Hearing of the House Education and Labor Committee - Are Osha's Penalties Adequate to Deter Health and Safety Violations?

HEARING OF THE HOUSE EDUCATION AND LABOR COMMITTEE

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

CHAIRED BY: REP. GEORGE MILLER (D-CA)

WITNESSES: REBECCA FOSTER, STEPMOTHER OF JEREMY FOSTER; LAWRENCE HALPRIN, PARTNER, KELLER AND HECKMAN LLP; MARGARET SEMINARIO, SAFETY AND HEALTH DIRECTOR, AFL-CIO; DAVID UHLMANN, PROFESSOR AND DIRECTOR, ENVIRONMENTAL LAW AND POLICY PROGRAM, UNIVERSITY OF MICHIGAN LAW SCHOOL

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REP. MILLER: The Committee on Education and Labor will come to order this morning for the purposes of conducting a hearing on the question of whether OSHA's penalties are adequate to deter -- 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. This hearing is -- it's fitting that we recognize Workers Memorial Day today. This -- 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 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 Occupation and Safety Health Administration (sic) 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've seen an erosion of workplace protections guaranteed by the Occupational Safety and Healthy -- 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 -- to adequate 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 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 eight years have left OSHA significantly weakened. OSHA has the ability to reverse some of the problems with new leadership, and that's why I'm 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 -- 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 (the adequate ?) OSHA penalties, and we'll look at whether Congress should modernize and strengthen penalties against those who put Americans in unnecessary risk while at work.

Penalties under the -- under OSHA are -- were last updated in 1990 and were not indexed for inflation, and these penalties -- 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 -- under OSHA, criminal prosecutions for egregious behavior of the law -- 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 fines down or -- or away altogether.

This is exactly what happened (in the ?) 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 CityCenter 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 but 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 -- and 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 the key enforcement mechanisms under OSHA. Before -- before introducing the witnesses, I want to recognize the committee's ranking member Republican, Mr. McKeon, for the purposes of an opening statement.

REP. HOWARD P. MCKEON (R-CA): 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'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, and I yield back.

REP. 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 gentle woman is recognized for five minutes.

REP. LYNN C. WOOLSEY (D-CA): Thank you very much, Mr. Chairman, and thank you for holding this important hearing on OSHA penalties. In the more than two years that I've 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's the biggest tragedy 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's here today, and all of the other members of -- 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's what today is, by the way -- than to dedicate ourselves to putting policies in place that will protect workers and will deter employers. That's 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 Workers Act -- PAWA we'll 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 expanded 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 -- 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 legislations. I will yield back.

REP. MILLER: Thank you. I want to welcome all of the witnesses to the committee this morning. Thank you for your time and for your -- for your expertise that you're sharing with us. We'll begin with Ms. Becky Foster, who -- who is before the committee today to testify about how her stepson, Jeremy Foster, was fatally injured on the job at a timber company six 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 AF of L-CIO for more than 25 years and has served as director of safety and health for the AF of L-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 B.A. in biological science from Wellesley College and a Masters in science degree in industrial hygiene from Harvard School of Public Health.

Mr. Lawrence Halprin is a partner at -- at Keller Heckman where he works on a broad range of workplace health and safety -- safety, environmental product safety, and -- and business transaction issues. Mr. Halprin works with -- with clients in the developing, implementing, and auditing the environmental health and safety management programs. He has a B.S. from the University of Pennsylvania, a J.D. from Duquesne School of Law, and an MBA from George Washington University.

Mr. David Uhlmann is -- 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 as -- as -- for seven 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 B.A. from Swarthmore College and his J.D. from Yale Law School.

Welcome to the committee. Just a quick note. When you begin testifying, on those little boxes in front of you a green light will go on. You'll have five minutes for your testimony. At about -- when you have one minute remaining an orange light will go on and we'd like you to try to start to wrap up your -- your testimony, but we also want you to be able to complete your thoughts and -- and complete it in a manner in which you desire to convey the information to the committee, all within five minutes. Imagine that. (Laughter.) Thank you. Ms. Foster, we'll begin with you.

MS. FOSTER: Good morning, Mr. Chairman.

REP. MILLER: We're going to ask you to pull that microphone a little bit closer to you.

MS. FOSTER: Little closer. Is this better?

REP. MILLER: That's better. Thank you.

MS. 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 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 2:00 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 the oldest sister's house -- 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've never seen or heard from them again.

It was our friend who works as a 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 keystock 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 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 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 through a temp agency. The temp agency paid for the funeral under workers compensation regulations.

We were left with nothing but pain and lost -- 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 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 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're not being enforced? Why have penalties if they're 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 members, I plead for your support in any efforts that are presented to ensure a safer workplace. Thank you.

REP. MILLER: Ms. Seminario?

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, 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's an average of 15 workers every day. Nearly four 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 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 a 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 a 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 -- from Becky Foster about the OSHA citations and penalty in her case are typical of what happens 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 a serious violation -- and that's 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 (dollars) 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 worker their lives, that are pitifully low, and provide no deterrence.

The OSHA act's 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's 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's one 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 enacted last week -- the Protecting America's Workers Act -- would move and enhance OSHA penalties, particularly in cases of fatalities, and would enhance penalties -- criminal penalties under the OSHA act. We would encourage the committee to move quickly. Enact that legislation. Thank you.

REP. MILLER: Thank you. Mr. Halprin?

MR. HALPRIN: Thank you, Chairman Miller. Is my microphone on?

REP. MILLER: Yes.

MR. HALPRIN: Thank you. Ranking Member McKeon, members of the committee, my name is Lawrence Halprin.

I'm an attorney with the law --

REP. MILLER: You may want to drag it a little closer to you or -- or speak a little bit more into it. Thank you.

MR. HALPRIN: -- attorney with the law firm of --

REP. MILLER: There you go.

MR. HALPRIN: -- Keller and Heckman. I appreciate the opportunity to present my views on these issues today. As you can see from my background, I've 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 (in its ?) plays, and except for the dog Muffin -- we have a family dog who leaves things on the steps -- that's 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'd like to briefly emphasize my reasons for this thinking.

First, as has been already mentioned, based on my personal experience of over 30 years, BLS data indicate that adoption of the OSHA act and the work from various stakeholders, including the ones that Peg Seminario represents, have brought about a thinking change in this country, and through the adoption of the work the -- 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've ever been since BLS started collecting data in 1992. Therefore, the act in many ways is working. Could it be improved? Yes. There's always room for improvement in every activity we're engaged in. I think it's important to remember that the data suggests you have twice as great a chance of dying in your home and 6 to 8 percent -- six to eight times the chances of dying on the highway as in the workplace.

So we have to keep things in perspective. We are dealing with human beings that are far from perfect. They make mistakes. Management makes mistakes. Employees make mistakes. It's 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 and that means an appropriate balance between enforcement and writing rules that people can understand. Right now, they're generally incomprehensible to most except for some attorneys and highly-educated regulatory people.

(Inaudible) -- the economic benefits or should I say impacts 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 a violation. OSHA has great flexibility in how it assesses violations -- $70,000 for repeats, $70,000 for willful.

If you go into a confined space without following the program and OSHA determines it's a willful violation, there's 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 million-dollar fine fairly quickly.

Whether the agency chooses to take that approach, that's 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's extremely difficult to handle 100 cases a year and do an effective job.

And the solicitor's office have cases that are brought to them with inspectors who are 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.

(Their ?) -- 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're ambiguous. They're confusing. They're developed by a dysfunctional rulemaking process.

And then when it's time for compliance directives and guidance to help people better understand them, they're written in the same ambiguous language as the original rules. Now, I've detailed in my statement many reasons why the rulemaking process, in my mind, is dysfunctional. Under basic principles of rules of due process, for an agency rule to be enforceable 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 at the time the standard was written.

When you take all those factors into account, there are serious problems with enhancing penalties against employers who really don't understand what's required. Again, employers shouldn't be totally excused for noncompliance with rules but they need to be given credit for substantial compliance and not penalized for lack of ability to understand things.

Finally, let me make the point that in the last years, the last 20 years almost, at least 15 since DOL has been collecting data, the Department of Justice has only referred 12 cases a maximum for criminal prosecution, which means 0.2 percent of the fatality cases in this country that were work related are referred for 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'm a little over my time so I think I will just say that overall I think the current scheme is balanced, and I appreciate the opportunity to make this presentation.

REP. MILLER: Thank you. Mr. Uhlmann?

MR. UHLMANN: Good morning, Chairman Miller -- good morning, Chairman Miller, Ranking Member McKeon, and members of the committee. My name is David Uhlmann and I'm 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've 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 in the United States of America it's only a six-month misdemeanor if you commit a willful violation of the 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 and transports that deer across state lines, it's a five-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 deaths are not the only problem with the current version of the Occupational Safety and Health Act. I'd like to tell you 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 a 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'd received penalties for years.

But none of that stopped him from sending his workers on -- 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 there 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'd 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, we were able to prosecute Mr. Elias under the environmental laws, and after a three-and-a-half-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, and even though OSHA did cite him for willful violations of the OSH 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's 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 two years since I left the department and has enjoyed many successes, including the sentencings last week in the prosecution of the McWane's division, Atlantic States, in New Jersey. Four -- 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 OSH 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 -- 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's time to bring the OSH Act into the 21st century by enacting meaningful penalties for criminal violations of the act. I've 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'd 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.

REP. MILLER: Thank you. Ms. Foster, thank you very much for your -- for your testimony. At any time were you consulted or involved in the discussion of the sanctions against the company where -- where Jeremy worked in terms of the penalties that were to be imposed?

MS. FOSTER: No, sir. We were not.

REP. MILLER: I'm sorry. Can you just pull the microphone closer?

MS. FOSTER: No, we were not. No one contacted us and -- and asked for our opinion on -- on the penalty or anything.

REP. 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 had received from them. And then it was later that we actually read in the newspaper that the fine had been reduced. So we --

REP. MILLER: Ms. Seminario, we -- we heard in -- in the discussions of the -- the accidents, the fatalities in Las Vegas at CityCenter, again, of -- of people learning about this sort of after the fact with respect to settlements and reductions of the settlement. Is that -- is that common practice?

MS. SEMINARIO: Yes, it's -- it's very common. Under the OSHA act itself, the family members have no rights.

REP. MILLER: Mr. Halprin, is that your understanding? I mean, that's a correct reading of the act? I mean, that's what we've been told several times in these hearings.

MR. HALPRIN: The field operations manual requires that OSHA enforcement officials advise the family members of the status of an investigation and provide copies of citations immediately when they're issued and further involvement but they are not --

REP. MILLER: But no involvement in -- no involvement in the --

MR. HALPRIN: They're not involved in the substance --

REP. MILLER: Of the settlement.

MR. HALPRIN: -- of the investigation on the theory that it's considered confidential investigatory information.

There are 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 --

REP. MILLER: So Ms. Seminario, there's no -- there's no notice of -- of the -- of what the pending penalty will be before it's 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 -- in settlements if they've been involved in the investigation or if indeed they've elected to --

REP. MILLER: And that's true after -- that's 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 they -- 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.

REP. 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.

REP. MILLER: Let me ask you a further question, Ms. Seminario. You -- in your testimony you discuss the various discounts that can be provided once a penalty is established. And I -- I'm paraphrasing but I think there's a discount for a work -- a workplace history, which if you don't have -- I guess if you don't have a bad history you can receive a discount, and then there's another discount with respect to size.

And (I don't ?) 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 -- the workplace history discount but you'd 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's a formula that reduces.

You start at a penalty and -- and it gets reduced by these -- 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 -- 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's exceptional cases --

(Cross talk.)

REP. MILLER: So conceivably, you have -- there's -- there's for a very small employer -- I think it's under 10, and then there's something between one and 100 and over 100. Again, unfortunately I'm 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 a very small employer, the size of reduction actually for willful violations is 80 percent for size one to 10. If it's a serious, it's only 60 percent. So if you are willful, you get a bigger discount than you do if it's only a serious violation, which seems a little strange.

REP. 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 involved meriting criminal referral. Mr. Uhlmann, you're telling us that's because it's not worth the Justice Department's time to prosecute or even OSHA's to refer them because at the end of the day for killing this person, if that what happens under whatever circumstances, it's -- it's a -- what is it -- it's a misdemeanor, right?

MR. UHLMANN: That's correct, Mr. Chairman. You know, the reality of life in the Justice Department is that -- 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 -- you know, every single violation of the environmental laws that involves knowing conduct is a felony. The same is true under the food and drug laws. The same is true under the security laws. The OSH Act is --

(Cross talk.)

REP. MILLER: So in Ms. Foster's case, the Justice Department would've had to decide to prosecute a case if it was referred to them for a misdemeanor where they put the value on the crime at $2,500?

MR. UHLMANN: Well, the -- the -- I mean that's 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' -- prosecutors' offices across America, misdemeanors aren't the focus of prosecution efforts. They're rarely prosecuted.

REP. MILLER: We've got prosecution offices all across the country. Because of budget problems, they're suggesting they're going to let like really criminal guys go, you know, that are -- that are bopping people on the head in the streets. But anyway, Mr. McKeon? My time's over.

REP. MCKEON: Thank you, Mr. Chairman. Mr. Halprin, in the last several years OSHA has worked to cooperatively work 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's 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 that 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've 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've expected ?) -- (inaudible) -- 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. There are sometimes -- the current program is based on the idea that the targeting of employers is supposed to address those with more significant problems or those in an activity that's generally thought to be more significant, and therefore inspectors are expected to come up with citations.

And I think there's 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're doing a good job, and say to the supervisor, send us someplace else.

REP. MCKEON: You know, I think we -- we hear this -- the stories like what happened to Mr. Foster and pretty -- I mean, most of us in here could common sense figure that that was a real tragedy and -- 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 -- and then having it interpreted by different prosecutors across the country, and then the investigators being limited with maybe inadequate budgets enough to -- to supervise all locations, it -- it just is a -- it kind of boggles your mind how -- how much we try to solve all the world's problems here and -- and don't seem to be able to.

And -- and I think when you hear a case like Mr. Uhlmann, that you'd talked about in -- in Idaho, 17 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 -- 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 a hill and flipped over and killed himself.

And we had a former congressman die last week out with -- on HUVs with his -- or --

MS. : Four wheeler.

REP. MCKEON: -- four wheelers with his children. Same thing. Came over a -- 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's where I think there should be an -- an adjustment. But the mentality, I think, should be trying to fix things, trying to make things better, rather than trying to punish.

And I -- and that's, I think, the dilemma that we're kind of faced with. Some people only punishment gets a response. Some people, if you go in and -- and show them that here's a problem in your -- your business, you know, appreciate that and fix it, and they can move on. So I -- 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.

REP. WOOLSEY: 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's 30 years old. Over those 30 years, we've learned. Over those 30 years, we've moved from -- into the 21st century. It is time for OSHA to join the 21st century.

And as we go through the process with PAWA, we'll make sure that that's 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're not going to be picayune on the wrong things because we don't have time for that. Now, Mr. Kildee?

REP. DALE E. KILDEE (D-MI): Thank you, Madame Chair. Madame Chair, when my daughter was in high school an injury on a job took place in my district, and that injury helped my daughter form 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 the -- her hands into the press with the material and the press came down and 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 -- and minimal settlement for her -- very minimal. How could that happen? And she just cried some more, and I -- I read the article again, and the thing that really tripped her -- and we have to really make this a human issue. It's a moral issue. It's not just a legal issue. It's a moral issue.

She said, "Dad," she said, "Look, it says here, 'I can't even pet my kitten anymore ever again.'" Now, my daughter was a 10th 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 -- (inaudible) -- go through life without hands.

Now, that should move us. First of all, it should enrage us. Anger is good. Even great religious leaders have been angry. Christ knotted ropes and drove the moneychangers out of the temple, and sometimes we have moneychangers who are more concerned about profit than 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 her, she's one of my favorites and she really believes in human dignity -- she has a bill. Dr. Uhlmann, is that bill -- will that be helpful or should we go even further than -- than that bill? I'm co-sponsor of that bill, following her great leadership.

MR. UHLMANN: Sir, the -- the bill would be tremendously helpful. I think it would -- it would -- it would make a huge difference in the ability to deter violations, you know, recognizing as the -- the ranking member says that obviously the first thing you want to do is try and help companies do the right thing before a violation even occurs. I mean, I -- I fully support OSHA emphasizing compliance counseling.

But the reality is there are a lot of companies with all the counseling in the world, they're not Mr. Halprin's clients, and they're 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. I mean, I think there are ways that it could be improved and I -- you know, I'm happy to -- to talk about that and -- 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.

REP. KILDEE: Well, I appreciate that. You know, my daughter now is an employer. She's a very, very good businesswoman, and one of her highest priorities -- she still remembers that. She still remembers that Sunday when I brought that newspaper back from Flint, Michigan. One of her highest priorities -- and she's roaming her -- her buildings -- she's 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's really a high priority with her. And when we don't have employers who have that high priority then we need law, right, to make sure. Thank you very much and God bless you, Madame Chair.

REP. WOOLSEY: Thank you very much, Mr. Chairman. Mr. Cassidy?

REP. BILL CASSIDY (R-LA): I think we all agree that we need to decrease these terrible things that just happened to your stepson, ma'am. I guess the -- my question is what's 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 would go in to that small businessperson 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 -- 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 -- we can't afford you because I think your rates are probably too high for us?

MR. HALPRIN: The best example -- (inaudible) -- one of them -- (inaudible) -- the problems is with OSHA's machine guarding and lock- out/tag-out standards.

REP. CASSIDY: I'm sorry. Say that louder, please. I can't hear you.

MR. HALPRIN: OSHA's machine guarding lock-out/tag-out standards. There is a 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 so that it's 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, inadequate industry support so certain practices that had gone on for years that were expected to be permitted to continue suddenly became questioned or prohibited under OSHA's interpretations.

Because those interpretations are so impractical in some cases, there is divergent enforcement within (areas or ?) regions, across regions, between federal, OSHA, and the states, and in some cases the best a 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's not unusual.

That's a reality of a generic rulemaking process that doesn't get enough input and doesn't take into account what's going to happen. And that is a pervasive problem throughout the United States.

REP. CASSIDY: Mr. Uhlmann, I gather that you've had some regulatory background and I saw you nodding your head as -- as Mr. Halprin spoke to that. I guess in my mind is it possible to have this tension between on the one hand, we're going to bust you and throw you in jail, and on the other hand, we're going to -- (inaudible) -- give you good advice to help you discern what these regulations mean in terms of how to make worker safety, because that is our -- safer because that is our goal.

So I'm just asking you, can -- is it possible to kind of have that sort of tension exist and still have the working relationship that would allow that small businesswoman to modify her equipment appropriately? Do you follow what I'm saying?

MR. UHLMANN: I -- I do. I mean -- 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 -- you don't prosecute people for criminal violations of the law if the law isn't clear.

REP. CASSIDY: Now -- now, I'm -- I'm a doctor, so I don't understand -- (inaudible) -- so -- 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's impractical, that actually seemed like that would (make ?) the definition of willful as -- as I read willful. Is that correct?

MR. UHLMANN: Well, I mean, willful generally means that you know you're doing something that the law forbids.

REP. CASSIDY: Okay.

MR. UHLMANN: So, you know, you -- as a doctor, I mean, you know, if you had medical waste, which you know has the potential to harm other people, I mean, you've got an obligation to handle that waste properly, right?

REP. CASSIDY: Oh, 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's impractical to do so. I don't know the particular situation so I'm just assuming, and you're nodding your head. So -- so -- so how would you -- knowing that the machine didn't shut off but the law said it should shut off, and something bad happened, would that constitute a willful infraction I guess is my question.

MR. UHLMANN: Yeah, and what I -- what I'm trying to say is I -- I mean, accidents happen. I mean, you're describing an accident, and an accident is not a willful -- a willful violation. Accidents happen. I mean, the ranking member talked about this. Accidents happen throughout -- throughout American life and they're unfortunate, and we obviously want to do everything we can to prevent them. That's not what this is about.

I mean, the issue here is what do we do about those companies, even if they're 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 counsels his clients to do? How do we deter them? How do we make sure that they meet their obligations to America's workers?

REP. CASSIDY: So I guess my question, though -- I'm not sure I've got it -- and I agree with what you're saying, obviously, but my question -- my first question was is it possible to have two -- have simultaneously two different relationships, one in which you are threatening criminal penalties and the other where you're seeking a cooperative relationship? Show us where you're wrong and we won't bust you, but rather we're going to help you fix what is wrong. Does that make sense?

MR. UHLMANN: No, it does. And I -- you know, I think it's a fair -- it's a fair question. It's not just a question, of course, in the OSHA context, right? It's a question across the whole area that we regulate, and I think we see this across -- across our -- across federal regulatory programs. There's -- there's always -- you know, every regulatory program that I know about there's always that -- the effort to reach out and to educate and to try and get people to follow the law.

That's what we want, right? I mean, you know, I used to say as a prosecutor that I -- 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's not a perfect world, so I think you need -- you do that education but you also need to have the ability to -- to deter violations with strong enforcement in the circumstances when that's necessary.

REP. CASSIDY: Let me -- Mr. Halprin, what would be 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 to 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-tooth comb audit of every facility you'd find problems, and you'd 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've got this list. If you made a misjudgment, or despite the fact that you're diligently proceeding through this list something goes wrong and somebody gets hurt or, worst case scenario, dies, then the agency can come back and say you have a willful violation.

Now, if you've got, let's say, a dust scenario, and you've 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.

REP. WOOLSEY: The gentleman's time is complete. Mr. Andrews?

REP. ROBERT E. ANDREWS (D-NJ): Thank you, Madame 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're sorry that you're here, but we're -- we're fortunate that you're 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's been proof of a willful violation and there's been serious injury as opposed to just death, which is the Dominguez case that we -- we heard about. What's wrong with that? Why shouldn't we do that?

MR. HALPRIN: As I think I explained in my statement, giving the example if -- if somebody pulls out a gun, aims it at somebody and shoots him intentionally, clearly that's a horrible crime, whether they kill them or whether they wound them.

REP. 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.

REP. ANDREWS: Well, but if someone pulls out a gun and --

MR. HALPRIN: (Inaudible) -- else where you've got --

REP. ANDREWS: -- and -- and -- pulls out a gun and aims it at someone and shoots them and they just maim them and don't kill them, it's a criminal offense.

MR. HALPRIN: Correct.

REP. ANDREWS: What -- what happened to Mr. Dominguez was not a criminal offense because he didn't die. Shouldn't we fix that to -- to make it fit your analogy?

MR. HALPRIN: I -- I'm suggesting that there's possible -- there is an area there that needs to be looked at. My concern --

REP. 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 --

REP. ANDREWS: It's not the issue.

MR. HALPRIN: -- at the level --

REP. ANDREWS: That's not the issue. The -- the issue is if you have a finding of a willful violation by jury, which we had here --

MR. HALPRIN: My -- my point is -- (inaudible).

REP. ANDREWS: -- that should -- well, should someone get off the hook because the person survived and they didn't die? That's the issue.

MR. HALPRIN: That's not -- that's not my point. My point is the definition of willful is quite now too broad to penalize people at the level you're talking about.

REP. ANDREWS: How is it too broad, by the way? Tell -- 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 the particular problem in time and something goes amiss, I don't see that person as, in a sense, in a moral situation that they would be subjected to --

(Cross talk.)

REP. ANDREWS: With all due respect, the definition of willful is a little more specific than that. They'd have to have done the audit, know that there is 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 ignored. It means they didn't fix it in time.

REP. ANDREWS: I -- I disagree with that -- can you give me a case where someone's been found a willful violator of those facts, where -- where they -- they just -- 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'd have to go do the research and find it.

REP. ANDREWS: I wish you would. And we'll hold the record open for the committee to take a look at that. But I think that misstates 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?

REP. ANDREWS: Yeah.

MR. HALPRIN: From everything I've heard -- and I'd like to look at a file -- it certainly sounds like it.

REP. ANDREWS: Oh, yeah. Here's the facts there -- that the -- the gentleman's told to go into the steel tank and clean cyanide-laced material. He gets very sick, not surprising. The firefighters arrive. They ask the employer's representative what's in the -- in the -- the tank. They say it's just mud.

The doctor then examines Mr. Dominguez at the hospital, calls the proprietor of the business, and says, "Is there any possibility there is 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.

REP. ANDREWS: Now, there -- that wasn't a crime because Mr. Dominguez didn't die.

MR. HALPRIN: (Inaudible) -- was a crime in the --

REP. ANDREWS: Do you think it should -- 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 not dead?

MR. HALPRIN: I think that's close enough to taking the gun out and shooting somebody -- that that should be a crime.

REP. ANDREWS: Is that a yes?

MR. HALPRIN: Yes.

REP. 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's a $325,000 fine but a willful violation that kills a human being in the workplace is 70,000 (dollars). 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 (thousand dollars) for the second under the current law.

REP. ANDREWS: Do you think we should update those? Think we should equate it with the tuna act?

MR. HALPRIN: I don't -- (inaudible) -- opinion on that one right now.

REP. ANDREWS: Could you -- could you keep the record open and give us your opinion whether we should equate tunas and humans in that scale?

MR. HALPRIN: I'd 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, and morally they may be too high. But --

REP. ANDREWS: Okay. We'd -- we'd welcome --

MR. HALPRIN: -- (inaudible) -- the issue you're raising.

REP. ANDREWS: -- if that's your conclusion, we'd welcome that. I think my time is expired, Ms. Woolsey, but it looks like Mr. Uhlmann wanted to jump into the fray here.

REP. WOOLSEY: Thank you, Mr. Andrews. Mr. Price?

REP. TOM PRICE (R-GA): Thank you, Madame 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 the emotion -- this is an emotional issue, and it is because lives and livelihood are at stake.

And -- and for all of the folks who attended today because of -- of a tragedy in the workplace, we -- we extend our -- our thoughts and prayers to you and your family. Because it's emotional, sometimes Congress, when it acts in emotional ways, draws the wrong conclusions and makes the wrong laws so I think it's important that we all talk about -- 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 -- 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's important that as we look at the rules that we currently have in place and the outliers that exists that -- that maybe it's the outliers we ought to be looking at as opposed to a broad brush for everybody. But I'll -- I'll -- I'll 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 -- that is making it so there are fewer deaths on the job and there are fewer injuries and illnesses on the job. And that's a good thing and we ought to -- we ought to congratulate those who have been working in that area and -- and -- and hold them up as -- as champions for -- for our nation and for workers.

We've talked a lot about the willful violations, and it's my understanding, Mr. Halprin -- correct me if I'm wrong -- that -- it's my understanding there is no statutory definition of willful. Is that -- is that correct?

MR. HALPRIN: (It's ?) generally developed through case law rather than through the statutory language, yes.

REP. PRICE: And you would agree with that, Mr. Uhlmann? There's no statutory definition of willful?

MR. UHLMANN: That's correct.

REP. PRICE: My sense is that given this debate here this morning about what's 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.

REP. PRICE: Mr. Uhlmann, do you agree?

MR. UHLMANN: I -- I agree, Congressman, that a definition of willful would be helpful although --

REP. PRICE: Would be helpful.

MR. UHLMANN: -- you know, the committee should be aware that the willful standard is a much higher standard, contrary to what Mr. Halprin is saying. It's a much higher standard than under almost every other federal criminal law.

REP. PRICE: But a definition would be helpful. Ms. Seminario, do you -- do you believe that a definition would be helpful?

MS. SEMINARIO: A definition may be -- may be helpful. You have under the OSHA act willful violations for civil purposes.

REP. WOOLSEY: You need to turn on your microphone.

MS. SEMINARIO: You also have actions under criminal code for criminal willful. I'm not a lawyer but I think looking at those, and I'm not sure that they --

REP. PRICE: No, but you're playing one right now and so are we, so --

MR. HALPRIN: My understanding is they're the same. The only difference is proof beyond a reasonable doubt.

REP. PRICE: All right. Let me -- I -- my sense is that a definition would be helpful and we're -- we're interested in working with the majority on -- on trying to come up with a definition because I think that would be very, very wise for us as -- as we move forward.

Mr. Halprin, I would like to address, kind of, these -- these charts, if you will. There -- there's a -- there's 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 -- is number of penalties appropriate to look at or fines? What -- what -- what's the best monitor of whether or not we're making progress?

MR. HALPRIN: A proactive safety person will tell you that they'd rather look at some leading indicators instead of what you're looking at, which is lagging indicators. However, I do think when you're 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're 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's 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.

REP. PRICE: Thank you. Thank you, Madame Chair. My time is expired.

MS. SEMINARIO: I could just comment on that -- I would say for fatality data it's pretty good because in 1992 we went to a census of fatal injuries which go beyond employer reports, and so it's actually a pretty accurate number. When it comes to workplace injuries, that's all based on employer reports, and there I would disagree because there's been a lot of activity in the workplace, which puts a lot of pressure on the reporting of injuries by workers.

There's a lot more focus using that number -- the lost workday 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 fatalities and you look at what is killing workers, one of the areas, or two of the areas where there have 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 falls, 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've made progress but we have a lot of work to do, and the OSHA act isn't quite up to the task.

REP. PRICE: Do -- do you -- if I may, Madame Chair, in response to that, do you see anything in the current law that's looking at those specific pieces of information?

MS. SEMINARIO: In the current -- in current law I would say --

REP. PRICE: In -- 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 --

REP. PRICE: But not looking at the specific injuries that you just talked about right then.

MS. SEMINARIO: Well, it's looking at -- it's looking at outcomes. It's looking at outcomes.

REP. PRICE: Right, but -- but not the specific --

MS. SEMINARIO: So yes, it's 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.

REP. PRICE: Thank you.

REP. WOOLSEY: Thank you. Ms. McCarthy?

REP. CAROLYN MCCARTHY (D-NY): Thank you, and thank you for your work on your legislation.

I've been sitting on this committee for 13 years, and so that means we've had probably 13 to 15 hearings on OSHA. And I'm 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 safe, but the -- the most recent that we have on deaths is from 207 (sic), and we have 5,657 workers that have died. Then if you bring up the injuries and illness, it's estimated to cost 145 billion (dollars) to 290 billion (dollars) a year to treat those workers. And as far as the work injuries that are reported, most -- all agree that they're underreported, but you're still looking at between 8 and 12 million injuries and illnesses a year. I think it's time for an improvement.

Mr. Uhlmann, in your testimony I think that one of the best ways that we can explain why we're trying to do what we're trying to do and what Ms. Woolsey is trying to do -- on Page 7, you talk about the McMane (sic) 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 criminal defense. But in your testimony you also say that you or your -- when you were working for the Justice Department could not do every case, only -- only if -- (inaudible) -- I'm not a lawyer -- only if the prosecutors speak volumes about the role of strong criminal program promoting work safety.

I think that's why we're 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'd appreciate it.

MR. UHLMANN: Thank you, Congresswoman. Well, the McWane case is a classic example of the problem that we're talking about today. McWane is one of the largest pipe manufacturing companies in the world. It's a -- it's a very dangerous business. It's 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 -- facilities was violating worker safety laws, was lying to OSHA inspectors, was hiding information, was concealing injuries. And, yeah, they would get an occasional citation from OSHA and they would pay these, you know, 1,000 (dollars), $2,000 fines, and it did nothing to deter the corporate officials at McWane, did nothing to change their -- change their behavior.

What changed 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 used 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 -- those cases resulted in millions of dollars of fines and years of jail time, and McWane is now a poster child for change.

You know, they've -- "Frontline" has done a follow-up piece talking about the -- where -- where they interviewed people at McWane who talked about the new McWane and talk about all the money they're now spending on compliance. They've 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've changed, but I think it -- what I said in the testimony is I think this -- it's -- it's an example of how, you know, if you've got a strong criminal program, if you've got strong deterrents in place, you can -- 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 McWane.

REP. MCCARTHY: And McWane is still in business.

MR. UHLMANN: They are still in business, and they're still one of the largest pipe manufacturing companies in the world.

REP. 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're a better employer today. You know, I -- I think we want -- you know, we want -- we want companies in America to be employing -- to be employing our citizens in jobs that are -- that are safe.

REP. MCCARTHY: But, I mean, that's the whole part of OSHA, to make the -- where workers work to be safe and in the end hopefully not costing all of us, because to be very honest with you, if we're 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're correct.

REP. MCCARTHY: Thank you.

REP. WOOLSEY: Mr. Hare?

REP. PHIL HARE (D-IL): Thank you, Madame Chairman. I -- I hardly know where to begin here today. Mr. Halprin, you mentioned in your testimony -- I might -- I might have been taking the notes too fast -- that you believe that there are very effective penalties. I'm wondering in the case of Ms. Foster's son if -- if you think that penalty was effective.

MR. HALPRIN: Do I think the penalty was --

REP. 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've talked about. I would like to think that most of them are outliers. I don't think it's fair without a full record to -- to actually comment on what happened. What happened sounds terrible, maybe outrageous, but I don't know the facts.

REP. HARE: Well, I -- I think --

MR. HALPRIN: One thing I think --

REP. HARE: Let me be -- (I'm going to be ?) very candid, Mr. Halprin. I think what you're doing, from my perspective, is I think you're -- you know, you say the penalties are effective, and then when we ask you is $2,250 for this young man's life and you need the -- the facts.

The fact -- the fact is, from what I'm hearing they altered the machinery, and let me tell you what my position is on this. Whoever altered that machinery is responsible for this -- 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 companies -- (inaudible) -- Eleazar Torres-Gomez worked for Cintas was dragged into a dryer. This is a company who's 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 -- 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's a company who's been fined several million dollars and they're -- they're 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're playing "gotcha" here, maybe that's 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 see 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 -- and a bill that I put in yesterday -- part of this thing -- we -- 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 job every day and expect to come home to their families. When you alter the equipment, as Cintas did, and was -- and in Ms. Foster's case with her son -- you know, I -- I don't understand this.

And I guess what I want to know, Mr. Uhlmann, from you is -- is what are -- what are we really going to do here? I mean, I -- I honestly think that when companies like Cintas are more -- it's more -- they'll pay the fine and (they'll 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're just waiting for another person to be -- to be harmed, either killed or -- or maimed. And what do we do with companies that basically thumb their nose at the law and say, well, I'll pay the fine and I'll 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 place their workers at risk, if we want to stop them from doing that, the -- 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 -- 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. Now, 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'll start to make some change.

But, of course, you can't -- that -- that isn't going to happen if -- if the penalties are just misdemeanors, if they only apply to willful violations involving death, and if we all make clear that individuals can be prosecuted under the OSHA act for these kind of violations.

REP. HARE: Well, 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 then you never see them again, the next time you see people like that you ought to see them in the jail. And that's how they ought to get visited.

MS. FOSTER: Thank you. I agree.

REP. HARE: You're welcome.

REP. WOOLSEY: Mr. Kucinich?

REP. DENNIS J. KUCINICH (D-OH): Thank you, Madame Chair. And first of all, I want to thank Mr. Miller for calling this hearing and, you know, I think we -- we have to be aware of the capabilities of existing law here, and I'd like a response from the AF of L-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 -- there's a willful violation that results in the death of a worker.

REP. KUCINICH: Do you know how many cases have been referred to the Department of Justice?

MS. SEMINARIO: I believe that the -- the number is -- (inaudible) -- 170.

REP. KUCINICH: Could you -- could you speak to the mike?

MS. SEMINARIO: I think it's 171 over the --

MR. HALPRIN: Twelve last year, 10 the year before, 12 the year before that, 10, 10 -- you can go down --

MS. SEMINARIO: Right.

REP. KUCINICH: And do you know -- do you know the disposition of those cases? Has anybody -- has anyone who was -- whose corporation was responsible for the death of a worker ever served jail time? How much time?

MS. SEMINARIO: There have only been -- in the entire history of OSHA, there has only been 71 cases that have been prosecuted, resulting in 42 months of jail time over 39 years.

REP. KUCINICH: And how many -- how many workers are -- 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.

REP. KUCINICH: Okay. Three hundred and fifty thousand, you're saying?

MS. SEMINARIO: (Nineteen seventy ?).

REP. KUCINICH: And -- and -- and how many people were prosecuted?

MS. SEMINARIO: There were only 71 cases that were prosecuted.

REP. KUCINICH: And how many people were convicted or sent to jail?

MS. SEMINARIO: Last year, there -- there were 71 cases where they were prosecuted and 42 months of total jail time.

REP. KUCINICH: How many?

MS. SEMINARIO: There were 42 months of total jail time. I can get you the number --

REP. KUCINICH: Right.

MS. SEMINARIO: -- number of people, but only 42 months of jail time.

REP. KUCINICH: You know, when you look at -- at state statutes for manslaughter, let's say you -- you had 100,000 cases of manslaughter nationally, and there were only a few dozen prosecuted, people would start to ask questions about what's wrong with the law.

Now, for some reason workplace safety has not achieved a level of -- of (insistent ?) 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 that cost their life. Why do you suppose the -- the safety of workers and the responsibility of employers has taken such a low level of a concern in our society, both legally and morally? Why do you suppose that is?

MS. SEMINARIO: I think that's a -- that's an excellent question, and it really is -- it's 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're sitting here today having the discussion as to whether or not to have the penalties for violations of the OSHA law that result in death or serious injury to be equivalent in the way they're treated as environmental laws and other laws that protect -- protect wildlife. You know, I don't know. I mean, one thing that --

REP. KUCINICH: Is it because they're considered accidents?

MS. SEMINARIO: It may be that they're considered accidents but --

(Cross talk.)

REP. KUCINICH: But -- but let me ask you this. Is it an accident if an employer fails to provide safety equipment?

MS. SEMINARIO: No.

REP. KUCINICH: And is it an accident if there's -- if there's not sufficient workers to safely perform a task?

MS. SEMINARIO: No. No, it --

REP. KUCINICH: Without objection, I'd like to include into the record a -- an article that was written by Leo Gerard, the president of the Steelworkers, who has adequately described this dilemma of the -- of the lack of -- of adequate dedication to workplace safety in our country. Now, I think that -- I'm hopeful that either in this committee or in another committee we'll have OSHA in front of us because what I'd like to hear OSHA saying is that they are going to refer more cases to 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's not as if you don't have a legal structure available to be able to pursue prosecution. It's that we have a -- an attitude about workers that is they're somehow less than, let's say, a corporate executive.

There's really a -- a two-class society here when it comes to the concerns of -- of -- of workers and the concerns of corporate executives, and it's becoming more and more apparent here.

You know, you can look -- Madame Chair and members of the committee, think about this. All this money that's 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 AF of L-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.

REP. WOOLSEY: If the gentleman had taken a breath I would have said without objection to your entering into the record. So thank you, Mr. Kucinich.

REP. KUCINICH: Thank you. I just -- I just know that, you know --

(Cross talk.)

REP. WOOLSEY: Your time, sir, is --

REP. KUCINICH: -- and others are going to have to do more on this and --

REP. WOOLSEY: -- is expired. Thank you.

REP. KUCINICH: Thank you.

MR. UHLMANN: Congresswoman -- (inaudible) -- 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 --

REP. WOOLSEY: Right.

MR. UHLMANN: -- and the Justice Department can be as committed as you want them to be and as I want them to be to worker safety cases. But if they're just misdemeanors you're not going to see the prosecutions. I can guarantee you that.

REP. WOOLSEY: Okay. Thank you, Mr. Uhlmann. I will yield myself five minutes. Ms. Foster, I -- your loss is so sad and the way your family and -- and Jeremy's death was treated by their -- 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'm 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.

REP. WOOLSEY: Was that from the same piece of equipment that --

MS. FOSTER: Not the same piece of equipment --

(Cross talk.)

REP. WOOLSEY: But the same employer.

MS. FOSTER: -- but it's the same location, the same place. And I feel like it is still an unsafe environment.

REP. WOOLSEY: Well, you have a family bill of rights idea that you have suggested that employers be required to be -- take into consideration. Would you like to tell us what you can -- 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 our -- my stepson was killed. It was the 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.

REP. WOOLSEY: Okay.

MS. FOSTER: So I think they just have to be accountable, held accountable what -- for what they've done. They've got to stand up and say, you know, we did this -- we need to do something to help.

REP. 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 -- of emphasis, 30-year-old procedures, a shortage of -- of employees. Oh, listen to me. I'm leading you, aren't I? But I mean, at that end are 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 result in medical treatment. Those are the cases that end up on the -- 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 a 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 by, you know, by the agency.

And as far as the injury statistics themselves that were talked about, there have been recent studies that compare workers compensation records with what's 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 are what are being reported on the log and recorded in the overall statistics.

REP. 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're concerned? I mean, the equipment was modified.

They didn't have the safety guard. Was that a misunderstanding? Was that a mistake? Would common sense -- you know, everybody who knows anything knows that that shouldn't have happened, therefore -- I mean, how would -- how would you handle that and prosecute it?

MR. HALPRIN: I would have done a full investigation. Now, the gentleman, unfortunately -- he was 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's obligations the temporary employer is supposed to provide with --

REP. WOOLSEY: Well, yes. Whose responsibility is it -- the temporary worker or the employer, on this one?

MR. HALPRIN: Technically both.

REP. WOOLSEY: No way. It's 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, if the equipment's modified somebody needs to take into account whether there's going to be exposure to it. I don't know whether that person who 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.

REP. WOOLSEY: Oh, I --

MR. HALPRIN: I think that particular case, it's obvious. It -- (inaudible) -- been done but --

REP. WOOLSEY: All right. It should have been done, and yes, indeed, we do have machine guarding regulations. That's one of the things we have.

MR. HALPRIN: (Inaudible) -- the question is why the person was there and -- 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 most cases what went wrong and what happened.

REP. WOOLSEY: Okay. Thank you so much. And I -- my time is up, but I'm going to ask Mr. Uhlmann if -- the record's going to remain open and I would really appreciate it if you would comment on where PAWA can be strengthened, if you would. I'd so appreciate your insight. And yes, of course, we'd like to talk to you in person about it, too. Ms. Titus?

REP. DINA TITUS (D-NV): Thank you very much, and 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 the enforcement. But I'd like to ask an additional question about the problems created in the 20, 21 states that run their own OSHA programs, 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's certainly the case in Nevada.

You heard the chairman mention -- and I believe you referenced, 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 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 where they run their own programs. 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: It's 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.

I think one of the things that's 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, and 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 -- in protection.

But federal OSHA is supposed to be monitoring. They're supposed to be looking at what's 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've 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 -- to be as effective as the federal government.

With the Protecting America's Workers Act, the state plans will be required to adopt provisions in their 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 standard that is in the legislation that has been proposed.

REP. 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 a -- this is an issue not just for worker safety law. I mean, much of our -- many of our federal regulatory programs are implemented by the states, and the lead role in -- in -- in inspections and enforcement is done by the states.

What we can do under the OSH Act and -- and, you know, if -- if the current version of the act doesn't provide this authority, its authority that can be provided, wasn't -- wasn't one of the suggestions I had in mind when I said I thought there were ways the act could be strengthened but this could be in other ways. We could make clear that the federal government has the ability to bring enforcement actions when the states don't.

And that's what happens under the -- 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 -- civil penalty action or they can bring a criminal case if -- if criminal prosecution is warranted, even though there's -- even though it's a -- it's a program that's run by the state.

Now, I don't know that we can do -- whether the current version of the OSH Act allows that, but that's 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, we let -- if -- if the government falls down on its job and, you know, I was a public servant for -- for 17 years so I -- I hate to say that the federal government and state governments sometimes fall down on the job, but it's probably not a shock to anyone in this room that that sometimes happens. You know, it's 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's not unique to the scenario you describe in Nevada and it's not unique to the worker safety laws.

REP. TITUS: Thank you.

REP. WOOLSEY: Thank you. Mr. Holt?

REP. RUSH D. HOLT (D-NJ): Thank you, Madame Chair. OSHA, of course, is landmark legislation. I mean, it was four decades after legislation about hiring and firing workers that we got around to protecting their workplace safety.

And I'm always pleased to extol the work of -- 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're looking at Ms. Woolsey's legislation that would raise the value of life and limb, and it's appropriate we look at that. But it -- it -- it -- 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 -- that workers are -- get the protection they deserve.

We need to a lot of other things though, too, as we evolve toward better protection in the workplace. We need more research in setting the standards, and, of course, funding for inspectors and better reporting.

I'd like to turn to -- and I guess would be to Ms. Seminario -- to -- to one particular matter of workplace protection where we have not kept up with the times. In -- nearly four 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 -- this plan's infection -- 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 -- of a pandemic, OSHA denied the petition, claiming that, well, an emergency standard wasn't necessary because there wasn't an emergency. No influenza violence -- virus epidemic or pandemic existed at that time.

So instead of issuing a standard, the Department of Labor decided to rely on guidelines and 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 at -- with some harm to the general public. How do we bring this 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 a -- is an area which obviously there's much focus on because of -- of the reports out of -- out of Mexico with the 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's not just this particular strain of swine flu or concerns about avian flu. We have regular influenza that puts -- 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's actually a pretty good rule and it's something that federal OSHA could look to immediately as a model and take -- take action on.

You're right -- they did put out guidelines. But from the survey that was done by the unions, through their local unions, those steps being taken in health care facilities, in a large number of health care facilities nothing has been -- nothing has been done. And so I think it's something that we need to focus on and we need to focus on now because we -- we indeed are facing the potential of some very significant potential exposures, and the workers on the front line --

REP. HOLT: If I might politely correct you, I think not now, but last year.

MS. SEMINARIO: Last year. Exactly. Exactly. And -- and just to be clear, the point of our petition wasn't -- was basically so that we would be prepared, because when you're in that situation facing a pandemic it's too late.

REP. WOOLSEY: Right.

REP. HOLT: Thank you.

REP. WOOLSEY: Thank you very much. Ms. Davis?

REP. SUSAN A. DAVIS (D-CA): Thank you, Madame Chair. Thank you to all of you. I'm sorry I missed a part of the discussion but I'm not sure that you've had a chance to -- to take a look at this particular issue.

And, Mr. Uhlmann, I understand is -- since you were at the Department of Justice, are there -- there -- it appears that there aren't a lot of cases that go from OSHA to the Department of Justice. Is that true?

MR. UHLMANN: Yeah. There --

REP. DAVIS: And -- and why is that? I mean, what -- what do you think is -- is going on in that there aren't many referred?

MR. UHLMANN: They had very few referrals. I think Ms. Seminario testified earlier this morning that in the 40 years that the OSH Act has -- nearly 40 years that the OSH Act has been law there have been only 71 criminal cases prosecuted, and the (number sent ?) each year is -- is -- 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 -- twice a year for 40 years. So I -- you know, I think there's some responsibility within OSHA. But to be -- 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 result in death, and they're not going to see many prosecutions.

And the Justice Department is, you know, like the -- like every -- everyone else in the country they've got -- they 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's their mantra. They -- they -- they prosecute felonies, and -- and, you know, really we tell them to prosecute felonies.

Those are the crimes that we're telling them are the ones we think are the most serious. Congress is telling them that. That's where they focus their limited resources. So even if we saw a lot more referrals to the department -- I don't think we'll see a lot more in the way of prosecution until we do something about the fact that these crimes are just misdemeanors.

REP. DAVIS: Uh-huh. Is there good communication between the DOJ and OSHA? And I think the training that is done for some inspectors at OSHA is -- is done by the Department of Justice. Is that correct?

MR. UHLMANN: Well, yeah. 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 -- in a -- in a Republican administration. I mean, I -- 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 and spends a lot of money on worker safety -- they -- they shouldn't be at a competitive disadvantage with a company that doesn't make any commitment to worker safety. So we, you know, four or five years ago started training OSHA, started working with them about ways cases could be brought into the criminal justice system and -- 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 in 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 -- is decent.

REP. DAVIS: Appreciate that but --

MR. UHLMANN: Yet we do need -- we do --

REP. DAVIS: -- as 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 it was a little wobbly when we -- you know, when we started this work --

REP. DAVIS: Thank you.

MR. UHLMANN: -- a little more courage to say to the business community, you know what, this is in all of our interests, because it really is in all of our interest.

REP. DAVIS: Absolutely. Thank -- thank you. I wonder, Mr. Halprin -- I -- I don't know whether you've had a chance to review the legislation that has been referenced here in the hearing, Ms. Woolsey's Protecting America (sic) 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 -- where would you want to weigh in --

MR. HALPRIN: (Inaudible.)

REP. DAVIS: -- and say this needs to -- to have a -- a second look?

MR. HALPRIN: I've only skimmed the bill. When you find -- I've talked about what I mean by willful. For cases that are at a high level of willful, not all the ones that are currently defined in that way, some sort of criminal prosecution is clearly appropriate. I would like to think if there's a reason for increasing the level of sanction it's because there's a moral issue and there's a sense that their workers' value needs to be reflected.

I'm not as sympathetic with the idea that a Justice Department person feels they need to get a felony conviction on the record and therefore they'd rather spend the time on that. My experience, at least with the people I know, is it would be incredible trauma to think about -- any executive I know thinking they'd be in jail for six months. Maybe I'm sounding prejudiced. I think the drug dealers go out there with the recognition there -- there's a good chance they're going to end up in jail and they take that risk.

There'd be tremendous trauma for a person and the family and so I think in the right circumstance it needs to be done. It's probably underutilized. But I think the other point that I'd -- I'd like to make is OSHA has enforcement tools it hasn't effectively used. If there was a problem with McWane -- and it's not just OSHA. Mr. Uhlmann has pointed out the fact that it took EPA with all its enforcement power years to achieve what it did, and the fact that it could get some OSHA violations mostly for criminal misrepresentation helped.

But EPA has the same problems. It's not just OSHA. And as high as the EPA fines are, it doesn't totally deter crime. So all I'm saying --

REP. DAVIS: Thank you.

MR. HALPRIN: -- is there needs to be a balance.

REP. DAVIS: Yeah.

MR. HALPRIN: For example, the current bill would take away the ability to do away with --

REP. DAVIS: Thank you. I think our time is up.

MR. HALPRIN: -- unclassified -- (inaudible).

REP. WOOLSEY: Your time is up --

REP. DAVIS: Thank you.

REP. WOOLSEY: -- Mr. Halprin. Thank you, Ms. Davis. Mr. Cassidy?

REP. CASSIDY: Just -- just to wrap up on our side, so to speak, I think we all agree the -- the moral imperative is how do we decrease the likelihood that someone like Mr. Foster dies, and I think that what is at issue here is what's the best way to accomplish that.

And as I look at this, and I -- and, Mr. Uhlmann, in your testimony you speak about how ignorance of the law under our statutes is not an excuse. And I do have this kind of sense of thousands of pages of things that it would take a -- 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's hide it. I do think the -- apparently, as I've gathered, that there's been a different approach into perhaps helping people interpret this and -- and clearly we can see on workplace fatalities there's 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 -- the fact that we've 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're 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. Filner who said that really you can't really compare workers comp's records with the OSHA's records because you got 50 different jurisdictions out there and they've got different standards, and they're privately employed, and groups less than 10 are not applied to, et cetera.

So I'm asking to keep the record open and at a later date if you can imply -- reply in writing to that sort of statement by Mr. Filner from last year I'd appreciate that because I truly want to learn this.

So I guess I would end up by saying if we're going to say that the low-hanging fruit for fatalities has been -- I'll 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 give comments as 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, 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, Madame Chairwoman.

REP. WOOLSEY: Thank you very -- thank you, Mr. Cassidy. I yield to the chairman of the committee, Mr. Miller.

REP. MILLER: Thank you very much, Madame Chair. Thank you for -- for assuming the chair. I had to go to a panel on the California drought in the -- in the Resources Committee. I want to thank our -- our -- our witnesses.

You know, we argue back and forth about what makes the reports and what doesn't make the report and whether there's under reporting and -- and -- and over reporting, and, you know, there's 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 -- I guess, you know, we hope that you'd 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 -- the case of -- 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 -- you have the -- the CityCenter 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 -- they would have continued to kill people because it wasn't -- the safety on the job was -- was outrageous, given the size, value, and -- and under the working conditions that were being assumed there -- that they were working around the clock because of -- of time and -- and -- and money.

So we can report this back and forth, and I guess that gives you some incidence of -- of -- of effectiveness, but I don't think that we're prepared to -- 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 -- across the country. So we're going to continue this effort. It's the intent of -- my intent as 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's a lot of discussion about thousands of pages of regulations. I don't know -- we just went through eight years of supposedly, you know, a pro-business administration with the -- with the -- 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 -- and the fact is what you have to review are those things that pertain to your -- your worksite, your business, and the danger to your -- to your employees.

So I want to, again, thank you. We're 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 got to do something here. Got all this procedure. We're like OSHA.

Without objection, members will have 14 days to submit additional material or questions into the hearing record. And if there's no objection, the committee will stand as adjourned, and thank you again.

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