As many of you may or may not know, two weeks ago a pipeline company inadvertently immolated (burned to death) three young boys in Bellingham Washington. A gasoline pipeline ruptured and subsequently spilled 300k gallons of fuel into a creek which then ignited and killed the young men. Early news reports stated that the extremely sophisticated pipeline control systems at Renton failed prior to the leak and fire. Apparantly the backup systems failed as well. Now the workers from that control room have all taken the fifth, the FBI has moved in. This thing smacks of Y2K. Even if it's not a Y2K testing inspired problem, it uniquely points out the importance of systems and the massive power they harness. In order for this event to occur, their had to be multiple failures in a tightly bound process (and in fact the pipe itself was weak and a release valve failed to open) however the primary cause of this damn thing WAS PROBABLY THE COMPUTERS FAILING! WHY DID THEY FAIL????? Copyright ) 1999 The Seattle Times Company

Local News : Sunday, July 04, 1999

Why pipeline employees won't talk: spills come with stiff penalties

by Steve Miletich Seattle Times staff reporter In Alaska, a backhoe operator punctured a pipeline while working on a railroad project, sending more than a thousand gallons of heating oil into the Skagway River.

In South Carolina, operators of an interstate pipeline increased the flow of diesel fuel into a line they knew to be corroded, causing a massive spill into the Reedy River.

Neither spill was intentional. But both led to criminal convictions. And even though the crimes were misdemeanors, they carried stiff penalties:

The backhoe operator's supervisor was sentenced to six months in prison.

The interstate pipeline company paid a $7 million fine.

The two cases illustrate why eight Olympic Pipe Line employees have opted, for now, to refuse to answer questions about last month's leak and explosion in Bellingham, which killed two boys and a young man and devastated Whatcom Creek.

In pollution cases brought under federal laws, the stakes can be high and, as with public-health laws meant to protect the general public, the burden of proof is relatively low.

To bring a misdemeanor charge under the Clean Water Act, prosecutors need only show what's called ordinary negligence, defined as the failure to use reasonable care. That's opposed to the tougher standard of criminal negligence, which involves a "gross deviation" from what a reasonable person would have done.

"The courts have decided that it has a very low threshold of culpability," Seattle attorney Robert Chadwell said of the Clean Water Act. A former criminal chief of the U.S. Attorney's Office in Western Washington, Chadwell has prosecuted a number of environmental cases.

The ordinary-negligence standard also appears to extend to the Clean Air Act, which allows federal prosecutors to file misdemeanor charges when they believe someone has negligently discharged air pollutants that could seriously injure or kill others.

When there is evidence that violators have knowingly flouted pollution laws, prosecutors can bring felony charges that carry harsher penalties.

But even misdemeanors have more force in the federal system, where they are not considered low-level crimes as in state and local law.

The federal air and water acts could both come into play in the Bellingham case.

Grand-jury probe imminent

There, the leak of 277,000 gallons of gas from a pipeline under the creek created a huge vapor cloud that exploded in balls of flame, killing two 10-year-old boys and a 18-year-old man and scorching the creek and its banks and destroying salmon and salmon habitat.

No cause has been found yet, nor have investigators determined whether there was negligence or worse.

A federal grand jury in Seattle is about to begin hearing evidence to determine whether Olympic or its employees broke environmental laws. Excavation work contracted by the city of Bellingham to install a water line also could come under scrutiny.

Federal prosecutors have declined to discuss the criminal investigation. But one prosecutor has inspected the blast site and questioned witnesses, as have agents of the federal Environmental Protection Agency and the FBI.

The National Transportation Safety Board, the lead agency investigating what went wrong, is focusing on computer problems that occurred before the blast at Olympic's Renton headquarters, along with a valve problem, a gouge previously detected in the pipe and markings on the pipe possibly caused by the excavation work.

Among other things, investigators want to know why the rupture went undetected for so long.

But in trying to get answers, the NTSB has been hampered by the lack of cooperation by Olympic's employees, who on the advice of their attorneys have invoked their Fifth Amendment right against self-incrimination.

The NTSB could grant immunity to the witnesses if it wanted to, but legal experts say it's likely prosecutors have asked that immunity not be granted at this time.

Olympic has said it is cooperating but has told its employees to make up their own minds about whether to talk. The eight who have refused to answer questions - including at least one supervisor - were working in Olympic's computer-control room in Renton at the time of the leak.

The company is paying for their attorneys, who include prominent members of the criminal-defense bar in Seattle: Larry Finegold, Irwin Schwartz, John Wolfe, Dan Dubitzky and Richard Tallman. The company itself is being represented by Angelo Calfo.

The potential charges their clients face include:

Felony violations of the Clean Water Act. To convict, prosecutors must show that pollutants were knowingly discharged. For each proven violation, polluters could be sent to prison for up to three years and fined $50,000. Companies can be hit with even larger fines.

"Knowing endangerment," a felony provision of the Clean Water Act in which prosecutors must show that polluters knowingly risked killing or seriously injuring people. Individuals found guilty could go to prison for up to 15 years and be fined up to $250,000. Fines can be substantially higher for companies.

Misdemeanor violations of the Clean Water Act. Prosecutors must show that negligence led to the discharge of pollutants. Individuals found guilty could be sent to prison for a year and fined $25,000. Here, too, convicted companies face stiffer fines.

Felony and misdemeanor violations of the Clean Air Act, including penalties for those who knowingly or negligently release an air pollutant that could kill or seriously injure someone. Conviction for individuals and companies carries prison terms similar to those in the Clean Water Act. Alaska case was pivotal

In the South Carolina case, Colonial Pipeline pleaded guilty in February to a misdemeanor charge that it negligently polluted the Reedy River. The $7 million fine levied against the company was the fourth largest in U.S history for an oil spill. Colonial also was placed on probation for five years and ordered to develop a spill-prevention program.

In the Alaska case, the supervisor's six-month prison sentence stemmed from his failure to adequately protect the pipeline. His sentence included six additional months in a halfway house and a $5,000 fine.

In was in the Alaska case that a federal appeals court that oversees the western U.S. defined negligence in a water-pollution case as the ordinary failure to use reasonable care. The ruling, handed down in March, represented a major victory for federal prosecutors.

The court, which upheld the supervisor's conviction, rejected his claim that he should have been judged under the tougher criminal-negligence standard, ruling that if Congress had intended the heightened requirement, "it could have done so explicitly" as in other laws.

The supervisor, Edward Hanousek Jr., had been employed by Pacific & Arctic Railway and Navigation as roadmaster on a project above the Skagway River in Alaska. The project involved realigning a sharp curve in the railway and removing rock to be used for a ship dock in Skagway.

As roadmaster, Hanousek was responsible for all safety aspects of the project.

During the project, workers blasted rocks alongside the railway and loaded them into railroad cars with a backhoe. Pacific & Arctic hired a contractor to provide equipment and labor.

The railroad runs along a pipeline a few feet from the track. To protect the pipeline, a platform of sand and gravel was built for the backhoe, to allow it to load rocks over the pipe into the railroad cars. The platform was moved as the work progressed along the tracks.

When work began in April 1994, the contractor covered a 300-foot section of the pipeline with railroad ties, sand and ballast material to protect the pipe.

But after Hanousek joined the project in May, according to the appeals-court decision, "no further sections of the pipeline along the 1000-foot work site were protected. On Oct. 1, 1994, a backhoe operator noticed some rocks had fallen onto the track after the train left. The operator drove off the platform to get the rocks, which had landed in an area where the pipeline was unprotected.

"While using the backhoe bucket to sweep the rocks from the tracks, (the operator) struck the pipeline causing a rupture," the appeals courts said.

About 1,000 to 5,000 gallons of heating oil spilled over several days into the Skagway River.

Federal prosecutors in Alaska charged Hanousek with one count of negligently discharging oil into the river and one count of conspiring to provide false information to investigators.

At trial, prosecutors argued that "the buck stops" with Hanousek and one other company official. Hanousek was convicted on the negligence count but found not guilty of conspiracy, while the other official was acquitted of negligence but convicted of making false statements.

Pipe was corroded

In the South Carolina case, the rupture in the company's 36-inch line running from Houston to Greensboro occurred on June 26, 1996, where the line crosses the Reedy River.

About 960,000 gallons of fuel spilled into a 23-mile stretch of the river.

Before the incident, Colonial was aware as late as 1991 that the pipe had become rusted where it crosses the river and that protective coating was partially missing, according to the plea agreement reached between prosecutors and the company. Colonial took no action.

In March 1996, after an internal inspection of the pipe, Colonial discovered "a severe magnetic anomaly indicating a loss of wall thickness in the pipeline at the Reedy River crossing," the plea agreement says.

Colonial unsuccessfully tried to fix the problem, then decided to replace the pipe. Work was to begin in July 1996 and end that November.

The company notified the federal Office of Pipeline Safety about the corroded pipe and started operating the pipe under restrictions, including reduced maximum horsepower and reduced suction power at a pump station downstream from the Reedy River crossing.

But Colonial exceeded the pressure restriction 10 percent of the time over 15 days before the spill and disregarded the horsepower limitation.

At the same time, Colonial increased the flow of oil from 30,000 to 34,000 barrels per hour and employed an undertrained operator, according to the plea agreement.

Prosecutors are veterans

The criminal investigation into the Bellingham disaster is being led by Assistant U.S. Attorneys Lawrence Lincoln and Helen "Micki" Bruner, who prosecute environmental cases.

Former federal prosecutor Chadwell, who has worked with both, calls them "competent, fair-minded people."

Lincoln, a veteran prosecutor, was one of four prosecutors assigned in 1995 to investigate the FBI's crime lab. The team's final report found flaws in the lab's scientific work and the court testimony of lab workers in several major cases.

Bruner has worked in the U.S. Attorney's Office for about 10 years after serving in the Justice Department's environmental-crimes section in Washington, D.C. She has handled a wide variety of pollution cases, including a prosecution of Weyerhaeuser.

Chadwell said he wasn't surprised by the criminal investigation, given the magnitude of the Bellingham blast, the responsibility of federal prosecutors to look into such matters and the "general reaction of the populace to want someone to go to jail."

But one factor that is often overlooked, Chadwell said, is that many grand-jury investigations conclude without charges.

"I guess just the fact there is an investigation, people shouldn't read too much into that at this point," he added. People also shouldn't read too much into the decision by Olympic employees to invoke the Fifth Amendment, Chadwell said.

While some may conclude the employees are guilty, "That certainly may not be the case."

-- Gordon Gecko (g_gecko_69@hotmail.com), July 05, 1999

Answers

Gordon, I agree it's a classic example of how even systems with multiple redundancies can fail in unpredicatable ways. However, I'm not sure I'd be quick to ascribe it to Y2K related testing/remediation.

Strangely enough, the company may have LESS liability if it WAS y2K testing.

Have a look at this:

http://es.epa.gov/oeca/eptdd/ocy2k.html

EPA's Y2K Enforcement Policy

"Summary. On November 30, 1998, EPA issued an enforcement policy designed to encourage prompt testing of computer-related equipment to ensure that environmental compliance is not impaired by the Y2K computer bug. Under the policy (published on the Internet at www.epa.gov/year2000), EPA stated its intent to waive 100% of the civil penalties that might otherwise apply, and to recommend against criminal prosecution, for environmental violations caused during specific tests that are designed to identify and eliminate Y2K-related malfunctions. ..."

I doubt this would protect the employees from prosecution in cases where there was loss of life (such as this one), but it might help protect the company if, say, 4 million gallons of sewage inundated a park...

Hmmm. Wonder if companies will start blaming Y2K for "environmental" accidents that are just the result of good old fashioned blundering...

-- Lewis (aslanshow@yahoo.com), July 06, 1999.