October 23, 2017

Industrial pollution: getting away with the crime

In the UK, there is little effective legal sanction against even the most egregiously criminal industrial polluters. But in the USA, aggressive prosecutors armed with effective environmental laws have achieved remarkable successes.

This editorial article, co-written with Peter Bunyard, was published in The Ecologist Vol. 14 No. 4, August 1984.


In Britain the legal system came about to protect the rights of the individual against attacks on his person or on his property. Anyone shown up to be a criminal, even a common thief, would be likely to suffer a fate at least as bad as death and if not actually hanged, sent off to the colonies where his chances of survival would be pretty low.

Today most crimes remain more or less the same, we even have our traitors and all that has really changed are the sentences passed and conditions in the prisons. But in addition to the crimes of murder, treason, robbery and corruption, a relatively new category of misdemeanours has come into being which can be perpetuated with the full cognisance and even approbation of the state, even though such activities may be far more devastating in their impact and consequences compared with the most treasonable action.

Thus industrial man has at his disposal, through the power of science and technology, the means to destroy the immediate environment and beyond, while actually receiving awards from the state for his productivity and ingenuity. In Britain the manufacturers of the most potent poisons, agrochemicals for example, or the producers of radioactive waste, not only receive the Queen’s Award for industry but they have entire government departments in league with them, happy to oblige in proving the harmlessness of their activities.

The disgraceful level of pesticides and herbicides in our vegetables, discovered, not by the watchdogs of the Ministry of Agriculture and Fisheries (MAFF), but by a reputable firm of analytical chemists, is a case in point; so too is the experiment carried out in the mid to late 1950s in which increased levels of radioactive waste were actually discharged from the Sellafield works in Cumbria (Windscale), to find out where it was going. According to Dr John Dunster, director of the National Radiological Protection Board (NRPB), the experiment
“had the support of the authorising government departments”.

Meanwhile Dunster himself reported in the 1958 proceedings of the Geneva Conference on the Peaceful Uses of the Atom,

“discharges (from Sellafield) have been deliberately maintained. . . high enough to obtain detectable levels in samples of fish, seaweed and shore sand, and the experiment is still proceeding. In 1956 the rate of discharge of radioactivity was deliberately increased, partly to dispose of unwanted wastes, but principally to yield better experimental data.”

In a letter to The Lancet Dr Robin Russell Jones, a dermatologist at St John’s Hospital, London, is in little doubt that the ever increasing discharges of radioactive waste during the 1960s and 1970s from Sellafield have been responsible for the toll of childhood cancers in that part of Cumbria. He castigates Sir Douglas Black and his investigators for “their unprecedented betrayal of the public interest” in producing a report on the cancer cases which fails to pin responsibility where it is due.

Wastes of all kinds continue to cloud our skies, blacken our waters, and impregnate our food and clothing, the results of such experiments becoming manifestly clear in an ever rising toll of cancers and other degenerative disease. Clearly too, our legal system has so far failed to deal properly with the perpetrators of such crimes against humanity.

But those who, over the ages, helped to draw up the law could not possibly have entertained the notion that one day it would be possible to contaminate the environment to the point when no-one in his right mind would want to live there. Indeed once lethal substances like plutonium and americium have been allowed to contaminate an area, a certain number of deaths from cancers and genetic disorders are inevitable. A kind of murder has taken place, as brutal in its way as a psychopath’s senseless killing of his victims.

Meanwhile a major accident in a reprocessing plant, such as happened at Kyshtym in the Urals in Russia, and the area becomes uninhabitable for hundreds if not thousands of years. While our legal system provides that muggers and pickpockets can be properly punished it is woefully inadequate when dealing with the arch irresponsibility of those who are the captains of industry in our modern industrial society.

As William Greider notes,

“a street hoodlum who assaults someone with a gun or a knife will clearly get locked up for his crime but the swift sword of justice hesitates when a business executive assaults an entire community with poisonous chemicals.”

Fortunately, this legal anomaly is, in the USA at least, beginning to be redressed. In a recent study by the Bureau of Justice Statistics, 60,000 people were asked to rank different crimes in what they regarded as their order of seriousness. The results were quite encouraging. Most people considered that the bombing of a public building leading to the death of 20 or more people was the worst of the crimes mentioned. Murder was also regarded as very serious, though it figured only seventh on the list.

However, regarded as much more serious than hijacking an aeroplane or even heroin smuggling was the corporate crime of disposing of industrial waste in such a way that it polluted a city’s water supply and led, as in the crime put at the top of the list, to the death of 20 people or more.

Even more encouraging was that acts of pollution, even when they did not lead to any deaths, were regarded as very serious. Thus the directors of factories polluting the environment were seen as being greater criminals than muggers, corporate lobbyists who bribed a government official, or even teenage boys who beat up their mothers. As the authors point out, the survey showed just how much judges who are still lenient to polluters are “out of step on this issue”.

Peter Beeson, a former justice department lawyer who has done much work for the Environmental Protection Agency (EPA), notes some of the difficulties in convicting the corporate polluters. They are usually very high up in the social hierarchy and indeed are often seen as veritable pillars of society. To convict such people “is not something society is used to doing”.

Judges, however, are now beginning to overcome their reticence in handling such problems, as illustrated by the following incident. It was discovered that the management of the Precision Speciality Metals Company was illegally disposing of 4,000 gallons a day of hexavalent chromium, a carcinogenic substance, into the Los Angeles City sewer. When the company learnt that the police were about to investigate, it reacted rapidly, installing 300 feet of piping to divert the chemical into the county sewers. But this expedient failed. The police found out about it and the management was taken to court. As Greider notes,

“If Precision Speciality Metals, then a division of Plessey Incorporated, a $300 million firm traded on the New York Stock Exchange, had been a whorehouse or a stolen car ring or an after-hours gambling joint, a police raid would have caught them in the act, and somebody would have gone to jail. Corporate crime is usually treated more gently. If plant managers get caught, they have to sign a legal agreement promising to correct the violations and to sin no more. At worst, the company might have to pay a modest fine; and a few thousand dollars in fines seems cheap compared to the cost of obeying the law. Besides, it’s written off as a cost of doing business.”

But the management was in for a shock. It was up against a responsible city attorney, Ira Reiner, who, instead of filing a civil law suit brought criminal charges against the company. As a result not only was the managing director jailed for 120 days but the company had to pay for a half page advertisement in which it fully described its criminal behaviour in the Wall Street journal – a newspaper that was chosen because it “finds its way into every corporate boardroom in America”. As Reiner puts it,

“We want to put a chill in the boardrooms. We want them, to understand that if they violate the law, they had best get away with it, because if they don’t they are going to go to jail.”

Reiner did not stop at that. Since then he has obtained criminal convictions for one vice president, two presidents and a board-chairman and, at the moment, (May 1984), is filing a 341-count criminal suit against 11 members of the management, including a corporate vice-president of Todd Shipyard, one of America’s largest ship-builders. All are accused of complicity in illegally disposing of six old transformers containing PCBs which they are accused of having carted off by a junk dealer and burnt – without proper safeguards, in the Mojave Desert (in order to save $58,000, the cost of doing the job properly).

An increasing number of judges are now condemning polluters to jail sentences. Thus a few years ago in Kentucky, a federal judge Charles M. Allen sentenced a polluter to jail with these words.

“If the reckless disposal of pollutants is allowed to continue unchecked, it is this court’s fear that irreparable damage to our planet will result. Contamination will result in the eventual and predictable disappearance of viable land, water and other natural resources, causing an ecological imbalance which could result in the death of our world as we know it.”

Such a judge is a long way ahead in his thinking of our politicians, bureaucrats and most of our scientists in this country, who continue to play down the seriousness of pollution – and indeed, who would probably lose their jobs if they pronounced themselves as openly as did Judge Allen in Kentucky.

At the Windscale Public Enquiry of 1977, witness after witness gave evidence that the radioactive pollution of the Cumbrian coastline and of the land beyond was bound to lead to disease, even though undetectable by the statistical surveys carried out by the government and its official watchdogs, such as the NRPB. Yet all such warnings went unheeded. The recent coming to light of clusters of disease in various areas touched by radioactive pollution is at last waking a few politicians and lawmakers from their slumbers.

Mr Charles Haughey, former Prime Minister of Ireland and the present leader of the Fianna Fail opposition did not mince his words when commenting on the Black Report. He regarded the report on the leukaemia in the Sellafield area as “a scandalous cover-up”, and “all those responsible for that particular plant and for the denials should be put in jail”.

Since Haughey pronounced those words, the Director of Public Prosecutions has decided to bring a case against BNFL for failing to keep proper records of radioactive emissions to the sea; for failing to keep radioactive discharges “as low as reasonably achievable”; and for failing to keep radioactive materials under control. This will be the first prosecution to be conducted under the Radioactive Substances Act of 1960 and the Nuclear Installations Act of 1965.

If the company be found guilty, its representatives could be sentenced to prison terms of up to five years. Such will be unlikely to happen: it will set too dangerous a precedent, and seriously incriminate all the government bodies which have been systematically helping Mr Con Allday, the managing director of BNFL, to cover up the true extent of the contamination caused by his enterprise, now generally regarded as the most highly polluting nuclear installation in the world.

It is indeed much more likely that Mr Con Allday will be honoured for the jobs his enterprise has generated, rather than imprisoned for the pollution, with all its attendant miseries, that it has caused.

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