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Worker Endangerment Criminal Case Involves Investigation by 12 Federal and State Agencies, Including OSHA, DOT-HazMat, and EPA

On May 9, 2013, the former president of Port Arthur Chemical and Environmental Services, LLC, pleaded guilty to violating the Occupational Safety and Health (OSH) Act and making a false statement, following the death of an employee by asphyxia and poisoning due to hydrogen sulfide inhalation and the death of a second employee who died from a heart attack associated with the chemical exposure.

This case underscores the significance of the intertwining regulatory regimes associated with the worker health and safety requirements of OSHA; the hazardous materials (HazMat) regulations enforced by U.S. Department of Transportation – PHMSA; and the hazardous waste regulations under RCRA enforced by the U.S. EPA. The thirteen-count Indictment against the president and the company included the following:

  • Violation of the OSH Act for failure to implement administrative and engineering controls to provide protective measures associated with exposure to hydrogen sulfide under 29 CFR 1910.1000(e);
  • Conspiracy to violate HazMat for using false transportation documents and improper placarding;
  • Failure to properly placard shipments of phenols, formaldehyde, hydrogen sulfide, and mercaptans, and D002 and D001 hazardous wastes in violation of HazMat; and
  • Violations of the RCRA hazardous waste prohibitions on treatment, storage, and disposal of hazardous waste.

The criminal plea by the company president reflects a growing trend of worker endangerment cases. For several years, the U.S. Justice Department has had a worker endangerment initiative which pulls together resources from multiple agencies that oversee worker health and protection. In this case, for example, 12 different federal and state agencies combined resources in the investigation including: EPA Criminal Investigation Division; the U.S. Department of Transportation Office of Inspector General; the Texas Commission on Environmental Quality – Environmental Crimes Unit, part of the Texas Environmental Enforcement Task Force; the Texas Parks & Wildlife Department – Environmental Crimes Unit; the Houston Police Department – Major Offenders, Environmental Investigations Unit; the Travis County, Texas – District Attorney’s Office; the Harris County, Texas, District Attorney’s Office – Environmental Crimes Division; the Houston Fire Department; OSHA; the U.S. Coast Guard; the Port Arthur Police Department; and the Port Arthur Fire Department.

Although the Plea Agreement is under seal, the Justice Department’s press release indicates that the company president “admitted to not properly protecting PACES employees from exposure to hydrogen sulfide, a poisonous gas resulting in the death of truck driver Joey Sutter on Dec. 18, 2008. In addition, Bowman admitted to directing employees to falsify transportation documents to conceal that the wastewater was coming from PACES after a disposal facility put a moratorium on all wastewater shipments from PACES after received loads containing hydrogen sulfide.”