Federal Investigation Seeks To Find Accountability In Explosion

Jul 9, 2014

It was Washington state’s worst industrial accident in nearly 50 years.

“Skagit 911. What’s your emergency?” “I’m trying to find out what's going on at the refinery.” “You know, we don’t know at this point, sir.” “Well, all I can tell you is I live two and a half miles from it, and the explosion was hard enough to rock my house, and there’s one hell of a fire going there.”

That explosion in 2010 at the Tesoro refinery in Anacortes killed seven workers.

Four years later, no one has been held publicly accountable for the seven deaths. As John Ryan reported, state efforts to penalize Tesoro have stalled. To improve worker safety, the federal government is wielding a tool it rarely uses: criminal prosecution of one of the nation’s largest corporations.

Here’s John Ryan with part two of our investigation.

Inspectors examine a Tesoro oil refinery after an explosion.
Credit John Ryan / KUOW

The Justice Department and the Environmental Protection Agency are pursuing the criminal investigation of the Tesoro blast.

That investigation has been under wraps since it started more than three years ago.

Unlike most legal proceedings, what happens before a federal grand jury stays before the grand jury.

When an industrial disaster gets discussed in public, all the players seem to agree on one thing: workplaces should be safer than they are.

Whether it's labor --

Nibarger: “That is our ultimate goal, to assure that all workers go home at the end of the day in the same condition as they arrived.”

Or industry --

Miller: “No incident is acceptable. Our industry takes every incident seriously.”

Or government --

Griffon: “I hope that our investigation can lead to changes to help prevent such tragedies in the future.

” Those comments all came at a public meeting in Anacortes in May. That was when the U.S. Chemical Safety Board finished its long-overdue report on the Tesoro blast.

Hershel Janz was at that meeting too, but he didn’t share the official optimism. His son Lew died in that explosion.

Janz: “Accidents are going to continue to happen. That's just the way it is with the oil industry, the paper industry, Boeing, or whatever. You can't totally eliminate accidents or fatalities.”

Lew Janz was part of a team trying to restart a piece of corroded equipment.

That “heat exchanger” had been operating for decades without being inspected for the type of corrosion that caused it to explode.

Lew Janz had two daughters and a fiancee when he died. Here’s his father.

Janz: “I miss that boy as much tonight as I did four years ago, and I’ll miss him, if I live 40 years from now, I will miss him just as much. There's just no closure.”

It’s not just the grief that goes on. State and federal efforts to get to the bottom of the blast have dragged on for years.

Delays in the Chemical Safety Board’s work have stalled efforts to make the nation’s refineries safer. Local anger at those delays led Safety Board investigator Mark Griffon to apologize in Anacortes.

Griffon: “Four years is way too long and the CSB needs to do better.”

Like other companies that trade on the stock market, Tesoro is required to disclose potential risks to its investors.

The company’s filings with the Securities and Exchange Commission have revealed the ongoing criminal investigation.

We don’t know whether prosecutors are going after the company as a whole or individual employees.

But we do know that the Justice Department has focused on two Tesoro managers.

Inspection supervisor Chuck Bowers and metallurgical engineer James McVay.

Wolfe: “I am optimistic that at the end of the process, Mr. McVay’s status may very well change from subject or target to that of witness.”

That’s McVay’s attorney, John Wolfe.

He’s speaking in a phone hearing before a judge with a little-known state agency that hears appeals of workplace safety fines.

In these hearings, Tesoro has chipped away at its $2 million fine.

And lawyers for McVay and Bowers have said they want their clients left out of the appeal, for the time being.

They say if their clients are asked to testify, they’ll plead the Fifth to avoid possible federal charges.

Dew: “Again, it’s the same type of speculation that we’ve had for months on end.”

That’s Brian Dew, speaking in the same hearing. He represents the Department of Labor and Industries.

He’s frustrated that the managers’ attorneys are delaying the state’s efforts to penalize Tesoro.

Dew: “If the witnesses want to take the Fifth, that’s entirely their privilege, if that’s what happens, that’s what happens. That’s a risk the Department is willing to take.”

The workplace-safety judge put proceedings on hold until this week to give Bowers and McVay time to negotiate with federal prosecutors in the criminal case.

Neither man has been charged with any crime in connection with the blast.

Rick Gleason teaches workplace safety at the University of Washington. He says criminal sanctions are extremely rare when it comes to industrial accidents.

Gleason: “Willful, deliberate negligence—“

Of the sort that might result in a criminal penalty --

Gleason: “That’s very, very, very hard to prove and in the last 103 years that may have only been proven 7 or 8 times in the entire state of Washington.”

It’s only a misdemeanor to violate federal workplace-safety laws. That’s even if a worker is killed.

So prosecutors are attempting to go after Tesoro under federal environmental laws. They’re much tougher.

It was just two weeks before the Tesoro blast when the nation’s top workplace safety official told a Congressional hearing that his agency needed a bigger hammer.

Michaels: “Employers who refuse to comply with safety and health standards will think again if there’s a chance they’ll go to jail.”

David Michaels is head of OSHA, the Occupational Safety and Health Administration.

Michaels: “Serious OSHA violations that result in death or serious bodily injury should be felonies like insider trading, tax crimes or customs and antitrust violations.”

Michaels testified in support of a law that would toughen the penalties for endangering people doing their jobs. It died in committee.

Tesoro declined to be interviewed for this story. But the company did issue a statement, saying it’s improved safety in Anacortes in a variety of ways in the past 4 years. Tesoro says Anacortes is now “best-in-class” in the refinery industry.

It’s one area where labor and management agree. Anacortes steelworker Steve Garey says his employer’s doing a much better job of inspecting and fixing its old equipment than it did before the explosion.

Garey: "With regulators looking over their shoulder as they are now, that’s a good thing for us, a safer situation for us right now. We’re concerned the employer may begin to go back to their old ways once the oversight ends."

Garey says Tesoro’s improvements in Anacortes don’t mean the nation’s many other refineries have gotten safer.

Garey: “There’s simply too many injuries, too many fatalities, throughout this industry, all over the country.”

The Justice Department has less than a year to bring any criminal charges in connection with the Anacortes explosion. The five-year statute of limitations runs out in April.

Copyright 2014 KUOW