17 Corporate Crime Reporter 28(1), July 14, 2003

MOTIVA PLEADS NO CONTEST TO HOMICIDE, ASSAULT CHARGES

In a state courtroom in Wilmington, Delaware last week, attorneys for Motiva Enterprises appeared before Judge Peggy Ableman and entered a plea of no contest to one felony count of criminally negligent homicide and six misdemeanor counts of assault in the third degree.

The charges arose out of a July, 2001 explosion and fire at the company's Delaware City facility that resulted in the death of boilermaker Jeffrey Davis and injuries to six other workers -- Kenneth Creamer, John Beaver, Christopher Greenwell, Shemika Speight, Robert Favazza and Steven Spera.

Motiva is a joint venture company between Saudi Aramco and Royal Dutch Shell.

Right before sentencing, Mary Davis, the wife of the killed boilermaker, delivered a letter calling on the judge to reject the no contest plea, and condemning the failure of the state's Attorney General to prosecute Motiva for manslaughter and to charge any individual "for my husband's senseless and needless death."

Mary Davis also called on the company to "admit guilt and accept responsibility."

"Your Honor, my husband was a good man and a wonderful father," Mary Davis wrote. "We were married for thirty years. He raised our five children to strive for the highest standards of integrity and values. He had only begun the job of raising our youngest son, Jack, now age 12. He went to the Motiva refinery on July 17, 2001, to do an honest day's work for Motiva. The horrifying fire and explosion caused by a tank known to be emitting highly flammable hydrogen gas left him incinerated and destroyed. We were not even left with his body to bury. Motiva destroyed our hopes, our dreams and our future. We beg that you not be a part of this insult to Jeff's memory. There are certain times when it is more important to do the right thing than the easy thing. Jeff and I have tried to teach our children this lesson. We hope that Your Honor will do the same."

But Judge Ableman accepted the no contest plea from Motiva's President, John F. Boles.

"We are truly sorry and we profoundly apologize for what has happened," Boles said. "There is nothing we can do to bring Mr. Davis back, nor can we ease the suffering of the injured and their families."

Judge Ableman sentenced Motiva to a fine of $11,500 on the homicide charge and $5,750 for each of the assault charges for a total of $46,000 -- the maximums allowed under Delaware state law.

She also ordered the company to pay a compensating fine of $100,000 for the death and $25,000 for each assault count. The fines will be paid to the state's crime victim compensation fund.

The state legislature, in response to publicity about the case, passed a new law last month allowing a judge to impose any fine he or she wishes -- without limit.

"Money can provide little compensation to the family of Jeff Davis, who died in the explosion, or those who suffered painful and continuing injuries, but I hope this prosecution serves to impress on those who do not take care with their business. conduct that there are consequences in the justice system," said Attorney General M. Jane Brady.

"This plea culminates an intensive and complex investigation of nearly two years, during which we relied on federal and state investigators and reports, expert findings, and a careful review of the law," Brady said.

"Many factual and legal issues were considered in arriving at the decision to charge the company, not individuals, and what charges to bring. Most businesses are honest and conduct their operations lawfully, and when government intervention is necessary, it is through the regulation of their operations that corrections are made."

"While the State of Delaware has repeatedly attempted to use regulation and civil penalties to force Motiva to correct its business operations, adjust its impact on the environment and to assure the integrity of the refinery's mechanical systems, it became clear in this investigation that the company did not take their responsibilities to the plant workers or the community seriously, and disregarded the potential consequences of their decision-making," Brady said

"Unfortunately, the penalty the victims paid for Motiva's conduct is far more serious than that Motiva faces today."

Peter Letang, the deputy attorney general who prosecuted the case, defended the state's decision not to charge individuals.

"There was a systemic economic operation here," Letang told Corporate Crime Reporter "To correct the problem, you had to shut the process down. To shut the process down, it would cost a lot of money. During the last quarter, Shell Oil, one of the owners of Motiva, brought in $4.2 billion. And this plant is putting out a lot of fuel."

"The management that was at the plant at the time had been put in place about a year before the explosion," Letang said. "They were beginning to address these issues, but they were nowhere near putting enough money or attention to this. To even a lay person, you don't put hundreds of thousands of gallons of spent sulfuric acid into a corroded tank. You just don't do that. They did, but it was not at anybody's direction. If anybody should have been indicted, it was probably somebody who made policy up in Houston, where the company is based." (See Interview, page 12)