Feds Won't Appeal Dismissal of Criminal Charges Against PA Employer

The federal government says it won't appeal a judge's dismissal of criminal charges against an employer who lost five employees in an explosion.

Word has come down from the assistant attorney general in Philadelphia that the federal government will not appeal the decision of U.S. District Judge R. Barclay Surrick to dismiss a criminal case against Irl E. Ward.

Ward is the president of Concept Sciences Inc. (CSI), a chemical plant near Allentown, Pa., where five men lost their lives in an explosion on Feb. 19, 1999. A 12-count criminal indictment was issued against Ward, with the federal government claiming that the deaths could have been avoided if he had followed Occupational Safety and Health Administration (OSHA) standards.

"Based upon a careful review of the judge''s decision, the applicable facts and law and the potential for success on appeal, we made a decision not to appeal," Assistant U.S. Attorney Seth Weber said late last week in Philadelphia.

Judge Surrick''s decision was handed down on Sept. 5, but the district attorney''s office had until Oct. 12 to file an appeal.

According to the federal government''s indictment, Ward repeatedly ignored safety warnings from both inside and outside his company. According to the indictment, he scrawled "BALONEY!" on a report by Ashland Chemical Co. that expressed "serious safety concerns" about CSI''s chemical process.

The judge was not moved by the government''s charges. In his 48-page ruling, Surrick found the OSHA regulations as they pertained to Ward''s business to be too ambiguous. The judge ruled that Ward could not have knowingly violated rules that were "confusing, misleading and ambiguous."

Ward and CSI are not out of hot water yet. OSHA still has fines pending against the company for nine serious and 11 willful violations carrying potential penalties of $641,200. The company appealed the fines, and is in negotiations with OSHA to reach a settlement.

In addition, some 25 civil suits against the company have been filed in two Pennsylvania counties and CSI is in negotiations with the Pennsylvania Department of Environmental Protection to settle a $600,000 cleanup bill.

On the night of the explosion, Concept Sciences employees were involved in the company''s first production run of hydroxylamine, a chemical additive used to produce other chemicals for the microprocessor industry. OSHA''s inspection revealed that the explosion occurred at a 2,500-gallon fiberglass reinforced charge tank containing approximately 750 pounds of the hazardous chemical. The tank was being used in the distillation process. Pure hydroxylamine has explosive energy roughly equivalent to that of TNT. The building was completely destroyed by the explosion and has since been demolished.

Back in August 1999, when OSHA issued its citations, then-Secretary of Labor Alexis Herman even weighed in, saying, "This is precisely why OSHA established standards to prevent catastrophic incidents involving hazardous chemicals. CSI management was clearly aware of the requirements of those standards, but failed to take adequate safety measures prior to producing a chemical known throughout the industry as potentially explosive."

OSHA cited the company for violations related to failure to compile process safety information; inadequate process hazard analysis and operating procedures; failure to train employees on operating procedures and the physical hazards of chemicals; lack of a pre-startup safety review; process equipment deficiencies; and failure to develop mechanical integrity procedures. OSHA also cited the company for the lack of employee participation in a PSM program, failure to adopt safer work practices, having no injury and illness logs for contract employees, offering inadequate mechanical maintenance training, having deficiencies in chemical hazard evaluation procedures, and having improper labeling of chemical containers.

The indictment against CSI was the first time federal charges were filed in eastern Pennsylvania for deaths arising from an explosion under federal workplace safety laws.

by Sandy Smith

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