Frustrated with the impotence of its laws to protect health and safety and the environment, Congress is moving toward a much tougher penalty for violators: prison.
In general, regulatory enforcement under dozens of health-and-safety statutes has been infrequently applied against individuals. And usually, a fine is paid by a company for a violation.
"It has been a fraud," said Phillip B. Heymann, head of the Justice Department's criminal division. He is among those pushing for a tougher felony standard to be applied to irresponsible behavior that endangers others.
This week, the Senate Judiciary Committee will take up the "endangerment" provision of a bill to overhaul the federal criminal code.
The provision sets a term of up to five years -- without parole -- for a person who violates environmental or coal mine safety laws to engage "in conduct that he knows places another person in imminent danger of death or serious bodily injury." His conduct must also manifest "an extreme indifference to human life."
In the House on Nov. 12, the Judiciary subcommittee on crime opened hearings on a bill to make it a felony -- for the first time -- for "an appropriate manager" who knows of a serious hazard to conceal it from the public and affected employes. If he fails within 30 days to disclose the information to the appropriate federal regulatory agency and the workers, the manager runs a risk of two years in prison.
There is momentum behind the proposals -- so much that they are being faulted for specifics, not underlying principle.
Last week, for example, the Business Roundtable, an influential group of 192 major corporations, agreed in behind-the-scenes negotiations to the Senate Judiciary Committee's endangerment provision. Other supporters include chairman Edward M. Kennedy (D-Mass.) and two conservative Republicans on the committee, Strom Thurmond (SC.) and Orrin Hatch (Utah).
For the disclosure bill, sponsor Rep. George Miller (D-Calif.) has signed up 44 backers, including two members of the GOP right, Reps. Robert K. Dornan (Calif.) and Norman F. Lent (N.Y.).
Rep. John M. Ashbrook (R-Ohio), a former chairman of the American Conservative Union, said, "I think it's a question of law and order."
After participating in the initial hearing on the bill Nov. 12, Ashbrook told a reporter, "If there's consipracy and complicity, I think we're bound to seek redress."
The purpose -- but not the language -- of the Miller bill also is accepted in another surprising quarter, the government regulation and competition unit of the National Association of Manufacturers. It would be "almost un-American" to oppose the bill's intent, Howard Vine, the unit's associate director, said in a phone interview.
The two proposals have picked up momentum from the recent surprise publication of a book revealing the disillusionment that led John Z. DeLorean to walk away from a chance to head General Motors Corp.
It quotes him as saying that "the system of American business often produces wrong, immoral and irresponsible decisions, even though the morality of the persons running the business is often beyond reproach . . . .
"There wasn't a man in top GM management who had anything to do with the Corvair who would purposely build a car that he knew would hurt or kill people," he continued.
"But, as part of a management team pushing for increased sales or profits, each gave his individual approval in a group to decisions which produced the car in the face of serious doubts that were raised about its safety, and then later sought to squelch information which might prove the car's deficiencies."
The proposals probably got their biggest push from a barrage of revelations about the failure of an array of deterrents to dangerous corporate conduct, such as a competitive marketplace, government regulations and bad publicity. Here are some of the cases, as portrayed principally in court records:
In Elkhart, Ind., last year, a van rammed into the rear of a 1973 Ford Pinto, causing its gasoline tank to burst into flames. Three young women in the car burned to death. As a result, the Ford Motor Co. became the first American corportion to be charged with reckless homicide. Allegedly, it knowingly designed the gas tank in order to save about$8 per car, in a way that made it excessively vulnerable to fire and explosion in low-speed crashes. Trial is set for January in Winnemac, Ind.
The Johns-Manville Corp. regularly took X-rays of asbestos workers to check for often-fatal lung diseases. But for more than 25 years, until the early 1970s, J-M's policy, was not to tell the workers of suspicious findings.
One of the diseases was asbestosis. The industry knew by the early 1930s that asbestos dust could cause it. In 1935, however, the president of Raybestos-Manhattan Co., told J-M's president in a letter, "I think the less said about asbestos, the better off we are." J-M's chief replied "I quite agree with you that our interests are best served by having asbestosis receive the minimum of publicity."
In 1974 near Albert Lea, Minn., a barn went up in flames despite the supposed protection from fire of polyutherane foam products -- similar to those in millions of households -- made by Dow Chemical Co. and Celotex Corp. Last year, a state judge, upholding a $750,000 award against Dow, accused it of having "carelessly disregarded the serious and dangerous flammability of its product Styrofoam to 'milk the profits,' all at the expense of safety." Dow did not appeal.
In 1972, Thomas Robertson, director of development at Firestone Tire and Rubber Co., warned in an internal memo about Firestone's "500" steel-belted radial tires. "We are making an inferior quality radial which will subject us to belt-edge separation at high mileage." Yet, over the next five years, Firestone produced 24 million of the tires.
In Nebraska, an Occupational Safety and Health Administration inspector found that a construction trench was dangerous because its walls had not been properly shored. He cited the Turcon Co. Inc. and, two days later, explained OSHA regulations to Turcon's president. Seventeen days after that, a trench at the same site caved in and killed a worker. The firm -- not the executive -- was tried and convicted and fined $5,000.
By late 1972, the Manufacturing Chemists Association knew vinyl chloride to be a potent carcinogen. Yet no cancer-causing or toxic effects were noted in the precautionary label the chemical industry trade group recommended to the National Institute for Occupational Safety and Health.
The ethics committee of the American Association for the Advancement of Science accused the MCA of having deliberately deceived NIOSH. "Because of the deliberate suppression of these data," it said, "tens of thousands of workers were exposed without warning, for perhaps some two years, to toxic concentrations of vinyl chloride."
Three Richardson-Merrell Inc. officials pleaded no-contest to falisification of safety data on MER/29, a cholesterol-lowering drug that caused a triad of injuries -- cataracts, skin damage and hair loss -- in at least 5,000 persons. A federal judge here put officials on probation for six months.
The endangerment provision pending in the Senate and the Miller bill in the "House are not offered by their sponsors as cure-alls for corporate behavior but they claim many advantages to the approach of criminal prosecution. For instance, it would not impose new federal regulation. Instead, enforcement would be up to federal prosecutors.
They also extend accepted, conventional principles of ethical behavior. To take a case in point, a person in any of the 50 states who speeds in a school zone or drives while drunk commits manslaughter if someone is killed and a lesser felony even if no one is hit.
The Miller bill has a claim to practicality. Its philosophy -- that you must alert a person if you learn that he or she is seriously imperiled -- is already implemented, voluntarily, by some firms. One is E. I. du Pont de Nemours & Co., according to chairman Irving S. Shapiro, who is past chairman of the Business Rountable.
Yet both proposals are being faulted.
Last year, the Senate approved a Judiciary Committee version of the criminal code containing a much tougher endangerment provision.The provision covered any person who knowingly endangered the health or safety of others under a sweeping range of federal laws and regulations, including those for aviation and nuclear safety, food and drugs, and occupational health and safety.
Under the quiet compromise reached with Senate Judiciary leaders, last week, however, the Business Roundtable agreed to support a watered-down version. It is limited to violations of environmental (for air, water and noise pollution, solid-waste disposal and oil and gas operations on the outer continental shelf) and the coal mine safety laws.
Committee sources said the Roundtable's endorsement could be crucial to passage of the criminal code revision. In addition, last year's version was opposed as too sweeping by Rep. Robert F. Drinan (D.Mass.), chairman of the House Judiciary subcommittee with jurisdiction.
Kenneth R. Feinberg, a committee staff member and former aide to Sen. Kennedy, said "I feel that we gave up very little" to get an endangerment provision in a criminal code revision bill that the Business Roundtable can support.
But the narrowing of the provision's jurisdiction was denounced as "simply indefensible" by a key critic, Assistant Attorney General Heymann. "They're walking away from it under business pressure," he charged in a phone interview.
Last year's version made it a felony for a person knowingly to put another person "in imminent danger of death or bodily injury." That is enough to establish a felony. Heymann protested. There is no need for a prosecuter also to have to prove -- for the environmental and coal mine safety offenses covered by the compromise -- that the conduct "manifests an extreme indifference to human life," he said.
At week's end, two Senate Judiciary members, Patrick J. Leahy (D-Vt.) and Howard M. Metzenbaum (D-Ohio), reportedly were preparing to introduce amendments to restore the provision to the 1978 form.
As for the Miller disclosure bill, in the House, the Roundtable's Shapiro said that as drafted it "cannot be supported."
Rep. Ashbrook wonders why it should not reach health-and-safety coverups by government and union officials.
In addition, Alan B. Morrison, director of Ralph Nader's Public Litigation Group, says the bill should make it a crime for anyone to retaliate against and fire a person who reports a hazard.