In late October, the Dept of Justice (DOJ) announced an agreement with British Petroleum (BP) on three outstanding criminal cases including violations of the Clean Air Act related to the March 2005 explosion at their Texas City refinery which killed 15 workers and injured 170 others.  We wrote here about the disparity in government fines for causing environmental damage compared to those killing and injury workers.  Now, Bloomberg.com is reporting that U.S. District Court judge Gray H. Miller, who was overseeing the DOJ/BP settlement has recused himself after victims accused him of having a conflict of interest.  His former employer, Fulbright & Jaworski, LLP, where he worked for nearly 28 years, is handling BP’s defense in the civil case stemming from the disaster.

The motion filed with the Court on behalf of the victims states:  

Judge Miller “at the time of explosion and for approximately one year thereafter, was a partner in Fulbright & Jaworski law firm while his partners and associates at the law firm actively represented the criminal defendant.”

Judge Gary H. Miller was nominated by President George W. Bush for the federal bench, and he was unanimously confirmed by the Senate in April 2006. 

The victims’ motion further notes that:  

 “Judge Miller’s [law] partner Otway Denny and others associated with Fulbright and Jaworski, began to represent the criminal defendent (BP Products North America Inc (BPPNAI)) …with respect to its liability for the explosion and its consequences”;

“…on information and belief…[we believe] that Mr. Denny has probably appeared as counsel for BPPNAI in hundreds of cases arising out of the explosion”;

“28 USC Sec. 455 provides, in part, that a U.S. District Judge shall disqualify himself in circumstances where, in private practice, ‘he served as a lawyer in a matter in controversy, or a lawyer with whom he previously practiced served during such association as a lawyer concerning the matter.”

In his recusal statement, Judge Miller briefly states:

“…the undersigned does not believe that recusal is required…as neither the undersigned nor any partners or associates of Fulbright & Jaworski LLP represented the defendant with respect to its potential criminal liability at any time.  However, because the case at hand is so closely related to the civil matters handled by Fulbright & Jaworski LLP during the undersigned’s affiliation with the firm…it is the opinion of the court that recusal is appropriate for the purpose of ensuring that the decision maker’s impartiality may be reasonably be questioned.”

In addition to the judge’s possible conflict of the interest, the victims’ motion also mention that neither they nor their attorneys had received any notice from the DOJ about a public hearing to consider the plea agreement.  They believe they should have had an opportunity to review and comment on the settlement before the government signed off on it.  (If you read the short passages about the victims who now severely and permanently disabled because of the Texas City explosion, you’ll understand why they want a seat at the settlement table.)

“The Agreement proposed to allow defendant BPPNAI three years to comply with its remediation agreement with OSHA, with no specified oversight and implications of a willingness of agree to further extensions.  In fact, BPPNAI has been in breach of its contract with OSHA for over a year; this contract is but the latest in a series of unkept promises to reform.”

BP is already shirking its responsibilities under the agreement it reached with OSHA.  [Nah…can’t be true.]   Under that September 2005 settlement, BP agreed to:

• pay a $21.3 million penalty and correct all violations;
• complete a review of the isomerization plant to determine how it can be operated safely;
• alert OSHA when it starts-up again the isomerization plant;
• hire a consultating firm with expertise in process safety management (PSM) to conduct a comprehensive audit;
• hire an expert to assess communication within and between management and all-levels of employees and its impact on safety practices and procedures;
• submit to OSHA, every six months for three years, logs of occupational injuries and illnesses, and all incident reports related to PSM issues; and
• notify OSHA area of any incident or injury at the Texas City facility that results in an employee losing one or more workdays during the same three-year period.

The United Steelworkers, which represents workers at the Texas City plant, said the 2005 OSHA and BP settlement was also negotiated behind closed doors.  Leo W. Gerard, int’l president of the United Steelworkers said at the time:

“We will never know what OSHA traded away to get the settlement.  The families of the victims, workers in the plant and the surrounding community deserve to know all the problems OSHA uncovered.  And the workers who face those hazards every day on the job should have had a voice in the settlment talks.”

It seems like DOJ and DOL have the same play book when it comes to involving victims in BP’s disasters.