The US Dept of Justice (DOJ) announced last week an agreement with British Petroleum (BP) on three outstanding criminal cases, with monetary penalities totaling more than $370 million.  Included among the settlement were violations of the Clean Air Act associated with the March 2005 explosion at the firm’s Texas City refinery, which killed 15 workers and injured 170 others.  BP agreed to pay a $50 million fine—the largest ever assessed under the CAA—for failing to ensure the mechanical integrity of the “blowdown stack,” which resulted in the release of hydrocarbon liquid and vapor.  Following OSHA’s investigation of the disaster, the firm agreed to pay $21.6 million for violations of workplace H&S standards. 

The DOJ’s news release about the settlement with BP notes:

“This is the first prosecution under a section of the Clean Air Act specifically enacted to prevent accidental releases that may result in death or serious injury.  The provision was passed by Congress in 1990 in response to an explosion that occurred at the Union Carbide chemical plant in Bhopal, India resulting in thousands of injuries and deaths.  It requires facilities such as the BP Texas City Refinery to ensure that ‘release prevention, detection, and correction requirements’ are followed in order to prevent catastrophic explosions.”

Acting Assistant Attorney General Ronald J. Tenpas (of the Environment and Natural Resources Division) said this case:

“illustrates the twin pillars of environmental enforcement: first, protecting human life and health, and protecting our natural resources.   BP cut corners with disastrous consequences for both and is being held to account.”

OSHA also referred the BP Texas City disaster case to the DOJ for possible criminal sanctions, but no decision by DOJ has yet been made.  If history is any indication, DOJ attorneys are not likely to pursue such action for the 15 worker deaths at the BP refinery because the criminal sanctions under the OSH Act are meager: a maximum penalty of six months in jail and $10,000.  When monetary sanctions allowed under environmental statutes are in the tens of millions of dollars, and in the hundreds of millions of dollars for mail and wire fraud cases*, no wonder DOJ attorneys don’t take up criminal workplace fatality cases. 

In the last Congress (2005-2006) Senator Kennedy had introduced the “Workplace Wrongful Death Accountability Act” (S. 947) which would have stiffened the criminal provisions of the OSH Act.  A companion bill was introduced in the House by now-retired Major Owens (D-NY).  The tougher sanctions included penalties of up to 10 years in prison for a willful violation that led to a workers’ death.  In this Congress, these provisions are embodied in a larger workplace safety improvement bill called “Protecting America’s Workers Act.” (S.1244 and H.R. 2049)

Until such legislation is passed, companies will continue to be penalized more for environmental violations than for deadly workplace conditions.  Ultimately, I’d like to see penalty assessments bypass the Treasury and instead be used to fund much-needed worker safety and health training programs. 

*Note: The biggest chunk of the $370 million settlement reached with BP involved the firm’s conspiracy to violate the Commodity Exchange Act and to commit wire fraud and mail fraud with respect to the TET propane market.

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