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Injustice for All: A State Crime of Omission Beneath the Steps of the United States Capitol

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Abstract

This research examines a state crime of omission by members of the Office of the Architect of the Capitol. These crimes were perpetrated against a group of employees charged with maintaining the underground utility tunnels beneath the United States Capitol. Through a secondary analysis of congressional testimony; citations and documents issued by the Office of Compliance; medical records; and various media accounts of the events, this research seeks to examine the perpetrators’ actions as a state crime of omission and offer a theoretical explanation. Our findings suggest the actions and inactions of the Office of the Architect of the Capitol, over a period of years, embody the definition of a state crime. Our theoretical explanation examines the conditions that combined to foster an environment in which occupational exposure to asbestos continued for years, placing the life and health of the tunnel crew in serious jeopardy.

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Notes

  1. The OOC was established in 1995 by the Congressional Accountability Act (CAA) as an independent agency charged with enforcing the laws included in the CAA. The CAA states that each employing office and covered employee shall comply with Sect.”Theory” of the OSH Act, which states in part that each employer shall furnish to each of his or her employees a place of employment that is free from hazards. Each employing office must comply with the standards established by OSHA. Employees likewise must comply with standards, rules, regulations, and orders issued pursuant to the OSH Act (Sect. 215- Occupational Safety and Health). The CAA protects over 30,000 federal employees including members of the House of Representatives, the Senate, the Capitol Police, the Congressional Budget Office, the office of the Architect of the Capitol, the Office of the Attending Physician, and the OOC. The need for the OOC was created, in part, because the Occupational Safety and Health Act of 1970 (OSH Act) applies only to private sector workers.

  2. The lung interpretation is a test of one's overall lung capacity and lung intake and output. The test assesses damage to one's lungs; the results are used to estimate an age interpretation based upon the damage present.

  3. Thayer and the other tunnel workers have good reason to be concerned as the cases of take home exposure resulting in a variety of asbestos related diseases is well documented. Take home asbestos on workers clothes, shoes, and hair can cause household exposures and have been linked to various malignant and non-malignant asbestos-related diseases (NIOSH 1995). Take home exposure from a variety of industrial hazards has been recognized as far back as 1897. Netolitzky (1897), a physician reporting on lung disease among textile workers, also observed illness among their family members. Tollman and Kendall (1913) suggested that street clothes should not be worn in the work area and that work clothes should be removed prior to leaving the factory, thus preventing industrial poisons from being carried away from the workplace and exposing non-workers to industrial hazards.

  4. Congress authorized funding for the planning and design of the new CVC in 1991. Despite the neglect of the life safety issues and the conditions of the deteriorating tunnels, there was a symbolic groundbreaking ceremony in 2000 and construction began in 2001. The new CVC, completed in 2008, has three levels and contains 580,000 square feet. According to Ruane and Stephens (2007), government auditors estimate the CVC will cost $600 million, more than double the $265 million originally estimated for the project in 1999. The project was plagued by continual delays which pushed the CVC’s debut from its original date in 2005 to 2006, to 2007, and eventually to 2008. Thus funds were being solicited for both tunnel maintenance and construction of the CVC between 2000 and 2008. According to Rep. Jack Kingston, the construction of the CVC is "a monument to government inefficiency, ineptitude and excessiveness." Representative Kingston is not alone in his assessment of the CVC project, as Rep. Debbie Wasserman Schultz stated, "I've never seen a bigger boondoggle in my life. It's like they're playing with Monopoly money" (Ruane and Stephens 2007).

  5. According to OOC policy, the CAA provides that if new appropriated funds are necessary to correct a violation for which a citation is issued, the correction shall take place as soon as possible, but not later than the end of fiscal year following the fiscal year in which the citation is issued.

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Author information

Authors and Affiliations

  1. Grand Valley State University, 401 W. Fulton Street, Grand Rapids, MI, 49504-6431, USA

    Patrick M. Gerkin

  2. Grand Rapids Community College, Grand Rapids, MI, USA

    Lauren A. Teal

  3. Redondo Beach, CA, 90278, USA

    Linda H. Reinstein

Authors
  1. Patrick M. Gerkin
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  2. Lauren A. Teal
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  3. Linda H. Reinstein
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Corresponding author

Correspondence to Patrick M. Gerkin.

Appendices

Appendix 1: Summary of Dates and Reports Limited to Asbestos and Lead Utility Tunnels

  1. 1.

    June 30, 2000- Memorandum for Gary Green, General Counsel from Stephen Malinger. Subject is Tunnel Hazards Noted or Identified by Army Corps of Engineer Inspection. Section is included with narrative and pictures concerning friable asbestos.

  2. 2.

    July 2001- Report on Fire Safety, Office of the General Counsel. Prepared by Gary Green, Stephen Mallinger, Thomas Seymour, Mary Masulla. Section included with narrative and pictures concerning friable asbestos. Section is included with narrative about lead exposure and need to develop a program.

  3. 3.

    June 27, 2005- Letter to Susan Adams with Subject Utility Tunnels—109th OSH Biennial Inspection and Abatement of Citation No. 24. Letter seeks information on the conditions of the tunnels.

  4. 4.

    August 17, 2005- Memorandum (Report) from Peter Eveleth, Stephen Mallinger, Thomas Seymour, Henry Woodcock. Subject Utility Tunnel Inspection- Citation Abatement Status. Paragraph mentions asbestos.

  5. 5.

    August 17 and 18, 2005- Cover letter and attached report entitled OSH-9011: Status of Heat Stress and Asbestos Hazards in Utility Tunnels by Henry Woodcock 31 page report on these two hazards complete with describing violations.

  6. 6.

    September 7, 2005- Cover letter and attached report entitled OSH: Status of Confined Space Program in the Utility Tunnels by Henry Woodcock. Several areas where asbestos hazards are mentioned in the various tunnels.

  7. 7.

    September 14, 2005- Cover letter and database print out of the 109th biennial inspection findings entitled Biennial Safety and Health Inspection Findings—Capitol Plant Utility Tunnels. Various violations of asbestos regulations in attached computer generated report.

  8. 8.

    January 6, 2006- Cover letter and attached citations for Heat Stress and Asbestos. Letter to Susan Adams from Peter Eveleth.

  9. 9.

    February 28, 2006- Cover letter and legal complaint. Letter to Mr. Alan Hantman from Peter Eveleth. 15 page complaint describes items not abated for citations issued in 2000.

  10. 10.

    March 23, 2006- Correspondence to Richard Fairfax (OSHA) from Peter Eveleth entitled Safety and Health Referral- Capitol Hill Power Plant Utility Tunnels.

  11. 11.

    June 23, 2006- Memorandum to Peter Eveleth from Henry Woodcock entitled Position Recommendation Regarding Asbestos Removal in the Utility Tunnels. Four page report sent to AOC.

(Office of Compliance, personal communication, November, 2006).

Appendix 2

See Table 1.

Table 1 Capitol power plant funding history for utility tunnel repairs
Full size table

Appendix 3

Ms. Wasserman Schultz. And thank you to all of you who are here to testify this morning. I am going to begin my questions with Mr. Ayers. It is really is hard to understand, and although I know you were not the Architect of the Capitol for the majority of the time, it is hard to understand how it took 7 years and a formal complaint from the Office of Compliance for the Architect of the Capitol to act on this. There was some mitigating and some attempt to address some of the concerns over the course of that 7 years. But it is mind-boggling to me that the Architect’s Office could have just ignored the conditions.

I mean, if anyone bothered to check, the conditions in those pictures are just not ignorable. Those are damning pictures. And I just don’t understand, and I would like to hear from you why it is that that occurred. I understand you have outlined the steps that you are taking now, but there seems to be some significant discrepancies on the progress. So I would like to ask you after you answer this initial question about the actual progress made.

Mr Ayers. Thank you Madam Chair. I couldn’t agree more that taking 7 or more years to correct these problems is—

Ms. Wasserman Schultz. Seven years and a complaint.

Mr Ayers. [continuing] Inexcusable and unacceptable. There is no other way to put it. From my analysis in looking back and trying to put all the pieces together, I think there were a number of management breakdowns as I see them. I think first and foremost, poor internal communications. I think the lack of a third party, an independent review of our facilities, I believe, led to some of these problems.

Ms. Wasserman Schultz. Is that because none existed or none was asked for? There was clearly an awareness.

Mr Ayers. None was asked for.

Ms. Wasserman Schultz. There was clearly an awareness on the part of your predecessor that there was a problem. Did he just ignore it?

Mr Ayers. Well, I think it is unfair to say it was completely ignored. We spent $20 million in those intervening years doing some of those repairs. Certainly, the New Jersey Avenue or the North Carolina Avenue, as well as the Constitution Avenue, as well as the South Capitol Street, all of those are—

Ms. Wasserman Schultz. Excuse me for interrupting you, but $20 million, of the estimate of the cost, which we certainly expect to balloon well beyond the cost estimate today, $20 million is a pittance. There is no possibility that it could have been significantly addressed with $20 million.

Mr Ayers. I couldn’t agree more. So I think leading to this kind of breakdown, the lack of this independent look at what is going on, and I think a lack of a prioritization system within the organization that takes these kind of life-safety issues and raises them to the top.

…

Ms. Wasserman Schultz. Okay. Why is it that the controls that you just outlined were not implemented? It is clear to me that this problem was ignored by your predecessor. And to the degree that he was even aware of it, he did almost or next to nothing to act on it. Would that be a fair characterization?

Mr. Ayers. Well, as I mentioned before, we did spend some money on it, but it was far too little. And I think it was a pittance, using your words. You are absolutely right.

Ms. Wasserman Schultz. Do you have any idea why he would have just ignored it? Essentially cast aside the lives of people who were working in the tunnels and just disregard their safety?

Mr Ayers. No.

Capitol Power Plant Utility Tunnels. Subcommittee of the Committee on Appropriations. (2007a, b, c) (Testimony of Stephen Ayers).

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Gerkin, P.M., Teal, L.A. & Reinstein, L.H. Injustice for All: A State Crime of Omission Beneath the Steps of the United States Capitol. Crit Crim 18, 111–131 (2010). https://doi.org/10.1007/s10612-009-9092-x

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