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The original content of this program is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 United States License. Please attribute legal copies of this work to democracynow.org. Some of the work(s) that this program incorporates, however, may be separately licensed. For further information or additional permissions, contact us. As BP Says No To The EPA, Who Is In Charge of the Oil Cleanup?http://www.democracynow.org/2010/5/26/ahead_of_pivotal_attempt_to_plugAbrahm Lustgarten, a reporter for the investigative news website ProPublica who has reported on BP for many years. AMY GOODMAN: It’s been five weeks since the BP oil disaster struck, and still there’s no end in sight for what’s considered the worst oil spill in US history. Estimates of the amount of oil spewing into the Gulf of Mexico per day vary as widely as 210,000 and four million gallons. Dogged by delays, BP faces a pivotal day today as it attempts a so-called "top kill" maneuver to choke off the gushing oil by pumping heavy drilling mud and cement into the mile-deep well. But the company estimates only a 70 percent chance of success, at best, raising the prospects of at least a three-month period before the leak is stopped. The "top kill" procedure could also make the leak worse. A weak spot in the device could blow under the pressure, causing a brand new leak. On Monday, BP CEO Tony Hayward acknowledged the company’s efforts have failed so far. TONY HAYWARD: And it’s clear that the defense of the shoreline at this point has not been successful, and I feel devastated by that, absolutely gutted. But what I can tell you is that we are here for the long haul, we are going to clean every drop of oil off the shore, we will remediate any environmental damage, and we will put the Gulf Coast right and back to normality as fast as we can. AMY GOODMAN: BP has admitted it may have made a, quote, "fundamental mistake" in its work on the Deepwater Horizon rig in the hours before the explosion. According to lawmakers briefed by BP executives, an internal company investigation points to a series of equipment failures, mistakes and missed warning signs that led to the blowout. Meanwhile, Interior Secretary Ken Salazar Tuesday ordered an investigation into whether the rig was properly monitored by the Minerals Management Service. The investigation follows a report citing workers from the MMS accepting gifts and allowing oil workers to fill out their own inspection reports. In a visit to the Gulf Coast earlier this week, Salazar said the responsibility for the spill rests with BP and that the Obama administration would continue to maintain pressure on the oil giant. INTERIOR SECRETARY KEN SALAZAR: The fact of the matter is that this is a BP mess. It is a horrible mess. It is a massive environmental mess. The accountability here, as the investigations unfold, will hold them accountably, both civilly and in whatever way is necessary. And we will not rest until the job is done. AMY GOODMAN: Salazar is set to testify before the House Natural Resource Committee today. Meanwhile, on Tuesday, the National Oceanic and Atmospheric Administration expanded a fishing ban in the Gulf of Mexico by more than 8,000 square miles. Nearly 55,000 square miles of water, an area close to the size of Greece, are now closed to fishing. In Port Sulphur, Louisiana, residents voiced their frustrations at BP’s cleanup operation. PORT SULPHUR RESIDENT 1: BP should be doing more. PORT SULPHUR RESIDENT 2: Three weeks already, I’m not working. I lost a job. Six people working for me do not have jobs. My family—my kids are in college. So we don’t know what to do in the future. We feel like we are abandoned. The BP don’t do enough for us in these problems. PORT SULPHUR RESIDENT 3: I’m worried about the oil in the Gulf. I’m worried about hurricane season coming up. Even a small, small storm would dump the Gulf into our area, which would be more oil than water, probably. And I’m afraid that, sooner or later, if they don’t soon get it—try to keep it out, that it’s going to eventually inundate the whole area. PORT SULPHUR RESIDENT 4: It’s a catastropher. That’s what it is, a real catastrophe. AMY GOODMAN: For more, we’re joined by Abrahm Lustgarten, a reporter for the investigative news website ProPublica who has reported on BP for many years. And joining us from Newton, Massachusetts is Zygmunt Plater, an environmental law professor at Boston College. He headed the legal team for the state-appointed Alaska Oil Spill Commission that investigated the 1989 Exxon Valdez spill and says BP was involved with that, too. Well, Abrahm Lustgarten, let’s begin with you. The latest in the Gulf? Who’s in charge? We started today’s show by asking, BPA? Is that what we’re talking about? BP merged with EPA, until this point, when a lot of pressure is coming down on the Obama administration? ABRAHM LUSTGARTEN: Yeah, I think everybody is trying to figure this out. But what seems to be clear is that no one has the technical expertise that BP and the other major oil companies have. So the MMS, the Department of Interior, the EPA and the Obama administration may be struggling to take the reins here, but it seems like they will continue to rely on the oil companies to figure out what to do a mile underneath the ocean. AMY GOODMAN: A lot of people are asking, is it possible that with the scope of what could have happened, which is what we’re seeing today, before this oil leak, this gusher, happened—a lot of people are saying, how is it possible that they were excluded from any kind of environmental review when they got the contract to do this? ABRAHM LUSTGARTEN: This has been a weakness in oil and gas regulations for a long time. It happens both onshore and offshore. An environmental impact statement is done in a generic fashion some years before, and permits are issued kind of in a rubber stamp kind of way ever since, based on those environmental reviews. And it doesn’t mean that there was no environmental analysis done. But in the case of the Gulf drilling, the drilling got more technical, it got into deeper waters, and more and more advanced, while the environmental analysis didn’t keep up. And they did get this categorical exclusion that allowed them to drill without further review. AMY GOODMAN: Of course, it makes you think of a nuclear power plant, when they say it’s rare, but when it happens, it’s catastrophic. Was there any plan that was required by the government in case of a catastrophe? ABRAHM LUSTGARTEN: It certainly does not seem like there was a plan that could address what’s happening today. There are a number of backstops, starting with the blowout preventer and ending with plans to boom oil on the surface and protect the beaches, but they’ve all failed, the government’s approaches and BP’s approaches. And any contingency that BP had in place at the permitting stage to deal with a spill of this magnitude has been shown not to work. AMY GOODMAN: What is this latest news that you’ve uncovered, that the EPA is considering barring BP? From what? ABRAHM LUSTGARTEN: Well, it turns out that the greatest leverage the EPA might have is this process called debarment. And debarment basically means that the government can cut off any contracts it has, which means any benefit that a company like BP or any other company might receive from the federal government. This is a big deal for the oil companies, because they rely on leases of federal lands, both onshore and off. And that is considered a government contract. Debarment often happens, and BP has been subject to several debarment actions for its past mistakes. But to date, it’s been confined to their specific facilities. After the Prudhoe Bay pipeline spill in 2006, the Prudhoe Bay pipeline was debarred and has been negotiating for a settlement with the EPA to continue. What could happen now is a discretionary debarment, a total debarment of the entire company, which could threaten its leases, could threaten its very large fuel contract with the US government, and probably have other financial implications for the company. AMY GOODMAN: Could it threaten its existence, BP’s? ABRAHM LUSTGARTEN: That remains to be seen. BP has an enormous amount of cash, from a business perspective, and has a line of credit that is also quite substantial. And it has a lot of business around the world. Also, oil and gas production is a small fraction of what BP does to make money. It also refines fuel and sells gasoline on a retail level. So it’s a very large and very stable company. But it no doubt would hurt. AMY GOODMAN: Gets a considerable percentage of its oil from the Gulf? ABRAHM LUSTGARTEN: Thirty-nine percent, by my calculations, comes from North America, comes the United States. And I’m not clear how much of that is the Gulf, but they are the largest producer of oil in the Gulf of Mexico. AMY GOODMAN: And when you say, for example, it sells oil, that would it be banned from selling oil, say, to the military? ABRAHM LUSTGARTEN: Potentially it could be banned from selling oil to the military. AMY GOODMAN: What would it mean for the work force around the country? And is this what’s being considered? ABRAHM LUSTGARTEN: Well, this gets into speculation. The EPA hasn’t said exactly what they would do. But certainly, if BP’s business, you know, is threatened, it could lead to layoffs, it could lead to a minimizing of their work force and a slowdown of its operations. I think that this would take some time. This is something that would escalate over a year or three years after a period of debarment. And throughout that period, they would also be negotiating to return to full normal business operations. There are other possibilities, as well. Somebody could step in and maintain operations. It’s not really clear how it would unfold. It’s just clear that it is an option that the EPA is considering at this point in time. AMY GOODMAN: Talk, Abrahm Lustgarten, about the dispersant. ABRAHM LUSTGARTEN: The use of dispersants is relied on mainly to keep the oil from running ashore. It’s a tradeoff that’s often used in oil spills to essentially keep the oil from spreading in two directions on the surface of the water and send it in three directions, where it can go down into the water column and remain underwater. The idea is that by breaking it up into small particles, it will be both less damaging to beaches, shorebirds, wildlife and things like that, and also more susceptible to aeration, to evaporation and kind of a natural dispersing throughout the ecosystem. In exchange for protecting seabirds and the shoreline, you have anticipated damages of marine life. A National Academy of Sciences report found that dispersants remained in oysters, in other shellfish, in the microorganisms that serve at the bottom of the food chain in the oceans. So, no one that I’ve spoken with, from the industrial side to the environmental side, has portrayed the use of dispersants as anything other than a choice between two necessary evils. What we’re seeing in the Gulf is that they’re using more of it than has ever been used in the United States, maybe than has ever been used anywhere. AMY GOODMAN: Who makes it? ABRAHM LUSTGARTEN: The dispersant that they’re using is called Corexit. It’s made by a company called Nalco. It has ties to the oil industry. It’s not quite clear whose investments in Nalco might be profiting from the use of dispersants, but— AMY GOODMAN: Is BP in any way connected? ABRAHM LUSTGARTEN: I’m not really sure about that. I’ve heard of connections with Exxon, and BP may very well have a connection. AMY GOODMAN: It’s based in Illinois? ABRAHM LUSTGARTEN: I believe so. AMY GOODMAN: So, what is in Corexit? And talk about the battle with the EPA over this dispersant. ABRAHM LUSTGARTEN: Well, there’s a couple things that we know are in Corexit. There are several different versions. One of them contains a chemical called 2-butoxyethanol, and it’s known as 2-BE. And 2-BE is actually an unregulated chemical. The EPA doesn’t have exposure limits defined for it. But it’s come up in a number of other environmental cases that I’ve looked at related to the oil and gas industry, and it’s been connected with human health concerns ranging from neurological disorders, headaches, skin rashes, and tumors, in some cases—not clear if they’re cancerous or not. But there’s a lot of questions around the use of 2-BE. The remaining constituents of— AMY GOODMAN: Is it banned in the rest—in other parts of the world? ABRAHM LUSTGARTEN: Well, Corexit is banned from use in the North Sea, is banned by the British government. It has been for about ten years, based on their assessment of the toxicity of the overall substance. It’s not clear whether that’s because of 2-BE or because of whatever else is in the dispersants. But we actually don’t know what’s in the dispersants besides 2-BE. According to the material safety data sheet for the chemical, which is the form that’s supplied to OSHA and to laborers to protect them in case of exposure, as much as 60 percent of the dispersant is held as proprietary. This essentially means that it’s a secret formula. It’s a secret recipe that the manufacturers or that the oil and gas industry has come up with that serves their purposes. They regard it as a competitive trade secret, and they don’t tell us what it is. So it could be bad; it could be good. AMY GOODMAN: But at this point, considering it’s catastrophic, can’t the Obama administration demand of this—if it’s an Illinois-based company, "We want to know what is in this"? ABRAHM LUSTGARTEN: It would seem to me that they could. There have been other environmental instances where the government has begun to demand the identity of proprietary chemicals, particularly in gas drilling in the United States. The EPA, the Obama administration may have done this at this point. They haven’t made that information public. It’s also possible that they could demand and receive that information and not make it public and protect the competitive interests of the company while getting the information that they need. I haven’t heard from the EPA yet that they do know all of the constituents that are in Corexit or any of the other dispersants. AMY GOODMAN: And what about the EPA saying, "You cannot use this anymore," and BP saying, "Tough"? ABRAHM LUSTGARTEN: Well, this has been really interesting, and it really gets at the limits of EPA authority. I mean, Corexit has been on an EPA-approved list. It’s not absolutely clear what kind of testing or toxicological analysis went into approving the chemicals on that list, but it’s on it. Last week, the EPA came back and said, "Well, in light of the fact that Britain has banned Corexit and there’s all these other concerns, maybe you shouldn’t be using it, and you have twenty-four hours to shift gears and find a replacement." And BP said no. And rather than going head-to-head on this and holding their ground, Lisa Jackson, I believe yesterday, said, "OK, well, continue to use it until you can find an appropriate alternative." So it’s not really clear that there are good alternatives or that the EPA will exercise the authority to force them to change. AMY GOODMAN: BP has bought up most of the supply in the world of Corexit? ABRAHM LUSTGARTEN: I believe that’s the case, yes. At the start of the spill, there was a very limited supply. And my understanding is Nalco and any other manufacturers of other dispersants are producing as fast as they possibly can. AMY GOODMAN: And are there now other dispersants that they’ve begun using? ABRAHM LUSTGARTEN: There are. I’m not clear on exactly what they’re using. I’m not sure anybody is. There are less toxic dispersants, and there are different substances that can react with different grades of oil to different degrees and may in fact be more effective with the kind of oil that’s spilling off the Louisiana coast. AMY GOODMAN: We’re talking to Abrahm Lustgarten, reporter for ProPublica.org. When we come back, we’ll also be joined by an environmental law professor who headed the legal team that investigated the Exxon Valdez spill. Why isn’t BP included in Exxon Valdez? Stay with us.
AMY GOODMAN: We are talking about the oil spill in the Gulf of Mexico, what the biologist Rick Steiner now calls the Gulf of Oil. Our guests are Abrahm Lustgarten, reporter with ProPublica, and Zygmunt Plater, an environmental law professor at Boston College. But more relevant to this discussion is he headed the legal team that investigated the 1989 Exxon Valdez spill.
What does the Exxon Valdez spill, Zyg Plater, have to do with BP?
ZYGMUNT PLATER: It’s so damnably frustrating to see this happening again, because BP dominated the Alyeska consortium, that our commission said, "Don’t just look at the aftermath. The preconditions were created by the Alyeska company, not just by Exxon." And BP got no notice. In retrospect, our commission report should have mentioned BP by name. We just said Alyeska, Alyeska which was the entity that made all those decisions, but BP dominated Alyeska with a majority holding.
AMY GOODMAN: Explain, though, what Alyeska had to do with Exxon Valdez?
ZYGMUNT PLATER: Well, the Trans-Alaska Pipeline System was organized by a consortium of seven companies, not one company. It was more like a partnership, and it ran everything, from the North Slope through the pipeline 800 miles down to Valdez to the tank loading areas and then the system of getting tankers down to California. It was a mega-system, we talked about. And the frustrating thing we found is that the same kind of mega-system problems that we learned lessons from then continued for twenty years with the lessons unlearned. And BP was there in the beginning of Exxon Valdez by creating the preconditions that had hazards. It wasn’t a question of if there would be a spill, but only when it would happen. And it was Exxon. We were happy it wasn’t Amerada Hess, because Amerada didn’t have any money. But the point was that this was not just a problem of an intoxicated captain, it was not just a problem of Exxon; it was through the mega-system. And the same problems we see in the Gulf now, twenty years later, lessons unlearned.
AMY GOODMAN: And for people who aren’t familiar with the Exxon Valdez, the supertanker spilled at least 11 million gallons of oil into Alaska’s pristine Prince William Sound. The consequences of the spill were epic, continue to this day. The massive spill stretched 1,200 miles from the accident site, covered 3,200 miles of shoreline, an incredible 10,000 square miles overall. Compare what happened twenty years ago, Zyg Plater, to what we’re seeing in the Gulf of Mexico today.
ZYGMUNT PLATER: Well, of course, every spill is somewhat different, and every coastline tends to be different. But the images of wildlife and fishermen with their living destroyed are the same. There are differences in Alaska. There was only one major current to deal with. In the Gulf, there are multiple dangers presented by multiple currents. And in the Gulf, unfortunately, eleven people died. That means that the legal response is going to be even more complicated in the Gulf than it was in Alaska. But the images that we’re getting are sadly the same. And probably most of the harm is out of sight, out of mind, in the water column, as Mr. Lustgarten was talking about, and in the multiplier indirect effects that take place throughout the human and the ecological networks around the Gulf.
AMY GOODMAN: So, explain exactly what happened twenty years ago, in terms of your investigation, your regret now that you didn’t name BP. Well, what went on inside? Why wasn’t there a full discussion of who was responsible, what corporations needed to have done before and after, and then the issue of criminal responsibility?
ZYGMUNT PLATER: Well, the commission’s report is a marvelous document. I’m not taking credit for it. The commission worked hard on it. But it didn’t want to be seen as extreme, I believe. By the way, there are two important information resources that have been overlooked. One of them is the spill report, and I could tell you and your listeners how to find that. But we felt that by mentioning Alyeska, people would look into it and discover, oh, yes, it was dominated by BP, so we didn’t name those names. In retrospect, I wish dearly we had, because it could have caused a change in the internal corporate climate. Transparency, public attention makes a huge difference. And in the Exxon Valdez case, the attention was diverted almost entirely on a captain who had had a few drinks.
AMY GOODMAN: Where can you find the report?
ZYGMUNT PLATER: The Alaska Resource Library and Information Systems, ARLIS, A-R-L-I-S, Alaska. If you Google that, you will find the source, and ask for "Spill: The Wreck of the Exxon Valdez," the February 1990 report of the State of Alaska Oil Spill Commission. The other book on epidemiology, because—and toxicology, because it’s those long-term system harms that people tend to overlook, was written by Dr. Riki Ott, O-T-T. It’s called Sound Truths, and it’s available on Amazon. As I say, both of these have been massively overlooked.
But if the lessons we had learned twenty years ago had received the public notoriety of the captain’s drinking, it seems to me people would have realized this was a much bigger problem, it was a systemic problem, and it wasn’t just Exxon. It was BP down in Houston that was making the decisions, calling the shots, that made the Exxon Valdez inevitable.
And then, remember also, after an incident, there’s the question of response. If you look at the contingency planning, it was clear to us that, both before and after, this mega-system was characterized by, we said, complacency, collusion, neglect. Does that sound familiar? Complacency, collusion, neglect. The official players, corporate and governmental, for a variety of reasons, as Mr. Lustgarten hinted, just were not able to keep the public interest in mind. And twenty years later, we are finding ourselves retracing the same path.
AMY GOODMAN: Well, I want to talk about the issue of prosecution and bring one more person into this, this broader issue of prosecuting corporations that ignore health and safety standards and cause environmental disasters.
A group of citizen activists has just launched a campaign calling on the state of West Virginia to prosecute Massey Energy for manslaughter in connection with the April 5th explosion at the Upper Big Branch Mine that claimed the lives of twenty-nine coal miners. The group has set up a website, prosecutemassey.org, that allows citizens to petition the state prosecutor to bring manslaughter charges against Massey Energy. They’re also putting up billboards publicizing the campaign across West Virginia. Last month, Kristen Keller, the prosecuting attorney for Raleigh County, said she would not hesitate to prosecute if there was evidence to support a homicide prosecution.
Well, for more on prosecuting corporate crime, we’re joined now in Washington, DC by Russell Mokhiber, editor of Corporate Crime Reporter. He’s involved with the campaign to prosecute Massey Energy.
And as we talk about BP and what is being—the question being asked, "Is BP beyond prosecution?"—and we look at what happened just before, the reason that we’re not seeing much about Upper Big Branch Mine is simply because this greater catastrophe has occurred in the Gulf of Mexico—for some, greater; for others, certainly in West Virginia, not greater. Russell, talk about this issue of why we talk about fining, but not criminal prosecution.
RUSSELL MOKHIBER: Good morning, Amy.
BP is not beyond prosecution. Massey Energy is not beyond prosecution. It’s a question of resources and political will. If I’m driving recklessly in West Virginia, say, ninety miles an hour in a fifty-five speed zone, and I lose control of the vehicle and accidentally kill someone, even though I didn’t intend to kill someone, I will be criminally charged for involuntary manslaughter, and I will be thrown in prison. Now, BP operated this mine in a reckless manner, and as a result, twenty-nine coal miners are dead, and—I’m sorry, Massey Energy operated this mine in a reckless manner; as a result, twenty-nine coal miners are dead. We’re calling on Kristen Keller, the prosecuting attorney in Raleigh County, to bring this prosecution. We should not live in a society where the rich and powerful are treated one way and individual citizens are treated another.
Now, what’s the evidence that Massey Energy operated this mine in a reckless manner? Number one, Washington Post reported that earlier this year a federal mine inspector said that Massey was operating this mine with reckless disregard for the safety of the workers. Just this week, in an eye-opening hearing in Beckley, West Virginia, a hearing of the House Education, Labor and Pension Committee, it was a field hearing in Beckley where workers who survived the explosion and families of those who died in the explosion testified. And it was really quite remarkable.
Stanley Stewart survived it, and he said the place was like a ticking time bomb. He said that prior to the explosion, the mine experienced two fireballs, and he wondered how could this have happened if the methane detectors had been working. He said that the workers there, which was a non-union mine, were like marked men. You would be fired if you spoke up. Union workers in union mines have a right not to work, to walk off the job, if there’s an unsafe condition. Not true at Massey. If you did that, you would be fired. Maybe not that day or that week, he said, but you would be fired. And he told his wife, prior to the explosion, he felt like it was—he was like—it was working for the Gestapo.
Alice Peters testified. She lost her son-in-law, Dean Jones, who was a section foreman at the mine. Now why—Dean Jones knew this was a highly dangerous workplace because of the way Massey was operating it. Why did he continue to work there? He continued to work there because his son had cystic fibrosis. He continued to work there for the health insurance. That was the only reason he was there, Alice Peters said. And she was so concerned about him that she would call the workplace and make up a story that her son was in an emergency situation, to get him out of the mine, to save his life. Unfortunately, she did not make that call on April 5th, and he perished in that mine.
So we’re urging all Americans who are concerned about this to go to prosecutemassey.org and click on the petition in the upper-right and sign that petition, because we have to educate our prosecutors about the history of corporate crime prosecution in this country.
You know, there are prosecutors who prosecute these cases. There was the famous 1942 fire, the Cocoanut Grove nightclub in Boston, Massachusetts, that killed 492 people. And the prosecuting attorney in Massachusetts charged the owner of that nightclub with fifteen counts of involuntary manslaughter, and he was sentenced to fifteen years in prison.
In Chicago, the Film Recovery case, executives who ran that operation, where a worker was breathing—died from cyanide poisoning, were prosecuted and convicted and went to jail in that case.
And perhaps in the most famous of these cases, had to do with consumer deaths, the Ford Motor Company was charged with homicide in connection with the deaths of three teenage girls who were riding in a Ford Pinto in 1978, and their Pinto was rear-ended in a collision at slow speeds. And they weren’t crushed to death. They were burned to death, because the fuel tank collapsed, and gas was spilled, caught fire, and there was an explosion, and these three girls were burned to death. Now, a Republican prosecutor in northern Indiana, a very conservative prosecutor, Michael Constantino, convened a grand jury and presented evidence that Ford cut corners on safety in building the Pinto, and he indicted and that grand jury indicted Ford Motor Company for reckless homicide. And the company was eventually found not guilty, but it sent a message to corporate America that if you engage in reckless activity and, as a result, workers or consumers are killed, that you, too, will be criminally prosecuted.
Now, Massey has created a culture of intimidation in the coal fields and throughout West Virginia. And so, we’re seeking to break that by putting up billboards throughout the state that say, "29 coal miners , prosecute Massey for manslaughter," and urging people to go to prosecutemassey.org and sign the petition to the prosecutor. I interviewed her and asked her about this case, and she said—and she wasn’t familiar with the history of these kinds of prosecutions. And one problem is that there are very few resources to investigate these. But she said that if there was evidence, she would prosecute. She has one year to do it from the time of the accidents. That’s the statute of limitation. So we have one year to build a campaign to get her to do the right thing.
Ira Reiner, who was the district attorney in Los Angeles County for many years in the 1980s, had a policy of every time there was a death on the job, he would investigate it as a homicide. He wouldn’t charge every case, but at least he had an investigative rollout team that would go out and collect evidence and see if there was enough evidence to prove a homicide charge. And he brought a number of these cases, and a number of executives went to jail as a result of worker deaths and a resulting homicide prosecution.
AMY GOODMAN: Let me go back to Zyg Plater, this issue of criminal liability, from Exxon Valdez—and that wasn’t just Exxon involved there—to what we’re seeing now in the Gulf of Mexico. This isn’t any major part—and certainly it hasn’t been, of Massey—of the discussion, is criminal responsibility, executives put in handcuffs, executives arrested. Zyg Plater?
ZYGMUNT PLATER: No. There will be—there will be criminal prosecution in the BP case, I’m convinced, as there was in the Exxon Valdez case. In fact, Rick Steiner, whom you spoke to in Alaska, played an important role in making sure that the first Bush administration prosecuted that—excuse me, Rick Steiner played a major role in pushing the prosecution of Exxon in that case under pollution statutes.
But here, where people have died, we’re reminded that complacency is not only about causing the risks of spills and harms to the economy, but also complacency about human life. And a system that runs that kind of risks clearly is going to risk a criminal liability for manslaughter prosecutions, at the very least. In the Film Recovery case that Russ was talking about, that was a homicide conviction in Illinois. I don’t think we’re going to see that, because that was a small company, and it’s very hard to talk in those terms about a large company. But there will be criminal prosecution, and I would be very surprised if manslaughter was not part of the charges.
AMY GOODMAN: And Abrahm Lustgarten, the whole debate in the Senate now, this isn’t about criminal charges, but it’s about lifting that liability cap from $75 million to $10 billion, and still it hasn’t happened.
ABRAHM LUSTGARTEN: No. It’ll be interesting to see what does unfold there. And BP has pledged repeatedly that they will pay whatever it takes. I think it remains to be seen whether they actually will. They’re not—
AMY GOODMAN: But that’s a pledge. That’s a corporation promise. That’s not being held accountable. That’s not a requirement.
ABRAHM LUSTGARTEN: Exactly. And if Congress passed legislation that lifted that ceiling, it’s not clear that it would apply in this case anyway, because it’s after the fact. So we will rely, to some degree, on what BP chooses to do. And they’re not a company that has shown in the past a willingness to spend money where not forced to do so by courts or prosecutors.
AMY GOODMAN: Has BP ever—executives been jailed for criminal responsibility in a disaster?
ABRAHM LUSTGARTEN: I’m not aware of any case where BP executives have been jailed; however, the company has four criminal convictions. It has been criminally prosecuted in each of its last four cases—the Prudhoe Bay pipeline spill in 2006, its refinery fire which killed fifteen workers in Texas City in 2005, a hazardous waste disposal case in 2000. So I also believe that there will eventually be a criminal prosecution in this case. Whether the executives are personally held accountable remains to be seen.
AMY GOODMAN: Because when you say a corporation has criminal charges, has been found criminally responsible—Russell Mokhiber, let me put that question to you. What does that mean? Not a corporate executive, but a corporation?
RUSSELL MOKHIBER: Well, you know, we have a two-tier system here, Amy: for individuals and for corporations. And for—between big corporations and smaller corporations. So, for example, yes, we could—the federal government could go after—and, by the way, you said, you know, we’re not hearing that much about criminal prosecution. We’re not hearing it in the mainstream media, but when you talk to regular folks, the first thing you hear is, about Massey and BP, "Put these people in jail." These people belong in jail. And there’s a way to do it.
So, for example, the federal government in 1996 prosecuted executives from the largest meatpacking plant in South Dakota, and they were dumping slaughterhouse waste into the Sioux River. And the executives were thrown in jail for water pollution. So where there’s a will, there’s a way.
AMY GOODMAN: So you’re talking about Don Blankenship.
RUSSELL MOKHIBER: And executives can be—executives can—under the current law, executives can be thrown in jail. But unfortunately, we’ve set up a system where we either plea to misdemeanors or we enter in deferred non-prosecution agreements. It’s all pretty much a love tap. And there’s this revolving door where prosecutors, young federal prosecutors, are looking to jump ship and go and work to defend white-collar and corporate crime. So the system is set up so that there’s no serious punishment against the executives responsible for these disasters.
AMY GOODMAN: You’re calling for Don Blankenship himself to be charged with manslaughter?
RUSSELL MOKHIBER: If there’s the evidence there that he was involved. Now, one of the—part of the testimony that we heard in Beckley earlier this week was from Alice Peters, and she said she was so concerned about the air levels and the methane buildup at the Upper Big Branch Mine that her and her daughter faxed complaints directly to Don Blankenship prior to the explosion. And so, you know, Don Blankenship is known as a hands-on kind of manager. So that’s why we need a full investigation here. But, yes, we’re calling for prosecution of Massey Energy for involuntary manslaughter, prosecution of Massey Energy and the responsible executives.
AMY GOODMAN: Russell Mokhiber, I want to thank you for being with us, editor of Corporate Crime Reporter. The campaign website is prosecutemassey.org. And I want to thank Zyg Plater for being with us from Boston, environmental law professor at Boston College, headed up the commission that investigated Exxon Valdez.
Abrahm Lustgarten, on a wholly different issue, someone asked me the other day, why don’t they just bomb the pipe where the oil is gushing out? And the person suggested it’s because if it was ever to be used again, BP didn’t want to destroy it in that way. Have you heard this suggestion of bombing the pipe?
ABRAHM LUSTGARTEN: I’ve heard the suggestion. I’ve heard rumors.
AMY GOODMAN: The hole.
ABRAHM LUSTGARTEN: It’s not really clear whether that’s a practical approach. BP did say, within the past few days, that they had ruled such an approach out, not clear what they were referring to exactly, and they didn’t say why. There’s just a whole lot of questions around that.
AMY GOODMAN: Well, I want to thank you very much, as well, Abrahm Lustgarten of ProPublica.
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