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Upping Ante: DOJ Prosecuting OSHA Cases as Environmental Crimes

In December of 2015 the Department of Justice (“DOJ”) and the Department of Labor jointly announced an expansion of the “Worker Endangerment Initiative” to address violations of worker safety and environmental laws.[1]  In conjunction with that announcement, Deputy Attorney General Sally Q. Yates sent a December 17, 2015 memorandum to all 93 U. S. attorneys across the country urging federal prosecutors to work with the Environmental Crimes Section of DOJ to, among other things, prosecute worker endangerment violations under environmental laws.[2] One of the primary reasons for this effort was an acknowledgement that violations of Occupational Safety and Health Administration (“OSHA”) requirements were punishable only as misdemeanor, while violations of many environmental requirements were punishable as felonies.

Until now, this type of cooperative enforcement effort has been greeted with skepticism.  Since as early as 1980 the United States Environmental Protection Agency (“EPA”) and OSHA have entered into multiple Memoranda of Understanding to coordinate their enforcement work.[3] In 2006, the DOJ lauded its prosecution of McWane, Inc., noting that it was the centerpiece of the Department’s “worker endangerment activities.”[4] Now it appears that federal prosecutors in the DOJ and U.S. Attorneys Offices are following through with that initiative. 

In a case recently settled in Texas[5], contract workers had begun welding on a pipeline connected to a tank used to store petroleum products at a chemical and petroleum processing facility in Port Arthur, Texas. According to the DOJ, those workers were authorized to undertake that work by the facility’s owner through the owner’s issuance of a “hot work permit” pursuant to OSHA regulations.  The DOJ alleged that the tank had not been drained, isolated, and decontaminated as required by OSHA regulations and that the “hot work permit” had been issued by the company based on falsified information. The welding caused vapors in the pipeline and tank to ignite and the tank to explode.  DOJ further alleged that due to the owner’s failure to properly test, inspect, and maintain the tank, the collapsing tank caused severe injuries to two contract workers and the death of a third contract worker.

Ordinarily, such a tragic occurrence would seem to leave the owner potentially liable under OSHA for failure to assure, so far as possible, that workers are not exposed to dangerous working conditions.  After all, that is the goal of the OSHA regulations which the owner’s alleged actions would appear to violate.[6] 

Rather than prosecute the owner/operator of the facility for alleged violations of OSHA laws and standards, they were prosecuted for environmental crimes, in this case for “negligently releasing to the ambient air a hazardous air pollutant and at the time negligently placing another person in imminent danger of death or serious bodily injury in violation of 42 U.S.C. § 7413(c)(4) [Section 113(c)(4) of the federal Clean Air Act]”.[7] While relevant facts were alleged, the Information filed with the court does not include any charges directly alleging violations of the OSHA Act or regulations.  Ultimately, the Defendants in the Port Arthur tank explosion case agreed to plead guilty to the allegations in the Information and collectively pay US$3.5 million in fines. 

Based on the 2015 Initiative, and this case as a recent example, industries experiencing serious worker injuries and/or worker deaths may expect the DOJ to utilize environmental statutes to enforce what would otherwise appear to be worker safety violations.


[1] Press Release, Dept. of Justice,The Departments of Justice and Labor Announce Expansion of Worker Endangerment Initiative to Address Environmental and Worker Safety Violations (Dec. 17, 2015).  https://www.justice.gov/opa/pr/departments-justice-and-labor-announce-expansion-worker-endangerment-initiative-address

[2] Memorandum from Sally Quillian Yates, Deputy Attorney General, U.S. Dept. of Justice, on Prosecutions of Worker Safety Violations (Dec. 17, 2015).  https://www.justice.gov/enrd/file/800431/download

[3] Memorandum ofUnderstanding between the Office of Pesticides and Toxic Substances, U.S. Environmental Protection Agency and OSHA, U.S. Department of Labor (Jan. 19, 1981) (focusing on exchange of information under TSCA).  General working relationships between OSHA and EPA office of Pesticides and Toxic substances. | Occupational Safety and Health Administration

Memorandum of Understanding between the Office of Pesticides and Toxic Substances, U.S. Environmental Protection Agency and OSHA, U.S. Department of Labor (Nov. 23, 1990) (focusing on statutes).  To improve the working relationship between EPA and OSHA. | Occupational Safety and Health Administration 

Memorandum of Understanding between the Office of Pesticides and Toxic Substances, U.S. Environmental Protection Agency and OSHA, U.S. Department of Labor (Feb. 13, 1991) (focusing in industries - petroleum, inorganic chemicals and plastics).  Working Relationships between OSHA and EPA. | Occupational Safety and Health Administration

Memorandum of Understanding between the Office of Solid Waste and Emergency Response, U.S. Environmental Protection Agency and OSHA, U.S. Department of Labor on Chemical Accident Investigation (focusing on investigations by the Chemical Safety Board).  Chemical Accident Investigation. | Occupational Safety and Health Administration

See also EPA/OSHA Joint Accident Investigation Program Fact Sheet (focusing on investigations by the Chemical Safety Board)  Document Display | NEPIS | US EPA

[4] U.S. Dept. of Justice, Environmental & Natural Resources Division, Summary of Litigation Accomplishments Fiscal Year 2006, at 2 (discussing United States v. Atlantic States Cast Iron Pipe Co.), https://www.justice.gov/sites/default/files/enrd/legacy/2015/04/13/ENRD_2006_Accomplishments_Report_508.pdf

[5] United States of America v. KTX Ltd., Cause No. 1:16-CR-75 (Eastern Dist. of Tex. Beaumont Division, 2016).

[6] 29 USC §651(b).

[7] A knowing violation of a Federal Operating Permit at another facility was also alleged based on facts unrelated to the explosion.

Copyright 2020 K & L Gates

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William J. Moltz, KL Gates, Industrial manufacturing lawyer, commercial facilities attorney
Of Counsel

William Moltz is of counsel in the firm’s Austin office. He concentrates his practice on general regulatory counseling relating to construction, operation, and compliance status of industrial, manufacturing, and commercial facilities, as well as the licensing of regulated activities. Mr. Moltz has represented business clients before the U. S. Environmental Protection Agency, Texas Commission on Environmental Quality, Public Utility Commission of Texas, National Oceanic and Atmospheric Administration, U. S. Fish and Wildlife Service, Texas Department of Transportation,...

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Steve Morton, KL Gates, Statutory Development Lawyer, environmental permits attorney
Partner

Steve Morton is a partner in the firm’s Austin office. He has thirty years of experience obtaining necessary environmental permits, defending government or third-party claims before administrative agencies and courts, and assisting clients on regulatory and statutory developments before administrative agencies and the Texas Legislature. Steve advises clients on a wide range of environmental issues. He is experienced in negotiating cost recovery and remedy settlements with state and federal agencies and advising clients in connection with hazardous waste remediation projects. Steve has a background in hydrogeology and helps clients with the management, purchase, lease, sale and other conveyances of groundwater and surface water in Texas.

Steve has also been responsible for environmental due diligence and contract review for over $1 billion of M&A, IPO, financing and asset transfers in Texas, California, Florida and 20 other states. He has developed expertise in industrial and oil and gas waste management, including remediation, Superfund, underground storage tanks, underground injection disposal wells, water quality, wetlands, and transactional issues involving the sale and acquisition of contaminated properties. 

512-482-6869
Barry Hartman, Litigation Attorney, Environmental Attorney, KL Gates Law Firm
Partner

Mr. Hartman represents companies and individuals in criminal and civil investigations, trials, and appeals primarily involving complex federal regulatory programs, with an emphasis on environmental matters, and advises clients on compliance with those programs. He also conducts internal investigations, counsels clients regarding corporate compliance programs, and represents clients in Congressional investigations regarding lobbying, ethics, and related issues. He has represented clients in industries including maritime, energy, pharmaceuticals, healthcare, recycling, chemicals,...

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