A Dangerous Business Revisited
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David Uhlmann

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David Uhlmann served for seven years as chief of the Department of Justice Environmental Crimes Section, where he was the top environmental crimes prosecutor in the United States. As the section's head, Uhlmann led an office of approximately 40 prosecutors responsible for the prosecution of environmental and wildlife crimes nationwide, including the prosecutions of McWane, Inc. for violations committed at five of their plants. He is now a professor and head of the Environmental Law and Policy Program at the University of Michigan School of Law. This is the edited transcript of an interview conducted Dec. 4, 2007.

Why did the Environmental Crime Section of the Justice Department get involved in worker safety?

Well, a couple of reasons. First of all, when Congress enacted the environment[al] laws in the '70s and '80s and added criminal provisions to those laws, Congress recognized that there's a relationship between environmental violations and workers' safety.

Each of the major environmental laws contains a provision making it a crime to knowingly endanger others in the course of committing an environmental crime. And the reality is most environmental crime is corporate crime, and most of it occurs in the workplace setting. And most of it involves hazardous substances or hazardous materials or hazardous wastes, all of which, if handled improperly, put workers at risk.

Part of why my old office was involved in worker-endangerment cases was by design -- recognizing the relationship that exists between environmental crime and worker safety. The second part of it is over the years prosecuting environmental crimes, we started to see more and more cases that involved workers' safety problems of one sort or another, and we realized something that hadn't occurred to us before: that environmental compliance responsibilities and workers' safety responsibilities tend to be placed in the same hands within a company. So the same person at most companies is responsible for overseeing environmental compliance and workers' safety compliance.

And it stands to reason if you don't pay much attention to workers' safety violations, you probably aren't paying any greater attention to those pesky environmental laws. And so we started looking at facilities that were violating workers' safety laws and seeing if they also had environmental compliance obligations. And seeing if there were facilities that paid no attention to environmental compliance or workers' safety compliance, because there is a natural connection between the two, it turns out.

The penalties for environmental crimes are greater than the penalties for a workers' safety crime?

On the criminal side? They're not even in the same ballpark. Environmental violations are almost all felonies. There are some misdemeanor provisions in the environmental laws, but most of the environmental laws carry felony sanctions if you commit a criminal violation of those laws. Under our workers' safety laws, the most you can ever be charged with is a misdemeanor.

A misdemeanor.

Under the criminal provisions of the workers' safety laws, the greatest sanction is a misdemeanor. Under Title 29 of the United States Code, Section 666, if you willfully commit a workers' safety violation that results in death, you have committed a misdemeanor. A misdemeanor. That is the stiffest sanction available under our workers' safety laws.

So that means less than a year in jail. Six months in jail, as I understand it.

The maximum penalty for a misdemeanor is a year in jail, and under some misdemeanor provisions just six months in jail.

Some people I've spoken with have expressed surprise when they hear first of all that it's a misdemeanor to willfully and negligently do something that results in the death of one of your workers. And that you have to use, in your case, environmental law to get around to that subject, to have any real enforcement.

It should not be a misdemeanor to willfully violate the worker-safety laws and thereby cause the death of one of your workers. That should not be a misdemeanor. It's 2007 in the United States of America. It should be a felony violation, if you willfully commit a worker-safety violation that results in a worker death; ... I don't think that there's any question that if somebody commits a worker-safety violation and somebody dies, the government should have at least the option of charging them with a felony. The government should at least have the option of seeking a jail sentence of more than a handful of months' imprisonment. But unfortunately, the law in the United States today is that this is just a misdemeanor.

How is it possible that it is still a misdemeanor?

I don't have a good answer for you about why worker-safety crimes where a death occurs are a misdemeanor. Frankly, not only should it be a felony to willfully, even to knowingly, commit a worker-safety violation that results in death, it should be a felony to knowingly commit a worker-safety violation that results in serious injury.

And the only reason I can think of why it wouldn't be a felony is I think there's a fear in the regulated community, that perhaps is shared within Congress, that prosecutors would somehow criminalize accidents if we had a greater sanction for these type of crimes. From my perspective, that completely misses the mark because prosecutors only have authority -- whether it's a felony or a misdemeanor -- they only have authority to prosecute this kind of crime today if it's willfully done, and I would suggest perhaps lowering that to knowingly.

But whether it's willfully or knowingly, that's not an accident. So prosecutors wouldn't be criminalizing accidents, but that's the fear. And so, because there's this fear of criminalizing worker accidents, and because there's a fear of "gotcha" prosecutors and "gotcha" law enforcement officials, I think we're stuck with a misdemeanor provision. But that misdemeanor provision is woefully inadequate, and that's a law that should be changed.

And a $7,000 civil fine?

Well, the civil sanctions that are available are going to vary widely. In the British Petroleum case [in which BP paid $70 million in fines and restitution in October 2007 for environmental violations], British Petroleum paid very large civil penalties. So the civil and administrative penalties can be much greater, but my argument is with a federal worker-safety law that makes it a crime, as it should, to willfully commit a worker-safety violation that results in death, but then makes the sanction for that crime a misdemeanor sanction, a sanction of just a few months in jail.

That should be a felony violation. It should be subject to at least five years in jail, if not more. And then it should be up to federal district court judges, exercising the discretion we properly invest in them, to decide whether it's a particular crime that should result in a significant period of jail time. ...

Now, the last big case I prosecuted, a case out in Idaho, involved a situation where workers were sent into a tank of cyanide waste to clean out the waste and dump it on the ground.

One of those workers collapsed inside the tank, suffered severe and permanent brain damage. That was a 15-year felony under the environmental laws because the workers were sent into the tank to dispose of hazardous waste, and the owner of the company knew at the time he was placing his workers in danger of death or serious bodily injury. There wasn't any federal worker-safety law, not any federal worker-safety crime, that applied to that violation. So the only option was to prosecute under the environmental laws.

You mean because the victim lived, [the owner] couldn't even be prosecuted for a misdemeanor?

Because the victim lived, there wasn't an OSHA [Occupational Safety and Health Act] crime that applied to sending him into that tank. No OSHA law, no OSHA crime. Now, there are plenty of OSHA violations that were committed, but no crime was committed because the victim didn't die. And even if he had died, the sanction would have been less than a year in jail, whereas the sanction under the environmental laws was 17 years in jail.

The British just passed a Corporate Manslaughter and Corporate Homicide [Act] that makes companies criminally responsible for deaths caused by gross negligence.

That's a potentially strong worker-safety provision. Gross negligence is not a standard that is easily met. It's certainly more than just an accident; it's more even than ordinary negligence. So gross negligence is a standard that's not easily met, but depending on what the penalties are, that may be a stronger sanction than we have in the United States. What I would say is that in the United States it should be a crime, and it should be a felony violation to knowingly commit a worker-safety violation that results in death or serious bodily injury.

Now, that's a much broader law than we have today. Most federal criminal statutes penalize knowing misconduct, so if a company knowingly commits a violation of a federal worker-safety law that results in serious bodily injury or death, that should be a felony. Much as it's a felony to knowingly violate the environmental laws, much as it's a felony to knowingly violate nearly every other federal provision of federal criminal law.

And when we say felony, we mean more than at least a year in jail?

We mean that the sanction can be more than a year in jail.

It would seem to me that politically Congress, which responds to the public or to various interests, doesn't agree with you. Every now and then someone introduces such a law, and it never gets anywhere. Why is it so important? What makes it important to have bigger teeth in a worker-safety law?

Well, it's tremendously important to have a strong enforcement scheme under any regulatory program. ... When you're dealing with companies that don't think it's that important to follow the law -- in fact, think there are benefits to be had by breaking the law -- you need to have a strong enforcement tool available to bring those companies in line.

Do you think we'd be talking about a "new McWane" today if all we could have done in the various McWane prosecutions was hit them with misdemeanor sanctions and fines to the tune of a few hundred thousand dollars? We wouldn't be hearing about a new McWane today. We wouldn't even have the possibility of a new McWane today if they hadn't been faced with felony prosecutions and multimillion-dollar fines at five different facilities.

[How did you come] across the McWane Corporation?

McWane was in many ways a pilot project, a chance for us to try and develop a stronger working relationship with OSHA [the Occupational Safety and Health Administration].

The reality of how we found out about McWane was that we found out about McWane from the news media; we found out about McWane from FRONTLINE and The New York Times running an exposé about the fact that workers' safety and environmental violations had been committed for years at McWane facilities and had not been adequately addressed in the past by other prosecuting offices and government regulators.

So, you took that lead from the news media, and what did you find?

Well, we found that what the media had been reporting was true, that in a number of McWane facilities around the country there were significant environment crimes being committed. There were significant workers' safety violations occurring. There was, in effect, a culture of lawlessness at a number of the McWane facilities that we investigated.

Can you give me a summary of what you prosecuted McWane for and what the results were?

We prosecuted McWane at five different facilities throughout the United States. We prosecuted them at the Atlantic States facility in New Jersey, at the McWane Cast Iron Pipe Flagship facility in Birmingham, Ala.; we prosecuted them at the Union Foundry Plant in Aniston, Alab.; we prosecuted McWane at the Tyler Plant in Tyler, Texas; and we prosecuted McWane at the Pacific States Foundry in Utah.

At each of the facilities there were significant criminal violations. [At] some facilities we only charged McWane with environmental violations. At the McWane facility in Birmingham, they were charged with and convicted of multiple felony violations of the Clean Water Act. Out in Utah they were charged with felony violations of the Clean Air Act. But at the other three facilities, both environmental crimes and workers' safety violations occurred together.

In New Jersey, we had charged McWane with a longstanding conspiracy to violate both the environmental laws and the workers' safety laws. They were convicted of that charge; they were convicted of Clear Air Act felony violations; they were convicted of Clean Water Act felony violations; and they were convicted of obstructing justice and lying to federal investigators.

At the Union Foundry facility, they were convicted of the misdemeanor under the Occupational Safety and Health Act: willfully committing a workers' safety violation that results in death. And at the Tyler, Texas, facility, they were convicted of felony violations of the Clean Air Act and previously were convicted of the OSHA violation for willfully committing workers' safety violations that result in death.

Across the five facilities where we prosecuted McWane, we saw nearly every kind of environmental criminal violation and workers' safety violation that you could see. And they were all there at McWane.

Editor's note: In 2007 the 11th Circuit Court of Appeals reversed the convictions in the Birmingham case after considering a Supreme Court decision regarding the interpretation of the Clean Water Act. The court ordered that McWane be acquitted of one count of making a false statement to the EPA and ordered a new trial on all other charges. Both sides, hoping to avoid a new trial, have asked the appeals court to review the case again. The court is currently considering those requests. Click here for a more detailed summary of the McWane cases.

And they say, well, these were just a bunch of bad managers or bad supervisors, but this isn't the company as a whole.

Well, I don't see how you can say this is just a bunch of bad managers, a bunch of bad supervisors. It certainly was. There certainly were bad managers. There were individuals convicted in New Jersey and in Alabama and in Utah.

But you don't have the kind of violations that we saw at multiple facilities within a company and not have a cultural problem within the company; not have a culture of lawlessness, a culture where compliance is not a priority, a culture where it's okay to break the law. That very much was the culture at McWane, or we wouldn't have seen this number of violations at this number of facilities.

And remember, we're not just talking about [regulatory] violations; we're not talking about accidents. We're talking about deliberate, intentional conduct: People lying; people concealing information; people committing workers' safety violations that result in people dying; people committing Clean Air Act violations; people dumping pollutants into waters of the United States, committing Clean Water Act violations. Doing all of that knowingly, doing all of that intentionally.

They weren't mistakes, they weren't accidents, and they certainly weren't the activities of a few isolated people within the company. This was the McWane way.

McWane was your test case, in a way, your pilot program. ... Were you surprised by what you found?

I don't know that I would say we were surprised by what we found, because we had read about conditions at McWane, and we'd seen on FRONTLINE a lot of what was going on at McWane. But like any good prosecuting office, if you read about something or you hear about something in the news media, you've got a duty to follow up on that information, but you don't know whether you're going to be able to confirm it. You don't know whether the evidence is actually going to support the allegations.

So I can't say we were surprised, but we were quite diligent about pursuing this information. We worked very hard. We assigned some of our best prosecutors to work on these cases; we didn't have one person responsible for all five. What we found that was disturbing was, we found in McWane a company that was one of the most persistent violators of environmental and workers' safety laws of any company that we had come across in my 17 years at the Justice Department. ...

These prosecutions, this investigation, went on for a number of years. Did you come to some conclusion how McWane got away with this for so long?

It was not our role at the Justice Department to determine why these violations occurred for so long without a strong response from the government.

I would say generally about enforcement of environmental laws and worker-safety laws that it's very difficult. The federal, state and local officials with responsibility for inspecting plants and for monitoring the activities at plants only can act on the information they have. ...

So I can't really come to any definitive conclusion about why [there was] no significant enforcement activity before the last several years. On the other hand, it can't be said that McWane has been untouched anymore. McWane is being prosecuted at five different facilities in four different states, there's been an unprecedented level of criminal enforcement activity directed at McWane, and I think that's the more appropriate focal point.

In all these prosecutions, very little jail time. Very little in the way of what we would think, if it's such a serious crime, that individual perpetrators suffered.

That remains to be seen. Arguably the most significant of the McWane prosecutions was the prosecution in New Jersey, and that case has yet to be sentenced. In Alabama, we were disappointed that the judge did not impose sentences of jail time. Sentencing guidelines called for it. We appealed those sentences.

And lost.

No, the issue in Alabama is there's a question about the jurisdiction to bring a case like [this] because of the Supreme Court case that was decided afterthe McWane trial. And the Court of Appeals has sent that case back to the trial court for a new trial in light of the new Supreme Court precedents, so we never got an answer to the question about whether those defendants should have been sentenced to jail time. In Utah, the individual defendant charged in that case was sentenced to jail. So I don't think we're at a point yet to say whether the sentences imposed in the McWane cases were appropriate or not or were sufficient deterrents or not.

But what I think we do see in the McWane cases, and which is a concern, is that today, under changes in the federal sentencing law, federal district court judges are no longer required to follow the federal sentencing guidelines that for many years were the reason we were able to seek and obtain jail sentences for environmental crime. Those federal sentencing guidelines still call for jail sentences, but as we saw in Alabama, district court judges are now free to disregard the guidelines. The guidelines are just advisory guidelines now; they're no longer mandatory.

And as a result, what we're seeing is more of a range in terms of the sentences that are imposed for environmental crime. Sometimes we see jail sentences; sometimes we don't. That's now left to the discretion of individual district court judges, and unfortunately environmental crimes don't always result in jail time when it's up to an individual judge.

McWane says that in the wake of these prosecutions and other events that they've spent hundreds of millions of dollars, they've hired all kinds of former federal officials and others and brought them into the company as either consultants or as part of management, and they've changed their ways.

Well, McWane has hired a significant number of former environmental and worker-safety officials to help McWane clean up its act, and that is a laudable step in the right direction. But whether there is a new McWane, whether the laudable step of reviewing their operations and trying to get on the straight and narrow, whether that actually has resulted in a new McWane, that's something only time will tell.

Sitting here today, looking at McWane, what we see is a company that committed felony violations of the environmental laws and of worker-safety laws at plants across the United States. Sitting here today, we look at a company that, unlike any other company, has faced simultaneous prosecution in multiple districts. The Environmental Crime Section has existed for 20 years. We have never seen a company like McWane.

So when McWane says it's a new day and they're a new company, I certainly hope so. That was one of the goals of our prosecution of McWane, but whether they have in fact changed, whether they've turned a new corner, only time will tell.

You said that in the 20 years of the Environmental Crime Section, you've never seen a company like McWane?

During the 20-year history of the Environmental Crime Section, we had never seen a company that committed criminal violations at so many of its facilities. The closest we've come to the McWane case, in terms of a company committing violations of the environmental laws in multiple facilities, was the prosecution just this fall of British Petroleum, which committed environmental crimes both in Texas and in Alaska.

But McWane committed violations at five different facilities in New Jersey, in Alabama, in Texas, in Utah. And alongside that record of criminal violations in those four states at five facilities, they also had state criminal violations; they also had civil environmental violations. So it's fair to say we had never seen a company quite like McWane, and I would hope we would never see a company quite like McWane again.

They say they've changed. Do you believe it?

I think I'm an agnostic on the subject of whether McWane has changed. I hope they have changed. I hope they have learned their lesson. I'm concerned though, when I see that the same people who have run McWane all these many years are still running McWane. ... Change doesn't happen overnight; change doesn't happen easily, even in the face of multiple felony prosecutions. So whether they've changed or not, I don't know. Only time will tell. ...

How unique is McWane, or at least what you found when you began your investigation?

McWane was unique for a number of reasons. ... McWane had significant violations of environmental laws and worker-safety laws at multiple facilities. They're not the only company that's ever had a problem at more than one facility, but I'm not aware of another company that had violations at as many facilities. So that's one way they're unique. ...

The prosecutors who worked in the case said they'd never seen anything like it. They'd never seen an environment quite like McWane, and they'd never seen a culture of fear quite like the McWane employees described to them, where people were put so much under the gun and were told, in no uncertain terms, that they weren't to be sharing information about what happened at McWane and that there would be consequences if they did.

Do you feel a certain kind of personal pride or success in this case?

I think everybody who worked on the McWane prosecutions deserves a tremendous amount of credit. You don't successfully prosecute a series of cases like the McWane cases without a tremendous effort by a lot of people across a lot of different agencies.

And much of the misconduct we saw at McWane, much of the criminal activity we saw at McWane was unprecedented. I think the level of cooperation we had in these prosecutions was unprecedented, and I'm certainly proud of what everybody accomplished and how much we were able to do in these cases.

So these prosecutions -- this theory [of working with OSHA] that you checked out in doing McWane -- that encouraged you to do more?

Well, that and the response we received from OSHA encouraged us that there is more work to be done in the worker-endangerment area. We did training throughout the country for OSHA officials. Now, what we learned from OSHA officials is that these are hardworking people who have a difficult job. They have to go into companies where nobody's rolling out the welcome mat for them, and they have to try and figure out whether the company's being operated in a safe way. ...

We ask a lot of our companies in America -- as we should -- that they do everything they can to protect the health and safety of their workers. But when they don't do what they should -- when they don't honor their commitments under the law, when they don't protect the health and safety of their workers, and when they do that knowing full well that's what they're doing -- there's not a lot in the way of criminal sanctions available.

What we found in working with OSHA officials is we found a lot of people who were frustrated, a lot of people who were dispirited by the fact that they didn't really feel like there was much they could do about the worst violators, at least not until we started working with them. And once we started working with them we started being able to bring to bear these felony environmental violations, and charge felony crimes for some of the problems they'd seen over the years. We got a very favorable response, and we've been working on more cases -- at least we were when I left the Justice Department.

This became an initiative under your leadership. Explain how that happened.

As I mentioned, we had seen over the years a number of cases involving worker injuries and worker deaths in the course of committing environmental crimes. And we'd also come to realize that the same people within companies who had responsibility for environmental compliance also had responsibility for workers' safety. Governmental compliance and regulatory compliance usually is addressed by one part of a corporation.

What occurred to us is that if a company wasn't paying much attention to protecting the health and safety of its workers, it wasn't likely to be paying any greater attention to environmental compliance. So we started working with OSHA, asking them to let us know who were the worst facilities in each part of the country; who were the facilities who were persistent, chronic violators of workers' safety laws? And we then took that information to EPA and asked EPA whether any of those facilities were facilities that also had environmental compliance obligations.

Our thinking, which proved to be true, was that if companies were violating the workers' safety laws in a persistent way, they probably were doing the same thing with the environmental laws. And if we could address the two together, we'd have a much stronger enforcement response. ...

So, you went to OSHA, the Occupational [Health and] Safety Administration and in a sense asked for a list of possible suspects, and then went to the EPA to see if they were violating regulations or laws in a similar way?

That's correct. We didn't have authority in the [Environmental Crimes] Section of the Justice Department to address just the workers' safety piece all by itself. But much of the time the workers' safety piece had a companion environmental piece, and once we were in the door [with] an appropriate investigation for environmental violations, we had the authority to address any other violations that were occurring as well, including the workers' safety violations. And the reality is a lot of times the two were occurring together and were properly charged together as part of the same pattern of criminal activity.

And you started expanding and going after other what you would call "serial violators."

The W. R. Grace case that was brought in Libby, Mont., is a very important case for the Worker Endangerment Initiative: scores of workers as well as citizens in the small town of Libby who were exposed to horrible forms [of] asbestos-related disease. The BP, British Petroleum, case in Texas City, Texas, where a refinery explosion resulted in 15 deaths, [is] another egregious example of what we're talking about. We prosecuted another refinery case involving a company called Motiva, where a worker was killed. Although we charged that case as a Clean Water Act violation, that was a case that was brought as part of our Worker Endangerment Initiative.

So yes, the McWane prosecutions rolled out a new prosecution approach, a new initiative, as we've described it, but it was by no means the last of the cases. There've been a number of significant cases brought since the McWane cases, and I would expect in the years to come we'll see a great deal more in this area.

So are there other McWanes?

Other companies like McWane? Well, one of the goals of the Worker Endangerment Initiative is to determine whether there are other companies like McWane, and if there are, to prosecute them just as vigorously. That Worker Endangerment Initiative started with us reaching out to OSHA and developing a stronger relationship with them.

It's continued with training OSHA compliance officers and inspectors about what kind of violations might be appropriate for criminal prosecution. And what I hope will be the next wave of it is something I talked about a little earlier, which is this idea that we figure out which are the worst facilities for OSHA.

OSHA has regional offices, and they have area directors. And for each area of responsibility, I think it's important for OSHA to identify, which are the facilities that are chronically violating worker-safety laws? Which are the facilities [that] chronically, over time, [have] problems with worker injuries and deaths? And let's shine a bright light on those companies. Let's really look hard at what they're doing and if those companies are appropriate companies for prosecution, looking at environmental violations or whether it's just the Criminal Division of the Justice Department of the U.S. attorney's office taking a harder look at worker-safety violations. Let's do that.

Of course, the ability to do all that would be greatly enhanced if Congress were to enact felony provisions of the Worker Safety [Act] and provide for a more robust scheme. But in the meantime, with the laws that are on the books, hopefully Justice Department prosecutors can continue working with OSHA to identify other companies that, like McWane, are persistent violators of worker-safety laws.

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posted february 5, 2008

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