Deal Lets Mobil Oil Keep Hazard Data Secret : Settlement: Pretrial agreement between refinery and Torrance does not give public access to internal documents on safety issues. Legal and environmental activists decry the decision.
At first blush, the agreement by Mobil Oil Corp. to stop using highly toxic hydrofluoric acid at its Torrance refinery appeared to be an expensive and reluctant concession squeezed from the corporate giant by an aggressive city government.
But by avoiding a public trial, Mobil appears to have joined the ranks of an increasing number of American corporations that have concealed the details of public hazard cases by negotiating pretrial settlements.
As a result, the refinery’s neighbors--who say they have been plagued for years by toxic emissions, sooty releases, explosions and fires at the plant--may never know the full extent of safety and environmental problems there.
The agreement, announced last month, settled a public nuisance lawsuit that the city of Torrance filed against the oil giant after a series of accidents, deaths and injuries at the plant raised concerns about the refinery’s safety. One of the most severe accidents, a November, 1987, explosion and fire that injured 10 people, was caused by an overflow of hydrofluoric acid.
The pretrial settlement requires Mobil to phase out or significantly modify its use of hydrofluoric acid over the next seven years and calls for a court-supervised safety adviser to monitor a broad range of safety and environmental issues at the refinery.
However, nowhere in the settlement is the public’s right of access to information about the refinery addressed.
Instead, by avoiding trial, Mobil may be able to prevent the public from seeing thousands of detailed documents and hearing testimony about safety issues involving the refinery that would have become a matter of public record in a courtroom.
Under a protective order signed by both sides, Mobil already has designated as “confidential” more than one-third of the 70,000 pages of documentation it turned over to the city during its 18-month discovery process, according to a lawyer for the city.
Initial requests by reporters to review any of the documents have been rebuffed. A Mobil spokesman last week refused to discuss the issue, saying that the documents “were issued internally and are considered to be proprietary.”
In addition, Torrance officials last week said they plan to decide behind closed doors what company they will recommend to serve as safety adviser.
City officials also acknowledged that, under the agreement, they cannot guarantee that the safety adviser’s reports--which are intended to keep the city informed about what goes on behind the refinery’s gates--will be public record.
The city’s attorneys have said they would like the reports to be public information, but Mobil spokesman Jim Carbonetti said the company believes proprietary information in the reports should be kept private.
Environmental activists say they see the lack of access as part of a trend by American corporations to conceal the details of legal settlements in public hazard cases.
“It’s a terrible deprivation of essential information and, in a time of right to know in the United States, it’s less and less tolerable to people that these quiet court settlements keep the public in the dark,” said Fred Millar of Friends of the Earth, who coordinates the group’s toxics projects.
Legal experts say some companies have used protective orders to keep a lid on their internal documents, while others have insisted on confidentiality agreements that seal the entire court record.
“It’s happening all over America,” said Arthur Bryant, executive director of Trial Lawyers for Public Justice, a national public interest law firm that specializes in precedent-setting damage and trial litigation.
During congressional testimony earlier this year, Bryant said companies often require plaintiffs to sign confidentiality agreements before they will settle a suit. Such agreements allowed product defects such as the exploding gas tanks in Ford Pintos, or the failing parts of Pfizer heart valves to go unregulated for too long, he said.
“Corporate actors are insisting on secrecy to settle litigation and, unless their opponents are truly principled and simply won’t do it regardless of the cost it may cause them to bear, the parties resolve their differences but the public ends up getting screwed.”
City officials and their attorneys say they would like to be completely open with information in the Mobil case but insist that they cannot.
“In hindsight, it’s nice to say that we wish we’d been a little more forceful in letting the public know about things, but it didn’t occur to us to do that because it would have come out anyway in trial,” said City Atty. Kenneth L. Nelson.
“My goal was to fix (problems at) Mobil, first and foremost,” he said. “I don’t think that one should go to trial for the sole purpose of exposing something. One goes to trial for the sole purpose of arriving at a solution to a problem.”
Although the protective order reserved the city’s right to challenge Mobil’s request for confidentiality on any document, retired Judge Ralph Nutter, who is Torrance’s outside counsel for the case, said he never did so.
“We never went through that process because we settled it,” he said, noting that the city intended to argue the confidentiality of many documents at trial.
“I do think that some of the documents that they marked as confidential were stamped (that way) in an excess of caution, shall we say.” But to oppose the confidentiality, he said, “we could have ended up with 70,000 court hearings on 70,000 documents, and that would have bankrupted the city. We were trying to be practical.”
Nelson bristled at the suggestion that public access was diminished by the settlement.
“We resolved a really serious problem, and in a cost-effective manner, which is something lawyers don’t often do,” the city attorney said. “Now you’re making it sound like I conspired to shut the public out of the process and that just isn’t true.”
City Council members said public access was not an issue at all during legal negotiations.
Concerned about the secrecy trend, the trial lawyers association a year ago started Project Access to educate attorneys and judges about the problems confidentiality agreements can cause and to fight such agreements in high-profile cases, including the Exxon Valdez oil spill.
A judge eventually ruled that most of the documents in that case will be available for public review, Bryant said, but left open the possibility that access could be shut off later.
Several states, including Virginia, Florida and Texas, already have adopted legislation that limits a court’s ability to grant secrecy agreements.
In California, state Sen. Bill Lockyer (D-Hayward) is preparing legislation that would prohibit privacy agreements for civil suits involving public hazards and that would keep open the terms of monetary settlements as well.
In July, the San Diego Superior Court adopted a new rule that judges should study secrecy agreements and protective orders carefully and approve only those in which a “genuine trade secret or privilege (is) to be protected.”
Bryant said such legislation and rulings are essential moves in the right direction.
“Companies are forever insisting that their products are safe and that lawsuits against them are frivolous,” he said. “As long as they can keep things secret there is no way for the public to know whether they’re telling the truth or lying.”
