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The Criminalization of Process Safety.

Byline: Kevin Collins, Philip J. Bezanson

"You are under arrest." Stop and let that statement sink in. This is not something engineers, managers or other safety professionals expect to hear in connection with their jobs. In a recent and growing trend, the government has been arresting individuals after catastrophic accidents that result in the loss of life or environmental impact because the government is looking to find someone--a person--to blame.

Within hours of serious industrial incidents, a myriad of agents from multiple government agencies descend on accident sites. Within the first few days, agencies (as well as legislators and other government stakeholders) issue broadly worded requests "to preserve all evidence that might be relevant." A series of investigations that are not always coordinated often follow: the U. S. Environmental Protection Agency Criminal Investigative Divisions (EPA CID) ranks any environmental incident that includes the loss of life as a "Tier 1 case" and opens a preliminary criminal investigation. Congress demands fact-finding hearings. As investigations unfold, companies face financial, legal, and commercial pressure to cooperate with all investigators and to take dramatic steps to limit liability. The government firmly believes that individual prosecutions are the key to effective deterrence. Deputy Attorney General Sally Yates has stated as much twice in the last 6 months in two key memoranda.

First, in the "Yates Memo," she made clear that "one of the most effective ways to combat corporate misconduct is by seeking accountability from the individuals who perpetrated the wrongdoing." Memo., Individual Accountability for Corporate Wrongdoing, Sept. 9, 2015. The Yates Memo outlined 6 steps to strengthen the government's pursuit of individuals. For most former prosecutors, there isn't really anything "new" in the Yates Memo. It states what was accepted as a core prosecution tenet: to identify culpability and to prosecute wrongdoers. But the memorandum draws non-prosecutors to focus on potential individuals as the targets of investigations. It plainly wants companies to help the government identify and, on the government's behalf, build a case against individuals.

Second, Yates encouraged all 93 U.S. Attorneys to consider criminal referrals from the Department of Labor and Department of Justice's Environmental Crimes Section to prosecute workplace-safety cases. Memo., Prosecutions of Worker Safety Violations, Dec. 17, 2015. In the memorandum, Yates described the approach--"make enforcement meaningful by charging other serious offenses that often occur with [safety] violations including false statements, obstruction of justice, witness tampering, conspiracy, and environmental and endangerment crimes."

These two Yates memoranda underscore what the government is doing with respect to safety investigations. The government knows that criminal enforcement of safety standards is difficult because the subject matter can be complex and, absent other criminal charges, the penalties available against individuals are weak. Therefore, the government wants to package safety offenses with other offenses, such as lying to the government, because lying to the government is easier to understand and has a stiffer penalty.

The Occupational Safety and Health Act of 1970 (OSH Act) provides criminal sanctions for three types of conduct that impact worker safety: (1) willfully violating a specific standard, and thus causing the death of an employee; (2) giving advance notice of an OSHA inspection activity; and (3) falsifying documents required by the OSH Act. Each of these violations is a misdemeanor punishable by a fine of no more than $10,000 and up to 6 months of imprisonment.

Dr. David Michaels, the Department of Labor's Assistant Secretary for OSHA, has lamented that "the criminal provisions of the OSHA Act are weaker than virtually every other safety and health or environmental law." Testimony, Committee on Education and Labor, U.S. House of Representatives (July 13, 2010). Deputy Attorney General Yates agrees. She noted that "perhaps because these penalties have never been increased, there are only a handful of reported criminal prosecutions under the OSH Act each year (e.g., three in 2013)." She is right.

Critics of OSHA complain that the agency does not refer fatality investigations to criminal investigators often enough--if at all. For example, between 1982 and 2002, OSHA referred only 87 of 1,242 "willful-violation" cases for criminal enforcement. Similarly, between 2006 and 2013, the agency investigated 4,657 willful violations, but it referred only 87 cases for criminal enforcement--including just 3 in 2013.

[Table omitted]

Source: OSHA fiscal-year reports 2007-2014

The worker-endangerment initiative is supposed to address these low statistics and increase criminal prosecutions. As mentioned above, the government wants to "package" traditional criminal offenses with safety offenses to increase penalties and the deterrence effect.

The Deepwater Horizon prosecutions illustrate this approach. Eleven people died and 3 million barrels of oil poured into the Gulf of Mexico. The government conducted a lengthy and detailed investigation that produced several individual defendants. At the time, the government stated, "make no mistake, while the company is guilty, individuals committed these crimes." This sentiment resulted in a combination of charges including Seaman's manslaughter, false statements, obstruction of justice, destruction of evidence, damaging a protected computer, conspiracy, and Clean Water Act violations.

The government's efforts at trial against some of the charged defendants have been unsuccessful. The results make clear that it is hard to convert a series of mistakes into criminal convictions. Just last week, one of the government's key witnesses in a Deepwater Horizon trial--who had pleaded guilty and agreed to testify against another defendant--had difficulty describing the criminal acts he and the defendant had engaged in. A Louisiana jury acquitted the defendant. But the government is undeterred. It is gearing up to go to trial in California in a pipeline-safety case. The prosecutorial strategy is similar to the strategy in the Deepwater Horizon cases and consistent with recent DOJ memoranda--combine complicated safety violations under the Natural Gas Pipeline Safety Act with other offenses such obstruction and recordkeeping violations.

The lesson from these investigations and prosecutions to be aware of the government's approach and take steps to avoid allegations of destruction of evidence, obstruction, or false statements during the government investigations that follow catastrophic accidents.
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Publication:Inside Counsel Breaking News
Date:Mar 15, 2016
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