exception "marks the boundary between Congress' willingness to impose tort liability upon the United States and its desire to protect certain government activities from exposure to suit by private individuals." In S. 464, the projected liability is for those activities involved in violating health and safety standards. It is hard to see how that type of misconduct falls into the area of concern of the Supreme Court.

Those who are negligent and create unsafe work environments and those who violate safety standards hardly have a basis to demand the protection inherent in federal immunity. More to the point, those who are injured and defenseless by virtue of government misconduct ought not be told that those who have caused their harm are somehow part of a special and protected class.

I appreciate the opportunity to have appeared before your Subcommittee today. Thank you very much.

Senator HEFLIN. Mr. Schwartz, basically, reviewing these cases in discretionary defense, they are mostly based on a failure to warn or failure to take action, which would be acts of omission rather than commission. Have we had any where there was affirmative commission in cases?

Mr. SCHWARTZ. There are some, and I will go through them and submit them to the committee. But most of them are situations where the Government had knowledge about a risk, and simply by informing the worker or providing him with an industrial mask, problems could have been avoided. But I will submit to the committee cases that maybe involved commission and an overt negligent act.

I should mention there is a curious overlap between recent case law and this bill. The first part of the bill deals with a violation of regulation. Now, the Supreme Court, in effect, held in Berkovitz that when the Federal Government violates one of its own regulations that it can't use the discretionary function exception, and that is the first part of the bill. It may need to be fine-tuned; there may need to be wording that would be changed.

The second part of the bill says in the workplace when the Government is negligent, they can't use the discretionary function exception to protect themselves. But, there you have the Dube case, which says if the Government has done nothing-has been passive, as you are suggesting, Judge-they cannot use the discretionary function exception.

The bottom line is that the case law, not completely, but is slowly catching up with where this bill is at already.

Senator HEFLIN. Senator Grassley.

Senator GRASSLEY. I don't have a question, but I would like to say that I agree with one thing that Mr. Popper said, and that is about Congress not exempting itself from laws. Along that line, I was successful for the first time in about 50 years having legislation that Congress normally exempts itself from applied to us, and that is the Americans with Disabilities Act, at least the way it has gone through the Senate so far, would apply to Congress. And I think that we would probably be more careful in the legislation we write if we did have it applicable to us.

Senator HEFLIN. Senator Thurmond.

Senator THURMOND. Thank you, Mr. Chairman.

Mr. Schwartz, do you believe from a policy standpoint that the U.S. Government, and ultimately the taxpayer, should be held liable as an insurer for accidents that occur in private workplaces? If so, why so, and to what extent?

Mr. SCHWARTZ. I don't believe that the Government should be held liable as an insurer. I think the Government should be held liable in workplace areas where it has either passively or actively been negligent; it has engaged in fault-based conduct.

For example, it knew of a risk that workers might die of radiation exposure, but it failed to inform workers that if they wore a mask or if they took other protection, they could avoid liability.

Insurer liability, Senator, means that a person is liable even though they may not be at fault. That actually occurs in the product liability area today in some States. Some manufacturers are

government if policy makers can, through the exercise of

discretion, create and maintain unsafe and destructive work environments and thereafter be subjected neither to regulatory oversight nor tort review?

Last fall the United States District Court for Nevada decided Roberts v. United States. (724 F. Supp. 778, 791 (1989)) That case involves safety procedures used in nuclear test site operation. The court held that "a government agency or employee is not immune from scrutiny as a discretionary function" simply because it involves an element of choice. Immune from liability are choices rooted in social, economic or political policy. In contrast," [i]f it is a choice to be exercised within established objective safety standards, and the plaintiff's claim negligence and failure to follow such standards, the

discretionary function exception does not apply." (724 F. Supp. at 791)

This notion of choices that are "grounded in social, economic or political policy" comes up in numerous Federal Tort Claims Act cases. The evolution of this escape clause to tort liability has already given the judiciary the opportunity to impose randomly tort liability in areas where government negligence has caused harm, even though there is arguably a discretionary function involved. One of the salutary effects of this bill will be to eliminate the judicial doublespeak now

evolving, relieving courts of the obligation to split hairs regarding the kind of discretion involved, and instead focus on whether the behavior involved fails to comport with reasonable standards of care expected of all of our citizens.

The discretionary function exception forces courts to make distinctions between planning activity and the implementation of plans. For example, in Ritter v. United States Department of the Army Corps of Engineers (874 F. 2nd 1236 (8th Cir. 1989)) the court found that the design and construction of a flood control system involved discretionary judgments that were within the protection of the discretionary function exception. implementation, operation, and maintenance of the project are outside of the discretionary function exception.

However,

Such decisions protect offices within the government engaged in the planning process, and then penalize others within the government who implement those plans. Would it not be far better to impose liability for negligent maintenance, because those who were charged with the responsibility of maintaining were negligent, and to relieve liability from a planner, because the planning was not negligent, rather than to say as a matter of statute the planner is immune but the implementer can be liable.

In the United States v. Variq Airlines, (467 U.S. 797, 808 the Supreme Court found that the discretionary function

(1983))

I have very strong views on, for example, tort reform bills. I have great sympathy for and belief in

Senator HEFLIN. We have got a vote on. If you can summarize in about 1 minute and answer it, but we are going to have to go to a vote.

Senator THURMOND. Can you finish in 1 minute?

Mr. POPPER. Yes. I think finding the U.S. Government as a defendant for negligent acts that it has committed benefits the public, and therefore I support the bill.

Senator THURMOND. Thank you.

Senator HEFLIN. Thank you. We have completed work with this panel. We will come back right after the vote for the last panel. [Recess.]

Senator HEFLIN. The hearing will now come back to order. Mr. James Reed, legislative director, Asbestos Victims Campaign, Brookline, MA, and Susan Nial, Ness, Motley, Loadholt, Richardson, and Poole, of Charleston, SC, are our two witnesses. Mr. Reed, if you will proceed.

PANEL CONSISTING OF JAMES REED, LEGISLATIVE DIRECTOR, ASBESTOS VICTIMS CAMPAIGN, INC., BROOKLINE, MA; AND SUSAN NIAL, NESS, MOTLEY, LOADHOLT, RICHARDSON, AND POOLE, CHARLESTON, SC

STATEMENT OF JAMES REED

Mr. REED. Good afternoon, Mr. Chairman and members of the subcommittee. My name is James Reed and I am appearing today on behalf of the Asbestos Victims Campaign, an educational and charitable organization incorporated in the Commonwealth of Massachusetts.

The purpose of our organization is to educate the general public regarding the plight of asbestos victims, and to provide other appropriate advocacy and support services, looking to the relief of this distressed group of citizens.

The strength of our movement derives from a grassroots coalition of thousands of asbestos victims and their families, members of the professional community, public officials, and organized labor, including key union officials as well as the rank and file.

It is a signal honor for us to be invited by this distinguished body to testify regarding S. 464. Our position, quite simply, is that S. 464 as presently drafted would, in effect, constitute an indirect bailout of the asbestos industry in regard to the billions of dollars in legal claims currently pending on behalf of 100,000 American citizens who have been poisoned by these notorious tortfessors.

All of us know the names of these asbestos companies-EaglePicher, W.R. Grace, Pittsburgh-Corning, Owens-Illinois, Celotexand their record of malfeasance and reckless misconduct is common knowledge.

This bill, Mr. Chairman, is for these companies. It effectively caters to their interests, though you might never guess this from all the attractive packaging in which the bill comes wrapped.

For this reason, we feel strongly that S. 464 is basically a Trojan Horse. Instead of being called the Government workplace safety bill, as some have dubbed it, we believe the bill would more accu