Paul Wellman (file)
Thursday, September 13, 2018
You can cut corners only so many times before it becomes an all-out attack. With Plains All American Pipeline, the corner cutting was compounded by a culture of confusion, incompetence, and indifference so swaggeringly aggressive it may as well have been premeditated. I mention this because last week, jurors in the four-month-long criminal trial of Plains for Santa Barbara’s May 2015 oil spill — 142,000 gallons of crude oil into the ocean by Refugio State Beach — put themselves out of their misery and finally rendered a verdict. Plains was guilty on nine charges. One was a felony.
Plains, in its public statements, has made much of the fact that nine is a lot smaller than the 46 criminal charges in the original grand jury indictment handed down two years ago amid all the political showboating inevitable in a county famous for not taking kindly to massive oil spills.
Of the grand jury charges, I remember one of Plains’ attorneys scoffing, “You could indict a ham sandwich with that grand jury.” It’s an old line but a great one. And by the time the case went to trial, 46 counts had been winnowed down to 15. Of those, three were felonies.
That Plains was convicted on only one felony count — and not all three — probably has to do with the intransigence of one hold-out juror, a retired city firefighter, than it did with the strength of Plains’ defense, which as near as I could make out boiled down to “Oops!” and “Shit happens.” I know close only counts in horseshoes, but it’s true that all 11 of the other jurors were ready to convict Plains on three felony counts.
Plains will no doubt appeal. Big pipeline companies are fined and sued all the time. Plains, being one of the biggest — an $18-billion-a-year company with 18,000 miles of pipe — gets fined and sued more than most. But rarely — like almost never — are corporations criminally charged. Even rarer still are they criminally convicted. The trial lawyers defending Plains talked about a company started “by two men named Greg and Harry.” Greg and Harry will not be registered felons, but the corporation Greg and Harry started will wear felon jackets. That, I suspect, will make it unique among all pipeline companies in the world. Certainly, it will make Plains more exposed to the class-action lawsuits swirling out there in the legal vapors over Greg and Harry’s pipeline rupture. If last week’s verdict stands, Plains could be on the hook for $1.5 million in fines. That pales in comparison to what the company could be forced pay in civil damages. It might even exceed the $87 million to which Greg (Armstrong, by the way) is entitled should he be terminated for any reason.
Let it be acknowledged the trial was excruciating. The jurors should receive special hardship pay. Phrases like “geometric magnetic anomaly” were frequently used where the word “dent” would have sufficed. Judge Jim Herman frequently admonished counsel not to put jurors to sleep.
The spill occurred at about 10:55 the morning of May 19, 2015, when a corroded stretch of underground pipe running along the mountain side of the freeway ruptured, creating a “fish mouth” gash eight inches long. The pipe in question was 89 percent eroded. There had been weird fluctuations in pipeline pressure earlier that morning. Alarms had gone off, but alarms had gone unheeded. In fact, later, the alarm system was actually deactivated. Plains workers took too long to shut down the pipeline. When the spill was first detected, Plains officials denied it could be theirs. It would have had to cross the freeway, they argued. Incredibly, they were not aware that a culvert ran under the freeway. As they argued, the oil oozed through the culvert and onto the beach. Worse, federal inspectors testified, the company’s emergency response planning documents do not reflect the existence of this culvert either.
According to federal rules adopted in 2013, Plains was required to notify federal authorities of the spill within 60 minutes of discovery. They waited 89. Bizarrely, Plains attorneys argued — incorrectly, by the way — the real deadline was two hours. They also argued it was just a guideline. They also argued it didn’t really matter because county firefighters had already notified all the proper authorities. In other words, no harm no foul. Kathy Randall, one of the first Plains employees on the scene, had not brought her 1,000-page binder, she testified, so she didn’t know whom to call. County emergency response planner Elsa Arndt urged her to call Clean Seas, the cleanup crew on perpetual stand-by for such disasters. But when Arndt called later to make sure Randall had contacted Clean Seas, she was told Randall had the wrong number. Arndt gave her the right number. Not the sort of testimony that inspires confidence.
Greg and Harry should have known their pipes were so corroded; warning signs were ignored, and important tests weren’t performed. They should have heeded the alarms that had, in fact, activated once the spill occurred, but instead, their employees deactivated them. They should certainly have known the culvert existed (duh!), whom to call if there was a spill, and to call on time.
I don’t know Harry. I don’t know Greg. Maybe they’re nice guys. Maybe the jury found them guilty of only one felony instead of three, eight misdemeanors instead of 35.
My question to Greg and Harry: How guilty do you have to be?