.State Fines Tosco $400,000 for the Fatal Martinez Refinery Explosion

Environmentalists are outraged that CalOSHA cut fines to the oil giant in an incident in which four workers were killed

Two years ago, workers at the Avon petroleum refinery in Martinez were instructed to replace a leaky pipe through which flowed a highly pressurized petroleum mixture called naphtha. Several attempts were made to drain the pipe; finally, the workers were told to cut through it with a pneumatic saw. Unfortunately, the pipe was not completely drained, and naphtha erupted outwards. When it contacted the hot surfaces of nearby machinery, it ignited a massive fireball. The explosion killed four workers immediately and critically injured a fifth, who managed to save his life by jumping from a one-hundred-foot tower.

It was the worst refinery disaster in Contra Costa County history, one that heaped shame on the executive heads at Tosco Corporation, owners of the refinery at that time, and one that stoked the wrath of federal, state, and local agencies, all of whom firmly blamed the accident on poor managerial oversight and faulty safety procedures. Not that Tosco was a beloved name in the community; for years, it had been accused of endangering its neighbors with its constant discharge of noxious fumes and possibly toxic wastewater. Still, the explosion rattled everyone, and punishment was promised.

Now comes the aftershock. For two years, the state’s Occupational Safety and Health Administration (CalOSHA) had been investigating the safety violations that caused the accident and had been expected to bring down the hammer on Tosco by handing out a whopping fine. Instead, CalOSHA announced two weeks ago that they were giving Tosco a break by cutting their fines in half, to $400,000. (In a stroke of irony, just as the ink was drying on the settlement papers, another Tosco refinery in Carson, California, burst into flame.)

Tosco is currently the nation’s largest independent refiner and petroleum marketer, owns the Circle K convenience store chain, and markets the Mobil, Exxon, and 76 brand gasolines. They have a lot of money, and they got even richer the year after the explosion, when they sold the Avon plant to Ultramar Diamond Shamrock for what will amount to $800 million, the first $150 million of which is due this September. (The new owners rechristened it the “Golden Eagle” refinery, perhaps a wise choice when so many in the community had taken to referring to the facility as the “death tower.”) Moreover, Tosco will soon no longer be independent; it is currently in the process of being acquired by Phillips Petroleum Company in a $7 billion stock transaction. (Tosco spokespeople did not return calls for this story.)

All of this is making life tough for the folks at CalOSHA. Their main goal, after all, is enforcing worker safety regulations, and if Tosco leaves the state, as it appears to be doing, CalOSHA loses its regulatory power over them. That meant that they had to hurry up and come to some sort of conclusion before Tosco left for good. “The purpose for issuing penalties and citations is as a deterrent to the employer,” says CalOSHA spokesperson Dean Fryer. “If there’s no longer an employer in California, that whole issue is pretty much removed.” Plus, he says, pursuing the Avon case through the appeals process had been a massive drain on the agency’s time and money. “It’s still the largest penalty ever issued to a single employer,” Fryer points out.

Originally, CalOSHA had written up a total of 33 citations worth $801,750 in response to the Avon fire. In the settlement, the agency knocked that down to eighteen violations worth half that. The settlement also resolved appeals stemming from five other incidents at both Tosco’s Avon and Rodeo refineries. Collectively, the additional 37 citations had amounted to $168,125 in fines; the settlement reduced that to 28 citations worth $62,630. According to the settlement papers, CalOSHA agreed to reduce the fines connected to the Avon incident due to insufficient evidence and in consideration of a separate settlement reached between Tosco and the Contra Costa District Attorney’s office, in which Tosco pleaded nolo contendere to five misdemeanor counts, paid $945,000 in fines, and agreed to donate $1 million to the county to help fund the Los Medanos Health Clinic. The settlement explicitly states that Tosco admits to no wrongdoing; that’s a bit of legalese, Fryer says, because the heart of CalOSHA’s case–five citations for “willful” violations–went uncontested. “It was a lot of give and take on both sides,” says Fryer.

Still, it’s hard for people like Denny Larson, spokesperson for Oakland-based Communities for a Better Environment (CBE), not to be ticked off. “I think it’s outrageous that OSHA threw the towel in on probably the most clear-cut case to go for the maximum penalty that could possibly exist,” he says. “It’s tragic and sends a very bad message not only to Tosco but to other refiners that all they have to do is put up a battle and they can have their fines cut no matter how many people they kill.”

Tosco has a terrible reputation among environmentalists, some of whom suspect them of running down their plants and then selling them off in order to get out of town. “[During] the quarter those men were killed, [the company made its] biggest quarterly profit on record at that time,” says Larson. “Oil companies are raking it in, and here we’re talking about $400,000. Certainly Tosco can’t be saying they don’t have the money to pay the fine.”

Environmental groups like CBE would like to contest CalOSHA’s decision, but the fact that the facility has changed hands complicates matters, as does a recent change in California state law that makes it unclear as to whether individuals can file suit to force a company to disgorge profits made while violating the law.

For years, environmentalists have argued that the Avon refinery was endangering the surrounding community. Take, for example, the story of Terry DeCosta, who in 1994 moved with her husband and her son Jonathan, now eight, to the tiny town of Clyde near the refinery. Her daughter Jenna, now five, was born there. DeCosta describes her home as a “dream house,” although there were always reminders that they lived near a refinery–such as a near-constant odor she describes as “sweaty armpit cat urine with a metallic bite” and the fact that sometimes oil and sooty matter fell from the sky. In 1997, a refinery fire blew the seals off the DeCostas’ windows. After they moved to Clyde, both parents noticed an increase in their respiratory problems. But the real problem was with the kids.

Both of DeCosta’s children have severe developmental problems that affect them both physically and mentally. Both are mentally two years behind their peers; both have speech and motor problems including poor muscle tone that makes it difficult for them to move and play like regular children. Jonathan has seizures and severe emotional outbursts; Jenna has to wear special shoe inserts to help her stand up. The seriousness of their health problems means that the two have racked up expensive medical, testing, and therapy bills. Both children go to speech, anger management, and physical therapy; both have to take, among other medications, Risperdal, an antipsychotic drug that DeCosta estimates costs up to $600 per month per kid. “I was told my son would never know his numbers or ABCs, but now he’s adding and printing, so I’m finally seeing hope and progress with him.” Jenna, she says, is still struggling to learn basic skills. “They’ll be on medication for their whole lives; they’ll be in Special Ed their whole lives.”

The DeCostas blame the children’s medical problems squarely on the plant’s emissions, especially since extensive tests show the problem is not genetic. Before moving out of town, they joined CBE’s bucket brigade–the refinery’s neighbors take air samples every time they smell something funny–to help prove that something was wrong with the air. The DeCostas even tried suing Tosco in 1998, but the case was dismissed and the court ordered the family to foot Tosco’s legal fees. The company has not yet asked for that money–although by law they have ten years to do so–and the DeCostas eventually decided to declare Chapter 7 bankruptcy to prevent Tosco from trying to collect in the future.

The DeCostas aren’t alone. CBE staff say they can point out plenty of other nearby residents who complain of respiratory problems, rashes, and headaches. Moreover, the refinery, even under its new management, is still possibly dumping toxic wastewater into the San Francisco Bay. In March, CBE announced that it was suing the regional Water Quality Control Board for failing to enforce environmental standards.

At the heart of the matter is dioxin, a highly toxic synthetic chemical. According to the Environmental Protection Agency, for a person of average body weight, exposure to one picogram of dioxin per day causes an unacceptable risk of cancer. (A picogram is one trillionth of a gram.) Dioxin has been linked to a wide variety of other ailments and disorders, including diabetes, birth defects, and childhood learning and immune system deficits.

Greg Karras, a pollution prevention scientist with CBE, says that the Avon plant releases about four million gallons of wastewater every day. Right now, the regional water board allows them to release a maximum of 0.65 picograms of dioxin per liter. If you do some converting, you get between five and six million picograms of dioxin being dumped into the bay each day, and that’s not counting any pollutants that may come out of the refinery’s smokestacks.

That’s way too much, says CBE, pointing out that back in 1993, the water board had set a much tighter limit on the Avon plant’s emissions –0.14 picograms per liter. After Tosco exceeded the limit for years, the board agreed to raise the limit last June. CBE says this “backsliding” on water quality violates the federal Clean Water Act.

“What’s really telling is that Tosco threatened to close the refinery two days before the water board made that decision [to relax the standards],” says Karras. “This was June, and if you think back, gasoline prices had run up and it became an election issue between Gore and Bush.”

Karras suspects Tosco’s threat of leaving town was just an elaborate bluff. A few weeks after the board agreed to the higher limit, the company stunned everyone by announcing it was in fact selling the refinery. CBE smelled a rat. “The idea that Tosco didn’t know on June 16, 2000 that they were going to have a hasty one- or two-week negotiation with Ultramar and then sell the refinery did not seem credible to us,” says Karras.

Water board officials say that their decision to raise the dioxin limit is actually much less sinister–and much more complicated–than it appears. The EPA is currently in the midst of a ten-year process to determine how to reduce the dioxin in the bay. Wil Bruhns, a senior engineer at the regional Water Quality Control Board, says that during this process, the board is supposed to freeze the limit at current output, which for the Avon refinery is 0.65 picograms per liter. “The basic strategy is not to make it worse while the study is being done,” he says. That strategy, he admits, is an unpopular one. “We’ve used the same strategy on all the permits written during the last fifteen months and they’ve all been appealed by the people we regulate and the environmentalists. Nobody likes them.”

Confusingly, there turns out to be not one but seventeen different kinds of dioxin, all with different levels of toxicity. The most toxic is known as TCDD (or tetrachlorodibenzodioxin). The federal standard for allowable TCDD emissions is a familiar number: 0.14 picograms per liter. When it originally set limits for the Avon plant in 1993, the water board had taken a stricter stance and mandated that the total of all seventeen kinds of dioxins had to be under 0.14 picograms per liter. Now, under the limits revised last June, that number just applies to TCDD while the total dioxin count must be under 0.65 picograms per liter. “The number didn’t change –what changed is what it’s applied to,” explains Bruhns.

And in fact, CBE and the water board don’t even see eye to eye on how responsible the Avon plant is for contributing to the bay’s dioxin problem. The water board bases its opinions on a 1996 Bay Area Air Quality Management District Report that says diesel engines and wood fires make up two-thirds of all dioxin sources, and that as a result dioxin emissions are evenly distributed throughout the Bay Area. Karras contends that CBE studies show that industry is the main source, and dioxin emissions are in fact concentrated near refineries. So where does the majority of dioxin come from? It’s such a crucial question, but it may not be resolved until the EPA releases its study.

As for DeCosta, she just wants a better neighbor, one that doesn’t produce poisonous water, toxic smoke, or massive fireballs. And she wants the state to keep its refineries in check. “I’m disillusioned with government,” sighs DeCosta. “They’re powerless; the public doesn’t give them the teeth to go after people. Finally [CalOSHA] zaps [Tosco] for $800,000 and then they go back on it. $800,000 is what, one second’s work for them? We were nothing to them. We weren’t even a fly in the ointment.”


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