Despite victims' complaints to the contrary, federal prosecutors say BP is complying with the safety requirements spelled out in its plea agreement.

On Aug. 13, Assistant U.S. Attorney Mark McIntyre responded to a victims' complaint that the government should reject BP's pending plea agreement in a federal criminal case arising out of the 2005 explosion at the company's Texas City refinery.

The explosion killed 15 workers and injured almost 200 more.

Aside from hundreds of civil lawsuits that resulted from the incident, the federal government filed criminal charges against BP for violations of the Clean Air Act.

U.S. District Judge Lee Rosenthal in Houston has not given final approval to a plea agreement, which ordered BP to pay a $50 million fine and serve three years probation.

The explosion occurred after the blowdown stack overfilled and spewed flammable hydrocarbons out the top, which then settled to ground level and ignited. The preferred disposal method is to burn such gases off with flares rather than vent them through blowdown stacks.

Most workers killed were in a trailer that was located near the unit.

The settlement agreement between the Occupational Health and Safety Administration and BP was executed for numerous safety violations committed by BP at the Texas City refinery.

An agreed order was executed between BP and the Texas Commission on Environmental Quality regarding environmental violations involving flares and blowdowns.

Last month, lawyers for victims of the blast filed a report by a refinery safety expert claiming that BP was violating the OSHA orders by failing to allow independent audits or maintain mechanical integrity.

Failure to comply with any requirements of the settlement agreement or the agreed order would constitute a violation of probation under the plea agreement.

In response to the victims' complaint, the government consulted with OSHA and TCEQ to see if BP was doing its part. Reports from the agencies refute the victims' claims that BP is not in compliance with the terms of the settlement agreements, the government wrote to Judge Rosenthal.

"Based upon the evidence to date, the scrutiny the agencies are exercising to ensure compliance with the agreements, and the deference that should be accorded the agencies tasked with protecting the safety of workers and the environment, the conditions of the probation in the proposed plea agreement are more than adequate to effect an appropriate punishment," the government's response states. "Therefore, the court should approve the proposed agreement."

The government required BP to submit a comprehensive statement outlining its illegal conduct leading up to the March 23, 2005, explosion. The settlement agreement executed by OSHA called for an audit and analysis of the facility to be conducted by a third-party contractor, and for BP to address deficiencies in its procedures.

AcuTech was approved to conduct the audit and analysis.

But victims' counsel submitted an expert report by Michael Sawyer that shows alleged violations of the agreement by BP.

"The Sawyer Report contains a number of allegations that misstates the facts," the government wrote. "The allegations also appear to demonstrate a misunderstanding of the applicable law and PSM (OSHA's process safety management) regulations, and the steps OSHA must take to ensure the safety of workers."

The victims alleged four violations:

  • BP did not retain the PSM expert to "conduct the audit" but only to assist BP in conducting the audit;
  • The audit was not a comprehensive audit, but only a spot check;
  • BP's responses to recommendations are repeatedly vague and ambiguous, contrary to requirements of the agreement; and
  • BP has failed to implement all feasible recommendations.

    The government states that AcuTech has submitted "exhaustive" safety reports.

    "Simply put, the Sawyer Report's conclusion that OSHA has allowed AcuTech to only assist BP in conducting the audit has no factual support," McIntyre wrote.

    The report also fails to support the allegation that the audit of the pressure relief valve systems was only a "spot check," he wrote.

    The government's response states that the Sawyer Report claimed sampling ranges at 14 to 16 percent, but AcuTech's audit actually included sampling ranges of 31 to 54 percent, which is in excess of sampling sizes used in most audits.

    Sawyer alleges that the implementation and enforcement of the settlement agreement is inadequate; however, the government argues that the report "fails to cite any recognized standard or practice � which is not being followed or is inadequate."

    The report alleges that there are "inadequate procedures for clearing critical areas of non-essential personnel," but prosecutors say that allegation is not supported by OSHA's review.

    BP has "moved the contractor trailers and the electrical equipment to another location a safe distance from any process units and other hazards of the work site," McIntyre wrote.

    Sawyer alleged that there are still known deficiencies in the overpressure protection at the refinery.

    But the government says records show "unequivocally that BP has removed all blowdowns from the facility and replaced them with flares."

    "Taken as a whole, the Sawyer Report appears to have been written using information that is incomplete," McIntyre wrote.

    The TCEQ agreed order specifically addressed BP's illegal conduct in allowing employees not to follow standard operating procedures and not to report emissions that may occur during a start-up.

    BP has the three-year probation period to implement those requirements.

    The next hearing on the case is set for Oct. 7.

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