
different age. You could buy a home then that did not cost as 
much as a car now.
    We have to send a clear message. We need a felony charge, 
and we need stiffer and stronger penalties.
    Thank you.
    [The prepared statement of Mr. Hayes follows:]

                    Prepared Statement of Ron Hayes

    I would like to thank the Senate Labor Committee for allowing me 
the honor to testify about OSHA issues. For 14 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 16 workers 
that are killed on a daily basis or the thousands 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 19-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 won't 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 sense 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 14 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 their 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 No. 1 questions I have heard from every family member are: 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?; and Why does 
OSHA reduce the penalties? These are all good and fair questions and 
someone should give us a straight 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 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 seems 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 hearings every 6 months. 
Make OSHA appear and talk about issues raised during the past 6 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 scrutiny.
    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 14 
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 weighs 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.

    The Chairman. Thank you very much, both Mr. Hayes and Mr. 
Smith. It is very difficult to talk about your loss. We 
understand that. I think what is enormously impressive 
certainly to me is the fact that you have taken this incredible 
loss and really turned it into something that is constructive 
and positive and useful and helpful to others. I think that 
certainly makes a very powerful impression on all of us.
    Mr. Smith.

      STATEMENT OF DONALD COIT SMITH, RESIDENT, TEMPLE, TX

    Mr. Smith. Senator Kennedy, Senator Enzi, Senator Isakson, 
Senator Murray, thank you for inviting me here today.
    My name is Donald Coit Smith. My official title is Division 
Safety Manager for a polyurethane manufacturer. My specialties 
include inspecting and investigating to OSHA standards.
    I also have the title of father to a son killed on the job.
    On March 26, 2005, my son Donald Wilcher Smith, was 
electrocuted to death at the Anderson Farms chicken processing 
plant when handling a pump that had 480 volts of electricity 
flowing through it. He was 22 years, 9 months, and 30 days old.
    I do not have the capacity to adequately describe the 
horror that possesses my soul from my son's death. To lose him 
caused me to reflect on my faith in God. To this day, I have 
issues with him over my loss.
    However, I have come to believe that he took him for a 
reason, possibly to foster events that led me here today. To 
this, I must yield to a higher authority and it is why I do 
what I do. My mission is to do what it takes to strengthen the 
law so that what happened to my son will not happen to anyone 
else.
    The penalty for killing my son was $12,000, negotiated down 
from only $31,000. That is apparently what my son's life was 
worth to OSHA and what they were willing to force his employer 
to spend to prevent my son from getting killed.
    How do those two penalties given out for my son's death 
affect me? Well, frankly, mad does not describe it. The system 
I have worked in for all these years seems to have literally 
bargained his life. For one thing, the penalties were no real 
incentive for compliance. They are, in effect, a minor cost of 
doing business.
    OSHA's mission statement says it is to assure the safety 
and health of America's workers. Well, let us look at the word 
``assure.'' Webster's defines it as to make certain. From what 
I have seen OSHA does not make anything certain. If I had to 
change one thing that can make a profound difference in OSHA, 
it would be to make fines and punishment and enforcement so 
severe that employers would tremble at the thought of violating 
the code.
    I have dealt with OSHA from the employer standpoint, but 
let me tell you that dealing with them from a parent's 
standpoint is dreadful. It started with the inspection of the 
death facility and getting information on the why and how of my 
son's death. I am not talking about the obvious fact that he 
was electrocuted, but how could this have happened and why were 
the events that led up to his death not avoided?
    In my study of the situation from the information I have 
obtained through raw persistence, the root problems that 
surfaced were really simple. There was no commitment by the 
company. There was no deterrent from OSHA. I believe these two 
items are intertwined.
    OSHA documents of law enforcement investigations are kept 
from families' eyes in part by the Freedom of Information Act. 
This includes negotiations and meetings, even though families 
follow procedures in filing documents to have access to these 
meetings. The meetings I petitioned for access, in accordance 
to law, took place without me ever being informed. It seems in 
my case OSHA was not willing to follow the law. While securing 
production secrets for the good of a company is important to 
lever any market advantage, when items are covered that could 
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, 
to include negotiations, meetings, and correspondence. This is 
why I and other families of workers killed on the job are 
pushing for a family bill of rights which would include this 
paragraph.

          ``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.''

    I will sum with the viewpoint of a parent of a dependant 
killed on the job. Unless laws are changed to allow prosecution 
and legal action to be filed by parents outside of workers comp 
protection and OSHA steps up their inspections with effective 
punitive actions, 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 and legal cover up is a step in 
helping families of workers killed on the job cope with their 
loss.
    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 could 
not protect him. Fear of violating OSHA standards could not 
protect him. The value for human life could not protect him.
    Thank you very much for this opportunity to have input, and 
in closing this address, I would like to leave you with what I 
have told my sons each time we part. I tell them, ``te amo, mi 
hijos.'' And to this group I say may God bless you and God 
bless America.
    [The prepared statement of Mr. Smith follows:]

                Prepared Statement of Donald Coit Smith

    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 to 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 Web site 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 Web site, one of the original seven 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 6 months in jail (for someone 
. . . and you can bet it's not the boss).
    I will sum with the view point 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.

    The Chairman. Thank you very much, Mr. Smith. The best way 
we can try and respond to all of the loss, your loss and 
others', is to try and do something about all this. We are 
going to do what we can on this. You can be assured of that.
    Mr. Jenson.

     STATEMENT OF GEORGE W. JENSON III, OWNER, JENSON FIRE 
              PROTECTION, INC., ELLICOTT CITY, MD

    Mr. Jenson. Good morning, Senator Kennedy, Senator Enzi, 
Senator Murray, Senator Isakson. Thank you for having me here 
this morning.
    My name is George Wyatt Jenson III, and I am President of 
Jenson Fire Protection. We are a residential sprinkler 
contractor based out of Laurel, MD. I often tell my daughter we 
save lives. We install fire sprinklers to save the lives of 
families.
    I work for a number of large national-level builders 
throughout the area such as Ryan Homes and NVR, M/I Homes, and 
Toll Brothers. We provide our services to custom home builders 
throughout this area, track house builders, condominium 
builders, townhouse builders. I have approximately 10 employees 
that travel throughout the Maryland area working on my behalf.
    As a small business owner, I am here to tell you that the 
home building industry is very difficult right now. We have 
rising home inventories and less and less qualified purchasers 
to purchase these homes. So it is tough. It is really mean out 
there.
    One of the answers to our situation is not to cut corners 
or work cheaper but to work smarter, and that is what we try to 
do. For example, in spite of the fact that this is not the best 
market, I provide as an owner to all of my employees 100 
percent paid health insurance, not HMO, but PPO. I firmly 
believe that every single employee of mine has the right to 
take their child to the same doctor that my wife and I take our 
child to. This is even at the disapproval of my accountant who 
says, George, you cannot do this. You should not. But that is 
what we try to do because of my beliefs.
    The Chairman. Mr. Jenson, I want to personally commend you 
for it. That is not what this hearing is focused on, but you 
deserve a lot of credit.
    Mr. Jenson. Sorry. I will get back on--
    The Chairman. That is all right. If you want to talk about 
health insurance, it is okay with me.
    [Laughter.]
    Mr. Jenson. But what I am getting to is the worker safety, 
and that is going to be providing the best level of insurance. 
I provide 100 percent tools for all of my guys. I purchase 
everything from boots to shirts to shoes to coats, everything 
and anything to provide them the safest environment possible, 
again, at the cost of profit.
    What drives me to do that is not OSHA. I hate to say it out 
loud, but as a small business owner, OSHA has been in my 20-
year career more urban legend than fact. So what drives me are 
economic incentives. Every single year, January 26, at 12:00 
a.m., my liability insurance on my company lapses. At 12:01, 
the 27th, is when it reenacts. It is one of the most difficult 
and daunting tasks getting reassigned a new insurance policy. 
So we have to have no incidences. We have to have no workers 
comp claims. We have to have no loss of time due to injury on 
the jobs. So we take an incredibly proactive approach at 
putting this together.
    So I am driven by worker safety from a humanities 
perspective because, God forbid, I could not imagine looking at 
myself in the mirror knowing someone got hurt on my dime. 
Therefore, I spend a lot of my dimes to try to keep that from 
happening at the risk of profit.
    And I will tell you I have been in this business for 20 
years. I have been in business on my own--this is my third 
year. We began to put it in a perspective, $50 per $1,000 in 
revenue is based on liability, which is completely associated 
with safety.
    This year I celebrated 2 years of incidents free and my 
rate was cut in half. I am paying $25 per $1,000 in revenue. We 
do $3 million to $5 million in revenue. It is a lot of money.
    So in addition to these things, we try to provide the best 
of everything for these guys. Again, OSHA is not motivating me 
for this, and I have never seen an OSHA fine in my life. I do 
not even know if I know anyone who has ever received an OSHA 
fine. So, again, to me they have been urban legend.
    My builders have policies in place. I have contractual 
agreements with them that says I have to provide this 
particular safety device.
    The final thing that I will say is that the most daunting 
task that we have is getting around the Capital Beltway safely, 
and OSHA does not have any jurisdiction over that beltway. And 
that is very dangerous. Many of you travel the beltway. There 
is no guarantee you are going to get home.
    OSHA did not tell us, but my insurance company with my 
annual audit suggested to me, why do we not go with this Nav 
Track situation. What this does is it is a global positioning 
device that attaches to my vehicles and it can monitor the 
speed, it can monitor the turns, whether it was a left-hand or 
right turn, and I have it all documented on a computer and I 
have a screen that will show exactly where my vehicles are. So 
if driver A is doing 80 in a 60, I can address that. I can 
address that within 5 minutes the moment I look up on that 
screen and see that truck moving and know where he is.
    OSHA is not causing me to do this. What is causing me to do 
this is economics. In order to be competitive in the 
marketplace, I have to keep my risk at an ultimate low. If I do 
not, it will not be OSHA that puts me out of business. It will 
be the fact that I cannot get insurance.
    So thank you for your time.
    [The prepared statement of Mr. Jenson follows:]

               Prepared Statement of George W. Jenson III

    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, MD. My company works in 
the home building 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 home builders, tract house 
builders, and condominium builders. I have a workforce of approximately 
10 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 home 
building 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 job site, 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 job site, 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.

    The Chairman. Well, thank you very much, Mr. Jenson, for 
telling us about your own experience and what drives you. You 
are to be commended. I do not think there is any of us that 
doubt that it makes a lot of good sense to have good health and 
safety records from a sound business point of view.
    I think the most convincing, of course, for me was Paul 
O'Neil of Alcoa, a Republican in President Bush's cabinet, who 
took Alcoa from being one of the great American companies that 
had a lot of problems in terms of safety issues and made it No. 
1, front and center. Paul O'Neil has testified and talked to me 
about it. I have traveled with him down to Pittsburgh to find 
out how he did it out in the field, and he says, it is the best 
business, keeping people healthy, keeping them safe.
    Penalties are not going to do it for the Paul O'Neils, but 
there are people out there that are not as highly motivated as 
you. And we are asking ourselves, should people that go into 
the workplace and maybe not have an employer that is as 
committed as you are risk their lives and their families lives 
because they have an employer that is not as thoughtful as you. 
So that is something.
    But I thank you for being here and for your message.
    I would like to ask Mr. Uhlmann a question. We had Jerry 
Scannell here, who was the Republican head of OSHA for the 
first Bush administration. He said that corporate America only 
pays attention to high fines, threat of jail, and bad 
publicity. Those were the areas that he said.
    In your experience, do you think that there are companies 
that treat OSHA penalties as just a cost of doing business? And 
do you know of any examples of where Congress has increased 
penalties and we saw a meaningful change in corporate behavior? 
I am probably interested in the second question first.
    Mr. Uhlmann. Well, Congress changed the environmental laws 
and it made a dramatic change in corporate behavior. When the 
environmental laws were enacted, it was the same time that the 
Occupational Safety and Health Act was enacted, 1970's. Those 
laws were all misdemeanors with low penalties. We saw very 
little law enforcement activity, but many issues with 
compliance with the environmental laws. In the 1980's, so now 
over 20 years ago, Congress changed the environmental laws so 
that criminal provisions were felonies. They increased the 
possible fines under the civil provisions, and we have seen a 
dramatic increase in compliance in the United States.
    I wish this were different. I used to say at the Justice 
Department that our job was to put ourselves out of business. 
Our job was to prosecute enough cases that there no longer 
would be a need for anybody to enforce the law. And I wish that 
every company was like Mr. Jenson's or like Senator Isakson's 
company or the way Alcoa is today.
    But that is not reality. That is not the way it is in the 
United States. That is not the way it is anywhere in the world. 
And there are always going to be companies like the one I 
described during my prepared testimony, and it is not just 
going to be small companies like Evergreen Resources. I mean, 
we prosecuted British Petroleum, the largest oil company in the 
world.
    We prosecuted a company called McWane, which is a great 
example of the first part of your question, Mr. Chairman. You 
asked were there companies that just paid no attention to OSHA 
fines, and McWane is probably the best example that I know of. 
McWane is one of the world's largest pipe manufacturing 
companies, billions of dollars of sales every year. They could 
spend the money on compliance, but they chose not to. They 
chose not to even though they had scores of violations, scores 
of deaths at their facilities, OSHA was out there all the time. 
I mean, they were not urban legend at McWane. They were there 
all the time, but they were issuing these small penalties. 
There was never any kind of significant enforcement at McWane.
    And it was not until we took a look at McWane over the last 
5 years, prosecuted them at five different facilities, imposed 
multimillion dollar fines under the environmental laws, sent 
their senior management to jail that that has changed McWane, 
or at least that is what McWane is now saying. They have hired 
former OSHA directors. They have hired former top Justice 
officials to advise them about compliance. They are making a 
real effort at change.
    But I just think there are always going to be companies 
like that, and unless you have a credible enforcement threat at 
the upper end for the, hopefully, small number of cases where 
you need it, you are not going to get compliance all the way up 
and down.
    The Chairman. Well, are we relying on the environmental 
laws because OSHA will not enforce the laws more aggressively 
or because OSHA does not have the adequate tools to do the job? 
Why does the Justice Department not prosecute? Why don't the 
Justice Department prosecutors want to bring the cases under 
OSHA?
    Mr. Uhlmann. Well, they are misdemeanors, Senator. The 
Justice Department is a big place, but it still has limited 
resources, a lot of different law enforcement priorities, and 
the Justice Department always has and always will emphasize 
criminal prosecution of the laws that Congress deems the most 
serious by making them felonies. These are misdemeanors. You 
are never going to see significant prosecution for worker 
safety crime under the Occupational Safety and Health Act as 
long as it remains a misdemeanor. It will not happen. Ten cases 
in the last 5 years. One of those was done by my old office, by 
the way, with a $4.2 million fine because we were more 
aggressive about how we were prosecuting these cases. That was 
McWane. I think that made a difference. But if these cases 
remain misdemeanor cases, you are going to see an occasional 
case like you do today and you are never going to see anything 
more.
    The Chairman. Peg, is there anything you want to add on 
this?
    Ms. Seminario. I think that David has hit on it. What needs 
to be done is to make very clear that workers' lives are valued 
and that there are really serious consequences for actions that 
put workers in danger. Right now there is nothing in the law 
that does that. There is no message. So, what happens is that 
each of these deaths, which are tragedies, really are treated 
by OSHA sort of as a routine matter, and so there is not the 
import that needs to be there to send a very clear message that 
this kind of behavior will not be tolerated.
    The Chairman. And just finally, how have the penalties 
changed in the last 30 years?
    Mr. Uhlmann. Well, they have not changed at all, and that 
is part of the problem that Mr. Hayes talked about. I mean, a 
$70,000 fine in 1970 when I was 8 years old was a lot of money, 
and it is just not a lot of money for companies today that have 
multimillion dollar profits.
    We should be clear. This is not all companies. I am not 
saying that corporate America does not care about worker safety 
and does not care about compliance with the law. I think a lot 
of companies make it a top priority and a lot of companies 
spend a lot of money on it. And frankly, those companies should 
not be at a competitive disadvantage against the companies that 
do not spend the kind of money on compliance that Mr. Jenson 
described. It is just not right. It is just not fair for some 
companies to get away with shirking their legal obligations, 
and yet that is what happens and that is what will continue to 
happen unless there is a credible threat of criminal 
prosecution for violations of the worker safety laws.
    The Chairman. Senator Enzi.
    Senator Enzi. Thank you, Mr. Chairman. I want to thank 
everybody for their testimony. It has been helpful. I have 
written down a lot of suggestions here. I am still trying to 
work on the comprehensive package.
    Ms. Seminario, the Federal Government currently requires 
drug and alcohol testing for a broad range of workers in the 
transportation industry. That affected one of my clients when I 
was doing accounting, and it drove down the number of highway 
fatalities--or accidents, not fatalities. There is no doubt 
there are many nontransportation jobs in which drug and alcohol 
use or impairment pose equally serious risk to workers' lives 
and safety.
    Would your organization support changes in the law that 
would extend federally mandated drug and alcohol testing to 
such jobs?
    Ms. Seminario. As far as changing the OSHA law to have OSHA 
get into the business of drug and alcohol testing, we do not 
think that that is really a good idea.
    From our experience, the majority of workplace fatalities 
are occurring because of unsafe conditions, fires and 
explosions, as I said. You have got all kinds of injuries 
occurring in the workplace. And so the majority of OSHA's focus 
should be on those hazards themselves.
    There are industries certainly where the drug use and the 
alcohol use are more of a problem. Different unions have 
engaged their collective bargaining and agreed to testing under 
strict protections for workers. But I think that while that may 
be a problem in some situations, that is not the major problem, 
and I think it diverts us from really focusing on the hazards 
that are present that need to be dealt with. Again, that is not 
to minimize that where drug and alcohol use is a problem, that 
it should not be dealt with, but in my view that is not the 
major problem. It is not the major source of workplace 
fatalities or workplace injuries in most workplaces in the 
United States.
    Senator Enzi. As you and Mr. Uhlmann mentioned, we need to 
look at this comprehensively. In fact, everybody mentioned we 
need to look at this comprehensively, and I think that is one 
area that needs some examination.
    Ron, I want to thank you for being here today and for all 
your good work in the field of workplace safety and the way 
that you comfort families who have gone through the same sort 
of thing that you had to. You are very good at it and it makes 
a huge difference to families.
    Over the years, we have worked together on this issue, and 
I believe we need to view this comprehensively. And I noticed 
your testimony did not mention a number of the provisions that 
I have urged over the years as being a necessary part, for 
instance, third party safety consultation, the VPP expansion, 
drug and alcohol testing, enhanced worker training and 
compliance assistance, and other preventive measures. Do you 
still support those measures as a large part of the overall 
approach, or has your position changed on that?
    Mr. Hayes. No. My position has never changed. That is why I 
said OSHA should be 50/50. Their budget should be split right 
down the middle.
    You know, a few years ago, you and Senator Kennedy took the 
OSHA budget, when they wanted the $32 million increase, and you 
split it up, and you asked OSHA to use $16 million to put a 
consultant in all 67 OSHA offices. Up until that point, OSHA 
did not like the idea of consultants. They were not going to 
spend the money to do it. They did not think it was worth it. 
But in all the hearings I have been to through the years, I 
heard small businessmen talking about needing help. Well, you 
all did it. You set it up. You made them do it.
    Now it is the best thing since sliced bread. OSHA loves it. 
We have one person in each office. We actually need two or 
three now. They are overbooked. But I have seen it work in the 
State of Alabama and different States. I have seen these 
consultants go out there and do a great job and we are bringing 
down those things.
    All these other ideas you are talking about, I think 
everything needs to be on the table. I gave you just a 
thumbnail sketch of what I think OSHA should look like.
    I would like to make one comment to Mr. Jenson. I 
personally think that he is at a disadvantage because the 
reason he has so many problems getting insurance and fighting 
to get insurance is these bad actors we have. I mean, he is 
doing a great job with his company.
    But what do you do with a company that Pat worked for when 
the corporate safety director said to OSHA the next morning 
after Pat was killed, our company operates under the roll of 
the dice philosophy, that being we will not change our ways 
until something bad happens? Well, guess what, folks. Something 
bad happened. Pat died. And they did change their ways, but 
OSHA did not make them. I made them. OSHA did not do anything 
to them. In fact, the regional administrator in Atlanta went on 
record stating he was not even going to issue any citations to 
this company for killing Pat. Of course, we all know now that 
was all a mistake and it was a mess with all that.
    But how does a family get justice and dignity and honor 
with an agency that is worthless? I am still a strong supporter 
of OSHA, always will be, but they have to be made to work. And 
the only people that is going to make them work is you guys. 
You are the people that have the control. I cannot make OSHA 
prosecute somebody. I cannot make the Justice Department. I can 
help them in a positive way. I can coach them. I can kick them, 
but I cannot make them do it. You have to write the law that 
makes them follow it. That is the only way it is going to work.
    Thank you.
    Senator Enzi. Thank you. My time is expired here. I have 
lots of questions yet.
    The Chairman. Senator Isakson.
    Senator Isakson. Thank you, Senator Kennedy. I want to 
thank you for allowing me to be a cosponsor with you on the 
amendment recommending what Mr. Hayes did with regard to family 
involvement prior to adjudication of OSHA. I think that is a 
tremendous recommendation and one of many that we need to move 
forward on.
    I want to thank you, Mr. Smith, for your compelling 
testimony and your willingness to be here. It is very helpful 
to all of us.
    Mr. Uhlmann, I made notes, and my writing is as bad as my 
eyesight, but I want to make sure I got this right. In the 
Elias case, he knowingly injected cyanide into the environment 
and then knowingly allowed the employees to be exposed to it. 
And under OSHA, because nobody died, there could not have been 
a criminal charge. Is that correct?
    Mr. Uhlmann. That is correct, Senator.
    Senator Isakson. Had one of those people died, there could 
be a criminal charge?
    Mr. Uhlmann. We could have prosecuted him under the 
Occupational Safety and Health Act, charged him with a 6-month 
class D misdemeanor, but that would have been it.
    Senator Isakson. If somebody had died.
    Mr. Uhlmann. If somebody had died.
    Senator Isakson. Under the environmental law, what would 
have happened?
    Mr. Uhlmann. Under the environmental laws, he was charged 
first with knowing endangerment, and the crime of knowing 
endangerment means that you commit a violation, in this case, 
of the hazardous waste laws knowing at the time that you 
thereby place another person in imminent danger of death or 
serious bodily injury. That is a felony and the maximum penalty 
is 15 years in jail.
    Senator Isakson. If any of you know, correct me, and I 
imagine Mr. Uhlmann is probably the person and possibly Ms. 
Seminario. In the 5,703 workplace deaths reported last year, it 
is my understanding that is the aggregate number of people who 
die regardless of the cause of death, as long as they were 
involved or engaged in the workplace, meaning they could have 
had an automobile accident or a truck accident driving for you, 
Mr. Jenson, or could have had a heart attack. And I am not 
minimizing things here. I am just trying to find out if that is 
correct. Is that correct?
    Ms. Seminario. It is those deaths that are determined to be 
work-related, and so yes, if it is a transportation, highway 
incident--the person is engaged in work--yes, it would be work-
related. As I said, the figures were revised a couple of weeks 
ago, and the toll for 2006 is now 5,840 deaths that occurred in 
2006. And because of that revision, the numbers were higher but 
the rate also did not decline.
    But what you see, as I said in my testimony, when you look 
at what is occurring, the highway incidents over the years have 
basically flat-lined. The homicides have gone way down, which 
is good news. That is the No. 2 cause. But these problems and 
these deaths that are occurring from fires and explosions, 
falls, people being crushed, those are increasing, and that to 
me is what is really, really troubling. Those things that are 
well recognized hazards that we have standards for, that we 
should be able to do something about--those deaths are on the 
rise.
    I agree with Senator Enzi's suggestion that we look in more 
detail into what is going on, look beyond the totals and look 
to where this is occurring, what the problems are, what kind of 
employers, and try to fashion not only some overall solutions 
but some interventions that go to the heart of those problems.
    Senator Isakson. I concur with that. What I am trying to 
get to is sort of a comment Mr. Uhlmann made to Mr. Jenson. You 
need to compel the person that willfully rolls the dice, as was 
stated by Mr. Hayes, and waits for something to happen. But you 
also do not want to throw a net down that takes an employer 
into a felony position when the employee is on drugs when the 
incident takes place or the employee willfully violates what is 
clearly demonstrated as well-trained, well-noticed, well-
protected against, etc.
    So that is one of the reasons I asked the question because 
if one of my employees is making a delivery and they have a 
traffic accident and they violate the law and they 
unfortunately die, that is a terrible thing, but should the 
employer be charged with a felony in that case? I think not if 
there is a contributing and mitigating factor. So I am not 
necessarily disagreeing with what you all are saying, but I am 
trying to point out it works both ways.
    I agree with Senator Enzi on the drug testing. I had pre-
employment drug testing in my company primarily because of the 
type of accidents that take place with lawn mowers and heavy 
equipment in the development business if somebody was engaged 
in taking narcotics or using alcohol. My point is, there have 
to be compelling factors for the negligence to be the threshold 
for the felony, I would think.
    Mr. Uhlmann. Senator Isakson, I could not agree more. I 
think accidents happen in life and it is unfortunate when they 
happen. But criminal prosecution is not appropriate when an 
accident happens.
    We used to say at the Justice Department that accidents 
waiting for a place to happen are not accidents, and when 
somebody, I would say, knowingly rolls the dice, I mean, they 
know they are rolling the dice, they do not have to know it is 
illegal to roll the dice. They should not have to know it is 
illegal to roll the dice. And that is what we are concerned 
about. We should have the ability in this country in this age, 
in a modern society like ours, to say that a company that knows 
it is sending its workers into an unsafe environment, knows it 
is rolling the dice, knows it is putting workers at risk, that 
they may face felony prosecution.
    The Justice Department does not have a long track record of 
doing a whole lot of these cases. So I am not too worried they 
are going to suddenly start criminally prosecuting every case 
under the sun. But if they were to start trying to criminalize 
accidents, I mean, judges and juries will bounce them right out 
of the courtroom. That is not appropriate use of criminal 
prosecution. That should not happen. It certainly would not 
have happened under my watch. But it is those egregious cases 
that we need to be able to address, and right now we cannot.
    Mr. Hayes. Senator Isakson, I would like to make a 
statement, if you do not mind. Coming from someone that lost a 
loved one in the workplace, I believe these cases have to be on 
a case-by-case basis. I know a lot of great companies. I know a 
lot of companies that has had fatalities that were horrible, 
and they should not have been prosecuted under a felony charge. 
But you have got companies that have to be, and unless we get a 
felony charge in the OSHA act--because let me tell you what I 
did with the State.
    There are State laws, reckless endangerment. I went to the 
State attorney of Florida. It took me about 6 months to make 
them look at this case. They then requested the OSHA file. OSHA 
refused to give them a file, even under subpoena, for a year. 
The State Attorney was telling me the entire time with the 
evidence that I had given him and the evidence they collected, 
that they could prosecute under State law. I thought we might 
have something here because OSHA was not going to do it.
    Then the State Attorney had to sign a waiver in order to 
get Pat's file from the OSHA department stating they would not 
use any of the OSHA information for prosecution under State 
law. I was called into the State Attorney's office with my 
attorney, and they said we have got to drop it because we 
cannot use any of that evidence and we cannot get collaborative 
evidence now.
    Where did that leave me? I can tell you I have been thrown 
out of the FBI's office several times trying to get them to 
look. That ain't going to happen. There is no justice for us 
when we have a company that is blatant. We have to have the 
felony charge.
    Senator Enzi and I have been talking about this since 1999, 
and he was really good last year to mark it up in the SAFE Act. 
Of course, it never made it out of committee.
    Senator Kennedy and Senator Corzine a few years ago brought 
up the felony charge.
    We have to have all of you guys and ladies and gentlemen to 
put your mind together and say let us come up with a plan that 
is a case-by-case basis where we can go after the bad actors, 
where we can help the Mr. Jensons in this country, where we can 
show some justice and dignity and honor to the workers. That is 
what we have to have. That is why we are here today talking. 
That is why I am talking blue in the face for 14 years for the 
same, identical thing I said 14 years ago. I want to see a 
felony charge before I die, guys. Just give a father that one 
little thing.
    Senator Isakson. Thank you, Mr. Hayes.
    Mr. Hayes. Thank you.
    Senator Isakson. Thank you, Mr. Chairman.
    The Chairman. That was a very eloquent and moving 
statement.
    Let me just ask, Mr. Hayes, in addition to the help for the 
family, could you just--we talked about the inadequacy of the 
penalties, but we are also concerned about how OSHA treats and 
deals with families under these circumstances. This is really 
my final question. Then maybe Mr. Smith could say a word just 
about that. We can come back to you.
    Mr. Hayes. Well, Charles Jeffers really did a great job in 
1999. He asked me to go to the OSHA training institute and do a 
1-hour sensitivity training class, and I did. And there is a 
memorandum and a policy that before any fatality for Federal 
OSHA, that they review this tape, which does not happen because 
your regular offices out there, your little area offices--that 
is their own little power deal. They do not do anything that 
they are told by the national office. It should be watched. Don 
and I actually took the tape and produced it and sent it to all 
27 OSHA States.
    And I will tell you a great success story is the State of 
Wyoming. In 1999, Senator Mike Enzi asked me to come to Wyoming 
and talk to his workers comp division in OSHA, and at that 
time, we set up a special policy for the OSHA office of Wyoming 
to call the families every 2 weeks. And I helped Johnny Long 
and Wayne and Steve set it up. And they actually call the 
families every 2 weeks and talk to them about the file, tell 
them where they are on inspections. We have had several cases 
in Wyoming that they could not issue a penalty because it was 
not an OSHA violation, and the families handled it. They were 
helpful. They were okay with it.
    I only get involved in Wyoming cases if they have a really 
tough case, but because they show that compassion, they show 
that respect and dignity, we have gone from four or five calls 
a year in Wyoming to zero except helping Johnny maybe on a 
difficult case.
    The State of North Carolina has a full-time ombudsperson 
and Steve handles every case unless it is a very difficult one, 
and then I get involved there.
    We have a lady in Oregon that actually lost her brother on 
the job, and she helps the families there.
    The Federal OSHA will not even give out my pamphlets. They 
will not hand my pamphlets out to the families. They do not 
want the families to know. The only way the families get in 
touch with me from Federal OSHA is if the family starts causing 
problems calling you folks, calling the media. That is when 
OSHA says, we better get some help. But by that time, it is a 
year or 2 years old, and I can help the families but I need to 
be up there up front.
    I got a great case in Oregon a couple years ago--mine 
safety. Actually they send more families than OSHA does. They 
sent a family to me, and Rick called me. They buried his son on 
Monday, and on Tuesday morning, Rick called me and I started 
working with him. If he was here today, he would tell you that 
within a week's time, I had him doing certain things that would 
have taken him a year on his own. I know the system in and out. 
If I can get in touch with them, I would be glad to help.
    But OSHA does not want me to be in touch with these 
families because I know too much and I ask too many questions, 
and I put the eye on them. I put the family to work immediately 
getting files, getting response from other workers, putting 
information together, and actually going after them.
    We have a perfect example this year in Kentucky. We had two 
families. One family contacted me in August, and I started 
helping that family. They got in touch with State OSHA because 
OSHA had not talked to them before. They started asking them 
specific questions that I gave them. At the end of that case, 
the company was fined $150,000. They had 16 citations.
    Another case where this family sent a new family to me--
their son was killed in April. They never talked to OSHA. They 
never talked to me until the last month. They got one fine for 
$4,500 because they did not know what to ask, where to go for 
help, how to get the information. They did not know enough.
    OSHA is not going to help them. In fact, in the State of 
Kentucky, they do not want to release the file for 6 months 
because that is another issue with OSHA. If they can keep that 
file closed for 6 months, you ain't going to reopen it. God 
can't reopen that case. If I do not get involved early on to 
help these families get this information, they get nothing. 
They really get the shaft, guys.
    The Chairman. Well, thank you all very much. This has been 
very--excuse me.
    Senator Enzi. Could I do two more questions?
    The Chairman. Sure.
    Senator Enzi. Actually I have got a whole bunch more 
questions, and I will submit them to each of you because there 
is more information we need if we are going to do this 
comprehensively.
    Mr. Uhlmann, since you have been involved in some 
prosecution, I want to know who should be the person that gets 
prosecuted in one of these OSHA criminal cases. Suppose the 
person who willfully violated the safety rule resulting in a 
worker's death is not the owner or the manager, but perhaps a 
co-worker or a supervisor further down. Would you support 
criminal prosecution of that individual? And would that be 
possible?
    Mr. Uhlmann. Well, it would not be possible under the 
current OSHA law. Obviously, the decision about whether to 
prosecute in a specific case has to be based on the law and 
based on the facts of that case. Mr. Hayes correctly pointed 
out prosecutorial decisions have to be made on a case-by-case 
basis.
    But my view is that individuals should be eligible, if you 
will, for prosecution under the Occupational Safety and Health 
Act if they knowingly place other people in unsafe working 
conditions and that conduct places other people at risk of 
serious bodily injury or death. So I would not limit the 
liability as it is limited under the current law to the 
employer, you know, the top corporate official, because in the 
Elias case, the top corporate official was Mr. Elias, and he 
was the person giving the orders. But so much of the time, 
particularly in bigger companies, there are layers and layers 
of management, and you want to impose the liability at that 
lower mid-level of management where the action is really 
happening, where the illegal conduct is occurring, where the 
orders are going out. So that is the change I would make in the 
existing law.
    Senator Enzi. Thank you. That clarifies it and that helps a 
lot.
    Mr. Jenson, you mentioned that the insurance company plays 
a big role in helping keep your workplaces safe. Does your 
insurance carrier provide any--besides suggestions for what you 
need to do and I assume following up on them, do they provide 
any specific rebates or premium reductions based on your 
implementation of specific safety practices or the purchase or 
use of safety equipment? Does the State of Maryland offer any 
tax incentives for what you are doing with the safety-related 
equipment purchases or safety training or anything like that? 
And do these things help or would they help if they were 
implemented?
    Mr. Jenson. The State of Maryland offers no sort of tax 
incentive that I am aware of or have taken advantage of. My 
insurance company specifically offers a significant reduction 
in rate for no occurrence, whether it is injury on the job, a 
risk injury, property damage, or anything like that. So yes. 
Over the 2 years that we have been in business, we have been 
able to capture a 50 percent reduction in rate, which is a 
tremendous amount of savings for us. Still this year, we are 
heading in the direction of no risk--I mean, no injury, no 
loss, or anything. So yes, that is privately done, but as far 
as the State, I am not aware of anything that I have been able 
to take advantage of from a tax perspective or OSHA I guess.
    Senator Enzi. Does the insurance company come through and 
kind of do a safety audit and suggest things to you?
    Mr. Jenson. Absolutely, absolutely. Again, I said that my 
insurance policy renews every January 27 at 12:01. We began 
getting together mid-year to kind of do a snapshot of what is 
happening thus far. They come to my office. They also go to 
sites randomly. They do not tell me when. I give them an 
indication of where we are for a week or two. So that begins in 
the middle of the year, and then they will come around 
November, as we get ready to submit for new insurance for the 
following year. So I get audited. I get visits quite 
frequently, at least twice a year.
    Senator Enzi. Thank you. All of this has been very, very 
helpful, and there are obviously quite a few things that we 
could do. We never get anything done comprehensively, of 
course, but maybe we can do some different pieces again that 
will make things safer. And I think that is our goal.
    So I thank you for holding this hearing.
    The Chairman. Mr. Smith, I asked Mr. Hayes who gave a very 
eloquent statement--I would like to hear from you, if there is 
something you would like to add.
    Mr. Smith. I do not pretend to be as eloquent as Mr. Hayes.
    The Chairman. You do pretty well.
    Mr. Smith. But I can safely say with reasonable accuracy 
that had I not had the experience that I have in dealing with 
OSHA, I would not have been able to go as far in learning more 
about my son's death. The red tape is just tremendous. Knowing 
how to surf through that and who to contact for help is a 
tremendous advantage. And that really should be available to 
all Americans.
    Thank you.
    The Chairman. Very good. Well, you are absolutely right. It 
should be. We will certainly work on that and other factors.
    I want to thank all of you. It has been very instructive, 
interesting, and informational for us all. I am very grateful 
to all of you. We may have some other follow-on questions. We 
will get them to you. Yes, we do have some follow-on questions. 
We will get those to you soon.
    The committee stands in recess.
    [Additional material follows.]

                          ADDITIONAL MATERIAL

                  Prepared Statement Of Senator Obama

    Given that yesterday was Workers Memorial Day, it is a 
fitting time to look at the Department of Labor's performance 
in enforcing workplace health and safety laws. And the report 
that the majority issued today proves that the agency is 
failing on the job. I thank the Chair for holding this hearing 
and for fulfilling this committee's responsibility to demand 
that the Administration enforce the laws that protect workers.
    For the last 7 years, the Department of Labor has used its 
regulatory authority, like its sister agencies, as if its 
mandate were to err on the side of corporations over the public 
interest--even when its decisions undermine the spirit of the 
law and puts workers' lives at risk. The report that the 
majority staff has prepared, ``Discounting Death: OSHA's 
Failure to Punish Safety Violations That Kill Workers,'' shows 
that the Occupational Safety and Health Administration (OSHA) 
systematically imposes small fines on employers, even in cases 
where safety violations led to a worker's death. And it almost 
immediately discounts a fine if the employer contests it.
    By some estimates, more than 50,000 Americans lose their 
lives every year due to workplace accidents or job-related 
illnesses. This unconscionable number of deaths in a single 
year roughly equals the number of American soldiers lost in 
battle during the entire 16- year Vietnam War. For American 
workers, that's about one work- related fatality every 10 
minutes--or 137 working families every single day who suffer a 
terrible tragedy, losing a father or mother, a husband or wife, 
a son or a daughter. In the report this committee issued today, 
a few of those husbands and wives and fathers and mothers 
express their pain of loss and deep distress that OSHA has 
refused to penalize firms to a level necessary to lead to safer 
workplaces and discourage additional deaths.
    The stories included in the report remind us that there 
have been cases across the country where employers were cited 
for serious violations of our workplace safety laws but escaped 
with a slap on the wrist. OSHA used the informal settlement 
process to slash fines for employers and with each such action 
further undermined the deterrence effect of enforcement. And 
even where minimal fines were imposed, OSHA has failed to 
collect them in growing numbers each year. Combined, these 
actions invite employers to cut costs, even if it means putting 
their employees' lives at risk, with the assurance that the 
watchdog agency will not bite.
    In the face of this Administration's abdication of 
responsibility, it is clear that Congress must play a greater 
role in improving workplace health and safety.
    OSHA must be reinvigorated so that it can spearhead 
reductions in workplace fatalities, injuries, and illnesses. 
Public servants committed to the agency's mission of advancing 
worker safety and health should lead OSHA and the Mine Safety 
and Health Administration (MSHA). In addition, Congress must 
fund both OSHA and MSHA at higher levels to assure that there 
are more inspectors to reach more of the most dangerous 
workplaces. Real funding levels for OSHA and MSHA have not 
increased during the last 7 years, even though the number of 
workers and workplaces covered has grown significantly. These 
new resources would also allow OSHA to build productive 
relationships and partnerships with business, labor, and non-
profit organizations that can reduce injuries and fatalities. 
Rebuilding the leadership and strengthening the funding of 
these agencies is a starting place for a sound workplace health 
and safety policy.
    In addition to increasing the enforcement staff to 
facilitate more inspections of dangerous workplaces, OSHA needs 
better and more strategic enforcement tools to deter 
noncompliance among those employers who disregard worker 
protection in favor of production speed or profit. OSHA can and 
should also improve how it targets inspections, so that its 
investigations focus on the employers and industries that pose 
the greatest risks to workers. It can also adapt its policies 
to make sure that employers do not avoid health and safety 
responsibilities by outsourcing work through subcontracting or 
misclassification of employees. OSHA enforcement should send a 
clear message to companies and their subcontractors about their 
fundamental responsibility to provide a safe workplace.
    With specific regard to penalty policies, OSHA must have 
the requisite authority to impose meaningful penalties for 
noncompliance, particularly in the case of serious, repeat, and 
egregious violations. The bottom line is that when an employer 
exposes workers to serious hazards, it should pay fines that 
are more than just an ordinary cost of doing business.
    I support legislation to strengthen OSHA's authority in 
this regard. The agency's ``egregious penalty'' policy allows 
OSHA to penalize the very worst employers with meaningful fines 
that can run as high as millions of dollars, but the policy is 
perpetually challenged by employers. The policy should be 
codified to end these challenges. And the OSH Act must be 
amended to strengthen criminal penalties--to enable the 
Department of Justice to prosecute a felony when an employer 
willfully causes death or serious bodily injury to a worker. 
Some of these changes are included in S. 1244, the Protecting 
America's Workers Act, a bill now pending before this committee 
which I strongly support.
    I also support legislation to extend the coverage of the 
OSH Act to the estimated 8.6 million State and local government 
employees who presently lack any OSHA protection. These hard-
working public servants deserve protection from the hazards 
they face every day in serving their communities. Notably, the 
proposed Protecting America's Workers Act, which I have co-
sponsored, would effectuate this change.
    The major features for a policy to improve workplace health 
and safety are clear. In fact, many of these changes do not 
require major legislation, but do require agency leadership and 
focus. The report issued today shows that this Administration 
is not taking its leadership responsibilities seriously.
    Thank you.

    Textile Rental Services Association of America 
                                            (TRSA),
                                              May 12, 2008.
Hon. Edward Kennedy, Chairman,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, DC 20510.

    Dear Mr. Chairman: On behalf of the Textile Rental Services 
Association of America (TRSA), I ask that this letter be included in 
the record for the April 29 Senate Committee on Health, Education, 
Labor, and Pensions (HELP Committee) hearing titled, ``When a Worker Is 
Killed: Do OSHA Penalties Enhance Workplace Safety? ''
    Founded in 1912, TRSA is the world's largest textile service 
industry association, representing more than 1,000 industrial laundry 
facilities in 24 countries. The membership of TRSA represents a cross-
section of the industry, including some of the world's largest textile 
service companies, along with numerous mid-size and one-plant 
operations. Our membership includes companies currently doing business 
in commercial laundering and rental services to commercial, industrial 
and institutional accounts, as well as firms selling services, 
equipment and supplies to commercial launderers and linen rental 
companies.
    Promoting safety in our members' facilities has always been one of 
the core functions of TRSA. For example, safe practices have been a key 
component of the industry's Production Manufacturing Institute (PMI), 
which helps to train our maintenance and plant supervisory personnel. 
(TRSA jointly sponsors PMI with the Uniform Textile Services 
Association.) Currently, TRSA is developing a program that will help 
our membership to improve their safety records even more.
    Thus, TRSA strongly supports the goal of a safer workplace. We have 
concerns, however, that increasing the use and severity of criminal 
penalties may be counterproductive. TRSA therefore urges the HELP 
Committee to be cautious and to contemplate carefully all of the issues 
and implications involved if it chooses to move forward on proposals 
such as S. 1244, the Protecting America's Workers Act. For this reason, 
TRSA urges you to ask for a review by the Committee on the Judiciary 
prior to any floor proceedings.
    Most importantly, the HELP Committee needs to ensure that criminal 
penalties continue to rely on objective criteria. An extension of 
criminal penalties to decisions made in the course of everyday business 
operations and with no real intent to cause harm could wreak havoc. 
During an investigation following a workplace accident, for example, 
managers and workers with some knowledge about what happened may be 
advised by attorneys not to cooperate with OSHA representatives or 
other accident investigators. In addition, civil litigation may be 
delayed until criminal charges are finalized as civil trial judges 
would be justifiably reluctant to force potential witnesses to waive 
their rights under the Constitution's fifth amendment.
    If the committee chooses to proceed with increasing the application 
and severity of criminal penalties under the Occupational Safety and 
Health (OSH) Act, TRSA encourages you and your colleagues to look at 
the Tire Recall, Enhancement, Accountability and Documentation Act 
(TREAD Act, P.L. 106-414) and Sec. 406 of the Coast Guard and Maritime 
Transportation Act of 2004 (P.L. 108-617). Both laws established new 
and enhanced criminal penalties related to product safety, but Congress 
granted discretion to the respective department secretaries in their 
application in order to ensure that investigators were not 
unnecessarily impeded in uncovering the cause of an accident because of 
due process rules and protections.
    Safety is a paramount concern for TRSA and its member companies. 
For that reason, we would not like to see congressional action that 
could hamper investigations and safety improvement in the rare 
instances of an accident or violation. Should the HELP Committee decide 
to move forward on increasing criminal penalties for violations of the 
OSH Act, however, TRSA would look forward to working with you and other 
committee members to minimize adverse consequences that could result.
    Thank you for your consideration of these views. Please let me know 
if you have any questions or would like additional information. I can 
be reached at lfineran@
trsa.org or (703) 519-0029.
            Sincerely,
                                       Lawrence A. Fineran,
                                Director, Government Affairs, TRSA.
    [Whereupon, at 11:32 a.m., the hearing was adjourned.]

                                   


