Remarks as prepared for delivery
I am very pleased to have been invited to speak to you today about the work of the Environment and Natural Resources Division (ENRD) of the Department of Justice. I am especially pleased to have the opportunity to talk to you in particular, senior level executive managers who are specifically vested in improving the quality of environmental, health and safety programs in all industry sectors. I am very familiar with the Environmental, Health, Safety & Sustainability Roundtable from my past career and current role as a manager at ENRD of the Department of Justice for over 20 years, but also from my former role as the president of the Environmental Law Institute where I was very engaged in these issues. I appreciate the initiative you take in these areas and I want to thank the organizers of this roundtable for the invitation.
In my presentation I will tell you a little about the work of ENRD, but will rapidly turn to my central point today: our emphasis on worker safety. Then, I will turn to the department’s recent announcement of new and important responsibilities for ENRD in the area of worker protection. Then, I will turn to what we have been doing recently in that important area and some of our plans for the future.
I am going to begin my remarks by telling you a true story that will provide context for my remarks today.
In 1996, a 20 year-old young man named Scott Dominquez was working his first job out of high school and went to work one day like any other day. Scott worked at a fertilizer manufacturing facility and the owner ordered Scott and his co-workers to clean out an 11-foot-high, 36-foot-long, 25,000 gallon storage tank that had been used as part of a cyanide leaching operation.
Scott and a colleague entered the tank, carrying a broom and a fire hose and wearing only jeans and T-shirts. After 15 minutes inside the tank, they realized that the sludge could not be washed out of the small hole in the end of the tank, so they climbed out, both complaining that the fumes inside the tanks hurt their throats and nasal passages. The next morning, the employees explained to the owner, a Wharton graduate and an attorney, their difficulty in getting the sludge out, the health effects they suffered and their need for safety equipment. The owner said that he would provide the necessary safety equipment, but insisted that they start cleaning the tank. Scott and his co-worker then cut a larger hole in the end of the tank and Scott and a colleague climbed in without safety equipment. Scott collapsed within 45 minutes of entering the tank. He was not rescued for an hour until the fire department arrived because Scott’s co-workers did not have the necessary rescue equipment. When asked by the fire department and emergency room doctors about the contents of the tank, the owner lied, claiming it was just mud and water. He was asked again and specifically denied that cyanide was in the tank. This was critical information needed to provide proper treatment for Scott. Not only did the owner repeatedly lie about the hazardous contents in the tank; he later provided Occupational Safety and Health Administration (OSHA) investigators a forged and backdated OSHA required permit for confined spaces that stated employees had been given safety equipment prior to entering the tank.
As I’ll talk more about in a moment, the owner was not charged or convicted of violations of worker safety laws, but rather violations of environmental laws and Title 18 of the U.S. Code. After a three-week jury trial, the owner was convicted of multiple counts of violating the Resource Conservation and Recovery Act, including illegal disposal of hazardous waste and knowingly endangering his employees and making false statements under Title 18. In 2000, at the age of 61, the owner was sentenced to 17 years in federal prison, the longest prison term for an environmental crime at that time. This is a case you are probably familiar with – United States v. Allen Elias. It has also been referred to as the “cyanide canary case” due to a book by this title that chronicled the investigation and prosecution. It was prosecuted by a friend of mine, David Uhlmann, who became the Chief of the Environmental Crimes Section and is now a distinguished professor at University of Michigan Law School.
Unfortunately, as all of you know, Scott Dominguez’s story is not unique. On an average day in the United States, approximately 13 workers die on the job, about 9,000 workers are injured and 150 succumb to occupational diseases like asbestosis and chemical poisoning.
Today, I want to discuss a significant development in the area of worker safety. Just a few months ago, Deputy Attorney General Sally Q. Yates announced changes regarding how worker safety violations would be investigated and prosecuted within the department. Specifically, she announced amendments to the U.S. Attorneys’ Manual, approved by the Attorney General Advisory Committee, giving responsibility for criminal worker safety prosecutions to ENRD. This responsibility, shared with the U.S. Attorneys’ Offices, is one ENRD had requested and has embraced. This transfer of responsibility to ENRD is a more deliberate approach by the department to address worker safety offenses as these violations have historically been under-enforced.
For all of you, I know this realignment of responsibilities makes good common sense. Just as every major corporation has a vice president or significant corporate official charged with responsibilities for environment, health and safety, the Department of Justice is now organized for the first time in a similar fashion. My division, ENRD, has long had all of the environmental responsibilities, as well as related health issues, under its jurisdiction and this recent change gives us a significant amount of safety responsibilities which we can exercise together. We have long thought that those who mistreat their employees may also have environmental problems worth examining
Also in December, Deputy Attorney General Yates signed an important Memorandum of Understanding (MOU) between the Department of Justice and the Department of Labor on the criminal prosecution of worker safety laws. This initiative is a priority at the highest levels of both departments. This MOU not only describes our respective responsibilities and authorities, but it also clearly outlines how criminal referrals will be coordinated and tracked, how information and data will be shared and how training for both prosecutors and investigators will be developed and disseminated.
In her announcement, Deputy Attorney General Yates also highlighted a reality that is very familiar to prosecutors and the industry. It is that the criminal penalties in the worker safety laws are woefully inadequate compared to the human injury caused by these violations. As a result, many in industry often treat Occupational Safety and Health Act (OSH Act) penalties as a cost of doing business and not a deterrent to non-compliance with the laws. For example, the OSH Act criminalizes only three types of violations and even then violations are only misdemeanors. First, willfully violating a specific safety standard that causes the death of an employee. Second, giving advanced notice of an OSHA inspection to the targeted facility and third, falsifying documents filed or required to be maintained under the OSH Act. These misdemeanor crimes are punishable by no more than six months in prison and/or fines up to $10,000 and the most serious offense resulting in the death of a worker is punishable by no more than one year in prison and/or a fine of no more than $20,000 for subsequent similar convictions.
As Deputy Assistant Attorney General, I testified in 2010 before the Committee on Education and Labor’s Subcommittee on Workforce Protections, along with David Michaels, the leader of OSHA, in favor of strengthening these important laws. Although that has not happened, it did bring ENRD and OSHA together and we have been sharing information, resources and training.
As I mentioned, the Elias case was prosecuted based on violations of the Resource Conservation and Recovery Act and Title 18, not for violations of the OSH Act. One fundamental reason there was not an OSH Act criminal charge in the Elias case is quite simply that the statute was not criminally violated because Scott Dominguez did not die. Additionally, even if a worker death occurs as a result of a violation, the OSH Act requires the government to prove a willful mental state as opposed to a knowing mental state, the standard in most criminal cases. This is a very high burden to meet, which in addition to the low criminal penalties, may contribute to the few criminal prosecutions under the OSH Act.
The Deputy Attorney General’s memo memorializes what has been ENRD’s practice – where appropriate, we prosecute other serious offenses that often occur in tandem with worker safety violations. This may include charging Title 18 offenses such as obstruction of justice, false statements, conspiracy, witness tampering and mail or wire fraud as well as environmental and endangerment crimes. The penalties for these felony crimes range from five to 20 years imprisonment and carry significant fines.
We use the endangerment provisions of the three major environmental statutes, the Clean Air Act, Clean Water Act and the Resource Conservation and Recovery Act, which include felonies. The Clean Air Act also includes a negligent misdemeanor endangerment offense. Endangerment crimes are those offenses where the defendant knowingly committed the underlying pollution crime and knew this conduct would place another person in imminent danger of death or serious bodily injury as defined in each of the statutes. These felony offenses have a criminal penalty of up to 15 years in prison and up to a $1 million dollar fine for an organizational defendant. The Clean Air Act negligent endangerment provision has criminal penalties of up to one year in prison. The use of the endangerment provisions of these statutes has enabled the United States to prosecute criminal conduct that might go unaddressed under the worker safety laws, such as conduct that did not result in a death of an employee.
In addition to considering environmental statues when addressing illegal worker treatment, we can also utilize other normal prosecutorial tools. For example, after investigating the company’s history of environmental crimes and workplace injuries and fatalities, we successfully prosecuted Atlantic States Cast Iron Pipe Company and four plant supervisors for violations of the OSH, Clean Water and Clean Air Acts, as well as a charge of conspiracy to defraud the United States by obstructing the lawful functions of OSHA and the U.S. Environmental Protection Agency (EPA), lying and falsifying documents required by OSHA and EPA and obstructing justice. The individual defendants received sentences of 70, 41, 33 and six months imprisonment. The company received a criminal fine of $8 million dollars and probation under the supervision of a court-appointed monitor.
I want to now turn to two recent cases to further illustrate our recent work in this area. First, United States v. Black Elk Energy Offshore Operation, LLC is a case scheduled to go to a jury trial in January 2017. A 12-count superseding indictment was returned by a federal grand jury in November 2015 charging several defendants with Involuntary Manslaughter and violations of the Outer Continental Shelf Lands and Clean Water Acts. These charges stem from a November 2012 series of explosions on an oil production platform that resulted in the deaths of three workers, serious burns to several other workers and the discharge to the Gulf of Mexico of approximately 500 barrels of burning oil. Three workers were welding a pipe connected to a tank containing oil. The tank exploded causing two other tanks to explode, with one tank flying over the platform and another destroying the platform crane.
I mention this pending prosecution, because the allegations contained in the indictment are about the failure of the supervisors to exercise due care and ensure certain actions took place before the welding occurred that we contend would have prevented this explosion. The failure to require pre-work inspections, to ensure safe piping, and to obtain authorization before the welding was performed are part of the allegations at the center of this case.
As another example, in United States v. Sawyer, we prosecuted five individuals for conspiring to violate the Clean Air Act work practice standards for asbestos removal. For almost two years, asbestos was improperly remediated, including illegally removing it without providing workers the necessary personal protective equipment, before buildings were demolished. Each defendant pleaded guilty and in January 2015, following a three-day sentencing hearing, five individuals were sentenced to prison terms ranging from six to 37 months. During the sentencing hearing, the United States presented expert testimony to ensure the court understood that the exposure of the workers to asbestos-containing material resulted in a substantial likelihood they would suffer death or serious bodily injury.
While ENRD’s worker endangerment initiative has primarily focused on criminal prosecutions, we are also enhancing our civil enforcement efforts, led by our Environmental Enforcement Section. We are strengthening our efforts to pursue civil cases that involve worker safety violations under the Clean Air, Clean Water, Resource Conservation and Recovery and Toxic Substances Control Acts. These statutes contain a number of provisions that establish safety measures for chemical handling, toxic releases, or catastrophe prevention; violations of these statutes often have a direct impact on workers tasked with handling dangerous chemicals or cleaning up spills.
I want to highlight four specific actions we are taking as part of our civil enforcement efforts. First, ENRD is coordinating with OSHA in the development of our settlement frameworks and demands for injunctive relief to ensure that our work to address violations of the pollution control statutes also protects those working on the front lines from environmental and health risks. Second, we are cross-training between federal agencies, such as OSHA and EPA, so that we all understand each other’s authorities, processes and resources. Third, information sharing has accelerated case development and helped to identify additional industries or industrial activities that may be under an agency’s jurisdiction or violations that have historically gone unenforced or under-enforced. Finally, we are making sure that each case referral is reviewed for potential worker safety concerns and, where appropriate, that worker safety issues are investigated and developed alongside other alleged violations.
The Environmental Enforcement Section’s work has produced results and there are several pending civil cases with worker safety components.
I want to close by emphasizing that worker safety is a priority at ENRD. On the ENRD public webpage, there is an entire section dedicated to the worker endangerment initiative where you can find the documents I mentioned today, as well links to press releases about the initiative and prosecutions in this area. Protecting public health and the environment is a cornerstone of ENRD’s law enforcement responsibilities and that explicitly includes protecting the American worker through vigorous criminal and civil enforcement of the worker safety, environmental and criminal laws.