Texas BP Lawsuit Hardly a Harbinger of Change

Saturday, 04 September 2010 09:36 By Deb Weinstein, t r u t h o u t | Report | name.

Texas BP Lawsuit Hardly a Harbinger of Change
(Photo: Dr. Oscar Garcia / Flickr)

Overshadowed by the explosion on Deepwater Horizon and the subsequent hemorrhaging of oil into the Gulf of Mexico, water pollution was only one of tragedies that marred April 2010. From April 6 to May 16, BP poured over 500,000 pounds of contaminants into the air. The unauthorized release - the 73rd since 2005 at the Texas City Oil Refinery just outside of Houston - included the known carcinogen Benzene, volatile organic compounds, carbon monoxide and hydrogen sulfide.

The reason for the toxic release was twofold. A faulty seal in a J-100 compressor triggered ignition, causing the unit to shut down. Once extinguished, BP, which had the option to keep this single unit closed, opted, instead, to keep systems running and rely on flares to burn off toxins. Both decisions are in line with what consists of an overall narrative of unsafe practices as the Texas City Oil Refinery - even before the 2005 explosion that killed 15 workers and injured 180, it was a refinery with a poor record - in the 30 years preceding the explosion, 23 people died because workplace safety measures were ignored.

In 2010, the very same "organizational and safety deficiencies at all levels of the BP Corporation," which the US Chemical Safety Board found as contributing factors in the 2005 explosion, resurfaced. According to Attorney General Gregg Abbott's lawsuit, filed on behalf of the Texas Commission on Environmental Quality, maintenance, which BP "never attempted," could have prevented the fire. The lawsuit also says that BP showed it was "once again prioritizing profits over environmental compliance" by choosing to keep systems running - relying on flares to burn off toxins - instead of closing a single unit at the refinery while others continued full bore, until it was fixed.

With Deepwater Horizon as a backdrop, the lack of maintenance may appear like standard operating procedure for the energy company. With flares, however, criticism goes beyond safety culture and into science. According to Dr. Neil Carman, the clean air program director for the Sierra Club's Lone Star Chapter in Texas, claims that flares burn 98 percent of toxins are based on nothing. "There is a great deal of scientific evidence that these flares don't get anywhere close to 98 percent" he says, meaning a unit was allowed to remain operational with an ineffective plan B in place.

If pursuing punishment to the fullest extent of Texas law, the violations - calculated at a maximum of $25,000 per contaminant, per day, could mean a minimum payout of $6 million as retribution for the pollution released over the 40-day period.

This tack, Carman says, is not a sign that things are going to get harder for Texas polluters. Instead, he says it's business as usual. "If [Texas and TCEQ] were really serious about going after BP for penalties they could have filed in federal court under the Clean Air Act because the penalty maximums are much higher" he said, adding, "We have in Texas 26 refineries ... but the Texas Attorney General picked BP." He said, "we've got 2,000 industrial plants in the state and they pick BP ... they cherry-picked this one case." (Note: According to the US Energy Information Administration, the number of active Texas refineries increased to 27 in January.) The Environmental Protection Agency (EPA) said it could not comment on current litigation and could, therefore, not indicate if it were pursuing legal recourse or whether the Texas lawsuit were a harbinger for actions against corporate misbehavior.

Brent Coon, of Brent Coon & Associates, the law firm which represented victims of the 2005 explosion, acknowledges that the lawsuit has some interesting hallmarks, among them, that this lawsuit pits a Republican attorney general against BP - one who defended BP in the 2005 explosion case. "It's really kind of unprecedented for a Republican to even go after anybody" he said in a phone interview.

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Arguments for piling onto BP are easy to come by: According to the Center for Public Integrity, 97 percent of the most egregious violations in the oil refinery trade over the past three years are linked to two refineries,  both of which are owned by BP. Although attorney Coon calls the industry corrupt as a whole, he said in this regard BP holds a rarefied place in the pantheon of violators. "BP is just so much worse than the rest of them," he said.

And, yet, there is an equally easy argument to come to BP's defense: the reflexive thought that, much like Alaska is perceived as being tied to its oil industry, so, too, is Texas. On the corporate level, such arguments appear to bear out: According to the nonpartisan research group the Tax Foundation, the oil industry kicked over $388 billion in taxes into federal and state coffers from 1981 to 2008 (foreign governments raked in $638 billion). Even the employees of these same organizations hand over a portion of their paycheck to do good - BP's Fabric of America project lets employees choose community organizations to which they want to give money, and the company complies. In 2009, these donations totaled $1.9 million in Texas, $113,000 in Louisiana and $184,000 in Alabama.

As gestures, such numbers make an impact, but on an individual basis, the financial dependence or opportunity within the petroleum mining industry is less cut and dried. According to the Census Bureau, in terms of employment and growth in employment, gas and mining doesn't clear the top ten growth areas for the state of Texas, or even for its neighbor, Alabama.

Even the catastrophe in the Gulf hasn't managed to tip the overall employment picture, despite the financial hardship felt by families and businesses in mining, retail, and travel industries. According to the Bureau of Labor Statistics, as of June 2010 - month three in the Deepwater Horizon timeline - employment levels did not show "any obvious net impacts  from the Gulf Coast Spill on Total nonfarm or Total private employment."

This is not to say petroleum is not a significant contributor to the Texas economy or the Gulf, but the persistent defense, or deliberate ignorance of its hazardous practices runs deeper than corporate cash. Culture, as much as cash has people lining up and defending the industry.

Mike Papantonio, whose law firm is investigating the 2010 oil spill said, "People are hungry for jobs, hungry for employment. It's the mentality that's been handed down ... that any job is a job no matter what the external costs are." He likened it to a sharecropper mentality in which workers take on hazardous jobs because "the man who pays their wages told them to do that." Papantonio also said the decision to side with the companies is also rooted in an anti-intellectual, anti-outsider bent, saying locals would rather take the word of a politician or corporate representative filling the role of "good old boy" as opposed to a scientist.

Scott West, special agent-in-charge (retired) US EPA Criminal Investigation Division, agrees with Papantonio's assessment, saying families are willing to put up with almost anything for a job, which makes curbing corporate behavior an even bigger challenge. The only real argument that works, West said, was when corporate misbehavior could affect a child's health. Even then, however, he said the mentality is overwhelmingly "This is how I make my living ... we're the factory people."

When working in Louisiana, for example, he said finding an environmental crime required just being awake. For him, the latest disappointment is what he sees as government complicity with the BP oil spill. He said government's behavior during this spill made him rethink the cause of his anger at the previous administration.

According to Attorney Coon, if governments were really serious about cleanup and prevention, quick, effective fixes are easy to come by. Among his suggestions: hiring OSHA inspectors that know the business, for example. According to Coon, the staff of inspectors is not just slim, but lacks the basic knowledge of how refineries work and should be structured. He also backs personal accountability for corporate executives "that alone would be a major [deterrent]" he said, finding a parallel between jailing a drunk driver and punishing reckless corporate behavior. "You have the ability to enforce the maximum," he said. "You have the same deal as you do with the regular criminal community."

Deb Weinstein

Deb Weinstein is an intern at Truthout.

Last modified on Saturday, 04 September 2010 12:17