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With Little Fanfare, a New Effort to Prosecute Employers That Flout Safety Laws

By David Barstow and Lowell Bergman

For decades, the most egregious workplace safety violations have routinely escaped prosecution, even when they led directly to deaths or grievous injuries. Safety inspectors hardly ever called in the Justice Department. Congress repeatedly declined to toughen criminal laws for workplace deaths. Employers with extensive records of safety violations often paid insignificant fines and continued to ignore basic safety rules.

Inside the Bush administration, though, a novel effort to end this pattern of leniency has begun to take root.

With little fanfare and some adept bureaucratic maneuvering, a partnership between the Occupational Safety and Health Administration (OSHA), the Environmental Protection Agency (EPA) and a select group of Justice Department prosecutors has been forged to identify and single out for prosecution the nation’s most flagrant workplace safety violators.

The initiative does not entail new legislation or regulation. Instead, it seeks to marshal a spectrum of existing laws that carry considerably stiffer penalties than those governing workplace safety alone. They include environmental laws, criminal statutes more commonly used in racketeering and white-collar crime cases and even some provisions of the Sarbanes-Oxley Act, a corporate reform law.

The result, those involved say, should be to increase significantly the number of prosecutions brought against dangerous employers, particularly in cases involving death or injury.

This new approach addresses a chronic weakness in the regulatory system—the failure of federal agencies to take a coordinated approach toward corporations that repeatedly violate the same safety and environmental regulations. The EPA and OSHA in particular have a history of behaving like estranged relatives. Yet the central premise of this unfolding strategy is that shoddy workplace safety often goes hand in hand with shoddy environmental practices.

“If you don’t care about protecting your workers, it probably stands to reason that you don’t care about protecting the environment either,” said David M. Uhlmann, chief of the Justice Department’s environmental crimes section, which is charged with bringing these new prosecutions.

The effort is noteworthy in an administration that has generally resisted efforts to increase penalties for safety and environmental violations. It has declined to support such steps as making it a felony for employers to commit willful safety violations that cause a worker’s death. Such violations are currently misdemeanors, punishable by up to six months in jail. Instead, the administration has emphasized a more collaborative approach, offering companies increased technical assistance, for instance, on how to comply with regulations.

The new initiative is already at an advanced stage of planning. Hundreds of senior OSHA compliance officers have attended training sessions led by Justice Department prosecutors and criminal investigators from the EPA. In several regions of the country, OSHA managers have begun making lists of the worst workplaces and sharing them with EPA investigators and prosecutors, who select the most promising cases for investigation. Several criminal inquiries and prosecutions are under way.

In March, for example, Motiva Enterprises, an oil refining company partly owned by Shell Oil, pleaded guilty to endangering workers negligently and committing environmental crimes in Delaware. The company was ordered to pay a $10 million fine and sentenced to three years’ probation.

Even so, it is difficult to gauge the degree of political support for more prosecutions. The initial planning won the blessing of John Ashcroft, then the attorney general. His successor, Alberto R. Gonzales, has been briefed on the initiative and is said to be supportive.

But in March, a news conference to announce the initiative was canceled. The name of the program was also changed. What was to have been called the Worker Endangerment Initiative is now described as a “policy decision,” not an “initiative,” aimed at achieving “environmental protection in the workplace.”

Neither Jonathan L. Snare, the acting OSHA administrator, nor Howard Radzely, the Labor Department's top lawyer, would agree to be interviewed about it. But Richard E. Fairfax, OSHA's director of enforcement programs, described the initiative as part of a broader effort by the agency to crack down on companies that persistently flout workplace safety rules.

“This is important to the agency,” he said.

If some hesitation exists at the political level, enthusiasm is high in the trenches of OSHA and the EPA. Andrew D. Goldsmith, assistant chief of the environmental crimes section, has led most of the OSHA training sessions, in which he describes the many ways criminal and environmental statutes can be brought to bear. It has been a revelation of sorts, he says, to watch agency compliance officers grasp the chance at last to seek significant criminal penalties against defiant employers.

“You see a glint in these people’s eyes, and you see them getting very enthusiastic," Mr. Goldsmith said. “You see hands start shooting up. They view us like the cavalry coming over the hill.”

If sustained, the enthusiasm would represent an important cultural shift inside OSHA, which has traditionally shied away from referring even the most deliberate of safety violations to prosecutors.

From 1982 to 2002, for example, the agency investigated 1,242 cases in which it concluded that workers died because an employer committed willful safety violations. OSHA declined to seek any prosecution in 93% of those cases The New York Times reported in a 2003 series that described a bureaucracy in which aggressive enforcement was thwarted at every level. But as the series also demonstrated, OSHA’s reluctance to seek prosecution had also been fed by an assumption inside the agency that federal prosecutors have little interest in cases that have rarely resulted in prison sentences.

By fusing the technical skills and regulatory powers of the EPA and OSHA with the Justice Department’s environmental crimes section, the administration has created a potentially potent means of changing that dynamic.

All federal environmental crimes carry potential prison sentences, including up to 15 years for knowingly endangering workers. And unlike OSHA, the EPA has some 200 criminal investigators with extensive experience building cases for federal prosecutors. In 2001 alone, the agency obtained prison sentences totaling 256 years.

OSHA, meanwhile, has wide jurisdiction over American workplaces, and its inspectors routinely wander the floors of the nation’s dirtiest and most dangerous manufacturing operations. Unlike EPA inspectors, they also investigate hundreds of workplace deaths and injuries each year. In short, they are well-positioned to spot potential environmental crimes, particularly those that harm workers.

With nearly 40 prosecutors, the environmental crimes section of the Justice Department has a long record of bringing complex criminal cases against major employers. By contrast, before this initiative, only one prosecutor at the Justice Department focused full time on workplace safety crimes. Now, after identifying promising cases from the lists sent by OSHA, prosecutors are also checking for significant records of environmental infractions. If a plant is part of a larger conglomerate, they are checking the records of sister plants, too.

“We can see all the pieces,” Mr. Goldsmith said. “We can coordinate.”

The value of that coordination became obvious, he and other officials said, during a recent federal investigation into a New Jersey foundry owned by McWane Inc., the nation’s largest manufacturer of cast-iron pipe. The investigation was prompted by articles in The Times and a companion documentary on the PBS television program “Frontline” that described McWane as one of the most dangerous employers in America.

Senior officials at OSHA, the EPA and the Justice Department saw a way to produce an indictment that would “tell the whole picture” of how a company could put profit ahead of all other considerations, said Mr. Uhlmann, the chief of the environmental crimes section.

In December 2003, several senior managers at the New Jersey foundry were indicted on charges of conspiring to violate safety and environmental laws and repeatedly obstructing government inquiries by lying and altering accident scenes. The case is pending, but Justice Department officials called it a “pioneering indictment.”

The partnership was cemented in a meeting last summer between Thomas L. Sansonetti, then an assistant attorney general, Mr. Radzely, the chief Labor Department lawyer and John L. Henshaw, then the administrator of OSHA.

In a recent interview before he left the Justice Department to return to private practice, Mr. Sansonetti said he made it clear at the meeting that the Justice Department was prepared to offer training nationwide and a firm commitment to go after the worst cases as a way to send a message of deterrence to other employers. Mr. Henshaw and Mr. Radzely, he said, responded enthusiastically.

“That’s where we agreed to take off on this,” Mr. Sansonetti said.