Wednesday, August 24, 2005

Will BP Execs Go To Jail?

The Houston Chronicle reports that the US Department of Justice is looking into whether to file criminal charges against BP Amoco in response to the March 23 explosion that killed 15 workers and injured more than 170.

The US Chemical Safety Board has found that that key alarms and a level transmitter failed to operate properly and to warn operators of unsafe and abnormal conditions within critical plant equipment. Highly flammable hydrocarbons had escaped from the tower into the blowdown drums where they overflowed and ignited, causing the explosion, but the indicators and alarms that should have warned the workers were not functioning properly.In addition, BP admitted that it knew the blowdown drums weren't safe and had bypassed numerous opportunities to replace them with safer flare systems.

BP was also aware of malfunctioning pumps, indicators and alarms that caused the problem.New findings announced last week included evidence that BP had known since at least two weeks before the March 23 incident that the alarms and transmitters weren’t functioning and that a critical pressure-control valve did not function in pre-startup equipment checks. The CSB also revealed in the preamble of the recommendation that BP had been having problems with the process for five years before the explosion.

Based on the report, Tom Sansonetti, former U.S. assistant attorney general for environment and natural resources, predicted that investigators for both the Occupational Safety and Health Administration and the Environmental Protection Agency would refer the case to the Department of Justice. He said the case would likely be handled by lawyers who work for the Environment and Natural Resources Division, or ENRD, which Sansonetti ran until he returned to private practice in April.

A referral does not mean that charges will necessarily be filed. Justice Department lawyers are likely to focus on how much BP officials knew about the problems with the unit before it exploded.

"Sounds to me like the folks back at my old Justice Department shop will be kept quite busy on this one," said Sansonetti, an attorney who also has served as solicitor of the Department of the Interior and is now a partner in the Holland & Hart law firm in Wyoming.

The Chronicle reports that it is unlikely that OSHA will be able to bring criminal prosecutions because the law limits the agency to criminal charges that result from willful violations that lead to the death of an employee. Although there may be evidence that BP’s violations were willful, all of the workers killed worked for contractors and not directly for BP.

It may be possible, on the other hand, to prosecute under the Clean Air Act (CAA), which has much stronger penalties. The CAA states that a person “negligently places another person in imminent danger of death or serious bodily injury” can be sentenced to one year in jail, and a person who who at the time knowingly places another person in imminent danger of death or serious bodily injury can serve up to 15 years in jail.

The Chronicle notes that the CAA could be used because “the March 23 explosion also resulted in the release to the air of more than 19,000 pounds of hexane, among other toxic substances, according to a report filed by BP to the Texas Department of Environmental Quality. Hexane is one of the pollutants regulated under the Clean Air Act.”

Last February, the Justice Department and EPA brought charges against WR Grace for attempting to hide the fact that asbestos was present in vermiculite products at the company’s Libby, Montana plant. In addition, OSHA, EPA and the Justice Department have been working together recently to look at the possibility of criminal charges in a number of other cases.

The Chronicle also notes that the Justice Department files charges against a Motiva refinery resulting from a 2001 explosion that killed a worker
In one high-profile case, the Justice Department announced in March a $10 million criminal fine against Motiva Enterprises, an oil refining and retail business owned by Shell Oil Co. and Saudi Refining, which is based in Houston. Eventually, Motiva officials pleaded guilty to negligently endangering workers and to knowingly discharging pollutants into the air and water in connection with a fatal explosion at a Delaware refinery in 2001.

In that case, investigations by various regulatory agencies as well as by a homicide detective from the Delaware State Police determined Motiva managers did not heed ample warnings about the tank, which exploded July 17, 2001.
OSHA’s report on the BP explosion and proposed penalties must be issued before September 23. The Chemical Safety Board, which is working on a comprehensive investigation of the incident, will probably not release a report for another year. The CSB, however, has no power to levy penalties, although it has recommended that BP Amoco set up an independent panel to investigate problems with the corporate safety culture and management safety systems behind the March 23 and other incidents at BP refineries in the U.S.


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