When business conduct turns violent: bringing BP, Massey, and other scofflaws to justice.

• Author: Barrett, Jane E.
• Position: Twenty-Sixth Annual Survey of White Collar Crime

"When an explosion occurs at a refinery or mine that has been repeatedly fined for health and safety violations, one question that ought to be asked is just how unexpected was that event." (1)

"The burden of these catastrophes is uniquely and unfairly borne by the victims, their families, and their friends ... men and women who were providing a livelihood for themselves and their families. These victims were fathers and mothers, husbands and wives, sons and daughters, and friends." (2)

April 2010 was a deadly month. Forty-seven people died violently. (3) They did not die because they were shot, knifed, drugged, or killed in an armed conflict. They died simply because they went to work and were doing their jobs. From all indications, they died because someone gambled (4) with their lives.

On April 2nd, a blast at Tesoro Corporation's oil refinery in Anacortes, Washington took the lives of seven workers. (5) On April 9th, twenty-nine miners working at the Massey Energy Company Big Branch Mine in West Virginia died in the worst mining accident in the United States in twenty-five years. (6) On April 20th, eleven people were killed when the BP Deepwater Horizon rig exploded in the Gulf of Mexico--an explosion that, in addition to killing people, injured seventeen others and created an ecological and economic nightmare for the region. (7) To date, no actual person has been held accountable for any of these deaths, (8) and, unless there is a seismic change in the government's response to these types of deadly events, it is fair to wonder if any person ever will be. (9)

Industries such as the oil, gas, chemical, and mining sectors of our economy, are inherently dangerous and create risks that can, and sadly too often do, result in death, serious bodily injury, and the destruction of public and private property. Our society's concern about the potential harm these industrial activities can cause is reflected in the development of numerous laws and regulations designed to hold businesses accountable when they fail to adequately control these risks. (10) Over the course of the last twenty years, the government and the private sector have spent significant resources to develop sophisticated risk and process safety management systems designed to minimize fires, explosions, and other hazards in these regulated industries. (11) Companies in these high-risk industries are required by law to comply with these regulations. (12) Unfortunately, too many do not comply and this results in an unacceptably large number of preventable deaths and grievous bodily injuries. (13)

Approximately forty years ago, our nation awoke to the reality that industrialized society was creating hazards that seriously affect the public's health, and damage our surrounding environment. New agencies (14) were created between 1970 and the mid-1980s, and Congress enacted a number of laws aimed at protecting the health and safety of the general public, including the American workforce. (15)

One hallmark of all of these regulatory programs is the requirement that regulated industries inspect, monitor, and report back to regulatory agencies on the status of compliance at their facilities. (16) Congress understood at the outset that, given the scope and breadth of our industrialized society, it would be impossible for either the federal or state governments to implement these laws without relying on self-monitoring by the industries themselves. (17) These laws require industries to describe in detail their operations--including procedures they have in place to protect their employees and communities. (18)

Refineries, oil and gas exploration facilities, manufacturing facilities, mines, and pipelines are very complex operations that deal with inherently dangerous substances. For example, in chemical manufacturing facilities and refineries, a delicate balance must be maintained in order to keep high-pressure equipment channeling toxic, reactive, and explosive materials throughout a plant while maintaining safe operations. Similarly, mining operations and hazardous substance pipelines require ongoing maintenance and safety procedures to safeguard against devastating explosions. Not only must company employees be attentive to the needs of proper equipment maintenance and repair, it is equally critical that employees be trained in both process operations and process safety. Despite these obvious facts, it took a series of horrific events beginning in 1984 to refocus attention on the dangers to the public inherent in these operations.

A catastrophic failure at a pesticide manufacturing plant located in Bhopal, India on December 3, 1984 released a cloud of highly reactive and toxic chemicals over the densely populated city, killing approximately 3,000 people and injuring hundreds of thousands more. (19) That incident, together with a string of others that occurred during the following years, (20) led to legislative and regulatory changes designed to protect the American public from the lethal consequences of industrial activity. (21) For instance, in 1992, OSHA promulgated standards for "Process Safety Management of Highly Hazardous Chemicals." (22) Additionally, the 1990 Clean Air Act Amendments imposed upon stationary sources (23) the general duty to "prevent accidental releases of regulated substances," (24) and required EPA to promulgate "release prevention, detection, and correction requirements" to prevent the accidental releases of chemicals that could harm the public. (25) These regulations are collectively known as the Risk Management Plan ("RMP") regulations. (26)

Thus, for almost twenty years, industrial facilities that deal with hazardous materials have been required to develop process safety management systems. (27) These include performing process hazard analyses, (28) developing and implementing RMPs and process safety management ("PSM") requirements, ensuring the mechanical integrity of equipment, (29) developing standard operating procedures, and properly training employees both in the operation of equipment and the response to emergencies. (30) These documents, prepared by the owners and operators of the facilities, are designed to protect workers and the general public from the consequences of fires, explosions, and other catastrophes by ensuring the safe operation of very dangerous equipment and materials. (31) These requirements are no longer new or experimental; they are basic legal requirements for the safe and effective functioning of any high-risk industrial operations. (32)

Unfortunately, anyone who takes the time to peruse the Chemical Safety and Hazard Investigation Board ("CSB"), (33) OSHA, or MSHA websites will find many cases of worker deaths and serious bodily injuries caused, in whole or in part, by the failure of companies to: (1) follow process safety and risk management requirements, their own policies and procedures, or standard industry practices; (2) spend money on preventive maintenance and repair of critical equipment; or (3) adequately train employees on procedures needed to prevent catastrophic failures or to respond to a crisis when one occurs. (34)

These cases, as well as the Tesoro refinery explosion, (35) the BP Texas City refinery explosion, Massey Mine Big Branch disaster, and the BP Deepwater Horizon catastrophe, share common themes: all involved heavily regulated industries engaged in inherently dangerous activities that were required to have operation and maintenance procedures designed to prevent the very crisis that occurred. In all of these cases, safety procedures were bypassed or standard operating procedures were ignored due to pressures on plant personnel to save time and/or money. (36) And in all cases, the brunt of the consequences was borne by those who did not share in the economic rewards of the corporate non-compliance. (37) Not only were BP and Massey repeat offenders, (38) but their corporate criminal convictions (without any prosecution of individuals), and "biggest ever" corporate fines did not deter subsequent violations. (39) Given the reported financial statuses of these organizations, (40) these fines were really nothing more than a "cost of doing business."

The focus of this Article is on the use of criminal law to hold accountable those responsible for business conduct that leads to violent explosions, spills, eruptions, collapses, and fires that devastate lives. For too long, industrial disasters have been ignored or minimized, labeled as unfortunate and unpreventable accidents, with no one responsible for either the event or the consequences. The government's response to regulatory violations that cause death or serious bodily injury needs to change. In order to deter the corporate conduct of scofflaw companies like those discussed in this Article, the U.S. Department of Justice ("DOJ") needs to prioritize the prosecution of business conduct that results in the death or serious bodily injury of workers or the general public. Specifically, DOJ should focus more resources on prosecuting the individuals whose conscious choices (whether manifested through action or inaction) set the stage for disasters such as the three that played out in April 2010. Although the criminal provisions of the substantive statutes that cover this type of conduct are flawed, DOJ has other tools in Title 18 that it should use more aggressively to combat blatant disregard for worker and public safety. The key is for DOJ to look beyond the substantive worker safety and environmental laws, and use the prosecutor's best friends--the obstruction of justice and false statement statutes. (41)

In Section I, this Article reviews two egregious case examples that illustrate the repetitive nature of the conduct that leads to catastrophes, and the ineffectiveness of corporate criminal fines as the sole deterrent to this conduct. Section II discusses individual accountability as a critical part of the criminal...