By Mark Dempsey

The powers that be - the Occupational Safety and Health Administration (OSHA) and the Environmental Protection Agency (EPA) - have joined forces to combat "The Evil Doers" - employers with extensive records of safety and environmental violations, who in the past routinely escaped prosecution even when their infractions led directly to deaths or tragic injuries.

Though top agency officials are withholding comment that might signal a sustained commitment, it appears that the Bush Administration, reversing long-standing federal practice, has sanctioned thoroughgoing criminal prosecutions of private employers who repeatedly and seriously flout safety and environmental laws.

Congress consistently has declined to toughen laws for workplace deaths, and employers often pay insignificant fines, avoiding jail while continuing to ignore basic safety rules.

From 1982 to 2002, OSHA investigated 1,242 cases in which it was decided that workers died as a direct result of an employer committing willful safety violations. OSHA declined to seek any prosecution in 93 percent of those cases. The problem seemed to lie in the lack of interest by federal prosecutors in cases that rarely result in prison sentences.

In contrast, all federal environmental crimes carry potential prison sentences, including up to 15 years for knowingly endangering workers. In 2001 alone, the Environmental Protectino Agency obtained prison sentences totaling 256 years. With its 200-plus criminal investigators, the EPA has ample experience building cases for federal prosecutors.

Without serious criminal enforcement, OSHA's bark is worse than its bite, but it does have access to all American workplaces, and its inspectors regularly wander the floors of the nation's dirtiest and most dangerous industries. OSHA is well positioned to spot potential environmental crimes, particularly those that harm workers. Unlike their EPA peers, OSHA inspectors each year research hundreds of occupational deaths and injuries.

Apparently, someone in the Bush administration has begun to connect the dots.

By fusing the access, technical skills and regulatory powers of the EPA and OSHA with the Justice Department's environmental crimes section, the administration appears to be creating a potentially potent means of enforcing safety and environmental regulations.

"We can see all the pieces," says Andrew D. Goldsmith, assistant chief of the environmental crimes section. "We can coordinate."

With approximately 40 prosecutors, the environmental crimes section has an established record of bringing complex criminal cases against major employers. However, before this new arrangement, only one prosecutor at the Justice Department concentrated full time on workplace safety crimes. Now, after receiving lists of promising cases from OSHA, prosecutors are also checking for environmental infractions and planning criminal prosecution.

Further, if a plant is a part of a larger corporation, then sister plants are being checked as well.

The value of this coordination became obvious during a recent federal investigation into a New Jersey foundry owned by McWane, Inc., the nation's largest manufacturer of cast-iron pipe. McWane has been described as one of the most dangerous employers in America. In December 2003, several high level 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 call it a "pioneering indictment" because it tells the whole picture of how the company put profit ahead of all other considerations.

The new collaborative approach attempts to remedy a weakness in the regulatory system - the failure of federal agencies to work together to bring to justice corporations that repeatedly violate the same safety and environmental regulations. The EPA and OSHA, in particular, have a history of behaving like estranged relatives.

"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 environmental crimes section.

Fantasy or Reality?

With very little fanfare, it appears that the Bush administration is making a conscious effort to end the old pattern of leniency and allow new, more stringent prosecution to take root.
However, for all the potential to make real change that the initiative suggests, both Jonathan L. Snare, the acting OSHA administrator, and Howard Radzely, the Labor Department's top lawyer, would not give a public comment on it.

This raised doubts in some observers' minds about the seriousness of the agencies' commitment. For instance, on his Confined Space blog, Jordan Barab - a former union health and safety professional who worked at OSHA during the Clinton administration - wrote, "I'm having trouble figuring out what's going on at OSHA. They're behaving like a little kid with a bad reputation who does something good, but hides it out of embarrassment - or perhaps because he feels like his 'friends' will beat him up if they find out he's done something slightly upstanding."

Whatever hesitation may exist at the political level, it appears to be "all systems go" in the trenches of OSHA and the EPA.

"You see a glint in these people's eyes, and you see them getting very enthusiastic," says Andrew Goldsmith, who has led most of the OSHA training sessions in which he explains the many ways criminal and environmental statutes can be brought to bear. "You see hands start shooting up. They view us like the cavalry coming over the hill."

It has been a revelation of sorts, he says, to watch agency compliance officers finally be able to seek significant criminal penalties against defiant employers.

Fantasy or reality? That remains to be seen. Let's just hope the latter is true, and this is not another "Once upon a time, in a galaxy, far…far away."

(Mr. Dempsey is with the Laborers Health and Safety Fund.)