Houston Chronicle: Motiva a case study in workplace regulation: Only Shell and its refining companies came close to BP's death toll for the decade. Shell Oil Products, predecessor Equilon Enterprises and sister company Motiva Enterprises together recorded 11 deaths. (ShellNews.net) Posted 16 May 05
Delaware flexes legal muscle in a 2001 death at a refinery owned by Houston oil outfit
By LISE OLSEN
Only Shell and its refining companies came close to BP's death toll for the decade. Shell Oil Products, predecessor Equilon Enterprises and sister company Motiva Enterprises together recorded 11 deaths.
Federal law allows prosecutors to go after employers whose willful violation of workplace safety leads to a death but it almost never happens.
There have been no federal criminal prosecutions of employers for homicide in workplace deaths under that law in at least a decade in Texas.
It's only in tiny Delaware that a big Texas oil company found itself facing criminal charges in connection with a 2001 refinery explosion.
There, the state took the lead on the prosecution of Houston-based Motiva Enterprises because of significant evidence showing neglect of a tank that exploded, killing boilermaker Jeffrey Davis and injuring six others.
Motiva eventually pleaded no contest to negligent homicide in 2003 and the CEO issued an apology.
"We are truly sorry and profoundly apologize for what has happened," John Boles said as part of the plea.
Boles, who retired last year, had headed Motiva, a refining, lubricants and retail business operation that is co-owned by Shell and Saudi Refining Inc.
Feds passed at first
Federal officials initially passed on the homicide case, but then the Department of Justice's Environmental Crimes Unit took it up as part of an initiative started in mid-2004 to ensure that employers are held accountable when people are killed in what appear to be avoidable accidents.
Motiva was ordered to pay a $10 million fine and plead guilty to criminal environmental charges.
"It was never my intention to criminalize a true accident if no one could foresee the consequences," said Thomas L. Samsonetti, former assistant attorney general. "That's not what we're talking about here. ... These are cases where (someone) should have known that if X did not happen, Y would occur."
In Motiva's case, "there was a tank that had a hole in it that everybody knew had a hole in it, and it wasn't fixed and someone died," he said.
State takes action
But in Delaware, state officials not federal led the homicide investigation.
When the 47-foot-tall tank full of sulfuric acid exploded on the afternoon of July 17, 2001, at the refinery in Delaware City, state police quickly got involved.
Delaware state law calls for all industrial accidents to be investigated by police.
In Texas, neither state nor local police investigated a Texas City refinery explosion in March that killed 15 people, according to the Galveston County prosecutor's office and interviews with law enforcement officials.
There are ongoing investigations by the U.S. Chemical Safety Board, Occupational Safety & Health Administration and Environmental Protection Agency.
After what started out as routine interviews, Delaware investigators quickly summoned Lt. John Evans, head of the Delaware State Police's homicide division.
Evans was confounded at first by all the refinery jargon but amazed by what he was hearing.
''They were anxious to explain to me that this was something that was inevitable and everybody saw it coming," he said.
Through subpoenas, investigators quickly turned up a trail of e-mail messages showing that many people at the plant from line workers to top managers had complained about the faulty designs and potential hazards of Tank 393.
It turned out that people had complained about the corroded tank for eight years, including six reports of leaking acid. Since 1999, there had been four recommendations to take the tank out of service for inspection.
The tank finally had been scheduled to be removed from service in February 2001 five months before it exploded. But that was delayed.
Davis, 50, and six other workers for Washington Group International Inc. were trying to repair a catwalk on the tank when it exploded in July that year. Davis, standing on the catwalk, was pulled down into the fire as the tank collapsed. His remains were never recovered.
Evans unearthed plenty of evidence to support criminal charges.
But because everyone seemed to have known about the problem, it was hard to decide which individuals should face charges, said Assistant Attorney General Peter Letang. Eventually, the Delaware attorney general filed criminal charges against the corporation.
Learn from the past
When the company agreed to the plea, then-CEO Boles said Motiva recognized "the seriousness of these charges and the gravity of the company's plea here today."
He added, "We take this matter extremely seriously. Motiva is a company that has made mistakes. What happened on July 17, 2001, was unacceptable and inexcusable. We can't undo the past, but we can learn from it and change going forward. We are committed to do so. "
Statistics indicate that things have changed at Motiva and its sister company, Equilon Enterprises, a former partnership between Shell and Texaco. Equilon became Shell Oil Products U.S. after Shell bought out Texaco's interest in 2002.
The companies are both based in downtown Houston.
In the three years prior to the explosion, Motiva and Equilon had nine other fatalities, including an explosion in Anacortes, Wash., that killed six. There were also three fatalities in three separate accidents at Motiva's Port Arthur refinery.
But since 2001, the companies have had no reported fatal accidents at any of its six U.S. refineries.
Letang, the Delaware prosecutor, said he's amazed that more criminal cases have not been pursued in workplace deaths nationwide.
Officials from major companies, he said, typically do not pay too much attention to a fine the cost of doing business.
A state felony homicide charge really gets people's attention, he said. Yet under federal law, a workplace homicide related to willful violations of safety laws is only a misdemeanor with a maximum sentence of six months.
"The bottom line is that the willful violation that results in a death should be a felony," said Patrick Tyson, an Atlanta attorney and former OSHA administrator in the Reagan administration.
Efforts to make the crime a felony have not gotten sufficient support in Congress, he said.
John Miles, OSHA's regional director for the five states that include Texas, said he would not rule out the possibility that BP could be federally prosecuted on misdemeanor homicide charges in the deaths of two employees in September 2004.
That investigation, he said, remains open.
But he said that the same law would not allow OSHA to seek prosecution against BP in the March explosion, even if willful violations are found.
The reason: The 15 workers who died were contractors, not BP employees.
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