[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]



                    ARE OSHA'S PENALTIES ADEQUATE TO
                  DETER HEALTH AND SAFETY VIOLATIONS?

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

                                HEARING

                               before the

                              COMMITTEE ON
                          EDUCATION AND LABOR

                     U.S. House of Representatives

                     ONE HUNDRED ELEVENTH CONGRESS

                             FIRST SESSION

                               __________

             HEARING HELD IN WASHINGTON, DC, APRIL 28, 2009

                               __________

                           Serial No. 111-16

                               __________

      Printed for the use of the Committee on Education and Labor


                       Available on the Internet:
      http://www.gpoaccess.gov/congress/house/education/index.html







                  U.S. GOVERNMENT PRINTING OFFICE
48-731 PDF                WASHINGTON : 2009
-----------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing 
Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC 
area (202) 512-1800 Fax: (202) 512-2104  Mail: Stop IDCC, Washington, DC 
20402-0001





                    COMMITTEE ON EDUCATION AND LABOR

                  GEORGE MILLER, California, Chairman

Dale E. Kildee, Michigan, Vice       Howard P. ``Buck'' McKeon, 
    Chairman                             California,
Donald M. Payne, New Jersey            Senior Republican Member
Robert E. Andrews, New Jersey        Thomas E. Petri, Wisconsin
Robert C. ``Bobby'' Scott, Virginia  Peter Hoekstra, Michigan
Lynn C. Woolsey, California          Michael N. Castle, Delaware
Ruben Hinojosa, Texas                Mark E. Souder, Indiana
Carolyn McCarthy, New York           Vernon J. Ehlers, Michigan
John F. Tierney, Massachusetts       Judy Biggert, Illinois
Dennis J. Kucinich, Ohio             Todd Russell Platts, Pennsylvania
David Wu, Oregon                     Joe Wilson, South Carolina
Rush D. Holt, New Jersey             John Kline, Minnesota
Susan A. Davis, California           Cathy McMorris Rodgers, Washington
Raul M. Grijalva, Arizona            Tom Price, Georgia
Timothy H. Bishop, New York          Rob Bishop, Utah
Joe Sestak, Pennsylvania             Brett Guthrie, Kentucky
David Loebsack, Iowa                 Bill Cassidy, Louisiana
Mazie Hirono, Hawaii                 Tom McClintock, California
Jason Altmire, Pennsylvania          Duncan Hunter, California
Phil Hare, Illinois                  David P. Roe, Tennessee
Yvette D. Clarke, New York           Glenn Thompson, Pennsylvania
Joe Courtney, Connecticut
Carol Shea-Porter, New Hampshire
Marcia L. Fudge, Ohio
Jared Polis, Colorado
Paul Tonko, New York
Pedro R. Pierluisi, Puerto Rico
Gregorio Kilili Camacho Sablan,
    Northern Mariana Islands
Dina Titus, Nevada
[Vacant]

                     Mark Zuckerman, Staff Director
                Sally Stroup, Republican Staff Director









                            C O N T E N T S


                              ----------                              
                                                                   Page

Hearing held on April 28, 2009...................................     1

Statement of Members:
    McKeon, Hon. Howard P. ``Buck,'' Senior Republican Member, 
      Committee on Education and Labor...........................     4
        Prepared statement of....................................     5
        Additional submissions:
            Statement of the Cintas Corp.........................    94
            Letter, dated May 12, 2009, from groups opposing H.R. 
              2067...............................................    95
    Miller, Hon. George, Chairman, Committee on Education and 
      Labor......................................................     1
        Prepared statement of....................................     3

Statement of Witnesses:
    Foster, Becky................................................     7
        Prepared statement of....................................     9
        Additional submissions:
            Article: ``Deltic Timber Fined in Deadly Fire,'' 
              Associated Press, 2008.............................    10
            Letter, dated May 12, 2009, from Lawrence P. Halprin, 
              Keller and Heckman LLP.............................    10
            Letter, dated February 9, 2005, from OSHA to Deltic 
              Timber Corp........................................    15
            ``Workplace Tragedy Family Bill of Rights''..........    19
            Inspection documentation.............................    27
    Halprin, Lawrence P., partner, Keller and Heckman, LLP.......    42
        Prepared statement of....................................    45
    Seminario, Peg, director, Safety and Health, AFL-CIO.........    28
        Prepared statement of....................................    30
    Uhlmann, David M., Jeffery F. Liss professor and director of 
      the environmental law and policy program, University of 
      Michigan Law School........................................    49
        Prepared statement of....................................    52

 
  ARE OSHA'S PENALTIES ADEQUATE TO DETER HEALTH AND SAFETY VIOLATIONS?

                              ----------                              


                        Tuesday, April 28, 2009

                     U.S. House of Representatives

                    Committee on Education and Labor

                             Washington, DC

                              ----------                              

    The committee met, pursuant to call, at 10:02 a.m., in room 
2175, Rayburn House Office Building, Hon. George Miller 
[chairman of the committee] presiding.
    Present: Representatives Miller, Kildee, Payne, Andrews, 
Scott, Woolsey, McCarthy, Tierney, Kucinich, Holt, Davis, 
Bishop of New York, Loebsack, Hirono, Altmire, Hare, Courtney, 
Shea-Porter, Fudge, Polis, Tonko, Sablan, Titus, McKeon, Petri, 
Ehlers, Platts, Price, and Cassidy.
    Staff present: Aaron Albright, Press Secretary; Jody 
Calemine, General Counsel; Lynn Dondis, Labor Counsel, 
Subcommittee on Workforce Protections; Carlos Fenwick, Policy 
Advisor, Subcommittee on Health, Employment, Labor and 
Pensions; Alex Nock, Deputy Staff Director; Joe Novotny, Chief 
Clerk; and Meredith Regine, Junior Legislative Associate, 
Labor; Andrew Blasko, Minority Speech Writer and Communications 
Advisor; Robert Borden, Minority General Counsel; Cameron 
Coursen, Minority Assistant Communications Director; Ed Gilroy, 
Minority Director of Workforce Policy; Rob Gregg, Minority 
Senior Legislative Assistant; Richard Hoar, Minority 
Professional Staff Member; Jim Paretti, Minority Workforce 
Policy Counsel; Molly McLaughlin Salmi, Minority Deputy 
Director of Workforce Policy; Linda Stevens, Minority Chief 
Clerk/Assistant to the General Counsel; and Loren Sweatt, 
Minority Professional Staff Member.
    Chairman Miller [presiding]. The Committee on Education and 
Labor will come to order this morning for their purposes of 
conducting a hearing on the question of whether OSHA's 
penalties are adequate to deter health and safety violations.
    This is an effort to explore whether current penalties are 
adequate to protect the health and safety of American workers. 
It is fitting that we recognize Workers' Memorial Day today. 
This day honors the thousands of workers who fall sick or are 
injured or killed each year due to hazardous conditions on the 
job.
    The landmark Occupational Safety and Health Act became the 
law in 1970, opening the door to safer and healthier workplaces 
for millions of workers. In nearly 40 years in its existence, 
the Act protections has saved hundreds of thousands of lives 
and millions more of avoided exposure to preventable illnesses 
and injuries.
    I applaud the hard work of those Occupational Safety and 
Health Administration employees who ensure that workers can 
return home to their families safe and healthy after their 
shift.
    However, over the last decades evidence suggests that we 
have seen an erosion of workplace protections guaranteed by the 
Occupational Safety and Health Act. The erosion of OSHA's 
effectiveness was particularly acute during the last several 
years.
    Beginning in the last Congress, the committee and Ms. 
Woolsey's subcommittee conducted a systematic examination of 
OSHA and the agency's ability to adequately protect workers.
    Since assuming the majority, we have held at least 15 
hearings into workplace health and safety issues, most often 
issues regarding the failure of the last administration to 
properly protect American workers.
    We found well-documented hazards, like the exposures to 
chemicals that cause popcorn lung disease, the combustible dust 
dangers, as well as basic regulatory work like updating 
construction standards, were not being addressed.
    In fact, OSHA's regulatory function shut down. The Bush 
administration promulgated only one significant health and 
safety standard during its tenure, and that was under court 
order. Additionally, we found that the enforcement tools were 
left on the shelf at times.
    These facts uncovered by the committee show that the last 8 
years have left OSHA significantly weakened. OSHA has the 
ability to reverse some of the problems with new leadership, 
and that is why I am confident that Labor Secretary Hilda Solis 
will be able to get the agency back on firm footing.
    But good leadership alone may not be enough to sufficiently 
protect workers' health and safety. Long overdue reforms to the 
OSHA Act are needed.
    Last week Representative Woolsey introduced Protecting 
America's Workers Act. This bill will update OSHA penalties, 
strengthen whistleblower protections, and ensure that bad 
employers are held accountable. This legislation is vital to 
improving the worker health and safety.
    Today's hearings will examine adequate OSHA penalties, and 
we will look at whether Congress should modernize and 
strengthen penalties against those who put Americans at 
unnecessary risk while at work.
    Penalties under the OSHA were last updated in 1990 and were 
not indexed for inflation. And these penalties for failing to 
protect workers pale in comparison to penalties for failing to 
protect animals or environment generally.
    While both civil and criminal penalties are available under 
OSHA, criminal prosecutions for egregious violations of the law 
are only possible when willful violations lead to the death of 
a worker.
    Even then, no matter how bad an employer acted, killing a 
worker is only a Class B misdemeanor. Under federal law 
harassing certain animals can bring twice as much prison time 
as killing a worker with willful health and safety violations.
    While the law currently provides low penalties for health 
and safety violations at the outset, those penalties often get 
lower. Unscrupulous employers often avoid being held 
accountable by their actions by negotiating finds down or away 
altogether.
    This is exactly what happened in a Las Vegas strip during a 
particularly dangerous year and a half when 12 workers died on 
a construction site. George Cole testified before our committee 
last June on how Project City Center in Las Vegas negotiated 
away all of the penalties for violating safety rules in private 
that directly related to the death of his brother-in-law. This 
is an outrageous example that negotiating away egregious 
violations is not uncommon, as we will hear today.
    Penalties are often key enforcement mechanisms under OSHA, 
but they must be real. They must be meaningful, and they must 
function to deter violations. They must get people's attention. 
And these enforcement mechanisms must not be mere cost of doing 
business.
    Today we will hear testimony on the need to update and 
modernize the key enforcement mechanisms under OSHA.
    Before introducing the witnesses, I want to recognize the 
committee's ranking Republican, Mr. McKeon, for the purposes of 
an opening statement.
    [The statement of Mr. Miller follows:]

   Prepared Statement of Hon. George Miller, Chairman, Committee on 
                          Education and Labor

    The Committee on Education and Labor meets this morning to explore 
whether current penalties are adequate to protect the health and safety 
of American workers.
    This hearing is fitting as we recognize Workers' Memorial Day 
today. This day honors of the thousands of workers who fall sick, are 
injured or killed each year due to hazardous conditions on the job.
    The landmark Occupational Safety and Health Act became law in 1970, 
opening the door to safer and healthier workplaces for millions of 
workers.
    In the nearly forty years of its existence, the Act's protections 
have saved hundreds of thousands of lives and millions more have 
avoided exposure to preventable illnesses and injuries.
    I applaud the hard work of those Occupational Safety and Health 
Administration employees who ensure that workers can return home to 
their families safe and healthy after their shift.
    However, over the last few decades, evidence suggests that we have 
seen an erosion of the workplace protections guaranteed by the OSH Act.
    The erosion of OSHA's effectiveness was particularly acute during 
the last several years.
    Beginning in the last Congress, this committee and Ms. Woolsey's 
subcommittee conducted a systematic examination of OSHA and the 
agency's ability to adequately protect workers.
    Since assuming the majority, we have held at least 15 hearings into 
workplace health and safety issues; most often issues regarding the 
failure of the last administration to properly protect American 
workers.
    We found that well documented hazards, like exposure to a chemical 
that causes popcorn lung disease and combustible dust dangers, as well 
as basic regulatory work like updating construction standards, were not 
being addressed.
    In fact, OSHA's regulatory function shut down. The Bush 
administration promulgated only one significant health and safety 
standard during its tenure. And that was under court order.
    Additionally, we found that enforcement tools were left on the 
shelf at times.
    These facts uncovered by this committee show that the last eight 
years have left OSHA significantly weakened.
    OSHA has the ability to reverse some of these problems with new 
leadership. That's why I am confident that Labor Sec. Hilda Solis will 
be able to get the agency back on a firm footing.
    But good leadership alone may not be enough to sufficiently protect 
workers' health and safety. Long overdue reforms to the OSH Act are 
needed.
    Last week, Representative Woolsey introduced the Protecting 
America's Workers Act. The bill will update OSHA penalties, strengthen 
whistleblower protections, and ensure that bad employers are held 
accountable.
    This legislation is vital to improving worker health and safety.
    Today's hearing will examine the adequacy of OSHA penalties. We 
will look at whether Congress should modernize and strengthen penalties 
against those that put Americans at unnecessary risk while at work.
    Penalties under the OSH Act were last updated in 1990 and were not 
indexed for inflation.
    And, these penalties for failing to protect workers pale in 
comparison to the penalties for failing to protect animals or the 
environment generally.
    While both civil and criminal penalties are available under the OSH 
Act, criminal prosecutions of egregious violations of the law are only 
possible when a willful violation leads to the death of a worker.
    Even then, no matter how bad an employer acted, killing a worker is 
only a class B misdemeanor.
    While the law currently provides comparatively low penalties for 
health and safety violations, those penalties often get lower. 
Unscrupulous employers often avoid being held accountable for their 
actions by negotiating the fines down or away altogether.
    This is exactly what happened on the Las Vegas strip during a 
particularly dangerous year and a half where 12 workers died on 
construction sites.
    George Cole testified before our committee last June on how Project 
City Center in Las Vegas negotiated away all the penalties for 
violating safety rules in private that directly resulted in the death 
of his brother-in-law.
    This is an outrageous example, but negotiating away egregious 
violations is not uncommon we will hear today.
    Penalties are the key enforcement mechanism under the OSH Act. They 
must be real. They must be meaningful. They must function to deter 
violations. They must get people's attention.
    And, these enforcement mechanisms must not be a mere cost of doing 
business.
    Today we will hear testimony on the need to update and modernize 
that key enforcement mechanism under the OSH Act.
    Before introducing the witnesses, I first want to recognize the 
Committee's ranking Republican, Mr. McKeon, for purposes of his opening 
statement.
                                 ______
                                 
    Mr. McKeon. Thank you, Chairman Miller, and good morning.
    One injury, one illness or one death on the job is one too 
many. We Republicans do not defend and do not support bad 
employers who put their employees at risk, and I offer my 
sincere condolences to those families who lost a loved one this 
way.
    But instead of focusing on punishment, as we do with 
today's hearing, we should also look at strategies that prevent 
accidents in the first place. Current health and safety 
regulations are complex and confusing. Simply increasing 
penalties and creating even more rules will not work.
    If anything, this ``Gotcha'' approach will lead to more 
employer challenges and lawsuits, and in the end it won't be as 
effective in keeping workers safe. Instead, Republicans believe 
that cooperation with employers to fix potential problems, 
along with strict enforcement, works best.
    Indeed, there is evidence that when OSHA works with 
businesses, particularly small ones, there has been great 
progress. The Bureau of Labor Statistics backs that up. It 
notes that in 2007 the number of deaths on the job fell to less 
than four for every 100,000 workers. The Bureau also says that 
in 2007 nonfatal injuries and illnesses also were down by 4 
percent, or 122 cases for every 10,000 workers.
    OSHA's figures tell the same story. They say that since 
2001 workplace deaths have declined 14 percent. Meanwhile, 
injuries and illness rates have dropped 21 percent. This is 
good news, although I repeat: one injury, one illness or one 
death on the job is one too many.
    That is why I suggest to you, Mr. Chairman and my fellow 
committee members, that we approach this problem with a 
measured and balanced response. This response should look at 
prevention and cooperation with employers, not just punishment.
    After all, the evidence shows that prevention and 
cooperation are making American workplaces safer, which in the 
end is something that we all want.
    Thank you, Chairman Miller, and I yield back.
    [The statement of Mr. McKeon follows:]

Prepared Statement of Hon. Howard P. ``Buck'' McKeon, Senior Republican 
                Member, Committee on Education and Labor

    Thank you, Chairman Miller and good morning.
    One injury, one illness or one death on the job is one too many.
    We Republicans do not defend and do not support bad employers who 
put their workers at risk. And I offer my sincere condolences to those 
families who lost a loved one this way.
    But instead of focusing on punishment, as we do with today's 
hearing, we should also look at strategies that prevent accidents in 
the first place.
    Current health and safety regulations are complex and confusing. 
Simply increasing penalties and creating even more rules will not work.
    If anything, this ``gotcha'' approach will lead to more employer 
challenges and lawsuits. And in the end, it won't be as effective in 
keeping workers safe.
    Instead, Republicans believe that cooperation with employers to fix 
potential problems--along with strict enforcement--works best.
    Indeed, there is evidence that when OSHA works with businesses, 
particularly small ones, there has been great progress.
    The Bureau of Labor Statistics backs that up.
    It notes that, in 2007, the number of deaths on the job fell to 
less than four for every 100,000 workers.
    The bureau also says that, in 2007, non-fatal injuries and 
illnesses also were down by 4 percent--or 122 cases for every 10,000 
workers.
    OSHA's figures tell the same story. They say that since 2001, 
workplace deaths have declined 14 percent. Meanwhile, injuries and 
illness rates have dropped 21 percent.
    This is good news, although I repeat: One injury, one illness or 
one death on the job is one too many.
    That's why I suggest to you, Mr. Chairman and my fellow committee 
members, that we approach this problem with a measured and balanced 
response.
    This response should look at prevention and cooperation with 
employers, not just punishment.
    After all, the evidence shows that prevention and cooperation are 
making American workplaces safer, which, in the end, is something that 
we all want.
    Thank you, Chairman Miller. I yield back.
                                 ______
                                 
    Chairman Miller. Thank you.
    Pursuant to committee rule 7c, all members may submit an 
opening statement in writing, which will be made part of the 
permanent record.
    By prior agreement, Representative Lynn Woolsey, the chair 
of the Subcommittee on Workforce Protections, will give an 
opening statement this morning. The gentlewoman is recognized 
for 5 minutes.
    Ms. Woolsey. Thank you very much, Mr. Chairman, and thank 
you for holding this important hearing on OSHA penalties.
    In the more than 2 years that I have chaired the 
Subcommittee on Workforce Protections, I, like you and like the 
rest of the members of this committee, have heard story after 
story of worker tragedies that could have been prevented. That 
is the biggest tragedy. It is when there could have been a 
prevention, if only the employer had safety and health 
protections in place and followed them.
    My heart goes out particularly to Becky Foster, who is here 
today, and all of the other family members who have senselessly 
lost their loved ones to workplace incidents.
    I can think of no more fitting tribute to workers on 
Workers' Memorial Day--that is what today is, by the way--than 
to dedicate ourselves to putting policies in place that would 
protect workers and will deter employers. That is why this 
hearing is so very important.
    OSHA penalties against employers are shockingly low. It is 
rare that an employer gets more than a slap on the wrist, even 
when a worker dies or is seriously injured, even in the most 
egregious cases.
    It is rarer still that they are referred for prosecution. 
H.R. 2067, the Protecting America's Worker Act--PAWA we will 
call it from now on--which was introduced last week, provides 
needed reforms to the Occupational Safety and Health Act, 
including increasing penalties.
    And I thank you, Mr. Chairman, for your strong support of 
PAWA. Under this legislation civil penalties are raised to the 
level to account for inflation since 1990, and then they will 
be indexed to inflation in the future.
    Criminal penalties are extended to not only cover willful 
violations resulting in death, but those willful violations 
that result in serious injury as well. Also, these criminal 
penalties would be subject to felony prosecution and provide 
for up to 10 years in jail.
    Possibly even more importantly, workers and their families 
will have a right to participate in OSHA's enforcement process 
against the employer. They can appeal, and they can modify a 
decision. In fact, they can weigh in ahead of time, giving 
advice as we go along.
    Mr. Chairman, thank you for being a fierce advocate for 
American workers. As the head of this committee, you make all 
the difference. I look forward to this hearing, and I look 
forward to passing strong safety and health legislation. I will 
yield that.
    Chairman Miller. Thank you.
    I want to welcome all of the witnesses to the committee 
this morning. Thank you for your time and for your expertise 
that you are sharing with us.
    We will begin with Ms. Becky Foster, who is before the 
committee today to testify about how her stepson, Jeremy 
Foster, was fatally injured on the job at a timber company 6 
months after his 19th birthday. Ms. Foster is a lifelong 
resident of Danville, Arkansas, and she has worked for a 
poultry company for the past 23 years, currently serving as a 
clerk.
    Ms. Margaret Seminario has worked for the AFL-CIO for more 
than 25 years and has served as director of safety and health 
for the AFL-CIO since 1990. She has served on a number of 
federal government advisory committees, including the National 
Advisory Committee on Occupational Safety and Health, and she 
received a BA in biological science from Wellesley College and 
a Masters of Science degree in industrial hygiene from Harvard 
School of Public Health.
    Mr. Lawrence Halprin is a partner at Keller Heckman, where 
he works on a broad range of workplace health and safety, 
environmental product safety and business transaction issues. 
Mr. Halprin works with clients in the developing, implementing 
and auditing environmental, health and safety management 
programs. He has a BS from the University of Pennsylvania, a JD 
from Duquesne School of Law, and an MBA from George Washington 
University.
    Mr. David Uhlmann is the Jeffrey F. Liss professor and 
inaugural director of the Environmental Law and Policy Program 
at the University of Michigan Law School. Prior to joining the 
faculty, Professor Uhlmann served for 7 years as the chief of 
the United States Department of Justice Environmental Crime 
Section, where he was the top environmental crimes prosecutor 
in the United States. Professor Uhlmann received his BA from 
Swarthmore College and his JD from Yale Law School.
    Welcome to the committee. Just a quick note. When you begin 
testifying, in those little boxes in front of you, a green 
light will go on. You will have 5 minutes for your testimony. 
When you have 1 minute remaining, an orange light will go on, 
and we would like you to try to start to wrap up your 
testimony, but we also want you to be able to complete your 
thoughts and complete it in a manner of which you desire to 
convey the information to the committee, all within 5 minutes. 
Imagine that. Thank you.
    So also we will begin with you.
    Ms. Foster. Thank you, Mr. Chairman.
    Chairman Miller. We are going to ask you to pull that 
microphone a little bit closer to you.
    Ms. Foster. Is this better?
    Chairman Miller. That is better. Thank you.

                   STATEMENT OF BECKY FOSTER

    Ms. Foster. Good morning, Mr. Chairman and Ranking Member. 
Thank you for giving me the opportunity to testify today on 
behalf of families of fatally injured workers.
    My name is Becky Foster. My testimony today is honor of my 
stepson, Jeremy Foster. Jeremy was the best son a family could 
hope for. He was a respectable young man, who loved his family 
and enjoyed spending much of his time outdoors. Our Jeremy 
would have celebrated his 24th birthday last Saturday.
    Our time with Jeremy was cut short--tragically short--in 
the early hours of Friday, October 1st, 2004. His mother called 
me at 2 a.m., very upset and saying that a friend of Jeremy's 
that was working with him at the Deltic Timber Sawmill in Ola, 
Arkansas, had called his aunt. This was the only phone number 
that the friend could think of. And he said that Jeremy had 
been badly hurt while working near the chipper.
    We naturally assumed that he would be taken immediately to 
the local hospital only 15 miles away, so we chose to meet 
there. I called his dad at work, and we all went to the 
hospital and waited for the ambulance to arrive. It never did.
    After waiting approximately 45 excruciating minutes, a 
nurse walked into the room to repeat what she had been told 
from a phone call. At the same time Jeremy's aunt, who had also 
met us at the hospital along with his uncle, received another 
call on her cell phone. She looked at us and said, ``Jeremy is 
gone.''
    I will not describe what we went through in those moments. 
The pain cannot be described. We all left from the hospital, 
called family members, and then we met at his oldest sister's 
house.
    Later that morning two men from Deltic Timber came to the 
door to express their condolences. They wouldn't tell us what 
happened, but they assured us that they would find out, and 
they would keep us updated. Those two men left that morning, 
and we have never seen or heard from them again.
    It was our friend, who worked with the coroner at the 
funeral home, that told us what happened, that he had been 
strangled. She said that his shirt had caught on something and 
was wound continuously until the shirt became so tight around 
his neck that he could no longer breathe.
    It was later that we learned that this equipment caught his 
shirt because it had been modified by maintenance workers at 
Deltic Timber. They had welded a piece of cheesepot to an auger 
shaft, and by not placing a guard over this modified area, they 
created a catch point.
    It is stated in the OSHA report that this modification was 
the direct result of our son's death.
    When we received our copy of the OSHA report, we were not 
surprised at all to see the notation of the company's actions 
being at fault for the fatality. But we were appalled to see 
the amount they were fined at $4,500. Surely, this was an 
error.
    Shortly afterwards, we read in our state newspaper that 
this fine had been reduced to only $2,250. Did they place the 
value of our only son's life at this amount? It was as if OSHA 
had Pat said Deltic Timber on the back and said, ``Good job, 
guys. You only killed one person.''
    This company walked away from us and was only at a loss of 
$2,250. They sent flowers to the funeral, and they walked away. 
Jeremy was employed with Deltic Timber through a temp agency. 
The temp agency paid for the funeral under workers' 
compensation regulations.
    We were left with nothing but pain and loss--still are. We 
did consult lawyers--several of them--but our state of Arkansas 
does an excellent job of protecting employers. Because of 
workers' compensation statutes and the dual employment law, we 
were denied our day in court with Deltic Timber.
    At the very least Deltic Timber should have been penalized 
with a substantial fine. Yes, we understand that companies are 
in business to make a profit, and a very large fine could 
result in loss of profits. But of course, they would have a 
chance to make up for this loss in the next fiscal quarter.
    What about the worker that is killed? There is no second 
chance. All of this could have been avoided simply by reviewing 
OSHA equipment regulations before modifying this equipment. 
Just one moment to consider the options would have saved 
Jeremy's life.
    Why even have regulations, if they are not being enforced? 
Why have penalties, if they are not substantial enough to get 
the company's attention and to prevent more accidents?
    Obviously, this meager fine had no lasting impression on 
this company. Since Jeremy's accident, there have been at least 
two other accidents. One was a fire at another location that 
resulted in one death and two serious burn injuries.
    The posters that you see behind me represent the thousands 
of other people that are killed on the job every year.
    Mr. Chairman and Ranking Member, I plead for your support 
in any efforts that are presented to ensure a safer workplace. 
Thank you.
    [The statement of Ms. Foster follows:]

                   Prepared Statement of Becky Foster

    Good morning Mr. Chairman and Ranking Members. Thank you for giving 
me the opportunity to testify today on behalf of families of fatally 
injured workers. My name is Becky Foster. My testimony today is in 
honor of my step-son, Jeremy Foster.
    Jeremy was the best son a family could hope for. He was a 
respectable young man who loved his family and enjoyed spending much of 
his time outdoors. Our Jeremy would have celebrated his 24th birthday 
last Saturday. (Apr25th)
    Our time with Jeremy was cut tragically short in the early hours of 
Friday October 1st, 2004. His mother called me at 2am--very upset and 
saying that a friend of Jeremy's that was working with him at the 
Deltic Timber sawmill in Ola Arkansas had called his Aunt--this was the 
only phone number the friend could think of--and said that Jeremy had 
been badly hurt while working near the chipper. We naturally assumed 
that he would be taken immediately to the local hospital only 15 miles 
away. So we chose to meet there. I called his Dad at work and we all 
went to the hospital and waited for the ambulance to arrive--It never 
did.
    After waiting approximately 45 excruciating minutes, a nurse walked 
into the room to repeat what she had been told from a phone call. At 
the same time Jeremy's Aunt--who had also met us at the hospital along 
with his Uncle--received another call on her cell phone. She looked at 
us and said ``Jeremy is gone''.
    I will not describe what we went through in those moments. The pain 
cannot be described. We all left from the hospital, called family 
members and then met at his oldest sister's house. Later that morning 
two men from Deltic Timber came to the door to express their 
condolences. They wouldn't tell us what happened but assured us that 
they would find out and keep us updated. Those two men left and we have 
never heard from them again.
    It was our friend who works as the coroner at the funeral home that 
told us that he had been strangled. She said that his shirt had caught 
on something and was wound continuously until the shirt became so tight 
around his neck that he could no longer breathe.
    It was later that we learned that this equipment caught his shirt 
because it had been modified by maintenance workers at Deltic Timber. 
They had welded a piece of keystock to an auger shaft. By not placing a 
guard over this modified area, they created a `catch point'. It is 
stated in the OSHA report that this modification was the direct result 
of our son's death.
    When we received our copy of the OSHA report we were not surprised 
to see the notation of the company's actions being at fault for the 
fatality. But we were appalled to see the amount of the fine: $4,500. 
Surely this was an error. Shortly afterwards we read in our state 
newspaper that the fine had been reduced to only $2,250. Did they place 
a value of our only son's life at this amount? It was as if OSHA had 
patted Deltic Timber on the back and said ``Good job guys. You only 
killed one person''.
    This company walked away from us and was only at a loss of $2,250. 
They sent flowers to the funeral and they walked away.
    Jeremy was employed with Deltic Timber thru a temp agency. The temp 
agency paid for the funeral under workers compensation regulations.
    We were left with nothing but pain and loss. We did consult 
lawyers; several of them. But our state of Arkansas does an excellent 
job of protecting employers. Because of workers compensations statutes 
and a dual employment law we were denied our day in court with Deltic 
Timber.
    At the very least Deltic Timber should have been penalized with a 
substantial fine. Yes, we understand that companies are in business to 
make a profit and a very large fine could result in loss of profit. But 
of course they would have a chance to make up for the loss in the next 
fiscal quarter. What about the worker that is killed? There is no 
second chance.
    All of this could have been avoided simply by reviewing OSHA 
equipment regulations before modifying the equipment. Just one moment 
to consider the options would have saved Jeremy's life. Why even have 
regulations if they are not enforced? Why have penalties if they are 
not substantial enough to get the companies attention and prevent more 
accidents?
    Obviously, this meager fine had no lasting impression on this 
company. Since Jeremy's accident there have been at least two other 
accidents. One was a fire at another location that resulted in one 
death and two serious burn injuries.
    Mr. Chairman and Ranking Members; I plead for your support in any 
efforts that are presented to ensure a safer workplace.
    I ask that each of you please visit the website http://
www.usmwf.org/. for additional stories from families of fatally injured 
workers. The United Support & Memorial for Workplace Fatalities (USMWF) 
was created by Tammy Miser. Tammy also has personal experience with 
these issues, as she lost her brother in unsafe working conditions.
    Her story is included in the attached ``FAMILY BILL OF RIGHTS''.
    I also ask for your support of the ``PROTECTING AMERICA'S WORKERS 
ACT''.
    Thank you for your service to workers and their families.
                                 ______
                                 
    [Additional submissions of Ms. Foster follow:]

     [Copyright 2008 by The Associated Press. All Rights Reserved.]

                   Deltic Timber Fined In Deadly Fire

    Deltic Timber Corp. has been fined $13,500 for safety violations at 
its sawmill near Waldo after a fire caused the death of one worker and 
injured two others.
    The Occupational Safety and Health Administration inspected the 
mill following the Aug. 9 fire. OSHA said an enclosure for the planer 
room, where the fire broke out, and the dust-collection system were not 
built to national standards, and exposed employees to intense flames, 
heat and sparks.
    Diana Petterson, a spokeswoman for OSHA, said Deltic Timber has 
addressed the problems, although the company is contesting the citation 
and fine.
    Craig Douglass, a spokesman for the El Dorado-based company, said 
Deltic completed the corrective actions recommended by OSHA before 
starting the mill back up October 30th.
    In the fire, Darrell Richards of Junction City suffered burns on 
most of his body and died September First at a hospital in Memphis.
    Andy Emerson of Taylor and Billy Pope of Springhill, Louisiana, 
were injured and hospitalized. The two men have not returned to work 
but are back at home and receiving physical therapy.
                                 ______
                                 
                            Keller and Heckman LLP,
                            1001 G St., NW, Suite 500 West,
                                       Washington, DC, May 12 2009.
Hon. George Miller,  Chairman,
House Education and Labor Committee, Rayburn House Office Building, 
        Washington, DC.

Re: Adequacy of OSHA Penalties and the PAW Act
    Dear Chairman Miller: I sincerely appreciated the opportunity to 
testify before the House Education and Labor Committee on the 
critically important issues of OSHA penalties addressed at the April 28 
hearing, and appreciate the opportunity to file this supplemental 
statement and information on the adequacy of OSHA penalties and the 
interrelated OSH Act enforcement issues raised by the proposed PAW Act.
    As was the case with my testimony on April 28, I am expressing my 
personal views as a safety and health professional committed to the 
goals of the Occupational Safety and Health Act. My statement and 
comments are not intended to represent the views of Keller and Heckman 
LLP, or any of our clients. My objective is to provide the Committee 
with practical and helpful insights that address the issues before the 
Committee and hopefully will assist the Committee in advancing 
workplace safety and health.
    It seems appropriate to begin any discussion of proposed 
legislative initiatives by (1) identifying the overall goal; (2) 
examining the system and measures currently in place and their 
effectiveness in achieving that goal; (3) determining (through a 
thorough and unbiased analysis) the underlying causes of the failure to 
achieve that goal; (4) re-assessing whether the goal is appropriate; 
and (5) identifying (through a thorough and unbiased analysis) 
appropriate additional measures--both legislative and non-legislative--
that would be expected to significantly increase the effectiveness of 
the existing system in achieving the stated goal.
    The expressly stated ``purpose and policy'' of the OSH Act is ``to 
assure so far as possible every working man and woman in the Nation 
safe and healthful working conditions and to preserve our human 
resources.'' In short, that goal was to be achieved ``by authorizing 
enforcement of the standards developed under the Act; by assisting and 
encouraging the States in their efforts to assure safe and healthful 
working conditions; by providing for research, information, education, 
and training in the field of occupational safety and health; [and by 
other appropriate measures]. Through the flexibility provided by the 
OSH Act, OSHA--with the participation of Congress, the employer 
community, the employee community, the Review Commission, the courts 
and the media--have fashioned a system that has made tremendous 
progress in addressing workplace safety and health issues in the United 
States.
    The data published by the Bureau of Labor Statistics (BLS) 
demonstrate that work-related fatalities have been reduced by nearly 
two-thirds since the adoption of the OSH Act, and that workplace 
fatality and injury rates are currently the lowest they have ever been 
since BLS began recording statistics in 1992. In other words, much of 
what we are doing is working, and we should be careful about making 
dramatic changes without the careful deliberation necessary to avoid 
counterproductive measures and the significant problems created by 
uncertainty and instability.
    The current level of workplace fatalities and injuries suggests 
that our country is still some distance away from its stated goal, 
which is ``to assure so far as possible every working man and woman in 
the Nation safe and healthful working conditions and to preserve our 
human resources.'' From a moral standpoint, our stated goal can be 
nothing less, but at the same time we must recognize that it is an 
idealistic goal that seems impossible to achieve given: (1) the ongoing 
interaction between workers and their work environment; and (2) the 
reality that human beings have human qualities that lead to 
shortcomings in communication, understanding, perception, performance, 
assessment and judgment. As of 1993, the risk of dying from an accident 
in the home was greater than the risk of dying on the job. In the most 
recent year for which BLS statistics are available, American workers 
were over three times more likely to be killed in their motor vehicle 
than at their place of employment. I believe those statistics provide a 
useful point of reference and avoid creating unrealistic expectations.
    My experience is that the overwhelming majority of employers 
sincerely care about the safety of their employees, both because it is 
morally correct and because it is in the best interests of their 
business, and do their best within the limits of their resources to 
provide a safe workplace for their employees, protect the environment 
and comply with the multitude of other federal, state and local laws 
governing the operation of a business in this country. According to the 
attached OSHA statistics, the agency conducts approximately 40,000 
inspections per year at workplaces where it believes it is more likely 
to find violations, and issues approximately 85,000 citations per year, 
a significant portion of which are eventually withdrawn. That comes out 
to a fairly low number of two citations (alleged violations) per site. 
In contrast, the PAW Act appears to reflect a view that workplace 
deaths and injuries are due almost entirely to some callous misconduct 
on the part of employers, and that increased OSHA penalties and 
increased enforcement driven by granting employees full party status in 
every enforcement proceeding will eliminate these events. I 
respectfully disagree with that view.
    One point of view expressed at the April 28 hearing was that 
enhanced criminal penalties will deter criminal behavior and the 
enhance civil penalties will deter civil violations. In fact, the 
attached history of criminal referrals by OSHA shows that the maximum 
number in recent years was 12 referrals whereas the number of workplace 
fatalities was approximately 5600. In other words, OSHA determined that 
approximately 0.2% of the fatality cases involved conduct meriting a 
criminal referral. That strongly suggests that the focus on increased 
criminal sanctions would do little to address the current level of 
workplace injuries, illnesses and deaths in this country. Furthermore, 
as has been demonstrated by the criminal enforcement activities of the 
Department of Justice, the threat of far more severe criminal sanctions 
under, for example, the environmental and securities laws, does not 
completely deter crime. If, on the other hand, the primary objective of 
the greatly increased criminal penalties is to exact retribution from 
the few employers guilty of truly egregious conduct, then we should 
acknowledge that objective and assess whether the ability to exact that 
retribution outweighs the greatly magnified potential for harm from 
prosecutorial abuse that would accompany the change in criminal 
penalties.
    As demonstrated by the attached BLS statistics, approximately 57% 
of the workplace fatality cases involve workplace violence and 
transportation incidents that are traditionally handled by the local 
police department and outside the reach of OSHA enforcement. Therefore, 
for purposes of the OSH Act, it appears that the situation has been 
overstated, and Congress should recognize that fact.
    The case for a change in criminal and civil sanctions of the 
magnitude proposed by the PAW Act should be based on statistical 
evidence of a major shortcoming in the OSH Act. To the best of my 
knowledge, no such evidence has been presented to the Committee. The 
details of only one case were brought before the Committee at the April 
28 hearing. The discussion of the 1996 Evergreen Resources case by a 
former DOJ prosecutor demonstrated that one can find a person willing 
to engage in outrageous conduct that is particularly deserving of 
criminal prosecution, but that was only one case and there is no 
evidence to suggest that any Federal or state criminal laws would have 
had a deterrent effect on the individual involved in that case.
    The other case presented to the Committee on April 28 was a tragic 
2004 case (``the 2004 Case''). The 2004 Case was described in a very 
summary fashion that did not provide the details necessary to 
understand the facts of the case or indicate why the OSHA enforcement 
action proceeded as it did. Unfortunately, I did not have adequate time 
to pursue an FOIA request that would have yielded a fairly complete 
copy of the enforcement file. But what I did obtain in a limited 
response to my FOIA request suggests the discussion at the April 28 
hearing was substantially incomplete and that the Committee should not 
rely on that limited information in deciding how to proceed on the PAW 
Act.
    According to the OSHA enforcement file, the 2004 Case involved a 
facility with a low total OSHA Recordable Case Rate of 1.8 and 3.4 for 
2003 and 2002, respectively, and a very low OSHA Days Away Restricted 
Transferred (DART) Rate of 0 and 1.1 in 2003 and 2002, respectively. 
Turning to the facts of the case, OSHA found that a metal bar had been 
welded to the end of an elevated turning shaft and, with the benefit of 
20/20 hindsight, that it created a potential catch point. However, 
OSHA's machine guarding rule does not prohibit creating a catch point; 
it generally prohibits creating a catch point where there is 
anticipated employee exposure to that catch point in performing 
assigned tasks. There was no possibility of employee exposure to the 
elevated catch point unless the employee was elevated. In this case, 
the OSHA enforcement file indicated that the employee was standing on a 
stepladder and reaching across the shaft to clear a jam. See attached 
excerpt. The enforcement file also appears to indicate that task was 
supposed to be performed from the floor using a pole, which would have 
avoided the tragic outcome in that case.
    During my testimony, I made the point that a responsible employer 
might perform an audit, use a risk assessment to determine what 
recommendations to address first and, then be exposed to a citation 
alleging a willful violation if OSHA determined the employer had taken 
too long to address a particular issue. Representative Andrews asked 
for a citation to support that concern. Attached is an excerpt from the 
OSHA Field Operations Manual that acknowledges that such a situation 
may arise. See Note on page 4-29.
    The PAW Act raises many issues beyond the adequacy of OSHA 
penalties. On the positive side, one of the most effective ways of 
advancing workplace safety and health in the United States would be to 
extend the coverage of the OSH Act to all government employees. In 
addition to the enormous benefit of bringing those employees under the 
protections of the OSH Act, I believe it would have a useful effect in 
tempering OSHA's tendency, described in my April 28 statement, to adopt 
overreaching and ambiguous rules, and to improperly reinterpret 
existing rules to require substantially more than was ever 
contemplated.
    The proposed change to Section 4 of the OSH Act appears to 
eliminate the presumption that OSHA's rules are preempted by the rules 
of another Federal agency. It appears that, unless and until OSHA makes 
the ``equally protective'' certification that would be authorized by 
the PAW Act, there would be great uncertainty, if not chaos, as to 
which agency's rules applied. In the interim period, parties would have 
to resort to the responsible administrative tribunals and the courts to 
resettle what would previously been reasonably well settled law. 
Furthermore, it seems likely that OSHA would find it difficult to make 
the ``equally protective'' determinations because: (1) it would find 
some agency's rules more protective and some less protective than 
OSHA's with respect to different aspects of the same hazard; (2) there 
would be inevitable interagency disputes over the interpretation of 
those rules; and (3) neither OSHA nor the Solicitor's Office has the 
resources to engage in this massive undertaking. OSHA has been unable 
to establish uniform interpretations of its own rules just within OSHA, 
much less within the 24 state plan states which, with a few exceptions, 
have largely adopted OSHA's rules. This proposed change in the law 
should be carefully reconsidered. If there is a particular industry 
that Congress believes should be subject to certain OSHA's rules, it 
would be better to address that objective in a more focused manner.
    While no regulatory enforcement system is perfect, the current OSHA 
enforcement system provides a reasonable balance that, in my 
experience, protects an employer's due process rights while encouraging 
and generally achieving prompt abatement of conditions that clearly 
require abatement. The PAW Act would violate basic due process 
requirements in requiring an employer to ``abate'' an alleged violation 
before OSHA ever established that the cited condition or practice was a 
violation of the OSH Act.
    My experience is that the current enforcement system achieves 
substantial compliance with the OSH Act by the great majority of 
employers for the great majority of the time. When citations are 
issued, the current enforcement process generally results in a 
settlement that avoids the costs of litigation and advances workplace 
safety. Only about 7% of OSHA citations are contested and the great 
majority of the contested cases are settled prior to trial. If the 
maximum OSHA fines are increased, and OSHA makes aggressive use of that 
additional authority, the number of contested cases is likely to rise 
dramatically, and there is a real potential that employers will 
reconsider their current practice of allowing warrantless OSHA 
inspections or allow OSHA to expand the scope of a limited inspection 
without a warrant.
    When OSHA issues citations, my experience is that disputed facts 
and legal issues are addressed between the parties in an objective and 
professional manner, and that personal agendas rarely enter the 
picture. OSHA and the employer understand the process and generally are 
able to successfully negotiate a mutually acceptable informal 
settlement agreement. They proceed with the knowledge that, assuming 
the cited condition has been abated or must be abated within a 
reasonable time, the matter is resolved and their agreement will not be 
subject to being second-guessed or overturned by a third party, 
particularly a third party which is often likely to have a 
counterproductive personal agenda or bias.
    An amendment to the OSH Act that would subject OSHA's prosecutorial 
discretion in settling a case under particular terms to a legal 
challenge through a formal administrative process and litigation would 
have a tremendous chilling effect on the entire system. Much of the 
incentive for the employer, OSHA and the Solicitor's Office would be 
eliminated if those entities believed an employee was likely to pursue 
a legal challenge to the settlement. In many cases, it may be simpler 
for OSHA or the Solicitor's Office to try the case than to write the 
contemplated legal justification explaining why the settlement would 
effectuate the objectives of the OSH Act. In many cases, the 
Solicitor's Office would not be willing to write the referenced legal 
justification because it would disclose legal strategy or weaknesses in 
OSHA's case. In many cases an employer would not be willing to disclose 
what it was willing to commit to in a settlement to avoid litigation if 
it would eventually end up litigating the case.
    The risk of this type of post-settlement litigation will reduce 
cooperative efforts between employers and employees, and between 
employers and OSHA. In short, it may be appropriate to increase the DOL 
resources available to enforce the OSH Act, but it would turn a 
generally effective process on its head to allow affected employees or 
their representatives to control OSHA prosecutorial discretion, or to 
place the responsibility for reviewing challenges to that prosecutorial 
discretion on the Review Commission and the courts.
    Again, I appreciate the opportunity to file this supplemental 
statement and information on the adequacy of OSHA penalties and the 
interrelated OSH Act enforcement issues raised by the proposed PAW Act. 
Please let me know if there are any questions or I may be of further 
assistance regarding these issues.
            Thank you for your consideration.
                                       Lawrence P. Halprin.



    b. If a standard does not apply and all criteria for issuing a 
Section 5(a)(1) citation are not met, yet the Area Director determines 
that the hazard warrants some type of notification, a Hazard Alert 
Letter shall be sent to the employer and employee representative 
describing the hazard and suggesting corrective action.
IV. Other-than-Serious Violations.
    This type of violation shall be cited in situations where the 
accident/incident or illness that would be most likely result from a 
hazardous condition would probably not cause death or serious physical 
harm, but would have a direct and immediate relationship to the safety 
and health of employees.
V. Willful Violations.
    A willful violation exists under the Act where an employer has 
demonstrated either an intentional disregard for the requirements of 
the Act or a plain indifference to employee safety and health. Area 
Directors are encouraged to consult with RSOL when developing willful 
citations. The following guidance and procedures apply whenever there 
is evidence that a willful violation may exist:
            A. Intentional Disregard Violations.
    An employer commits an intentional and knowing violation if:
    1. An employer was aware of the requirements of the Act or of an 
applicable standard or regulation and was also aware of a condition or 
practice in violation of those requirements, but did not abate the 
hazard; or
    2. An employer was not aware of the requirements of the Act or 
standards, but had knowledge of a comparable legal requirement (e.g., 
state or local law) and was also aware of a condition or practice in 
violation of that requirement.
    Note: Good faith efforts made by the employer to minimize or abate 
a hazard may sometimes preclude the issuance of a willful violation. In 
such cases, CSHOs should consult the Area Director or designee if a 
willful classification is under consideration.
    3. A willful citation also may be issued where an employer knows 
that specific steps must be taken to address a hazard, but substitutes 
its judgment for the requirements of the standard. See the internal 
memorandum on Procedures for Significant Cases, and CPL 02-00-080, 
Handling of Cases to be Proposed for Violation-by-Violation, dated 
October 21, 1990.
    EXAMPLE 4-26: The employer was issued repeated citations addressing 
the same or similar conditions, but did not take corrective action.
            B. Plain Indifference Violations.
    1. An employer commits a violation with plain indifference to 
employee safety and health where:
    a. Management officials were aware of an OSHA requirement 
applicable to the employer's business but made little or no effort to 
communicate the requirement to lower level supervisors and employees.
    b. Company officials were aware of a plainly obvious hazardous 
condition but made little or no effort to prevent violations from 
occurring.
    EXAMPLE 4-27: The employer is aware of the existence of unguarded 
power presses that have caused near misses, lacerations and amputations 
in the past and does nothing to abate the hazard.
    c. An employer was not aware of any legal requirement, but knows 
that a condition or practice in the workplace is a serious hazard to 
the safety or health of employees and makes little or no effort to 
determine the extent of the problem or to take the corrective action. 
Knowledge of a hazard may be gained from such means as insurance 
company reports, safety committee or other internal reports, the 
occurrence of illnesses or injuries, or complaints of employees or 
their representatives.
    Note: Voluntary employer self-audits that assess workplace safety 
and health conditions shall not normally be used as a basis of a 
willful violation. However, once an employer's self-audit identifies a 
hazardous condition, the employer must promptly take appropriate 
measures to correct a violative condition and provide interim employee 
protection. See OSHA's Policy on Voluntary Employer Safety and Health 
Self-Audits (Federal Register, July 28, 2000 (65 FR 46498)).
    d. Willfulness may also be established despite lack of knowledge of 
a legal requirement if circumstances show that the employer would have 
placed no importance on such knowledge.
    EXAMPLE 4-28: An employer sends employees into a deep unprotected 
excavation containing a hazardous atmosphere without ever inspecting 
for potential hazards.
    2. It is not necessary that the violation be committed with a bad 
purpose or malicious intent to be deemed ``willful.'' It is sufficient 
that the violation was deliberate, voluntary or intentional as 
distinguished from inadvertent, accidental or ordinarily negligent.
    3. CSHOs shall develop and record on the OSHA-1B all evidence that 
indicates employer knowledge of the requirements of a standard, and any 
reasons for why it disregarded statutory or other legal obligations to 
protect employees against a hazardous condition. Willfulness may exist 
if an employer is informed by employees or employee representatives 
regarding an alleged hazardous condition and does not make a reasonable 
effort to verify or correct the hazard. Additional factors to consider 
in determining whether to characterize a violation as willful include:
    a. The nature of the employer's business and the knowledge 
regarding safety and health matters that could reasonably be expected 
in the industry;
    b. Any precautions taken by the employer to limit the hazardous 
conditions;
    c. The employer's awareness of the Act and of its responsibility to 
provide safe and healthful working conditions; and
    d. Whether similar violations and/or hazardous conditions have been 
brought to the attention of the employer through prior citations, 
accidents, warnings from OSHA or officials from other government 
agencies or an employee safety committee regarding the requirements of 
a standard.
    Note: This includes prior citations or warnings from OSHA State 
Plan officials.
    4. Also, include facts showing that even if the employer was not 
consciously violating the Act, it was aware that the violative 
condition existed and made no reasonable effort to eliminate it.
VI. Criminal/Willful Violations.
    Section 17(e) of the Act, as amended, provides that: ``Any employer 
who willfully violates any standard, rule or order promulgated pursuant 
to Section 6 of this Act, or of any regulations prescribed pursuant to 
this Act, and that violation caused death to any employee, shall, upon 
conviction, be punished by a fine'' of not more than $250,000 for an 
individual and $500,000 for an organization or by imprisonment for not 
more than six months nor less than 30 days, or by both. Note that this 
provision of the Act does not apply to Section 5(a)(1) violations 
classified as willful. See Chapter 6, Section XIII, Penalties and Debt 
Collection, regarding criminal penalties.
            A. Area Director Coordination.
    The Area Director, in coordination with the RSOL, shall carefully 
evaluate all willful cases involving employee deaths to determine 
whether they may involve criminal violations of Section 17(e) of the 
Act. Because the quality of the evidence available is of paramount 
importance in these investigations, there shall be early and close 
discussions between the CSHO, the Area Director, the Regional 
Administrator, and the RSOL in developing all evidence when there is a 
potential Section 17(e) violation.
            B. Criteria for Investigating Possible Criminal/Willful 
                    Violations
    The following criteria shall be considered in investigating 
possible criminal/willful violations:
    1. In order to establish a criminal/willful violation OSHA must 
prove that:
    a. The employer violated an OSHA standard. A criminal/willful 
violation cannot be based on violation of Section 5(a)(1).
    b. The violation was willful in nature.
    c. The violation of the standard caused the death of an employee. 
In order to prove that the violation caused the death of an employee, 
there must be evidence which clearly demonstrates that the violation of 
the standard was the direct cause of, or a contributing factor to, an 
employee's death.
    1. If asked during an investigation, CSHOs should inform employers 
that any violation found to be willful that has caused or contributed 
to the death of an employee is evaluated for potential criminal 
referral to the U.S. Department of Justice.
    2. Following the investigation, if the Area Director decides to 
recommend criminal prosecution, a memorandum shall be forwarded 
promptly to the Regional Administrator. It shall include an evaluation 
of the possible criminal charges, taking into consideration the burden 
of proof requiring that the Government's case be proven beyond a 
reasonable doubt. In addition, if correction of the hazardous condition 
is at issue, this shall be noted in the transmittal memorandum, because 
in most cases prosecution of a criminal/willful case stays the 
resolution of the civil case and its abatement requirements.
    3. The Area Director shall normally issue a civil citation in 
accordance with current procedures even if the citation involves 
charges under consideration for criminal prosecution. The Regional 
Administrator shall be notified of such cases. In addition, the case 
shall be promptly forwarded to the RSOL for possible referral to the 
U.S. Department of Justice.
            C. Willful Violations Related to a Fatality
    Where a willful violation is related to a fatality and a decision 
is made not to recommend a criminal referral, the Area Director shall 
ensure the case file contains documentation justifying that conclusion. 
The file documentation should indicate which elements of a potential 
criminal violation make the case unsuitable for referral.
VII. Repeated Violations.
            A. Federal and State Plan Violations.
    1. An employer may be cited for a repeated violation if that 
employer has been cited previously for the same or substantially 
similar condition or hazard and the citation has become a final order 
of the Review Commission. A citation may become a final order by 
operation of law when an employer does not contest the citation, or 
pursuant to court decision or settlement.
    2. Prior citations by State Plan States cannot be used as a basis 
for Federal OSHA repeated violations. Only violations that have become 
final orders of the Review Commission may be considered.



                                 ______
                                 
    Chairman Miller. Ms. Seminario?

STATEMENT OF MARGARET SEMINARIO, DIRECTOR OF HEALTH AND SAFETY, 
                            AFL-CIO

    Ms. Seminario. Chairman Miller, Ranking Member McKeon and 
other members of the committee, I appreciate the opportunity to 
testify today on the issue of the adequacy of penalties for 
violations of the Occupational Safety and Health Act.
    Today is Workers' Memorial Day, a day the unions and others 
here and around the globe remember those who have been killed, 
injured and diseased on the job. It also marks the 39th 
anniversary of when the OSHA Act went into effect.
    While progress has been made since the Act was passed, the 
total of workplace injuries, illnesses and fatalities is still 
enormous. In 2007 5,657 workers died on the job. That is an 
average of 15 workers every day.
    Nearly 4 decades after the OSHA law was passed, the job 
safety law remains essentially the same today as when it was 
enacted in 1970. Enforcement is weak, and OSHA penalties remain 
low, particularly when compared with other safety and 
environmental laws, all of which have been updated by the 
Congress since they were first enacted.
    Yesterday the AFL-CIO released its annual report on job 
safety in conjunction with Workers' Memorial Day. Our analysis 
found that the average penalty for serious violation of the 
OSHA Act nationwide is about $900.
    In some states, particularly the state plan states, the 
penalties are much lower. For example, in South Carolina the 
average penalty for serious violation was just $331.
    Even in cases involving workers' deaths, OSHA enforcement 
is weak and penalties are low. On average nationally last year, 
the penalty for worker fatalities was just--the average penalty 
was just about $11,000.
    But this average includes high penalty cases and doesn't 
represent the penalties in typical cases. And moreover, it 
doesn't reflect the final penalties after cases are settled.
    Last year the Senate Labor Committee conducted an in-depth 
investigation of enforcement and penalties in fatality cases. 
And what they found in the typical case, the median penalty 
that was issued and then was settled out was $3,700.
    And so what we heard from Becky Foster about the OSHA 
citations and penalty in her case are typical of what happened 
in thousands of fatality investigations for job fatalities in 
this country.
    Clearly, this type of penalty provides no deterrent to 
employers to prevent future violations of the law and to 
prevent deaths and injuries. So why are the penalties so low?
    The problems are largely systemic, and they start with the 
OSHA law itself. Under the OSHA Act the maximum penalty for 
serious violation--and that is the most common violation 
associated with fatality cases--the maximum penalty is $7,000.
    But the maximums are rarely assessed. And throughout its 
history OSHA's procedures for considering the factors of 
employer size and gravity and history end up and result in 
penalties that are well below these maximums.
    As I said, for serious violations the Act says you start at 
$7,000. But the OSHA formula says, ``No, you start at $5,000 
and you go down from there.'' And so as I said, at the end of 
the day what we have, even in fatality cases, are penalties 
that are in the range of $3,000 to $4,000 for cases of worker 
deaths.
    And the end result of this process and the Act and penalty 
procedures is that we end up with serious violations that put 
workers in danger, that can cost workers their lives, that are 
pitifully low and provide no deterrence.
    The OSHA Act provisions for criminal penalties are just as 
weak. Under the law criminal prosecutions are limited to those 
cases where a worker death is the result of a willful 
violation.
    In the case of Jeremy Foster's death, it was a serious 
violation, not even willful, even though the employer had taken 
action to modify the equipment intentionally. And so it wasn't 
even a willful violation, and so there was no possibility of 
criminal prosecution.
    But again, it is only a misdemeanor, and so there are very 
few criminal prosecutions under the OSHA law. Since 1970 only 
71 cases have been prosecuted for criminal provisions under the 
OSHA law, with a total time in jail of 42 months. During that 
time there were 350,000 worker fatalities, but there were only 
71 prosecutions.
    By comparison under the environmental laws, there is much 
tougher criminal prosecution. Last year alone, there were 319 
criminal enforcement cases initiated by EPA, charging 176 
defendants, that resulted in 57 years of jail time. That is 1 
year, compared to 71 cases in 40 years under the OSHA Act.
    And as I said, all of the environmental laws have been 
updated by the Congress. And so we would urge that both OSHA 
and the Congress should act to strengthen enforcement and 
penalties for job safety law.
    The legislation that was introduced last week, the 
Protecting America's Workers Act, would move and enhance OSHA 
penalties particularly in cases of fatalities and would enhance 
criminal penalties under the OSHA Act. We would encourage the 
committee to move quickly to enact that legislation. Thank you.
    [The statement of Ms. Seminario follows:]

             Prepared Statement of Peg Seminario, Director,
                       Safety and Health, AFL-CIO

    Chairman Miller, Ranking Member McKeon, and other members of the 
committee, I appreciate the opportunity to testify today on the issue 
of the adequacy of penalties for violations of the Occupational Safety 
and Health Act.
    Today is 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 marks the 39th 
anniversary of when the Occupational Safety and Health Act went into 
effect.
    While progress has been made since the OSH Act was passed, the toll 
of workplace injuries, illnesses and fatalities is still enormous. In 
2007, 5,657 workers died on the job, an average of 15 workers every 
day, and an estimated 50,000 more lost their lives due to occupational 
diseases. In 2007, the Bureau of Labor Statistics reported more than 4 
million work-related injuries. But this number does not reflect the 
full extent of job injuries, and the real number is estimated to be 2 
to 3 times greater.
    Nearly four decades after the Act was passed, enforcement of the 
job safety law remains weak and OSHA penalties remain low, particularly 
when compared with other safety and environmental laws. Yesterday the 
AFL-CIO released its annual report on job safety--Death on the Job: The 
Toll of Neglect--in conjunction with Worker's Memorial Day. Our 
analysis found that the average penalty for a serious violation of the 
OSH Act is less than $1,000, and the average penalty involving worker 
deaths is $11,300, but there is great variability in enforcement and 
penalties, particularly in the states that operate their own state 
plans. Only a handful of fatality cases are prosecuted for criminal 
violations. OSHA's capacity to inspect workplaces and oversee job 
safety has greatly diminished, as the number of job safety inspectors 
has been reduced while the size of the workforce and number of 
workplaces has grown.
    Improvements in OSHA's enforcement and penalty policies could help 
strengthen enforcement. But many of the deficiencies in enforcement 
rest with the OSH Act itself and must be addressed through 
Congressional action.
OSHA Enforcement and Penalties are 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 are exceedingly rare. There are 
no mandatory inspections even for the most dangerous industries or 
workplaces. Between federal OSHA and the states there are approximately 
2,050 inspectors. OSHA has the capacity and resources to inspect 
workplaces on average once every 94 years--once every 137 years in the 
federal OSHA states. Over the years OSHA's oversight capacity has been 
diminished, as the number of inspectors has declined at the same time 
the workforce has increased. Today federal OSHA's capacity to inspect 
workplaces is the lowest level in the agency's history.
    Since there is no regular oversight, strong enforcement when 
workplaces are inspected and violations are found is even more 
important. But the penalties provided 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 OSH Act 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%. 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. Since the MINER Act was 
passed, there has been a significant increase in MSHA penalties. In 
December 2008, MSHA assessed $23 million in penalties for violations, 
compared to $3 million assessed in December 2006.
    The maximum civil penalties provided for under the OSH Act are 
rarely assessed. Indeed, just the opposite is the case. In FY 2008, the 
average penalty for a serious violation of the law was $960 for federal 
OSHA and $872 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. California had the highest average 
penalty for serious violations ($4,890) and South Carolina had the 
lowest ($331). Both of these are state plan states. For violations that 
are ``other'' than serious, which also carry a statutory maximum of 
$7,000, the average federal OSHA penalty was just $215. Clearly, for 
most employers these levels of penalties are not sufficient to change 
employer behavior, improve workplace conditions or deter future 
violations.
    OSHA penalties for violations that are willful or repeated also 
fall well below the maximum statutory penalties. For both willful and 
repeat violations, the OSH Act provides a maximum penalty of $70,000 
per violation. For violations that are willful, a $5,000 mandatory 
minimum penalty is also prescribed. In FY 2008, the average federal 
OSHA penalty for a willful violation was $41,658, and the average 
willful penalty for state plans was $28,943. For repeat violations, the 
average federal OSHA penalty was only $4,077 and for state plans the 
average was $2,021, a fraction of the statutory maximum penalty for 
such violations.
    Even in cases where workers are killed, penalties are abysmally 
low. According to OSHA inspection data, the average serious penalty in 
fatality cases for FY 2008 was just $2,476 for federal OSHA and $3,978 
for the state plans combined. The average total penalty assessed in 
fatality cases was just $11,311 nationally ($13,462 for federal OSHA 
and $8,615 for the OSHA state plans). (Attachment 2). These averages 
include open cases, which when finally resolved, will result in a 
reduction in these average penalty levels. Average penalties in 
fatality cases for FY 2003--2007, where most cases have been resolved, 
show a national average of $6672 ($6646 for federal OSHA and $5363 for 
the state plan states). All of these average penalties include several 
high penalty cases. The median penalty, which is more representative of 
the typical penalty in a fatality case, is much lower.
    A state-by-state review shows that there is wide variability in 
penalties assessed in cases involving worker deaths, with the penalties 
in some states exceedingly low. For example, in FY 2008, in the state 
of Iowa, the average penalty in worker fatality cases was $45,499, but 
in the state of Utah the average penalty in worker fatality cases was 
just $1,106, and in South Carolina the average penalty was $1,383. 
(Attachment 3).
    Last year the Senate Committee on Health, Education, Labor and 
Pensions Majority staff conducted an in-depth investigation of OSHA 
enforcement in fatality cases. Their study--Discounting Death: OSHA's 
Failure to Punish Safety Violations That Kill Workers--analyzed 
detailed enforcement data for thousands of fatality investigations and 
individual case files for hundreds of enforcement cases. It found that 
OSHA penalties in cases involving worker deaths were consistently low 
and routinely reduced in settlement negotiations. For all federal OSHA 
fatality investigations conducted in FY 2007, the median initial 
penalty was just $5,900. But after negotiation and settlement, the 
median final penalty for workplace fatalities was reduced to only 
$3,675. For willful violations in fatality cases, the final median 
penalty was $29,400, less than half the statutory maximum of $70,000 
for such violations.
    The following examples are typical of OSHA enforcement and 
penalties in many fatality cases:
    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 that exploded. The case was settled for $2,940.
    In Austin, Texas, in September 2004, a worker was killed in a 
trench cave in. The sewer contractor, ID Guerra, was cited for one 
serious and one repeat violation of OSHA's trenching standards, and 
penalized $8,400, including a $5,600 penalty for the repeat violation. 
Despite being cited by OSHA for a similar trenching violation in 2003, 
OSHA reduced the repeat penalty in the fatality case to just $2,800. 
(Under the Act, the maximum penalty for a repeat violation is $70,000).
    What kind of message does it send to employers, workers and family 
members, that the death of a worker caused by a serious or even 
repeated violation of the law warrants only a penalty of a few 
thousands dollars? It tells them that there is little value placed on 
the lives of workers in this country and that there are no serious 
consequences for violating the law.
    The OSH Act and OSHA Enforcement Policies Discount Penalties for 
Violations Even in Cases of Worker Death
    So why are OSHA penalties for workplace fatalities and job safety 
violations so low? The problems are largely systemic and start with the 
OSH Act itself. The Act sets low maximum penalty levels, particularly 
for serious violations, which carry a maximum of $7,000. For a willful 
or repeat violation the maximum penalty is $70,000. In assessing 
penalties, under the Act, employer size, good faith, history, and 
gravity of the violation are to be taken into consideration.
    Throughout its history, OSHA procedures for considering these four 
factors have resulted in proposed penalties that are substantially 
below the maximum penalties. The agency starts with a gravity based 
penalty, which is then reduced by specified percentages for each of the 
other 3 factors (except in certain circumstances). Under OSHA's current 
penalty policy, for high gravity serious violations, except in rare 
cases, OSHA starts with a base of $5,000, not $7,000 to determine the 
penalty. This is true even for fatality cases, which under OSHA policy 
are supposed to be classified as high-gravity. In fatality cases, no 
reductions are allowed for good faith, but penalty reductions are still 
allowed for employer size and history.
    Under the penalty policy, reductions for employer size range from 
20 percent (for employers with 101-250 employees) to 60 percent (for 
employers with 1-25 employees), but a larger reduction of 80 percent 
reduction is provided for serious violations that are willful for 
employers with 10 or fewer employees. 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 90 
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 was reduced, as the Bush appointees to the 
Occupational Safety and Health Review Commission (OSHRC) took an 
exceedingly restrictive view of the types of violations that may be 
cited on an instance-by-instance basis.
    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 4). The effect of these policies 
and practices in most cases is to reduce penalties to a level too 
minimal to have any effect.
    Last year the Las Vegas Sun conducted an in-depth investigation of 
construction worker fatalities on the Las Vegas Strip that highlighted 
the weakness of OSHA enforcement in responding to and preventing 
workplace fatalities. In an 18-month period from December 2006 to June 
2008, 12 workers died on a massive construction project overseen by 
some of the nation's largest contractors.
    The Sun reported that Nevada OSHA inspections of many of the 
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.
    The Sun expose, which recently was awarded the Pulitzer prize, 
brought intensive scrutiny to the safety practices at the Las Vegas 
construction projects on the Las Vegas strip, and led to improvements 
in training and safety measures. It also led to examination of Nevada 
OSHA enforcement practices by federal OSHA and the Nevada legislature, 
and some changes in those practices. There have been no deaths on the 
Strip since June 2008. But, if it hadn't been for the enterprising work 
of the Sun reporters, it's unlikely likely that these dangerous 
practices and conditions would have changed.
    Another way the impact of OSHA enforcement is minimized is through 
downgrading the classification of citations from willful to serious, 
which greatly reduces civil penalties and undermines any possibility of 
criminal prosecution under the OSH Act. In some cases OSHA has utilized 
a practice of changing the characterization of willful or repeat 
violations to ``unclassified,'' even though the OSH Act makes no 
provision for the issuance of such citations. 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.
    In FY 2003 there were 50 unclassified violations in federal OSHA 
fatality cases and in FY 2004 there were 49 such violations. In recent 
years that number has dropped, and for FY 2008, OSHA inspection data 
shows 13 unclassified violations, but no unclassified violations 
associated with fatality cases.
    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.
    For example, in a fatality investigation of a worker death at 
McWane Inc. Atlantic States Cast 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. Within 6 
months of these citations, 2 more workers were killed at other McWane 
facilities. The company was subsequently prosecuted for a series of 
violations at multiple facilities, with most of the criminal charges 
being brought under environmental laws due to weaknesses in the OSH 
Act.
    In another case that involved a planned inspection at the Bayer 
Cropscience chemical plant in Institute, West Virginia, in 2005 OSHA 
originally cited the company for 2 willful violations and 8 serious 
violations of the process safety management (PSM) standard and related 
requirements and proposed $135,000 in penalties. In a formal settlement 
the serious violations were deleted, and the 2 willful violations were 
changed to ``unclassified'' with a $110,000 final penalty assessed.
    In August 2008, there was a powerful explosion and fire at the 
Bayer facility that killed two plant operators and threatened the 
community. The explosion occurred when there was a runaway reaction 
during the restart of a methomyl unit. Methomyl is a highly toxic 
substance that is sold as a pesticide. In the preliminary report on its 
investigation of the explosion, the Chemical Safety Board found 
significant deficiencies in process safety management that according to 
the Board likely contributed to the accident. The CSB also found that 
the explosion could have been catastrophic. Within 80 feet of the site 
of the explosion, there is a 37,000 pound capacity tank of methyl 
isocyanate (MIC), the same chemical that caused the deaths of thousands 
in the toxic gas release in Bhopal, India in 1994. The CSB found 
explosion debris near the MIC unit, which if compromised could have led 
to a catastrophic outcome.
    The OSHA investigation of the 2008 Bayer explosion found extensive 
violations of the process safety management standard. OSHA issued 11 
serious and 2 repeat violations, but no willful violations, and 
proposed $143,000 in penalties. The company has contested all the 
citations.
OSHA's Enhanced Enforcement Program Needs Enhancement
    In 2003, in response to a 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 OSH Act. Under the program, employers with worker 
fatalities with willful or repeat violations, or who have a history of 
previous violations or fatalities, are subject to enhanced oversight. 
This enhanced scrutiny is supposed to include follow-up inspections 
and/or inspections at other facilities of the employer and may result 
in stricter settlement practices and enforcement actions in future 
cases.
    In FY 2008, after OSHA modified the EEP program criteria to focus 
on more significant violations, there were 475 inspections involving 
EEP cases. This compares to 719 inspections involving EEP cases in FY 
2007, 467 EEP cases in FY 2006, 593 EEP cases in FY 2005 and 313 EEP 
cases in FY 2004. Many of the cases in the earlier years were among 
small employers (25 or fewer) who had workplace fatalities with a 
serious violation, but no prior OSHA history. The 2008 changes in the 
program eliminated these types of cases.
    The concept behind the EEP program--enhanced enforcement for 
persistent violators--is a good one. But unfortunately, in practice the 
program has been highly deficient. A recent investigation of the EEP 
program conducted by the U.S. Department of Labor Office of Inspector 
General (OIG) found that in 97 percent of the EEP cases OIG evaluated, 
OSHA's follow-up was deficient or lacking. At 45 of the worksites where 
OSHA oversight and follow-up was deficient, 58 workers were 
subsequently killed by job hazards, deaths that may have well been 
prevented if proper procedures were followed.
    There are also significant problems in the design of the EEP 
program itself. The program includes no provisions for actually 
enhancing penalties against serial violators or even changing practices 
for informal settlements or penalty reductions in future cases. For 
example, in one EEP case at ADM Milling in Nebraska, in 2003, the 
employer was cited for serious and repeat violations of lock-out/tag-
out, machine guarding and electrical safety requirements. Initial 
penalties of $124,000 were proposed, reduced to $62,000 in an informal 
settlement. Two years later a follow-up inspection at the same plant 
found 2 repeat violations for machine guarding standards. Penalties of 
$50,000 were proposed, but were later reduced by OSHA to $32,500 in an 
informal settlement--clearly not a deterrent for a company the size of 
ADM, which had $44 billion in sales in 2007.
    Under the EEP, expansion of investigations to other facilities of 
the same employer is not automatic, and only occurs in limited cases. 
Thus, the program provides little leverage to force employers who have 
similar violations and unsafe practices at multiple facilities to 
change the behavior and address hazards on a corporate-wide basis.
    OSHA keeps an internal list of employers who are targeted for this 
enhanced enforcement and notifies employers that they have been 
targeted for enhanced scrutiny. But there is no public disclosure of 
the list of companies that are being targeted under the EEP due to 
their history of fatalities and serious, willful or repeat job safety 
violations. Publicizing this list could increase public awareness and 
scrutiny of these companies and create an added incentive for these 
companies to change their safety and health practices.
OSHA Criminal Penalties Are Weak and Provide Almost No Deterrence
    If the civil penalties under the Occupational Safety and Health Act 
provide little deterrence or incentive for employers, the criminal 
penalties are even weaker. Under the Occupational Safety and Health 
Act, criminal penalties are limited to those cases where a willful 
violation of an OSHA standard results in the death of a worker, and to 
cases of false statements or misrepresentations. The maximum period of 
incarceration upon conviction is six months in jail, making these 
crimes a misdemeanor.
    The criminal penalty provisions of the OSH Act 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 OSH Act, 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 OSH Act 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 71 cases have been prosecuted under 
the Act, with defendants serving a total of 42 months in jail. During 
this time, there were 350,000 workplace fatalities according to 
National Safety Council and BLS data, about 20 percent of which were 
investigated by federal OSHA. In FY 2008, there were 14 cases referred 
by DOL for possible criminal prosecution. To date, 2 of these cases 
have resulted in guilty pleas, with monetary penalties and probation. 
Prosecutions have been initiated in 2 additional cases, and the other 
10 cases are still under review by the Justice Department.
    By comparison, according to EPA in FY 2008 there were 319 criminal 
enforcement cases initiated under federal environmental laws and 176 
defendants charged resulting in 57 years of jail time and $64 million 
in penalties--more cases, fines and jail time in one year than during 
OSHA's entire history. The aggressive use of criminal penalties for 
enforcement of environmental laws and the real potential for jail time 
for corporate officials, serve as a powerful deterrent to environmental 
violators.
    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 OSH Act.
    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.
OSHA and the Congress Should Act to Strengthen Enforcement and 
        Penalties for Job Safety Violations
    Current OSHA enforcement and penalties are far too weak to provide 
any meaningful incentive for employers to address job hazards or to 
deter violations. As a result, workers are exposed to serious hazards 
that put them in danger, and cause injury and death.
    Action is needed to put teeth into enforcement of the job safety 
law, and to bring OSHA enforcement into line with the enforcement 
practices and authorities under other safety and environmental laws.
    OSHA can and should take action under the existing law to make 
enforcement more effective and to enhance penalties for violations that 
put workers in serious danger and cause death and injury.
    The entire OSHA penalty policy and formulas should be reviewed and 
revamped. The agency should use its the full statutory authority to 
impose meaningful penalties for serious, willful and repeat violations 
of the law, particularly in cases involving worker deaths.
    OSHA should cease the practice of issuing ``unclassified'' 
violations in all enforcement cases.
    The Enhanced Enforcement Program (EEP) should be overhauled to 
actually provide for enhanced enforcement, stiffer penalties and 
follow-up for employers who persistently violate the law.
    Federal OSHA should conduct an in-depth review of the enforcement 
and penalty policies and practices in the state plan states to 
determine whether they are ``as effective as'' the federal OSHA 
enforcement program, as required by law, and take action where plans 
are found to be deficient.
    OSHA should greatly expand the access to and disclosure of 
information on employer's enforcement records. The list of employers on 
OSHA's EEP list should be posted on the web, along with reports about 
the employers' violations and progress towards addressing hazards. The 
OSHA inspection data base should be not only searchable by 
establishment, but also by industry, geographic area, standards 
violated and types of violations and linked to the data bases on 
exposure measurements and injury rates reported under the OSHA data 
initiative.
    The Congress must also act to address the serious deficiencies in 
the OSH Act itself.
    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 be given to adopting special provisions to 
address safety and health practices at the corporate level. Presently, 
the enforcement structure of the OSH Act is focused primarily at the 
establishment level, which 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 Protecting America's Workers Act (H.R. 2067), introduced last 
week by Rep. Miller and Rep.Woolsey with the support of others 
incorporates many of these needed measures. The bill 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. Worker rights in enforcement cases would be expanded and family 
members of victims would also be given rights in OSHA 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 OSH Act to better protect workers from retaliation, 
by bringing the law into line with other federal whistleblower 
statutes.
    The Protecting America's Workers Act is a good, sound bill that 
should be enacted into law.
    Four decades after the passage of the Occupational Safety and 
Health Act, its time for the country and the Congress to keep the 
promise to workers to protect them death, injury and disease on the 
job.



                                 ______
                                 
    Chairman Miller. Thank you.
    Mr. Halprin?
    Mr. Halprin. Thank you, Chairman Miller. Is my microphone 
on?
    Chairman Miller. Yes.

           STATEMENT OF LAWRENCE P. HALPRIN, PARTNER,
                    KELLER AND HECKMAN, LLP

    Mr. Halprin. Thank you.
    Ranking Member McKeon, members of the committee, my name is 
Lawrence Halprin. I am an attorney with the law----
    Chairman Miller. You may want to drag it a little closer to 
you or speak a little bit more into it. Thank you.
    Mr. Halprin [continuing]. Attorney with the law firm of----
    Chairman Miller. There you go.
    Mr. Halprin [continuing]. Keller and Heckman. I appreciate 
the opportunity to present my views on these issues today.
    As you can see from my background, I have had extensive 
experience in workplace safety and health issues for most of my 
life, always advancing the goal of workplace safety in what I 
consider to be a balanced and cost effective manner
    Appearing before you today, I am presenting solely my 
views, not the views of my firm, Keller and Heckman, or any of 
our clients.
    I do my best to practice what I preach in the area of 
workplace safety and health. In our law office people know not 
to block fire extinguishers, not to block aisles. File drawers 
don't get left open unattended. When we had a water leak, we 
brought in an outside expert to make sure there weren't any 
mold issues.
    My family uses protective gear when it plays, and except 
for the dog Muffin--we have a family dog who leaves things on 
the steps--that is a prohibited activity for anybody else in 
the house.
    For the reasons stated in my written statement, I believe 
the current penalty scheme is generally fairly effective in 
bringing about the objectives of the Occupational Safety and 
Health Act, and it provides a fair balance between enforcement 
and the other tools available to the agency, and I would like 
to briefly emphasize my reasons for this thinking.
    First, as has been already mentioned, based on my personal 
experience for over 30 years, BLS data indicate that adoption 
of the OSHA Act and the work from various stakeholders, 
including the ones that Ms. Seminario represents, have brought 
about a thinking change in this country.
    And through the adoptions at work of the Occupational 
Safety and Health Act, workplace fatalities have been reduced 
by two-thirds since the Act was adopted. Workplace fatality and 
injury rates are the lowest they have ever been since BLS 
started collecting data in 1992.
    There for, the Act in many ways is working. Could it be 
improved? Yes. There is always room for improvement in any 
activity we are engaged in.
    I think it is important to remember that the data suggests 
you have twice as great a chance of dying in your home and six 
to eight times the chance of dying on the highway as in the 
workplace.
    So we have to keep things in perspective. We are dealing 
with human beings. They are far from perfect. They make 
mistakes. Management makes mistakes. Employees make mistakes. 
It is impossible to totally eliminate them. The cost and 
resources that would be required to make a workplace foolproof 
or failsafe simply are not available to our society.
    We have to do the best we can in balancing things, that 
means an appropriate balance between enforcement and writing 
rules that people can understand. Right now they are generally 
incomprehensible to most, except for some attorneys and highly 
educated regulatory people.
    Now, with the economic benefits or the impact of fines that 
were adopted in 1990 may be slightly reduced. The point is they 
are still substantial. The maximum fine is $7,000 for serious 
violation. OSHA has great flexibility in how to assess those 
violations--$70,000 for repeat, $70,000 for willful.
    If you go into a confined space without following the 
program and OSHA determines it is a willful violation, there 
are probably 15 steps that have to be followed to go into a 
confined space, and OSHA has the ability to cite an employer 
for every single one of them. You end up with a $1 million fine 
fairly quickly.
    Whether the agency chooses to take that approach, that is a 
matter of its discretion. Part of the problem, the funding for 
the agency has basically at best kept up with cost of living, 
which means basically you have enough time to--or have enough 
more resources that almost fund salary increases.
    That means an overworked inspector doesn't have time to get 
the training needed to understand their jobs properly. They 
don't have time to carry out an appropriate investigation. I 
talked to one local state inspector recently, who said he 
handles 100 cases a year. I think it is extremely difficult to 
handle 100 cases a year and do an effective job.
    When a solicitor's office has cases that are brought to 
them with inspectors were not necessarily prepared or have the 
time to carry out an investigation properly, they don't have 
the time to go reinvestigate the case to see whether it should 
have been handled differently, and they have so many cases on 
their docket that they don't have time to try them all. They 
have to pick and choose which ones are important.
    Third, my experience has been, despite all these other 
issues, the fact that the current fines are low reflects the 
fact that most employers are in substantial compliance with the 
Act.
    I don't know how many of you have taken the time to read 
the thousands of pages in the Code of Federal Regulations that 
employers have to comply with. They are ambiguous. They are 
confusing. They are developed by a dysfunctional rulemaking 
process.
    And then when it is time for compliance directives and 
guidance to help people better understand them, they are 
written in the same ambiguous language as the original rules.
    Now, I detailed in my statement many reasons why the 
rulemaking process in my mind is dysfunctional. Under basic 
principles of due process, for an agency rule to be enforced, 
it must be reasonably capable of being understood by those 
subject to its requirements.
    In my view many OSHA requirements at best barely pass that 
test. Many are ambiguous. A significant number require 
impractical, unfeasible, and later are interpreted by the 
agency in ways that were never contemplated to understand it 
was written.
    When you take all factors into account, there are serious 
problems with enhancing penalties against employers, who really 
don't understand what is required.
    Again, employers shouldn't be totally excused for 
noncompliance with rules, but they need to be given credit for 
substantial compliance, not penalized for lack of ability to 
understand things.
    Finally, I want to make the point that in the last years, 
the last 20 years almost, at least 15 since BLS has been 
collecting data, the Department of Justice has only referred 12 
cases at maximum for criminal prosecution, which means 0.2 
percent of the fatality cases in this country that were work 
related were referred to criminal prosecution.
    If all of them were tried, that would not make a 
significant difference in reducing the current fatality rate in 
this country.
    I realize I am a little over my time, so I think I would 
just say that overall I think the current theme is balanced, 
and I appreciate the opportunity to make this presentation.
    [The statement of Mr. Halprin follows:]

          Prepared Statement of Lawrence P. Halprin, Partner,
                        Keller and Heckman, LLP

    Good morning Chairman Miller, Ranking Member McKeon and Members of 
the Committee. My name is Lawrence Halprin. I am an attorney with the 
law firm of Keller and Heckman, LLP, and appreciate the opportunity to 
provide you with my views on the important issues raised by this 
hearing.
    Before addressing the substantive issues raised by this hearing, I 
would like to provide you with a brief background on my experience so 
that you can better appreciate my perspective on the issues before the 
Committee. While growing up, I spent many hours working on major home 
projects with my dad who taught me the importance of working safely. I 
have a Bachelor of Science in Chemical Engineering. During summer 
vacations, while an undergraduate, I worked hourly jobs on rotating 
shifts in a unionized ceramic tile factory. In those jobs, I was 
regularly exposed to many of the more common health and safety hazards 
potentially found in American workplaces. At the beginning of each new 
job assignment, I spent at least a full shift and sometimes longer 
getting on-the-job training from the regular operator.
    At Keller and Heckman, my practice largely focuses on 
environmental, health, safety and security issues. I have spent a 
substantial portion of the last 30 years assisting clients in the area 
of workplace safety and health--providing counseling, performing 
audits, providing training, developing and reviewing programs, and 
representing clients in a wide range of enforcement proceedings brought 
by OSHA and its state counterparts. In addition, I am a member of 
several ANSI and ASTM committees that develop safety and health 
standards, have represented one or more clients in almost every major 
OSHA rulemaking since the mid 1980s, and have extensive experience 
working with OSHA staff both informally and through alliances and other 
cooperative activities, SBREFA panels and joint speaking engagements.
    In appearing before you today, I am expressing my personal views as 
a safety and health professional committed to the goals of the 
Occupational Safety and Health Act. My statement and comments are not 
intended to represent the views of Keller and Heckman LLP, or any of 
our clients. My objective is to provide the Committee with practical 
and helpful insights that address the issues raised by today's hearing 
and hopefully will assist the Committee in advancing workplace safety 
and health.
    I do my best to practice what I preach. I wear goggles and ear 
plugs when working with a power saw. My daughter and I wear a full set 
of pads and a helmet when skateboarding or roller blading. My daughter 
wears sports goggles when she plays soccer, and our whole family wears 
ear plugs at loud concerts. Nobody in our house is ever allowed to 
leave anything on a stairway. Unfortunately, I am still having a 
problem getting that message across to Muffin, our family dog, who 
leaves her toys everywhere.
    As has been made clear, the success of the OSH Act depends on 
voluntary compliance because OSHA will never have the resources to 
inspect every worksite. In rough terms, my understanding is that OSHA 
conducts approximately 40,000 inspections per year and has jurisdiction 
over 6 million workplaces. That means it would take the agency over 100 
years to inspect every worksite, if the sites remained in operation for 
that long. Most construction worksites are temporary and would 
completely change their character to fixed worksites and be dropped 
from OSHA's inspection rolls before OSHA would ever visit them.
    Given that reality, OSHA, with substantial Congressional input, 
has, over the years, experimented with various combinations of 
regulatory interventions--rulemaking, outreach and education, 
compliance assistance and enforcement--and continues to refine the mix 
of interventions to make the most effective use of its limited 
resources. The focus of this hearing has been described as an inquiry 
into whether ``employers who fail to protect their workers are 
adequately penalized and deterred from committing future violations,'' 
and the recently introduced Protecting Americas Workers Act indicates a 
belief by some Members that there should be an increase in the civil 
and criminal sanctions that may be imposed for violations of the OSH 
Act.
    For the reasons stated below, with two possible exceptions, I 
believe the current penalty scheme provided by the OSH Act is adequate 
to achieve the goals of the OSH Act. However, while there has been a 
significant improvement in OSHA's enforcement efforts, I do believe 
OSHA needs to significantly enhance its ability to quickly, but 
responsibly, identify and take action against those few employers who 
demonstrate a callous disregard for their responsibilities to provide a 
safe workplace for their employees. Finally, I believe OSHA could most 
effectively advance workplace safety by improving the clarity of its 
standards and implementing more effective education and outreach and 
cooperative programs. Employers and employees need more information 
that provides meaningful guidance on what is required and why it is 
required. Too often, current guidance materials repeat the ambiguous 
language currently contained in the OSHA standards and compliance 
directives.
Factors supporting the current penalty structure of the OSH Act
    First, the existing penalty scheme under the OSH Act provides 
significant penalties for each serious, repeat, willful and failure-to-
abate violation. It is important to keep in mind that OSHA has the 
authority to impose these sanctions regardless of whether there has 
been an injury, illness or death.
    Second, the many flaws inherent in OSHA's dysfunctional rulemaking 
process, for which the business community must accept some 
responsibility, result in rules with broad and ambiguous requirements 
that are widely misunderstood, often impractical, frequently 
infeasible, and later interpreted in ways not contemplated by either 
OSHA or the regulated community.\1\
---------------------------------------------------------------------------
    \1\ Most OSHA standards were adopted verbatim from outdated, 
national consensus standards developed by ANSI and NFPA prior to 1970. 
The often-ambiguous consensus standards were developed with the idea 
that the users would voluntarily conform to the spirit of those rules; 
they were not developed for use as enforceable government standards. 
Furthermore, presumably because of copyright issues rather than a 
concern about saving printing costs, many of those standards were 
simply incorporated by reference rather than being printed in the 
Federal Register and the Code of Federal Regulations.
    While industry has to share much of the blame for its inadequate 
participation in OSHA rulemakings, most OSHA standards are developed as 
generic standards by well-intentioned professionals who unfortunately 
do not have enough information to adequately understand the spectrum of 
real world operations to which the rules will be applied and how those 
operations will be affected by the proposed rule. Furthermore, instead 
of writing a practical and relatively straightforward standard designed 
to address 85 to 90% of the problem, I believe OSHA drafts a complex 
standard designed to address 99.9% of the problem. Finally, taking 
advantage of Supreme Court case law that requires the courts to defer 
to an agency's interpretation of its ambiguous rules, OSHA adopts rules 
with ambiguous language that the agency later interprets and 
reinterprets to give it the broadest and most protective application 
possible, regardless of whether that interpretation is consistent with 
the agency's original intent or the additional burden it imposes on 
employers.
    In reinterpreting its standards, OSHA often turns to later-
developed national consensus standards, which it then applies 
retroactively to equipment and processes that pre-dated the new 
consensus standards. The apparent theory of this approach is that, over 
time, the requirements of performance-based OSHA standards should 
evolve to reflect advancing technology and current thinking on the 
proper balance between engineering controls and safe work practices. 
While I can understand the application of this approach to new 
equipment and processes, I believe it unfairly ignores the huge 
difference in the burden on employers between designing new protective 
measures into new equipment and processes, and retrofitting old 
equipment and processes with the latest technology.
    I have been referring to OSHA as though it is a single agency with 
a uniform approach to the interpretation of its standards. Let me 
assure you, that is not the case. Interpretations of OSHA standards 
vary both between regions and within regions. They also vary between 
OSHA and the twenty plus states with their own state plans.
---------------------------------------------------------------------------
    This situation leads to great uncertainty and frustration, and 
widely varying interpretations of OSHA requirements within OSHA, within 
the 20 plus states with state plan programs, and within the regulated 
community. This situation also suggests that both Congress and OSHA 
proceed with due caution in penalizing violations of OSHA standards so 
as to avoid the fundamental unfairness of penalizing employers for the 
shortcomings of OSHA's rulemaking processes.
    Third, it is a daunting task for most small employers to 
familiarize themselves with, much less comprehend, just the thousand 
pages of OSHA requirements in the Code of Federal Regulations, which 
incorporate by reference hundreds of additional pages of national 
consensus standards. When one adds to that burden, the thousands if not 
tens of thousands of pages of OSHA directives, letters of 
interpretation and other guidance materials needed to more fully 
understand the applicable OSHA requirements, the task becomes 
insurmountable.
    Fourth, even if it were possible to fully understand what is 
required by the OSH Act, it would be infeasible for any significant, 
active industrial operation in the United States to be in full 
compliance with the requirements of the OSH Act.
    Fifth, faced with these practical challenges and limitations, a 
diligent employer will often turn to sound risk management principles 
to guide its workplace safety and health process. Applying those 
principles, an employer would perform risk assessments and manage its 
operations to minimize the risk of serious physical harm to employees. 
There are two problems with that approach. First, there is some 
divergence between what is called for through the application of risk 
management principles and what is required by OSHA requirements. 
Second, risk assessment requires an effective identification and 
evaluation of the relevant factors, includes a subjective component, 
and is always subject to criticism based on 20/20 hindsight.
    Sixth, my experience is that the overwhelming majority of employers 
sincerely care about the safety of their employees, both because it is 
morally correct and because it is in the best interests of their 
business, and do their best within the limits of their resources to 
provide a safe workplace for their employees, protect the environment 
and comply with the multitude of other federal, state and local laws 
governing the operation of a business in this country.
A review of the exisiting OSHA penalty structure
    The OSH Act subjects an employer to a civil fine of up to $7,000 
for each serious violation. In general, OSHA establishes a serious 
violation of a standard by proving that (1) the standard applied to the 
condition, (2) the condition was prohibited by the standard, (3) the 
employer had either actual or constructive knowledge of the non-
compliant condition, (4) there was employee access or exposure to the 
condition, and (5) the condition was likely to result in serious 
physical harm if an accident were to occur. OSHA is not required to 
show that the employer was aware of the OSHA requirement or that an 
accident was likely to occur. Furthermore, OSHA frequently asserts 
there was constructive knowledge based on a shortcoming in a particular 
program or the lack of adequate supervision, determinations often made 
by OSHA inspectors with the benefit of 20/20 hindsight. As I hope the 
Members recognize, these cases are heavily fact dependent and the 
outcome is often subject to an honest difference of opinion. As noted 
previously, this penalty scheme diverges from a traditional risk 
assessment approach (which does not assume an accident will occur) and 
may force employers, working with limited resources, especially under 
current economic conditions, to choose between prudent risk management 
of workplace safety, and regulatory compliance.
    The OSH Act subjects an employer to a civil fine of up to $70,000 
for each repeat violation. A repeat violation is generally a violation 
of the same or a substantially similar requirement by the same employer 
at the same or a different facility. As a practical matter, this 
provision provides a strong incentive for multi-site employers to 
comply with known OSHA requirements and to promptly implement 
corporate-wide remedial measures when an OSHA inspection identifies a 
previously unknown requirement governing a hazard common to multiple 
facilities.
    The OSH Act subjects an employer to a civil fine of up to $70,000 
for each willful violation of an OSHA standard or the General Duty 
Clause. A willful violation is generally one in which the employer is 
shown to have been aware of and intentionally violated the applicable 
OSHA requirements, or acted with such reckless disregard or plain 
indifference to workplace safety that one can reasonably presume the 
employer would have intentionally violated the applicable requirements 
if it had been aware of them. The foundation for a willful violation 
may be based on a pattern of conduct at the cited facility or a pattern 
of conduct at multiple facilities within the same company.
    In what it deems to be cases of particularly egregious willful 
violations, OSHA has, as a matter of prosecutorial discretion, alleged 
a separate violation and proposed a separate penalty for each instance 
of non-compliance with an OSHA standard.\2\
---------------------------------------------------------------------------
    \2\ When the OSHA standard is written so that the duty runs from 
the employer to each employee, the case law supports the position that 
OSHA has the prosecutorial discretion to separately charge and 
prosecute a separate violation with respect to each employee that was 
not protected by the required safety measure. OSHA recently amended its 
training and personal protective equipment standards so that the legal 
duty would run from the employer to each employee. Similarly, it 
appears that OSHA has the discretion to group violations of a single 
standard into one item or to allege a separate violation and penalty 
for non-compliance with each element of a required procedure. For 
example, a complete failure to apply lockout/tagout or to implement a 
confined space entry procedure provides OSHA with the prosecutorial 
discretion to issue a separate citation and proposed penalty for the 
failure to comply with each required element of the procedure.
---------------------------------------------------------------------------
    The OSH Act subjects an employer to a civil fine, for each failure-
to-abate violation, of up to $7,000 per day for each day beyond the 
required abatement date that a condition remains unabated.
    Finally, the OSH Act subjects an employer or responsible corporate 
officer to a criminal fine of up to $250,000 and 6 months incarceration 
for the first willful violation resulting in the death of an employee, 
and a criminal fine of up to $500,000 and 12 months incarceration for 
the second willful violation resulting in the death of an employee.
    Clearly, these are substantial sanctions that should and do provide 
employers with the incentive to comply with the requirements of the OSH 
Act and to cause those who have violated the OSH Act in the past to 
change their ways.
The issue of enhanced criminal sanctions
    It has been suggested by some that the criminal provisions of the 
OSH Act are inadequate to deter criminal conduct. I do not believe that 
is correct. For the typical corporate executive, incarceration for a 
period of six months would be viewed as a terrible and inconceivable 
outcome. Furthermore, as has been demonstrated by the criminal 
enforcement activities of the Department of Justice, the threat of far 
more severe criminal sanctions under, for example, the environmental 
and securities laws, does not completely deter crime. In addition, the 
history of criminal referrals by OSHA shows that the maximum number in 
recent years was 12 referrals whereas the number of workplace 
fatalities was approximately 5600. In other words, OSHA determined that 
approximately 0.2% of the fatality cases involved conduct meriting a 
criminal referral. That suggests that the focus on increased criminal 
sanctions would do little to address the current level of workplace 
injuries, illnesses and deaths in this country. BLS statistics indicate 
that approximately 60% of those cases involve workplace violence and 
transportation incidents beyond the reach of traditional workplace 
safety and health programs.
Possible changes to the penalty provisions of the OSH Act
    I mentioned two areas where some adjustment in the penalties 
authorized by the OSH Act may be appropriate. I believe the current 
criminal provision of the OSH Act is too broadly written to justify an 
increase in criminal penalties. From a moral standpoint, if the 
criminal provisions of the OSH Act were revised to distinguish between 
what are currently described as willful violations, and the much 
smaller group of cases equivalent to an employer taking out a gun, 
aiming it at an employee and pulling the trigger, then it would be 
morally appropriate to increase the criminal penalties for that small 
category of crimes. Second, given the passage of time, it does seem 
appropriate to add an escalation clause to the OSHA penalty structure.
Conclusion
    Based on my personal observations of hundreds, if not thousands, of 
workers and their working conditions at the numerous workplaces I have 
visited over the last 30 years, it is clear that there have been vast 
improvements in workplace safety and I believe the injury and illness 
statistics published by the Bureau of Labor Statistics (BLS) reflect 
that trend.
    When OSHA was established in 1970, almost 15,000 employees died 
each year due to work related injuries. In the time since then, that 
number has been cut down by nearly two-thirds. According to a census 
conducted by BLS, workplace fatality and injury rates are currently the 
lowest they have ever been since BLS began recording statistics in 
1992. There were 3.8 fatalities per 100,000 workers in 2007, which was 
down from 4 per 100,000 in 2006.\3\ In comparison, the Department of 
Transportation found that in the same year automobile accidents 
accounted for 13.61 fatalities per 100,000 people.\4\ American workers 
were over four times more likely to be killed in their car than at 
their job. Non-fatal injuries and illnesses have also continued to 
decline each year. According to BLS,\5\ there were 4.2 cases per 100 
full-time workers.
---------------------------------------------------------------------------
    \3\ See the National Census of Fatal Occupational Injuries in 2007 
(revised), available at http://www.bls.gov/iif/oshwc/cfoi/cfoi--
revised07.pdf
    \4\ See: http://www-fars.nhtsa.dot.gov/Main/index.aspx
    \5\ See Workplace Injuries and Illnesses in 2007, available at 
http://www.bls.gov/news.release/pdf/osh.pdf
---------------------------------------------------------------------------
    Civil monetary penalties and citations, coupled with the criminal 
penalties that are given to the most egregious violations, have been 
sufficient to assure compliance with the regulations. I believe 
workplace safety and health could be far more effectively advanced 
through greater emphasis on clarifying OSHA standards and implementing 
effective training, outreach and cooperative programs.
    Regrettably, there are still employers in this country who do not 
value the lives and safety of their workers, despite the repercussions 
that could occur from their continued violations of regulations. These 
employers are a very small minority. Far more companies are OSHA 
compliant, adhering to the rules and taking steps to resolve situations 
in which they are found lacking.
    The current system is balanced, adaptable, and effective. Any 
legislation that aims to change this system should be carefully 
considered, especially during the incredibly difficult economic 
situation facing our country. Thank you for the opportunity to make 
this presentation. I welcome any questions you may have.
                                 ______
                                 
    Chairman Miller. Thank you.
    Mr. Uhlmann?

 STATEMENT OF DAVID M. UHLMANN, JEFFERY F. LISS PROFESSOR AND 
     DIRECTOR OF THE ENVIRONMENTAL LAW AND POLICY PROGRAM, 
               UNIVERSITY OF MICHIGAN LAW SCHOOL

    Mr. Uhlmann. Good morning, Chairman Miller, Ranking Member 
McKeon and members of the committee.
    My name is David Uhlmann, and I am a professor at the 
University of Michigan Law School. I previously served for 17 
years as a federal prosecutor, the last seven as the chief of 
the Environmental Crimes Section of the Justice Department.
    Every day in our great country, 15 people go to work and 
never come home again. Hundreds more go to work healthy and 
come home severely injured. While some deaths and injuries 
cannot be avoided, far too many occur because of worker safety 
violations.
    We can do better in the United States of America. We can 
spend hours debating about whether the costs of regulatory 
compliance are too high or about whether our worker safety laws 
are too complex.
    But that debate will not bring comfort to Becky Foster and 
her family or to the thousands of families who have lost loved 
ones because of worker safety violations.
    More debate also will not change one simple fact. The 
problem with our worker safety laws is not the rules. The 
problem is that there are no consequences for breaking the 
rules.
    Today and the United States of America it is only a 6-month 
misdemeanor if you commit a willful violation of worker safety 
laws and a worker dies. Now, if the same employer who commits 
that violation goes out over the weekend and shoots a deer 
without a state permit, transports that deer across state 
lines, it is a 5-year felony.
    Surely, surely, the sanction for committing a willful 
violation of the law that results in a worker death should be 
at least as great as the sanction for killing a deer.
    The weak penalties for violations that result in worker 
death are not the only problem with the current version of the 
Occupational Safety and Health Act. I would like to talk just 
briefly about one of the cases that I prosecuted at the Justice 
Department, which I think highlights the problems with the 
worker safety laws.
    It involved an employer named Allan Elias, a company called 
Evergreen Resources in Soda Springs, Idaho. And Allan Elias was 
one of the most notorious violators of environmental health and 
safety laws in the state of Idaho. His facilities had been 
inspected for years. He would receive penalties for years.
    But none of that stopped him from sending his workers on a 
hot summer day in August of 1996 into a tank of cyanide waste, 
a confined space just like the type that Mr. Halprin testified 
about just a few moments ago.
    He provided no safety equipment for those workers. He did 
no testing of the air inside the tank, and a 20-year-old young 
man named Scott Dominguez in his first job out of high school 
collapsed inside the tank, suffered severe and permanent brain 
damage.
    And to tell you everything you need to know about that 
defendant, that employer, when firefighters were they are 
responding to this worker injury, trying to save Mr. 
Dominguez's life, they asked Mr. Elias what was inside the 
tank. And he told them, even though he put cyanide in that 
tank, he told them there was nothing in the tank that could 
hurt anyone.
    When the emergency room doctors called him, desperately 
trying to save Scott Dominguez's life, and asked Mr. Elias was 
there any possibility that there was cyanide in the tank, Mr. 
Elias lied and said no.
    Now, and we were able to prosecute Mr. Elias under the 
environmental laws, and after a 3\1/2\ week trial, he was 
convicted and sentenced to 17 years in prison, which until 
recently was the longest sentence ever imposed for 
environmental crime.
    But Mr. Elias did not commit a criminal violation of the 
Occupational Safety and Health Act. He didn't commit a criminal 
violation, even though he may have committed 15 violations of 
the confined space entry program, even though OSHA did cite him 
for willful violations of the OSHA Act.
    He didn't commit a criminal violation even though a jury 
unanimously found beyond a reasonable doubt that he had 
knowingly exposed his workers to imminent danger of death or 
serious bodily injury. He didn't commit a violation of the 
Occupational Safety and Health Act because the doctors were 
able to save Scott Dominguez's life.
    There is something wrong with the law, when an employer, 
who knowingly endangers his workers, commits a 17-year felony 
under the environmental laws, but doesn't even commit a crime 
under the law designed to protect the health and safety of 
America's workers.
    We began a Worker Endangerment Initiative at the Justice 
Department based on the Elias case and others like it to target 
companies that were serial violators of the environmental laws 
and the health and safety laws.
    That initiative has continued in the last 2 years since I 
left the department and has enjoyed many successes, including 
sentencings last week in the prosecution of the McWane Division 
Atlantic States in New Jersey. Four corporate officials were 
sentenced to jail terms in that case. The company was sentenced 
to pay an $8 million fine.
    But the success of the Worker Endangerment Initiative owes 
more to the strength of the environmental laws and the 
creativity of prosecutors than it does to the OSHA Act.
    Like prosecuting Al Capone for taxes, prosecutors charge 
worker endangerment in cases like Atlantic States under Title 
18 of the United States Code under the environmental laws.
    Moreover, the success of the Worker Endangerment Initiative 
only addresses a fraction of the worker safety problem, because 
according to the most recent Department of Labor data, only 9 
percent of worker fatalities occur because of environmental 
hazards.
    It is time to bring the OSHA Act into the 21st century by 
enacting meaningful penalties for criminal violations of the 
Act. I have detailed in my written testimony the ways the Act 
can be strengthened.
    Many of those changes are included in the Protecting 
America's Workers Act introduced last week by Congresswoman 
Woolsey, and I would urge the enactment of that law. And I 
would be pleased to work with Congresswoman Woolsey and other 
members of the committee about ways to strengthen the law.
    On this Workers' Memorial Day, we cannot provide justice 
for those whose lives have been lost because of worker safety 
violations, but we can honor their memories. Everyone deserves 
a safe place to work and the ability to come home to their 
families in good health at night.
    By passing the Protecting America's Workers Act, you can 
make good on the promise of a safe workplace made nearly 40 
years ago when Congress enacted the Occupational Safety and 
Health Act.
    Thank you for the opportunity to testify today.
    [The statement of Mr. Uhlmann follows:]
    
    
    
                                ------                                

    Chairman Miller. Thank you.
    Ms. Foster, thank you very much for your testimony. At any 
time were you consulted are involved in the discussion of the 
sanctions against the company where Jeremy worked, in terms of 
the penalties that were to be imposed?
    Ms. Foster. No, sir, we were not.
    Chairman Miller. I am sorry. Can you just pull the 
microphone closer?
    Ms. Foster. No, we were not. No one contacted us and asked 
for our opinion on the penalty or anything.
    Chairman Miller. How did you find out about the penalties?
    Ms. Foster. OSHA sent us a letter with the citation being 
serious and a fine of $4,500. That was the only letter that we 
have received from them. And then it was later that we actually 
read in the newspaper that the fine had been reduced, so we----
    Chairman Miller. Ms. Seminario, we heard in the discussions 
of the accidents and the fatalities in Las Vegas at City 
Center, again, of people learning about this sort of after-the-
fact with respect to settlements and reductions of the 
settlement. Is that common practice?
    Ms. Seminario. Yes, it is very common. Under the OSHA Act 
itself, family members have no rights.
    Chairman Miller. Mr. Halprin, is that your understanding? I 
mean that is a correct reading of the Act? I mean that is what 
we have been told several times in these hearings.
    Mr. Halprin. The Field operations manual requires that OSHA 
enforcement officials advise family members of the status of 
the investigation and provide copies of citations immediately 
when they are issued, and further involvement, but they are 
not----
    Chairman Miller. But no involvement in the----
    Mr. Halprin. They are not involved in the substance----
    Chairman Miller. Of the settlement.
    Mr. Halprin [continuing]. Of investigation on the theory 
that it is considered confidential investigatory information. 
There many times when an investigation goes forward, and OSHA 
actually changes its mind about what it thinks happened or what 
level of fault might have been involved in the----
    Chairman Miller. So Ms. Seminario, there is no notice of 
what the pending penalty will be before it is imposed?
    Ms. Seminario. For family members, no. For workers or for 
represented workers, they are supposed to be advised and have a 
right to participate in settlements, if they have been involved 
in the investigation or if indeed they have elected to----
    Chairman Miller. And that is true after--when there are 
further negotiations for the reduction after the penalty has 
been imposed?
    Ms. Seminario. That is true. The practice, however, is such 
that the union often finds out after the fact that there are 
separate negotiations going on with the employer, and the 
settlement is presented to them as a fait accompli.
    Chairman Miller. As does the family.
    Ms. Seminario. The family generally isn't even advised as 
to what happens. Workers and unions have stronger rights in the 
law. Family members under the law have no rights currently.
    Chairman Miller. Let me ask you a further question, Ms. 
Seminario. In your testimony you discuss the various discounts 
that can be provided once a penalties established. And I am 
paraphrasing, but I think there is a discount for workplace 
history, which I guess if you don't have a bad history, you can 
receive a discount.
    And then there is another discount with respect to size. 
And they understand why that conceivably would be in the law, 
but let me ask you this. Does that discount continue so if you 
have a bad history, and this is a repeated offense, you could 
still get a discount because of size?
    You may not get the workplace history discount, but you get 
a discount because of the size of the employer?
    Ms. Seminario. Yes, under OSHA's penalty procedures, the 
Act itself lays out certain factors that are supposed to be 
taken into consideration. What OSHA has done over the years is 
basically made those a matter of fact, and there is a formula 
that reduces.
    You start at a penalty, and it gets reduced by these 
factors. And except in very, very, very rare cases, the field 
operations manual does provide in, you know, the rarest of 
cases that the penalty might not be reduced by size.
    But the practice, as we see in case after case after case, 
is that the penalties are reduced, and it is exceptional 
cases----
    Chairman Miller. So conceivably, there is for a very small 
employer--I think it is under 10, and then there is something 
between one and 100 and over 100; again, unfortunately I am 
paraphrasing because I--100 to 250, and one to 25, and 10 or 
under, I think is how you stated it in your testimony.
    So a small employer could have a bad history and a repeat 
violator, and they still get a discount on penalties?
    Ms. Seminario. Yes. For very small employer, the size of 
reduction actually for willful violation is 80 percent for size 
one to 10. If it is a serious, it is only 60 percent. So if you 
are willful, you get a bigger discount than you do if it is 
only a serious violation, it seems a little strange.
    Chairman Miller. Okay. It does seem--okay.
    Mr. Halprin stated in his testimony that if you look over 
the history, only .2 percent of the fatality cases involve 
meriting criminal referral.
    Mr. Uhlmann, you are telling us that is because it is not 
worth the Justice Department's time to prosecute or even OSHA's 
to refer to them, because at the end of the day for killing 
this person, if that what happens under whatever circumstances, 
it is--what is it--it is a misdemeanor, right?
    Mr. Uhlmann. That is correct, Mr. Chairman.
    You know, the reality of life in the Justice Department is 
that prosecutors focus on the crimes that Congress has told 
them are the ones that Congress wants them to focus on by 
making them felonies.
    And there are felony violations for every single violation 
of the environmental laws that involves knowing conduct as a 
felony. The same is true under the food and drug law. The same 
is true under the security laws.
    The OSHA Act is----
    Chairman Miller. So in Ms. Foster's case, the Justice 
Department would have had to decide to prosecute a case if it 
was referred to them for a misdemeanor, where they put a value 
on the crime of $2,500?
    Mr. Uhlmann. Well, I mean that is correct. I mean the 
maximum penalty for criminal prosecution in that case would 
have been higher. But of course, OSHA didn't even find that to 
be a willful violation, so it would have been difficult to 
prosecute that case criminally, even if the department made it 
a practice of prosecuting misdemeanor cases.
    But the reality is in prosecutors' offices across America, 
misdemeanors aren't the focus of prosecution efforts. They are 
rarely prosecuted.
    Chairman Miller. We have got prosecution offices all across 
the country. Because of budget problems, they are suggesting 
they are going to let like really criminal guys go, you know, 
that are--they are bopping people on the head in the streets.
    But anyway, Mr. McKeon? My time is over.
    Mr. McKeon. Thank you, Mr. Chairman.
    Mr. Halprin, in the last several years OSHA has 
cooperatively worked with employers to provide assistance to 
employers and employees, particularly small businesses. During 
that same period there has also been remarkable progress in 
declines in the workplace fatality rates, as well as the injury 
and illness rates.
    What is the level of concern that a return to the 
adversarial ``Gotcha'' mentality on the part of OSHA may 
reverse these positive trends?
    Mr. Halprin. I personally believe the overwhelming 
improvement has been through outreach, communication and 
education, and there needs to be certainly a reasonable level 
of enforcement.
    But the experience I have had was in one case there was an 
outstanding facility. The agency came in to do a wall-to-wall 
inspection, looking at chemical safety issues, couldn't find 
anything after doing all the monitoring you would have 
expected, that through the hazard communication program, and 
finally got into the point of digging through the company's 
confined space entry records and citing them because in one 
case a person had been listed as an entrant into a confined 
space, but not an attendant.
    Now, so my point is there is a concern about that. The 
current program is based on the idea that targeting of 
employers is supposed to address those with more significant 
problems or those in an activity that is generally thought to 
be more significant, and therefore inspectors are expected to 
come up with citations.
    And I think there is more of a need for inspectors to go 
into a site and say, ``You know, this one is really doing a 
darn good job. We should go elsewhere.'' Leave. Say, ``You are 
doing a good job,'' and say to the supervisor, ``Send us 
someplace else.''
    Mr. McKeon. You know, I think we hear this--the stories 
like what happened to Mr. Foster and most of us in here could--
common sense--figure that that was a real tragedy, and 
something should be done about that--more than was done about 
it.
    On the other hand, trying to write a law that covers all 
kinds of intentions and actions, and then having it interpreted 
by different prosecutors across the country, and then the 
investigators being limited with maybe inadequate budgets, 
enough to supervise all locations, it kind of boggles your mind 
how much we try to solve all the world's problems here and 
don't seem to be able to.
    And I think we need here a case like, Mr. Uhlmann, that you 
talked about in Idaho. Seventeen years probably wasn't enough 
for that person. On the other hand, when you hear other cases 
where truly there are accidents that happen--I heard a story 
just last week that a husband and wife were out playing golf, 
and while the wife was teeing off, the husband tried to run 
over to the refreshment cart in his cart and bounced across the 
hill and flipped over and killed himself.
    And we had a former congressman die last week out on four 
wheelers with his children. Came over off of a steep decline, 
or whatever happened, and flipped and broke his neck and killed 
himself. You know, you hear just tremendously sad things that 
happen.
    Now, when you hear the Foster case, where they have changed 
the equipment and made it more dangerous, you know we should do 
something about that.
    But to be spending time hitting a lot of things that are 
less of a problem and then skipping over some of the things 
that are real problems, that is where I think there should be 
an adjustment. But the mentality, I think, should be trying to 
fix things, trying to make things better, rather than trying to 
punish.
    And that is I think the dilemma that we are kind of faced 
with. Some people, only punishment gets a response. Some 
people, if you go in and show them that there is a problem in 
your business, you know, appreciate that and fix it, and they 
can move on.
    So I think this is going to be a very interesting work as 
we go through this progress and see how we can make things 
better and not inadvertently make things worse. Thank you.
    Ms. Woolsey [presiding]. Thank you, Ranking Member McKeon.
    I want to respond to that. It is my law that we are 
rewriting. We have written a law to strengthen a piece of 
legislation that is 30 years old. Over those 30 years, we have 
learned. Over those 30 years, we have moved into the 21st 
century. It is time for OSHA to join the 21st century.
    And as we go through the process with PAWA, we will make 
sure that that is exactly what it does--gets us to where we 
need to be in the 21st century and strengthen what needs to be 
strengthened. And we are not going to be picayune on the wrong 
things, because we don't have time for that.
    Now, Mr. Kildee?
    Mr. Kildee. Thank you, Madam Chair.
    Madam Chair, when my daughter was in high school, and 
injury on the job took place in my district. And that injury 
helped my daughter for her moral and legal sense of 
responsibility for employees.
    A young lady working in my district on a press was 
grievously injured. She worked on a press, and she was required 
to put the raw material in the press. And under the rules and 
under the mechanics of the kept in condition machine, she had 
to remove both hands from the material, simultaneously press 
two buttons, and then the press would come down.
    That day she put her hands into the press with the 
material, and the press came down, and it utterly, utterly 
destroyed both her hands. I remember I brought the Flint 
Journal home that Sunday after my visit back to my district, 
laid it down, and my daughter picked it up, and she started to 
cry.
    She said, ``Dad, how could that happen?'' They had a 
minimal fine, by the way, and minimal settlement for her--very 
minimal. How could that happen? And she just cried some more, 
and I read the article again, and the thing that really tripped 
her, and we need to make is a human issue. It is a moral issue. 
It is not just a legal issue. It is a moral issue.
    She said, ``Dad.'' She said, ``Look, it says here, `I can't 
even pet my kitten anymore every again.' '' now, my daughter 
was a tenth grader, and she saw the immorality of that and this 
insignificant settlement she got. The rest of her life--she was 
about 22 years old or so--the rest of her life she must go 
through life without hands.
    Now, that should move us. First of all, that should enrage 
us. Anger is good. Even great religious leaders have been 
angry. Christ knotted ropes and drove the moneychangers out of 
the temple. Sometimes we have moneychangers who are more 
concerned about profit and making sure that the equipment that 
can be dangerous--can be productive, can be dangerous--is taken 
care of.
    We have a moral obligation.
    Ms. Woolsey, God bless you. She is one of my favorites, and 
she really believes in human dignity.
    She has a bill. Dr. Uhlmann, is that bill--would that be 
helpful, or should we go even further than that bill? I am co-
sponsor of that bill, following her great leadership.
    Mr. Uhlmann. Sir, the bill would be tremendously helpful. I 
think it would make a huge difference in the ability to deter 
violations, you know, recognizing as the ranking member says, 
that obviously the first thing you want to do is try and help 
companies do the right thing before violation even occurs. I 
mean I fully support OSHA emphasizing compliance counseling.
    But the reality is there are a lot of companies who, with 
all the counseling in the world--they are not Mr. Halprin's 
clients, and they are not spending the money on compliance that 
it costs to engage Mr. Halprin. And for those companies you 
need more than just counseling. You need the threat, the 
credible threat of enforcement.
    I think the Protecting America's Workers Act would do that. 
It could go further, and I think there are ways that that could 
be improved, and you know I am happy to talk about that and 
work with the committee on ways to make the law even better, 
but no question it would be a significant improvement over 
existing law.
    Mr. Kildee. Well, I appreciate that. You know, my daughter 
now is an employer. She is a very, very good businesswoman. And 
one of her highest priorities--she still remembers it; she 
still remembers that Sunday when I brought that newspaper back 
from Flint, Michigan--one of her highest priorities, and she is 
roaming her buildings.
    She is in charge of two buildings, all the time looking for 
safety positively, not just you know have something happen--
positively trying to anticipate something that could go wrong. 
It is really high priority with her.
    And when we don't have employers that have this high 
priority, then we need law, right, to make sure.
    Thank you very much. And God bless you, Madam Chair.
    Ms. Woolsey. Thank you very much, Mr. Chairman.
    Mr. Cassidy?
    Dr. Cassidy. I think we all agree that we need to decrease 
these terrible things that just happen to your stepson. I guess 
my question is what is the best way to do it.
    First, Mr. Halprin, you talked about the thousand pages and 
the ambiguity. And I think of the small businessperson trying 
to get their equipment lined up. And I kind of took from what 
you said that the current arrangement, we would go into that 
small business person and say, ``Listen, ma'am, this is the way 
you need to set it up so as to be in compliance.''
    Can you give us an example of the ambiguity and where that 
sort of partnership would be effective? Is there a clear-cut 
example of, ``My gosh, how would you ever understand this 
unless we employed you, and we can't afford you, because I 
think your rates are probably too hard for us?''
    Mr. Halprin. The best example, at least one of them with 
the problems, is with those whose machine guarding locked-out, 
tag-out standards.
    Dr. Cassidy. I am sorry. Say it louder, please? I can't 
hear you.
    Mr. Halprin. OSHA's machine guarding locked-out, tag-out 
standards. There is exception for full lock-out when you engage 
in minor servicing activities. The idea is to lock out a 
machine, take away its energy sources said that it is basically 
in a neutral state, and it won't accidentally start up.
    And the standard was adopted with the best of intentions. 
There was, unfortunately, in adequate industry support, so 
certain practices that had gone on for years that were expected 
to be permitted to continue suddenly became question or 
prohibited under OSHA's interpretations.
    Those interpretations are so impractical in some cases. 
There is divergent enforcement with any regions, across 
regions, between federal, OSHA and the states. And in some 
cases the best consultant can do is come in and say, ``This is 
what I think you should do, but I really can't tell you what 
the law requires.''
    That is not unusual. That is a reality of a generic 
rulemaking process that doesn't get enough input, that doesn't 
take into account what is going to happen. And that is a 
pervasive problem throughout the United States.
    Dr. Cassidy. Mr. Uhlmann, I gather that you have had some 
regulatory background, and I saw you nodding your head as Mr. 
Halprin spoke to that.
    I guess in my mind is it possible to have this tension 
between on the one hand, we are going to bust you and throw you 
in jail, and on the other hand, we are going to come to give 
you good advice to help you discern what these regulations mean 
in terms of how to make worker safety, because it is our--
safer--because it is our goal.
    So I am just asking you, is it possible to kind of have 
that sort of tension exists and still have a working 
relationship that would allow that small businesswoman to 
modify her equipment appropriately? Do you follow what I am 
saying?
    Mr. Uhlmann. I do. I mean first of all, the situation that 
you asked Mr. Halprin about is not a situation where I think 
criminal enforcement would be appropriate. And you don't 
prosecute people for criminal violations of the law, and the 
law is clear.
    Dr. Cassidy. Now, I am a doctor, so I understand--I mean 
this--so if I seem a little confused, I am.
    But when you speak about willful, when I was reading the 
definition of ``willful,'' if somebody had a piece of equipment 
which by law was supposed to go into neutral, die, stop, if not 
being used, but doesn't do it because it is impractical, that 
actually seems like that would make the definition of 
``willful'' as I read ``willful.'' Is that correct?
    Mr. Uhlmann. Well, I mean ``willful'' generally means that 
you know you are doing something that the law forbids. So, you 
know, as a doctor I mean, you know, if you had medical wastes, 
which you know has the potential to harm other people, I mean 
you have got an obligation to handle that waste properly, 
right?
    Dr. Cassidy. I understand that, but going back to Mr. 
Halprin's example where the machine is not put in neutral or 
not shut off automatically, that would be a willful disregard 
of the law, even though it is impractical to do so. I don't 
know the particular situation, so I am just assuming--and you 
are nodding your head--so how would you, knowing that the 
machine didn't shut off, but the law says it should shut off, 
and something bad happened, would that constitute a willful 
infraction is a question.
    Mr. Uhlmann. Yes, and what I am trying to say is I mean 
accidents happen. I mean you are describing an accident, and an 
accident is not a willful violation.
    Accidents happen, and the ranking member talked about those 
accidents happen throughout American life. And they are 
unfortunate, and we obviously want to do everything we can to 
prevent them. That is not what this is about.
    I mean, the issue here is what do we do about those 
companies, even if they are the minority of companies? What do 
we do about the companies who don't care about the law, don't 
care about doing the kinds of things that Mr. Halprin pounces 
his clients to do?
    How do we deter them? How do we make sure that they meet 
their obligations to America's workers?
    Dr. Cassidy. So I guess my question, though--I am not sure 
I have got it. And agree with what you are saying, obviously, 
but my first question was, is it possible to have 
simultaneously two different relationships, one in which you 
are threatening criminal penalties and the other where you are 
seeking a cooperative relationship? Show us where you are 
wrong, and we won't bust you, but rather we are going to help 
you fix what is wrong. Does that make sense?
    Mr. Uhlmann. No, it does. And you know, I think it is a 
fair question. It is not a question, of course, in the OSHA 
context, right?
    Dr. Cassidy. Yes.
    Mr. Uhlmann. It is a question across the whole area that we 
regulate. And I think we see this across the federal regulatory 
programs. You know, every regulatory program that I know about, 
there is always that--the effort to reach out and to educate 
and to try and get people to follow the law.
    That is what we want, right? I mean, you know, I used to 
say as a prosecutor that my office existed to put itself out of 
business. If we prosecuted enough cases and if EPA did its job 
well enough, we wouldn't have any more pollution, no more 
crime. We could all go off and do something else with our 
lives, you know.
    But unfortunately, it is not a perfect world, so I think 
you do that education, but you also need to have the ability to 
deter violations with strong enforcement in the circumstances 
when that is necessary.
    Dr. Cassidy. Mr. Halprin, what do your comments to my----
    Mr. Halprin. Well, EPA, for example, has a self-audit 
policy, where you can in good faith go out, find problems, 
disclose them to the agency, reduce the fine substantially, if 
not zero, and then go on through a program of fixing them.
    OSHA doesn't have a program like that. If you go out and do 
an audit, I would venture to say most facilities in the United 
States, if you actually did a fine toothcomb audit of every 
facility, you would find problems, and you would make a grocery 
list.
    And then you have no choice but to do a risk assessment and 
say which ones need priority to do first, because you can't 
possibly fix them all. The resources simply aren't there.
    Now you have got this list. If you made a misjudgment, or 
despite the fact that you are diligently proceeding through 
this list, something goes wrong and somebody gets hurt and in 
the worst-case scenario dies, then the agency come back and say 
you have a willful violation.
    Now, if you have got, let's say, a dust scenario, and you 
have been identified having problems, there are some things 
that can be done right away. You can make sure that you don't 
have accumulations of dust.
    On the other hand, retrofitting a whole factory to put 
monitoring devices in to see whether a motor is overheating, 
putting explosion panels in, designing all those things, 
putting suppression systems in--they take time.
    Ms. Woolsey. The gentleman's time is complete.
    Mr. Andrews?
    Mr. Andrews. Thank you, Madam Chairwoman.
    Ms. Foster, thank you for your testimony here today. It was 
a very difficult thing to do, and you did it eloquently and 
very, very well. Thank you.
    And to the other families that are representing their loved 
ones today, welcome. We are sorry that you are here, but we are 
fortunate that you are here to remind us of our 
responsibilities. I think Ms. Woolsey has proposed legislation 
that would honor the memory of those that you are depicting 
here today.
    And I wanted, Mr. Halprin, to ask you a couple of specifics 
about Ms. Woolsey's legislation.
    The first has to do with extending criminal liability when 
there has been proof of a willful violation and there has been 
serious injury as opposed to just staff, which is the Dominguez 
case that we heard about. What is wrong with that? Why 
shouldn't we do that?
    Mr. Halprin. As I think I explained in my statement, giving 
the example if somebody pulls out a gun, aims it at somebody 
and shoots him intentionally, clearly that is a horrible crime, 
whether they killed him or whether they wounded them.
    Mr. Andrews. Yes.
    Mr. Halprin. Now, using that as an example and looking for 
equivalents, when you can find a crime along those lines, I 
have no problem increasing penalties.
    Mr. Andrews. Well but if somebody pulls out a gun and aims 
it at someone and shoots them and they just maim them and don't 
kill them, it is a criminal offense.
    Mr. Halprin. Correct.
    Mr. Andrews. But what happened to Mr. Dominguez was not a 
criminal offense, because he didn't die. Shouldn't we fix that 
to make it fit your analogy?
    Mr. Halprin. I am suggesting that there is an area there 
that needs to be looked at. My concern----
    Mr. Andrews. Well, we are looking at it. Do you favor or 
oppose that provision?
    Mr. Halprin. The broad definition of willful violations 
right now is too broad to penalize----
    Mr. Andrews. Not the issue.
    Mr. Halprin [continuing]. At the level----
    Mr. Andrews. That is not the issue. The issue is if you 
have a finding of a willful violation by jury, which we had 
here----
    Mr. Halprin. My point is the definition of----
    Mr. Andrews. But should someone get off the hook because 
the person survived and they didn't die? That is the issue.
    Mr. Halprin. But that is not my point. My point is the 
definition of ``willful'' is quite now too broad to penalize 
people at that level you are talking about.
    Mr. Andrews. How is it too broad, by the way? Tell me how 
the definition of ``willful'' is too broad.
    Mr. Halprin. I gave you an example. If you have somebody 
that conducts an audit in good faith and doesn't fix a 
particular problem in time and something goes amiss, I don't 
see that person as in a sense in the moral situation that they 
would be subjected to----
    Mr. Andrews. With all due respect, the definition of 
``willful'' is a little more specific than that. They would 
have to have done the audit, known that there was a violation, 
and intentionally choose to ignore the violation, which would 
then have to result in the death of a person.
    Mr. Halprin. No, no. It doesn't mean intentionally ignore. 
It means they didn't fix it in time.
    Mr. Andrews. I disagree with that interpretation. Can you 
give me a case where someone has been found a willful violator 
under those facts, where they didn't intentionally choose to 
ignore it; they just didn't fix it in time?
    Give us some cases that say that.
    Mr. Halprin. I would have to go do the research and find 
it.
    Mr. Andrews. I wish you would. And we will hold the record 
open for the committee to take a look at that. But I think that 
mistakes what ``willful'' means.
    I mean, do you agree in the Dominguez case that the facts 
establish a willful violation?
    Mr. Halprin. Is Dominguez the case where people were sent 
into the confined space?
    Mr. Andrews. Yes.
    Mr. Halprin. From everything I have heard, and I would like 
to look at the file, it certainly sounds like it.
    Mr. Andrews. Oh, yes. Here are the facts there, that the 
gentleman was told to go into the steel tank and clean cyanide 
waste material. He gets very sick, not surprising. The 
firefighters arrive. They ask the employer's representative 
what was in the tank. They say it is just mud.
    The doctor then examines Mr. Dominguez at the hospital, 
calls the proprietor of the business and says, ``Is there any 
possibility of any cyanide in the tank?'' He knows there is and 
says, ``No,'' willfully. And then he gets a permit and 
backdates it to show that he had the permit to get this thing 
done. That sounds pretty willful to me.
    Mr. Halprin. Right.
    Mr. Andrews. Now, that wasn't a crime, because Mr. 
Dominguez didn't die. Do you think it should be criminal? Do 
you think it should be criminal, as Ms. Woolsey's bill says, 
because he was just seriously injured and did not die?
    Mr. Halprin. I think that is close enough to taking a gun 
out and shooting somebody. That should be a crime.
    Mr. Andrews. Is that a yes?
    Mr. Halprin. Yes.
    Mr. Andrews. Good.
    So he agrees with part of your bill, Ms. Woolsey. We 
appreciate that.
    How about the provision that says that we should update the 
fines? You know, presently for a violation of the South Pacific 
Tuna Act, it is a $325,000 fine. But a willful violation that 
kills a human being in the workplace is $70,000. Do you think 
we should update that fine?
    Mr. Halprin. A willful violation that results in criminal 
conviction is subject to $250,000 for the first violation and 
$500,000 for the second under current law.
    Mr. Andrews. Do you think we should update those? Do you 
think we should equate it with the Tuna Act?
    Mr. Halprin. I don't have opinion on that one right now.
    Mr. Andrews. Could you keep the record open and give us 
your opinion whether we should equate tunas and humans on that 
scale?
    Mr. Halprin. I would also like to say that the fact that 
some environmental crimes or other crimes are sanctioned at the 
levels they are doesn't mean those numbers are correct. 
Morally, they may be too high, but that is the issue you are 
raising.
    Mr. Andrews. Okay. We would welcome--if that is your 
conclusion, we would welcome those.
    I think my time has expired, Ms. Woolsey, but it looks like 
Mr. Uhlmann wanted to jump into the fray here.
    Ms. Woolsey. Thank you, Mr. Andrews.
    Mr. Price?
    Dr. Price. Thank you, Madam Chair, very much.
    Ms. Foster, our heart and our prayers go out to you and the 
tragedy that you suffered in your family. And I want to, on 
behalf of those of us on the panel, thank you so very much for 
coming today and sharing that with us. And there is an 
emotional issue. And it is because lives and livelihood are at 
stake.
    And for all of the folks who attended today because of a 
tragedy in the workplace, we extend our thoughts and prayers to 
you and your family.
    Because it is emotional, sometimes Congress, when it acts 
in emotional ways, draws the wrong conclusions and makes the 
wrong laws. So I think it is important that we all talk about 
facts in the workplace.
    My understanding, not to minimize anybody's tragedy in 
their own lives and in their own family, but my understanding 
is that from 1994 that in fact workplace fatalities, the rate 
of workplace fatalities, has decreased from 5.3 per 100,000 
FTEs to 3.9 per hundred thousand FTEs.
    Now, something caused that. I don't know what it was, but I 
think it is important that as we look at the rules that we 
currently have in place and the outliers that exists, that 
maybe it is the outliers we ought to be looking at, as opposed 
to a broad brush for everybody. But I will get to that in just 
a moment.
    The workplace injury and illness rate from 1990 to 2006 
also shows similar trends, so something is happening in our 
society that is making it so there are fewer deaths on the job, 
and there are fewer injuries and illnesses on the job.
    And that is a good thing. And we ought to congratulate 
those who have been working in that area and hold them up as 
champions for our nation and for workers.
    We have talked a lot about the willful violations, and it 
is my understanding, Mr. Halprin--correct me if I am wrong--
that it is my understanding there is no statutory definition of 
``willful.'' Is that correct?
    Mr. Halprin. It generally developed through case law rather 
than statutory language, yes.
    Dr. Price. And you would agree with that, Mr. Uhlmann? 
There is no statutory definition of ``willful?''
    Mr. Uhlmann. That is correct.
    Dr. Price. My sense is that given this debate here this 
morning about what is willful and don't you believe this is 
willful and shouldn't this have been willful, that a definition 
of ``willful'' would be helpful, would it not, Mr. Halprin?
    Mr. Halprin. Yes.
    Dr. Price. Mr. Uhlmann, do you agree?
    Mr. Uhlmann. I agree Congress on the definition of 
``willful'' would be helpful----
    Dr. Price. Would be helpful.
    Mr. Uhlmann [continuing]. Although, you know, the committee 
should be aware that the willful standard is a much higher 
standard, contrary to what Mr. Halprin is saying. It is a much 
higher standard than under almost every other federal criminal 
law.
    Dr. Price. But a definition would be helpful.
    Ms. Seminario, do you believe that a definition would be 
helpful?
    Ms. Seminario. A definition may be helpful. You have under 
the OSHA Act willful violations for civil purposes.
    Ms. Woolsey. You need to turn on your microphone.
    Ms. Seminario. You also have actions under criminal codes 
for criminal willful. I am not a lawyer, but I think looking at 
those, and I am not sure that they----
    Dr. Price. No, but you are playing one right now, and so 
are we, so----
    Mr. Halprin. My understanding is they are the same. The 
only difference is proof beyond a reasonable doubt.
    Dr. Price. All right. My sense is that a definition would 
be helpful, and we are interested in working with the majority 
on trying to come up with a definition, because I think that 
would be very, very wise for us as move forward.
    Mr. Halprin, I would like to address these charts, if you 
will, that there has been a decrease in the incidents of 
mortality, a decrease in the incidents of injury and illness on 
the job.
    Is that the best way to determine whether or not our 
current rules are working, or are there other measures? Is the 
number of penalties appropriate to look at or fine? What is the 
best monitor of whether or not we are making progress?
    Mr. Halprin. A proactive safety person will tell you that 
they would rather look at some leading indicators instead of 
what you are looking at, which is lagging indicators.
    However, I do think when you are trying to look for 
something objective, how many times you have a safety meeting 
and how many times you have a training program are not really 
objective enough to be helpful, and therefore lagging 
indicators are still the best indication. There is dispute 
about whether they are fully accurate.
    However, despite those arguments, I have seen no evidence 
whatsoever there is any difference in the level of accuracy 
between what they were in 1992 and 2007. There is no evidence 
that employers are any less responsible or any less truthful 
now than they were 10 or 20 years ago. So where there may be 
some inaccuracies, overall I think this trend best demonstrates 
the fact that overall the program is successful.
    Dr. Price. Thank you.
    Thank you, Madame Chair. My time has expired.
    Ms. Seminario. May I just have a comment on that? I would 
say per fatality data is pretty good, because in 1992 we went 
to a census of fatal injuries which go beyond employer reports, 
and so it is actually a pretty accurate number.
    When it comes to workplace injuries, that is all based on 
employer reports. And they are I would disagree, because there 
has been a lot of activity in the workplace, which puts a lot 
of pressure on the reporting of injuries by workers.
    There is a lot more focus using that number, the lost work 
to injury rate, as an indicator of performance, which ends up 
actually injuries not being reported. So I would say on the 
injury side that the numbers are not so good.
    When you look at workplace that is and you look at what is 
killing workers, one of the areas, or two of the areas where 
there had been significant decreases since 1992 are in the area 
of the rates of fatal injuries for over the road transportation 
incidents.
    When you look at some of the other factors, the other 
causes, such as people being caught in machinery, explosions, 
you don't see the same kind of decrease. So you have to look 
beyond the overall number and look at what is killing workers 
and looking to measures that can address those particular 
causes.
    So yes, we have made progress, but we have a lot of work to 
do. And the OSHA Act isn't quite up to the task.
    Dr. Price. If I may, Madame Chair, in response to that, do 
you see anything in the current law that is looking at those 
specific pieces of information?
    Ms. Seminario. In the current law I would say----
    Dr. Price. In the proposed----
    Ms. Seminario. In the current proposal, what the proposal 
attempts to do is to bring the level of enforcement to a level 
where it would----
    Dr. Price. But not looking at the specific injuries that 
you just talked about.
    Ms. Seminario. Well, it is looking at outcomes.
    Dr. Price. Right, but not the specific----
    Ms. Seminario. And so yes, it is focusing on those things 
that are killing workers, those things that are seriously 
injuring them, and so it is focusing very much on the issues 
that you said we should be focusing on, which are the serious 
incidents, yes.
    Dr. Price. Thank you.
    Ms. Woolsey. Thank you.
    Ms. McCarthy?
    Mrs. McCarthy. Thank you. And thank you for your work on 
your legislation.
    I have been sitting on this committee for 13 years, and so 
that means we have had probably 13 to 15 hearings on OSHA. And 
I am hearing the same arguments that I heard 13 years ago.
    Now, certainly I believe that OSHA has a part on trying to 
educate the employers to keep their workers phase, but the most 
recent that we have on death is from 2007, and we have 5,657 
workers that have died.
    Then if you bring up the injuries and illness, it is 
estimated to cost $145 billion to $290 billion a year to treat 
those workers. And as far as the work injuries that are 
reported, most--all agree that they are underreported, so you 
are still looking at between 8 million and 12 million injuries 
and illnesses a year.
    I think it is time for an improvement.
    Mr. Uhlmann, in your testimony I think that one of the best 
ways that we can explain why we are trying to do what we are 
trying to do and what Ms. Woolsey is trying to do, on page 7 
you talk about the McWane case and how many violations that 
company had over the years and how many people actually still 
continued to die.
    On that particular case, you actually prosecuted. And with 
that you were able to get jail time for those, because it was a 
criminal offense. But in your testimony you also say that you, 
when you were working for the Justice Department, could not do 
it every case, only if it is--I am not a lawyer--only if the 
prosecutors speak volumes about the role of strong criminal 
programs promoting work safety.
    I think that is why we are here and trying to make a 
difference. So if, Mr. Uhlmann, if you could expand on what you 
have done over the years and why we need to do something, I 
would appreciate it.
    Mr. Uhlmann. Thank you, Congresswoman.
    Well, the McWane case is a classic example of the problem 
that we are talking about today. McWane is one of the largest 
pipe manufacturing companies in the world. It is a very 
dangerous business. It is a business where a strong safety 
program, I think everyone would agree, is particularly 
important.
    And McWane was a company that a facility, across facility 
to facilities, was violating worker safety laws, was lying to 
OSHA inspectors, was hiding information, was concealing 
injuries.
    And you know, they would get an occasional citation from 
OSHA, and they would pay fees, you know, $1,000, $2,000 fines. 
And it did nothing to deter the corporate officials and McWane, 
did nothing to change their behavior.
    What change behavior at McWane was the New York Times and 
Frontline ran an expose about how many people were injured and 
killed at McWane facilities. We use that information at the 
Justice Department to develop criminal cases against McWane at 
five facilities across the United States.
    Those criminal cases were brought under the environmental 
laws. Those criminal cases were brought under Title 18, which 
is the general criminal code. And those cases resulted in 
millions of dollars in fines and years of jail time, and the 
plane is now a poster child for change.
    You know, Frontline has done a follow-up piece talking 
about where they interviewed people at McWane, who talked about 
the new McWane and talked about all the money they are now 
spending on compliance. They have got former OSHA 
administrators advising them about how to do things the right 
way.
    And you know, I don't know whether McWane has changed in 
every way that it said that they have changed, but what I said 
in the testimony is I think it is an example of how, you know, 
if you have got a strong criminal program, if you have got 
strong deterrents in place, you can push companies to change.
    But you know, frankly, if McWane hadn't been violating the 
environmental laws at the same time they were violating the 
worker safety laws, my old office couldn't have done anything 
about it.
    And I don't think a misdemeanor--a bunch of misdemeanor 
prosecutions with, you know, even with the $250,000 fine that 
Mr. Halprin described, I don't think that would have changed 
the McWane.
    Mrs. McCarthy. And McWane is still in business.
    Mr. Uhlmann. They are still in business, and they are still 
one of the largest pipe manufacturing companies in the world.
    Mrs. McCarthy. So it didn't seem to hurt them that much.
    Mr. Uhlmann. No, not from a profitability standpoint or 
from being able to, you know, be an employer. I think they are 
a better employer today. You know, I think we want companies in 
America to be employing our citizens in jobs that are safe.
    Mrs. McCarthy. But I mean that is a whole part of OSHA, to 
make the--where our workers were to be safe, and in the end 
hopefully not costing all of us, because to be very honest with 
you, if we are spending billions of dollars on health care for 
those that have been injured, and sickness, we--every one of 
us, the taxpayers--are paying for that.
    Mr. Uhlmann. You are correct.
    Mrs. McCarthy. Thank you.
    Ms. Woolsey. Mr. Hare?
    Mr. Hare. Thank you, Madam Chairman.
    I hardly know where to begin here today.
    Mr. Halprin, you mentioned in your testimony--I might have 
been taken the notes too fast--that you believe that there are 
very effective penalties. I am wondering in the case of Ms. 
Foster's son if you think that penalty was effective.
    Mr. Halprin. Do I think that penalty was----
    Mr. Hare. Effective. You said we have effective penalties 
on companies. Do you think--would you say that the penalty, if 
I am correct was down to $2,250, would you classify that as an 
effective penalty on that company?
    Mr. Halprin. I am very sympathetic to that case and all the 
others we have talked about. I would like to think that most of 
them are outliers. I don't think it is fair without a full 
record to actually comment on what happened. What happened to 
sounds terrible, maybe outrageous, but I don't know the facts.
    Mr. Hare. Well, I think----
    Mr. Halprin. One thing I think----
    Mr. Hare. Let me be very candid, Mr. Halprin. I think what 
you are doing, from my perspective, is I think you are--you 
know, you say that penalties are effective, and then we ask you 
is the $2,250 for this young man's life and you need the facts.
    The fact is, from what I am hearing, they altered the 
machinery. And let me tell you what my position is on this. 
Whoever altered that machinery is responsible for this young 
man dying. And not only should they pay a fine, because I don't 
know what type of a price you could put on taking somebody's 
life, which is what they did, but they ought to go to jail, and 
they ought to go to jail for a long time.
    So I would thoroughly disagree with the effectiveness of 
this.
    The other thing, too, is you have other companies, and they 
seem--Eleazar Torres-Gomez worked for Cintas. He was dragged 
into a dryer. This is a company that is probably one of the 
most lawbreaking companies we have in this nation.
    They sent a letter to the widow--I met his son--that they 
thought Mr. Gomez--first of all, they tried to imply that he 
threw himself into the dryer to commit suicide. And second of 
all, after that when that didn't work, that he was basically 
too dumb to operate the equipment. And finally, after that 
didn't work, they said, ``Well, maybe we should do it.''
    Now, here is a company who has been fined several million 
dollars, and they are loaded, and they just pay the fine and 
keep on going down the road, and they don't improve the 
companies.
    Now, I have tremendous respect for the ranking member, but 
when he says we are playing ``Gotcha'' here, maybe that is what 
we ought to do. If these companies are going to willfully 
continue to do this, then I think what we have to do is we have 
to have an agency that has teeth. And it ought to really clamp 
down.
    I don't have graphs, as my friend Mr. Price had, but I have 
seen the pictures of these people. And 15 people a day every 
day in this nation are dying. And as Mr. Uhlmann says, when the 
penalty is stiffer for shooting a deer and taking it across the 
state line than it is for taking the life of somebody, there is 
something fundamentally wrong here--fundamentally wrong.
    And Ms. Woolsey's bill and a bill that I put in yesterday, 
part of this thing--we get the numbers--they don't even have to 
report them. And I don't care how big the Corporation is, and I 
don't care how small they are. Yes, accidents will happen, but 
I think fundamentally people have a right to be able to go to 
their jobs every day and expect to come home to their families.
    When you alter the equipment, as Cintas did, and in Ms. 
Foster's case with their son--you know, I don't understand 
this.
    And I guess what I want to know, Mr. Uhlmann, from you is 
what are we really going to do here? I mean, I honestly think 
that when companies like Cintas are more--they will pay the 
fine, and they will allow people--and they still by the way 
have belts out there that don't have these devices on them in 
five states.
    So we are just waiting for another person to be harmed, 
either killed or maimed. And what do we do with companies that 
basically thumb their nose at the law and say, ``Well, I will 
pay the fine and I will just keep making the profits?''
    Mr. Uhlmann. Well, congressman, accidents waiting for a 
place to happen are not accidents, and companies who 
continuously violate the law and continuously placed their 
workers at risk, if we want to stop them from doing that, the 
people who run those companies have to fear that they may go to 
jail.
    It may be exactly the situation you described. What the 
thought process has to be in that corporate official has to be 
not, ``Well, if we continue to do things this way, we might 
have to pay a penalty of a few thousand dollars, but we can 
afford that.''
    The thought process has to be, ``If we keep doing this, and 
I keep letting this happen at my company, I could go to jail.'' 
And that changes behavior more than anything else we could do. 
So make that a credible threat.
    Make it a credible threat that the corporate officials, who 
are responsible for these kind of violations occurring, could 
go to jail, the same way we do under all the rest of our 
regulatory laws. That will start to make some change.
    But of course, you can't--that isn't going to happen, if 
the penalties are just misdemeanors, if they only apply to 
willful violations involving death, and if we only clear that 
individuals can be prosecuted under the OSHA Act for these kind 
of violations.
    Mr. Hare. Well, I just--I know my time is up.
    Ms. Foster, I would just tell you this. For two people to 
come to the door and express their condolences and they never 
see them again, the next time you see people like that, you 
ought to see them in the jail. And that is how they ought to 
get visited.
    Ms. Foster. Thank you. I agree.
    Mr. Hare. You are welcome.
    Ms. Woolsey. Mr. Kucinich?
    Mr. Kucinich. Thank you, Madam Chair.
    First of all, I want to thank Mr. Miller for calling this 
hearing.
    And you know, I think we have to be aware of the 
capabilities of existing law here, and I would like a response 
from the AFL-CIO on this. Currently, OSHA under the statute can 
refer a case to the Department of Justice, isn't that right?
    Ms. Seminario. It can refer a case if there is a willful 
violation that results in the death of a worker.
    Mr. Kucinich. Do you know how many cases have been referred 
to the Department of Justice?
    Ms. Seminario. I believe that there the number is 170.
    Mr. Kucinich. Could you speak to the mic?
    Ms. Seminario. I think it is 171 over the----
    Mr. Uhlmann. Twelve last year, 10 the year, 12 the year 
before that, 10, 10--you can go down----
    Ms. Seminario. Right.
    Mr. Kucinich. And do you know the disposition of those 
cases? Has anyone whose corporation was responsible for the 
death of a worker ever served jail time? How much time?
    Ms. Seminario. In the entire history of OSHA, there have 
only been 71 cases that have been prosecuted, resulting in 42 
months of jail time over 39 years.
    Mr. Kucinich. And how many workers are--isn't it true that 
there are about 5,680 workplace deaths each year?
    Ms. Seminario. There were last year. Since the OSHA Act was 
passed, about 350,000 workers have lost their lives due to 
traumatic injuries.
    Mr. Kucinich. Okay, 350,000 you are saying?
    Ms. Seminario. 1970.
    Mr. Kucinich. And how many people were prosecuted?
    Ms. Seminario. There were only 71 cases that were 
prosecuted.
    Mr. Kucinich. And how many people were convicted or sent to 
jail?
    Ms. Seminario. Last year there were 71 cases where they 
were prosecuted and 42 months of total jail time.
    Mr. Kucinich. How many?
    Ms. Seminario. There were 42 months of total jail time. I 
can get you the number----
    Mr. Kucinich. Right.
    Ms. Seminario [continuing]. Number of people, but only 42 
months of jail time.
    Mr. Kucinich. You know, when you look at state statutes for 
manslaughter, let us say you had 100,000 cases of manslaughter 
nationally, and there were only a few dozen prosecuted, people 
would start to ask questions about what is wrong with the law.
    Now, for some reason workplace safety has not achieved a 
level of consistent morality in our society alongside of the 
rights of people who are just going along and minding their own 
business who suddenly find themselves in a adverse position 
across their life.
    Why do you suppose that the safety of workers and the 
responsibility of employers has taken such a low level of 
concern in our society, both legally and morally? Why do you 
suppose that is?
    Ms. Seminario. I think that is an excellent question, and 
it really is one that is hard to answer.
    It is an anathema to me as to why, 40 years after the OSHA 
law was passed, that we are sitting here today having a 
discussion as to whether or not to have the penalties for 
violations of the OSHA law that resulted in death or serious 
injury to be equivalent to the way they are treated as 
environmental laws and other laws that protect wildlife.
    You know, I don't know. I mean, once----
    Mr. Kucinich. Is it because they are considered accidents?
    Ms. Seminario. It may be that they are considered 
accidents, but there would be----
    Mr. Kucinich. But let me ask you this. Is it an accident if 
an employer fails to provide safety equipment?
    Ms. Seminario. No.
    Mr. Kucinich. And is it an accident if there are not 
sufficient workers to safely perform a task?
    Ms. Seminario. No. No, it is----
    Mr. Kucinich. Without objection, I would like to include 
into the record an article that was written by Leo Gerard, the 
president of the Steelworkers, who has adequately described 
this dilemma over the lack of adequate dedication to workplace 
safety in our country.
    Now, I think that I am hopeful that either in this 
committee or another committee, we will have OSHA in front of 
us, because what I would like to hear OSHA saying is that they 
are going to refer more cases to the Department of Justice.
    And we also need to have the attorney general in here to 
indicate how seriously he will take referrals to the Department 
of Justice, because it is not as if you don't have a legal 
structure available to be able to pursue prosecution. It is 
that we have an attitude about workers that they are somehow 
less than, let us say, a corporate executive.
    There is really a two-class society here when it comes to 
the concerns of workers and the concerns of corporate 
executives. And it is becoming more and more apparent here.
    You know, you can look--Madam Chair and members of the 
committee, think about this. All this money that is going to 
bail out Wall Street, and unemployment keeps increasing, I mean 
these kind of disparities reflect a greater problem in our 
culture, and the point that the AFL-CIO makes here, is that, 
you know, workplace safety, which should be a basic right, is 
not.
    And the people who are responsible for creating that 
dilemma are making a profit on the adverse conditions that 
workers have to function under.
    Ms. Woolsey. If the gentleman hadn't taken a breath, I 
would have said without objection to your entering into the 
record. So thank you, Mr. Kucinich.
    Mr. Kucinich. Thank you. I just know that, you know, our 
committee----
    Ms. Woolsey. Your time, sir, has----
    Mr. Kucinich. In other words, they are going to have to do 
more on this, and----
    Ms. Woolsey [continuing]. Has expired. Thank you.
    Mr. Kucinich. Thank you.
    Mr. Uhlmann. Congresswoman, I don't want to extend this 
unnecessarily, but one point should be clear here. I mean, the 
congressman may be right about the disparity in terms of how we 
treat our workers, but the laws aren't on the books right now, 
and the Justice Department can be as committed as you want them 
to be and as I want them to be too worker safety cases, but if 
they are just misdemeanors, you are not going to see the 
prosecutions. I can guarantee that.
    Ms. Woolsey. Okay. Thank you, Mr. Uhlmann.
    I will yield myself 5 minutes.
    Ms. Foster, your loss is so sad and the way your family, 
and the way Jeremy's death was treated by his employer was 
appalling. Have you seen any change in the safety and health 
conditions for Ola Sawmills since Jeremy's death and since that 
ridiculously low fine?
    Ms. Foster. No, ma'am. I am not aware of any changes that 
have been made. I am aware that there was another accident 
there just last September that resulted in the amputation of a 
young man's leg. Although this injury was not accounted for, 
because it was just one injury, you won't see it on record 
anywhere or in anyone's statistics.
    Ms. Woolsey. Was that from the same piece of equipment?
    Ms. Foster. Not the same piece of equipment, as I am 
saying----
    Ms. Woolsey. But the same employer.
    Ms. Foster [continuing]. But it is the same location, the 
same place. And I feel like it is still an unsafe environment.
    Ms. Woolsey. Well you have a family bill of rights idea 
that you have suggested that employers be required to take into 
consideration. Would you like to tell us what you would want to 
do to keep families involved?
    Ms. Foster. In a case like ours, if the company had only 
treated us like human beings, you know, if they had had a 
little bit of consideration for us, you know, keep us involved.
    The company did not tell us how my stepson was killed. It 
was a coroner that told us. The company--you know, they had no 
involvement with us. They walked away from us. They ran away 
from us. They wanted nothing to do with us.
    So I think they just have to be accountable, held 
accountable for what they have done. They have got to stand up 
and say, you know, we did this. We need to do something to 
help.
    Ms. Woolsey. Okay. Thank you very much.
    Ms. Seminario, do you trust OSHA reporting the system that 
we have in place now with, I mean, lack of emphasis, 30-year-
old procedures, shortage of employees. Oh, listen to me. I am 
leading you, aren't I?
    But I mean at that end, aren't near misses recorded and 
reported now?
    Ms. Seminario. No. What ends up coming on the OSHA log, 
which ends up in the injury statistics, are those cases which 
results in medical treatment. Those are the cases that end up 
on the OSHA log and get into the statistics. Near misses don't 
end up in the log.
    What gets reported to OSHA, however, in terms of particular 
incidents are only those cases that result in three or more 
hospitalizations or worker death. And so if you have a case 
where you have a worker that is hospitalized, a single worker, 
that is not required to be reported to OSHA, so there is no 
immediate action that is taken, you know, by the agency.
    And as far as the injury statistics themselves that were 
talked about, there have been reason studies that compare 
workers' compensation records was what is on the OSHA log and 
other sources of information, and what they have found in at 
least seven states where those detailed comparisons have been 
made, that the OSHA log is underreporting injuries by one-third 
or two-thirds.
    And so there are two to three times as many workplace 
injuries occurring as there were being reported on the log and 
recorded in the overall statistics.
    Ms. Woolsey. Okay. Thank you very much.
    Mr. Halprin, you mentioned that we couldn't have a 
foolproof, failsafe system. So how would you look at Ms. 
Foster's situation with her stepson? How does that stack up, as 
far as you are concerned?
    I mean, the equipment was modified. They didn't have the 
safety guard. Was that a misunderstanding? Was that a mistake? 
What common sense--you know, everybody who knows anything knows 
that that shouldn't have happened; therefore----
    I mean, how would you handle that and prosecute it?
    Mr. Halprin. I would have done a full investigation. Now, 
the gentleman unfortunately is part of the temporary workforce. 
One of the problems in this country, especially the economic 
times, is that temporaries frequently are brought into a site, 
don't have the background that a regular worker would have. 
There are obligations that temporary employers are supposed to 
provide----
    Ms. Woolsey. Well, yes. Whose responsibility is it--the 
temporary worker or the employer on this one?
    Mr. Halprin. Definitely both.
    Ms. Woolsey. No way. It is the employer.
    Mr. Halprin. The temporary worker--the employer is supposed 
to provide information if the employee is subject to the day-
to-day supervision of the host employer. The host employer is 
also responsible.
    The question is clearly the equipment is modified. Somebody 
needs to take into account whether there is going to be 
exposure to it. I don't know whether that person was injured, 
killed unfortunately, and I feel for that person, was supposed 
to be in that area, what instructions they had, whether they 
had the right equipment on. Something obviously went wrong, and 
there should be some clear lines.
    Probably what OSHA needs, for example, is a machine 
guarding standard that clearly says if you have anything but a 
smooth bore, it needs to be guarded. By the time you go through 
thousands of pages of regulations, things get lost.
    I think that particular case, it is obvious. It should have 
been done, but----
    Ms. Woolsey. All right. It should have been done, and yes 
indeed, we do have machine guarding regulations. That is one of 
the things we have.
    Mr. Halprin. The question is why the person was there, and 
everything else that goes along with it. And I just think we 
are taking particular cases that were tragic, and we don't know 
enough about them to say for sure in those cases what went 
wrong and what happened.
    Ms. Woolsey. Okay. Thank you so much.
    And my time is up, but I am going to ask Mr. Uhlmann if--
the record is going to remain open, and I would really 
appreciate it if you would comment on where PAWA can be 
strengthened. If you would, I would so appreciate your insight. 
And yes, of course, we would like to talk to in person about 
it, too.
    Ms. Titus?
    Ms. Titus. Thank you very much.
    I appreciate the panel's testimony. You certainly made a 
compelling case for the need to strengthen the OSHA 
requirements, both in terms of the plan and to the enforcement.
    But I would like to ask an additional question about the 
problems created in those 20, 21 states that run their own OSHA 
program, because with the exception of maybe Washington and 
California, states may not be enforcing the plan that is 
supposed to be as effective as the federal level.
    And I know that is certainly the case in Nevada. You heard 
the chairman mention, and I believe you reference this, Ms. 
Seminario, in your written testimony about the Las Vegas 
Pulitzer Prize winning story about nine deaths that occurred at 
construction sites run by one big construction company along 
the Las Vegas strip, where work occurs 24 hours a day, and the 
economy and time become more important than safety.
    Let me just give you a few facts about Nevada OSHA, and 
then I want you to tell me what we can do to be sure that the 
states are doing a good job when they run their own program.
    In Nevada, OSHA is under the Department of Business and 
Industry. It is headed by a person appointed by the governor. 
That person has intervened in at least one case to reduce 
penalties for a company that is known as a big donor of the 
governor. The budget in the state is always too low, and the 
office is understaffed, so the enforcement is dreadful.
    If we fix the law at the federal level, how are we going to 
be sure that at the state level it gets enforced as well?
    Ms. Seminario. That is a very good question. As you point 
out, under the OSHA law, states have the ability to run their 
own state OSHA plans. Under the law they are supposed to be as 
effective as the federal government, and federal OSHA has got 
the responsibility to monitor those plans to see that they are.
    One of the things that has happened over time is that the 
agency has not really kept up with the monitoring of plans. 
They did a better job of it when the plans were being developed 
in the earlier years, but since the plans have been certified 
as being final, essentially that oversight does not take place.
    And so again, you point out the problems in Nevada. There 
are problems in Indiana. There are problems in South Carolina. 
There are problems in a lot of states.
    And one of the things that I think that the committee needs 
to do is to look at the whole issue of state plans--some are 
very, very good and have done exceptional work--and to take a 
look at what is going on and the fact that we do have this real 
differential in protection.
    But federal OSHA is supposed to be monitoring. It is 
supposed to be looking at what is going on. But under the law 
if there are problems, essentially there aren't many options.
    And what the federal government can do is to move to 
withdraw the plan. They have only done that in very, very rare 
circumstances. But clearly they need to be doing the oversight 
in trying to move the plans to be as effective as the federal 
government.
    With the Protecting America's Workers Act, the state plans 
will be required to adopt provisions and there are laws that 
are at least as effective, and if they don't, the jurisdiction 
would revert back to the federal government. So there is a 
requirement that they come up to the same standards that is in 
the legislation that is being proposed.
    Ms. Titus. I just worry about the politics at the different 
state levels and the funding at the different state levels so 
that we are ensuring that the plan that may look great is 
really enforced.
    Mr. Uhlmann. You know, this is an issue not just for worker 
safety law. I mean many of our federal regulatory programs are 
implemented by the state, and the lead role in inspections and 
enforcement is done by the states.
    What we can do under the OSHA Act--and you know, if the 
current version of the Act doesn't provide this authority, it 
is authority that can be provided; it wasn't one of the 
suggestions that I had in mind when I said I thought there were 
ways the Act could be strengthened, but this could be another 
way--is we could make clear that the federal government has the 
ability to bring enforcement actions when the states don't.
    And that is what happens under the--environmental laws are 
what I know best because of my background, but when a state 
doesn't bring an action under state environmental laws, the 
federal government, the Justice Department, can bring either a 
civil penalty action, or they can bring a criminal case, if 
criminal prosecution is warranted, even though it is a program 
that is run by the state.
    Now, I don't know that we can do--whether the current 
version of the OSHA Act allows that, but that is something that 
amendments to the Act could consider. You know, something else 
that amendments to the act could consider, that we do under 
other laws, is that we let citizens bring suit.
    You know, if the government falls down on its job, and you 
know I was a public servant for 17 years, so I hate to say that 
the federal government and state governments sometimes fall 
down on the job, but it is probably no shock to anyone in this 
room that that sometimes happens--you know, it is not a bad 
idea to let citizens bring suit in appropriate circumstances 
when the government doesn't do its job.
    So I mean there are ways we can get at this problem of weak 
state enforcement. It is not unique to this scenario you 
describe in Nevada, and it is not unique to the worker safety 
laws.
    Ms. Titus. Thank you.
    Ms. Woolsey. Thank you.
    Mr. Holt?
    Mr. Holt. Thank you, Madam Chair.
    OSHA, of course, is landmark legislation. I mean it was for 
decades after legislation about hiring and firing workers that 
we got around to protecting the workplace safety.
    And I am always pleased to extol the work of New Jersey's 
own Senator Williams in passing the OSHA legislation. And I 
often point out that there are hundreds of thousands of people 
alive today, who don't know who they are, thanks to the work of 
Senator Williams and the others for the OSHA legislation, and 
millions more who have their limbs and lungs and health because 
of OSHA.
    But OSHA has been a learning process. You know, we went 
from a time of worker beware and no standards to voluntary 
compliance and rather weak sanctions so that OSHA compliance 
becomes a cost of doing business.
    Now we are looking at Ms. Woolsey's legislation that would 
raise the value of life and limb, and it is appropriate we look 
at that. But if we want to make sure that were not demeaning 
the value of workers and their lives, criminal prosecution is 
something that we really should consider to make sure that 
workers are--you get the protection they deserve.
    We need to a lot of other things though, too, as we evolve 
towards better protection in the workplace. We need more 
research in setting the standards, and of course, funding for 
inspectors and better reporting.
    I would like to turn to--and I guess it would be to Ms. 
Seminario--to one particular matter of workplace protection, 
where we have not kept up with the times.
    Nearly 4 years ago in November 2005, the Department of 
Health and Human Services issued its pandemic influenza plan. 
Now, you may have heard on the news there is some concern right 
now about influenza pandemics. This report said, well, this 
plan's infection control provisions were really pretty weak.
    And despite that, when petitioned by the AFL-CIO and other 
representatives of workers to issue standards to protect health 
care workers and responders in the event of a pandemic, OSHA 
denied the petition, claiming that, well, an emergency standard 
wasn't necessary, because there wasn't an emergency. No 
influenza virus epidemic or pandemic existed at that time.
    So instead of issuing a standard, the Department of Labor 
decides it to rely on guidelines, recommendations. The 
guidelines are only advisory. And yet a survey by the AFL-CIO, 
I understand, has found that a third of facilities are not 
adequately prepared to protect health care workers in the event 
of an influenza pandemic.
    Forty-three percent of the survey respondents believe that 
most or some of their fellow workers would stay at home, 
presumably with some harm to the general public.
    How do we bring the standard up to date? What should we be 
doing for the sake of the general public, but for the sake of 
the health care workers?
    Ms. Seminario. Well, this is an area which obviously there 
is much focus on because of reports out of Mexico with a large 
number of fatalities that we are seeing.
    We think OSHA needs to act. The state of California is 
actually moving in this area, once again leading the way. It is 
not just this particular strain of swine flu or concerns about 
avian flu. We have regular influenza that puts workers at risk.
    The state of California has been moving to develop a 
standard on airborne transmissible diseases and is actually 
close to completing that rule. Hopefully, within the next few 
weeks it will actually be adopted as a legally enforceable rule 
in the state of California.
    And we think it is actually a pretty good rule, and it is 
something that federal OSHA could look to immediately as a 
model and take action on.
    You are right. They did put out guidelines, but from the 
survey that was done by the unions through their local union to 
steps being taken in health care facilities, in a large number 
of health care facilities nothing has been done.
    And so I think it is something that we need to focus on, 
and we need to focus on now, because we indeed are facing the 
potential of some very significant potential exposures, and the 
workers on the frontline----
    Mr. Holt. If I might politely correct you, I think not now, 
but last year.
    Ms. Seminario. Last year. Exactly. Exactly. And just to be 
clear, the point of our petition wasn't--was basically said 
that we would be prepared, because when you are in that 
situation facing a pandemic, it is too late, right?
    Mr. Holt. Thank you.
    Ms. Woolsey. Thank you very much.
    Mrs. Davis?
    Mrs. Davis. Thank you, Madam Chair.
    Thank you to all of you. I am sorry I missed a part of the 
discussion, but I am not sure that you have had a chance to 
take a look at this particular issue.
    And, Mr. Uhlmann, I understand since you were at the 
Department of Justice, it appears that there aren't a lot of 
cases that go from OSHA to the Department of Justice. Is that 
true? And why is that? I mean, what do you think is going on in 
that there aren't many referred?
    Mr. Uhlmann. Yes, very few referrals. I think Ms. Seminario 
testified earlier this morning that in the nearly 40 years that 
the OSHA Act has been law, there has been only 71 criminal 
cases prosecuted. And the numbers sent each year is very small.
    You know, certainly part of the issue is that OSHA needs to 
serve up more cases. I mean OSHA needs to view the criminal 
sanction as one that is appropriate more often--certainly more 
often than twice a year for 40 years.
    So you know, I think there is some responsibility within 
OSHA, but to be fair to OSHA, you know, they could send 100 
cases a year to the Justice Department, seeking misdemeanor 
prosecution for worker violations that resulted in death, and 
they are not going to see many prosecutions.
    And the Justice Department is, you know, like--like 
everyone else in the country, they have got--they have got a 
lot on their plate, and they focus on felony cases.
    And I know I may be sounding a bit like a broken record, 
but this is true in--across prosecuting offices. I was a 
prosecutor for 17 years. Prosecutors--it is their mantra. They 
prosecute felonies.
    And, you know, really we tell them to prosecute felonies. 
Those other crimes that we are telling them are the ones we 
think are the most serious. Congress is telling them that. That 
is where they focus their limited resources.
    So even if we saw a lot more referrals to the department, I 
don't think we will see a lot more in the way of prosecution 
until we do something about the fact that these crimes are just 
misdemeanors.
    Mrs. Davis. If they are good communication between the DOJ 
and OSHA? And I think the training that is done for some 
inspectors that OSHA is done by the Department of Justice. Is 
that correct?
    Mr. Uhlmann. Yes, well, what I think you may be referring 
to is, you know, we started--when I was the chief in the 
environmental crimes section, we started a worker endangerment 
initiative, and we reached out to OSHA.
    In a Republican administration--I mean I view this--you 
can't really tell it sitting in this room, but I view this as a 
nonpartisan issue. You know, this is about worker safety for 
all Americans.
    This is about fairness to all employers. You know, an 
employer who hires Mr. Halprin spends a lot of money on worker 
safety. They shouldn't be at a competitive disadvantage with a 
company that doesn't make any commitment to worker safety.
    So we, you know, for 5 years ago started training OSHA, 
started working with them about ways cases could be brought 
into the criminal justice system and hopefully get better 
compliance with the law as a result.
    And I mean OSHA was very responsive to the--the training--
certainly out in the field. I mean certainly and the various 
OSHA offices around the country, the inspectors really see the 
value of this kind of working relationship.
    So you know, I think the communication is decent.
    Mrs. Davis. Appreciate that.
    Mr. Uhlmann. We do need----
    Mrs. Davis. But you said the overall problem remains in 
terms of the priority for those cases.
    Mr. Uhlmann. Absolutely. And I think there needs to be a 
little more courage at the political level at OSHA, where was a 
little wobbly when we--you know, when we started this work----
    Mrs. Davis. Thank you.
    Mr. Uhlmann [continuing]. A little more courage to say to 
the business community, ``You know what? This is in all of our 
interest.'' Because it really is in all of our interest.
    Mrs. Davis. Absolutely. Thank you.
    I wonder, Mr. Halprin. I don't know whether you have had a 
chance to review the legislation that has been referenced here 
in the hearing, Ms. Woolsey's Protecting America's Workers Act.
    And I just wondered if, you know, just quickly, I mean, are 
there some red flags that you see with that? Or do you think 
that it represents an improvement in the situation that we have 
today? Where would you want to weigh in and say, ``This needs 
to have a second look?''
    Mr. Halprin. I have only skimmed the bill. When you find--I 
have talked about what I mean by ``willful.'' For cases that 
are at a high level of willful, not all the ones that are 
currently fined in that way, some sort of criminal prosecution 
is clearly appropriate.
    I would like to think if there is a reason for increasing 
the level of sanction, it is because there is a moral issue, 
and there is a sense that the worker's value needs to be 
reflected.
    I am not a sympathetic with the idea that a Justice 
Department person feels they need to get a felony conviction on 
the record, and therefore they would rather spend that time on 
that.
    My experience, at least with the people I know, is it will 
be incredible trauma to think about any executive I know 
thinking they would be in jail for 6 months. Maybe I am 
sounding prejudiced, but I think the drug dealers go out there 
with the recognition there is a good chance they are going to 
end up in jail, and they take that risk.
    They would be tremendous trauma for a person and the 
family, and so I think in the right circumstance it needs to be 
done. It is probably underutilized, but I think the other point 
that I would like to make is OSHA has enforcement tools it 
hasn't effectively used.
    If there was a problem with McWane, and it is not just 
OSHA, Mr. Uhlmann has pointed out the fact that it take EPA 
with all its enforcement powers years to achieve what it did, 
and the fact that it could get some OSHA violations mostly from 
criminal misrepresentation helped.
    But EPA has the same problems. It is not just OSHA. And as 
high as the EPA fines are, it doesn't totally deter crime. So I 
am saying that there needs to be a balance.
    For example, the current bill would take away the ability 
to do away with unclassified violations.
    Mrs. Davis. Thank you. I see my time is up.
    Ms. Woolsey. Your time is up.
    Thank you, Mr. Halprin.
    Thank you, Mrs. Davis.
    Mr. Cassidy?
    Dr. Cassidy. Just to wrap up on our side, so to speak, I 
think we all agree that the moral imperative is how do we 
decrease likelihood that someone like Mr. Foster dies. And I 
think that what is at issue here is what is the best way to 
accomplish that.
    And as I look at this, and Mr. Uhlmann, in your testimony 
you speak about how ignorance of the law under our statute is 
not an excuse. And I do have this kind of sense of thousands of 
pages of things that it would take--a scholar to try and 
decipher.
    And so you end up with an adversarial relationship, not one 
where, ``Hey, come help me figure this out,'' but rather ``Oh, 
my gosh. Here comes the inspector. Let us hide it.''
    I do think apparently, as I have gathered, that there has 
been a different approach into perhaps helping people interpret 
this. And clearly we can see on workplace fatality, there has 
been a continued downward slope. In my mind to imply that the 
current method of doing it is inferior or immoral kind of 
rejects the fact that we have had a continued downward slope.
    And I say that because intuitively I know that the first 
preventions of death are the low hanging fruit. And then it 
gets tougher and tougher, because it becomes more and more kind 
of out there as to where we are going to save lives.
    Ms. Seminario, you mentioned, well, no, this doesn't 
necessarily reflect workplace injury and illness rates, because 
look at workers comp. But we heard testimony last year in the 
110th Congress in this committee from a Mr. Fellner, who said 
that really you can't compare workers comp's records with the 
OSHA's records because you got 50 different jurisdictions out 
there, and they have got different standards, and they are 
privately employed, and groups less than 10 are not applied to, 
et cetera.
    So I am asking to keep the record open and at a later date 
if you can reply in writing to that sort of statement by Mr. 
Fellner from last year, I would appreciate that, because I 
truly want to learn this.
    So I guess I would end up by saying if were going to say 
that the low hanging fruit for fatalities has been--I will make 
the assumption--has been gathered here, and yet the continued 
downward slope has occurred, and that most likely that there is 
a statistical relationship between decreased workplace 
fatalities and decreased workplace injuries, that perhaps this 
cooperative relationship has benefited us all.
    That said, if you can get comments to my original question, 
how can you ensure the legislation continues to bring 
cooperation between the bureaucracy, if you will, the Justice 
Department and the employer group without creating an 
adversarial relationship that would make people want to hide 
their potential errors, as opposed to, ``Well, come look at our 
errors and help us correct them.'' Because again, our highest 
moral ground is to decrease the frequency and likelihood of 
things such as your stepson dying.
    Thank you, Madam Chairwoman.
    Ms. Woolsey. Thank you, Mr. Cassidy.
    I yield to the chairman of the committee, Mr. Miller.
    Chairman Miller [presiding]. Thank you very much, Madam 
Chair. And thank you for assuming the chair. I had to go to a 
panel on the California drought in the Resources Committee.
    I want to thank our witnesses.
    You know, we argue back and forth about what makes the 
reports and what doesn't make the report and whether there is 
underreporting and over reporting. And you know there is some 
concern that as many as 69 percent of injuries and illnesses 
may never make it into the survey of occupational injuries and 
illnesses report.
    So I guess, you know, we hoped you would continue to have a 
downward incidence in the workplace and the rest of that. But I 
still think you need the due diligence. Because you know you 
have the case of Ms. Foster's son--small workplace, temporary 
worker, and put in a place of danger and ends up losing his 
life.
    And you have the City Center project in Las Vegas that 
apparently, while under, you know, under the supervision of 
three of the largest engineering companies in the country and 
with all of the people managing that job, but for the Las Vegas 
Sun, they would have continued to kill people. Because it 
wasn't--the safety on the job was outrageous, given the size, 
the value and under the working conditions that were being 
assumed there. That they are working around the clock because 
of time and money.
    So we can report this back and forth, and I guess that 
gives you some incidence of effectiveness, but I don't think 
that we are prepared to accept that as to whether or not the 
law is in fact protecting individual workers when they show up 
at individual worksites across the country.
    So we are going to continue this effort. If the intent of--
my intent is chair to report this bill from this--from this 
committee, and I appreciate the suggestions that have been made 
about the--about improvements that--that might be made in this 
legislation, but this is absolutely critical.
    Again, there is a lot of discussion about thousands of 
pages of regulations. I don't know--we just went through 8 
years of supposedly, you know, with a pro-business 
administration with the same secretary of labor. I don't know--
didn't they ever review any of this? I don't know.
    I mean, you know, it can't be that complicated. And the 
fact is what you have to review are those things that pertain 
to your worksite, your business, and the danger to your 
employees.
    So I want to again thank you. We are going to continue to 
consult with you, if we might. And this hearing is going to be 
adjourned. And I want to say that--what are we going to do? We 
have got to do something here. There is always procedure. We 
are like OSHA.
    Without objection, members will have 14 days to submit 
additional material or questions into the hearing record. And 
if there is no objection, the committee will stand as 
adjourned.
    And thank you again.
    [Additional submissions of Mr. McKeon follow:]

              Prepared Statement of the Cintas Corporation

    Cintas Corporation submits this statement for the record to the 
House Education and Labor Committee for the hearing titled ``Are OSHA's 
penalties adequate to deter health and safety violations?'' held April 
28, 2009 and to the House Education and Labor Subcommittee on Workforce 
Protections for the hearing titled ``Improving OSHA's Enhanced 
Enforcement Program'' held on April 30, 2009.
    Throughout the Committee and Subcommittee hearings on April 28 and 
30, 2009, various allegations were made against Cintas that are flatly 
untrue and deeply concerning. Allegations that Cintas does not care 
about the safety of our employee-partners, does nothing to protect its 
workers' safety, and did nothing in response to the 2007 accident in 
Tulsa, Oklahoma are completely false and misleading. The accident in 
March of 2007 was a tragic event, and we have re-committed our energy 
and resources to prevent such an accident again. This submission seeks 
to set the record straight.
    In March of 2007, one of our employee-partners in Oklahoma lost his 
life when he climbed atop a moving conveyor and fell into an industrial 
dryer. This tragic accident shook our entire organization deeply. With 
our longstanding emphasis on safety, it seemed unimaginable to lose a 
friend and employee-partner. Before the tragic accident, the company's 
safety record was 11 percent better than comparable-sized facilities in 
our industry and had been showing constant improvement. The company is 
re-examining all of the facets of the company's safety program and 
working with outside experts to enhance the program further.
    Below you will find a brief history of Cintas Safety efforts and 
more importantly, some of the efforts taken since the tragic accident.
    Brief Safety History:
     For the past 40 years, each Cintas uniform rental facility 
has maintained an employee-driven Safety and Improvement Committee. 
Each committee is comprised of frontline partners from production areas 
as well as plant management who meet monthly to review workplace safety 
procedures and guidelines.
     In 2003, the company hired Rick Gerlach, Ph.D. as 
Corporate Director of Safety and Health. Dr. Gerlach has more than 28 
years of experience in the safety and health industry.
     Prior to the 2007 accident, the company had designated 
Regional Safety and Health Coordinators and partners responsible for 
safety at the locations.
     In the three years prior to the Tulsa accident, company 
employees attended more than 115,000 hours of classroom and safety 
training.
     1,350 managers and supervisors completed the two-day OSHA 
``ten-hour course.''
     We introduced a revised safety compliance auditing program 
in 2004. As a result of these efforts, the number of citations we 
received per OSHA inspection in 2004 was reduced by more than 75 
percent in 2006.
    Enhancements to our program since the accident:
     In 2007, we created the Executive Safety Council chaired 
by the CEO. This Council constantly monitors the compliance and ethics 
of our business practices. It helps us develop and implement processes 
to lead Cintas to world-class safety performance, and it includes 
Cintas executives and three nationally-recognized safety experts 
serving as advisors. These experts include former OSHA Administrator 
John Henshaw, former Proctor & Gamble worldwide health and safety 
director Dr. Richard Fulwiler, and former DuPont corporate safety and 
health director Michael Deak.
     Expanded wash alley training programs that include weekly 
re-training of all wash alley employee-partners.
     Limited wash alley access. Only partners trained in wash 
alley safety procedures are allowed in the alley.
     Implemented full time wash alley safety monitors whose 
role is to monitor activities and safe work practices any time a wash 
alley partner is working in the wash alley. This control is in place in 
all locations unless the location has a permanent engineered solution 
installed.
     Hired an additional 17 Regional Safety and Health 
Coordinators and Safety and Health Specialists around the country to 
help in monitoring safety initiatives in all Cintas facilities.
     Increased internal safety audits to three times annually.
     Several Cintas locations have enrolled in OSHA's Voluntary 
Protection Program (VPP) to achieve ``Star'' certification.
     Established safety scorecard to ensure compliance with all 
required safety initiatives and accountability by management.
     Working with manufacturers of wash alley equipment to 
create an engineered solution that will shut off all hazardous motion 
in the wash alley when someone enters it. This technology will be 
available to all companies within our industry.
    Cintas is committed to continual improvement in our safety program 
and are working to become world class. We welcome the industry to 
utilize the best practices we are gathering and implementing to ensure 
accidents of this nature do not occur in the future for anyone in the 
industrial laundry industry. The results of our commitments are clearly 
demonstrated. Our total incident rate for 2008 is more than 20 percent 
better than the last reported government data for the same size 
facilities in our industry.
    Founded on a family business created during The Great Depression, 
Cintas has become the leading business-services company in the United 
States, providing more than 800,000 business-customers with uniforms, 
entrance mats, restroom supplies, promotional products first aid and 
safety products, fire protection services and document management 
services. It's a unique value-based organization in which all employee-
partners are made shareholders on their first anniversaries, sharing in 
combined growth and success of their company. For more than 75 years, 
together we have built a successful business based on ``honesty and 
integrity in everything we do'' and were recently named by FORTUNE 
magazine as one of ``America's Most Admired Companies for the ninth 
consecutive year.'' More information can be found at www.cintas.com.
                                 ______
                                 
            Government Finance Officers Association (GFOA);
        International Municipal Lawyers Association (IMLA);
     International Public Management Association for Human 
                                       Resources (IPMA-HR);
                   National Association of Counties (NACo);
                           National League of Cities (NLC);
      National Public Employer Labor Relations Association 
                                                  (NPELRA);
                                                      May 12, 2009.
Hon. George Miller, Chairman; Hon. Howard ``Buck'' McKeon, Ranking 
    Member, House Education and Labor Committee, U.S. House of 
    Representatives, Washington, DC.

    Dear Chairman Miller and Ranking Member McKeon: On April 28, 2009 
the House Committee on Education and Labor held a hearing on the bill, 
H.R. 2067, the ``Protecting America's Workers Act.'' Our associations 
would like to express our strong opposition to this legislation.
    H.R. 2067 would mandate OSHA coverage for all public employees, 
including those currently working in non-covered states. As you know, 
OSHA currently excludes state and local governments from the definition 
of employers. Twenty- four states and two territories have voluntarily 
adopted the federal OSHA standards. (Three of those states and one 
territory cover public sector employees only.) The remaining states 
have set their own occupational health and safety standards tailored to 
the needs of their jurisdiction.
    A bill that mandates federal OSHA standards on state and local 
governments would violate the spirit of the 10th amendment and 
constitute an unfunded mandate on states and localities, in direct 
conflict with the Unfunded Mandates Reform Act of 1995. Moreover, state 
OSHA protections render the bill largely unnecessary. Finally, the 
increasing strain on the budgets and resources of state and local 
governments as a result of the economic downturn makes this a 
particularly inopportune time to impose unnecessary federal standards.
    We would be happy to meet with either of you or a member of your 
staff to further discuss our significant concerns with this 
legislation. Please feel free to contact any of our groups below.
                   Barrie Tabin Berger, Assistant Director,
                       Federal Liaison Center, GFOA (202) 393-8020.
    Chuck Thompson, General Counsel and Executive Director,
                                               IMLA (202) 466-5424.
                      Neil Reichenberg, Executive Director,
                                            IPMA-HR (703) 549-7100.
           Deseree Gardner, Associate Legislative Director,
                                               NACo (202) 942-4204.
               Neil Bomberg, Principal Legislative Counsel,
                                                NLC (202) 626-3042.
                          Michael Kolb, Executive Director,
                                             NPELRA (760) 433-1686.
                                 ______
                                 
    [Whereupon, at 12:07 p.m., the committee was adjourned.]

                                 
