Sunday, July 27, 2008

10 Things I Wish I Knew About the Law When I Was an Engineer

The list below contains the top ten things Mr. Sowell wishes he had known about the law when he was practicing engineering in the U.S. Each of these items will be expanded and given a separate blog entry.

1. Process Safety and the workplace, OSHA, and the Clean Air Act

2. Trade secrets are important – competitive advantage – and how to protect them

3. Why a process patent is almost useless

4. Why a trademark is important

5. Copyright violations that get engineers into trouble

6. What an expert witness should and should not do

7. Constitutional rights in the workplace – Free Speech, Free Exercise of Religion, language codes, does privacy at work exist? Information privacy

8. Environmental regulations, whistle-blower issues, and environmental fines

9. What engineers can take with them to their next job – in their head

10. Conducting engineering business to avoid litigation, or at least minimize it

For more information, or to contact Mr. Sowell on a legal matter, please see his website at

Tuesday, July 15, 2008

Speech to AIChE in Houston TX Sept 4 2008

Roger Sowell presented the keynote address at the September 4, 2008 dinner meeting of the South Texas Section of American Institute of Chemical Engineers (AIChE) in Houston, Texas. The meeting was in the Aramco Services building on Loop 610.


Legal Aspects of the March 23, 2005 Explosion at BP's Texas City Refinery
by Roger E. Sowell, Esq.

The deadly explosion and fire of March 23, 2005 killed 15 and injured 170 others. This explosion has reportedly cost BP more than $2.1 billion in legal settlements. Additional millions will be or have been spent to repair the damaged refinery units.

The explosion was caused by a series of errors while starting up a distillation tower at the C5/C6 Isomerization Unit following a scheduled shutdown for maintenance. The presentation briefly reviews the events of the startup, and other factors that contributed to the deaths and injuries.

Next, the legal setting at this refinery is outlined, including some of the legal theories of liability. These include criminal violations of the Clean Air Act, the torts of negligence and wrongful death, engineering professional malpractice, and violations of other regulations.

The presentation then discusses important actions taken by Federal agencies as a result of this explosion, and that impact refineries. The agencies include the Chemical Safety Board, OSHA, and the U.S. Department of Justice.

To conclude, several do's and don'ts are given. Designers and operators of refineries and chemical plants should be aware of these, to enhance process safety.

(Most information presented is taken from public domain sources. Any copyrighted material is used under a fair use exemption to the copyright laws).

Post-presentation update: The South Texas Section meeting of AIChE included approximately 100 people, ranging from retired engineers to those just out of college. I was particularly pleased to have classmates, family, and many friends in the audience.

The audience was very knowledgeable about the explosion, as might be expected in Houston very near the refinery in Texas City. The questions during and after the speech were excellent. This topic, legal aspects of refinery explosions, continues to generate keen interest among the engineering and legal communities.

Houston is Mr. Sowell's hometown, where he grew up and started his engineering career.

He is a California attorney and represents oil refining companies, among other clients. For more information on the legal services Mr. Sowell provides to clients, or to have Mr. Sowell speak on energy and legal topics to your organization, see his website at

Thursday, July 10, 2008

Valero Sunray Refinery Explosion 2007

The Chemical Safety and Hazard Investigation Board, CSB, released yesterday their findings on the causes of the explosion and fire at Valero's oil refinery in Sunray, Texas that occurred in February, 2007. They concluded that the cold weather caused accumulated water to freeze and split a pipe elbow. The split allowed high pressure propane to escape when the ice thawed, which then ignited. Sunray is in the far north of the Texas Panhandle, where the temperature drops below freezing for many weeks every winter.

The pipe elbow was isolated from other piping by block valves, and had no flow through that elbow. However, one of the valves leaked, allowing propane and water to enter the elbow. The accumulated water, being much heavier than propane, settled to the bottom of the elbow and eventually froze. The photo on the CSB website shows the elbow connects a horizontal run of pipe with a vertical run of pipe above. Thus, liquid leaking from a valve in the vertical run, above the elbow, would run down by gravity into the elbow and settle near the nearly-horizontal portion of the elbow.

The CSB report criticizes Valero for not recognizing that this isolated elbow was a dead-leg, or segment of pipe with no flow.

However, it should be pointed out that this refinery regularly experiences freezing weather, and has done so for many decades. The refinery personnel are aware of the hazards from freezing weather, especially the formation of ice. They have successfully managed many winters without splitting pipes that caused a fire. In this instance, though, they overlooked a potential hazard.

Existing standards in the industry require a double-block and bleed system, or a blind flange to prevent leakage. The double-block and bleed uses two block valves in series, with a small spool piece of pipe in between. The spool piece has a drain valve, or bleed valve, open to the atmosphere. Any leakage from either block valve will drain into the spool piece, and run out through the bleed valve. This design is not suitable for propane systems because propane vaporizes into the atmosphere and is highly flammable and explosive. The double-block and bleed design is more suited to heavier hydrocarbons.

The blind flange would have been appropriate. In this design, the piping must be isolated, drained, purged, then the elbow removed. Two blind flanges are installed on the ends of the piping that had connected to the elbow. This provides a positive seal and ensures that no material leaks.

Freezing water is not the only potential hazard that can split piping. Engineers are aware that many liquids can expand due to an increase in temperature. The thermal expansion is an extremely strong force and can easily split pipes or leak at flanges. Therefore, operators take special care to ensure that such liquids are not blocked in without a pressure relief device.

For more information on Mr. Sowell and his law practice, please see

Tuesday, July 8, 2008

Refinery Expert Witness

It is vitally important that an attorney understand an expert witness. As stated in an earlier post on this blog, an attorney who fails to meet his obligation with respect to an expert witness is liable for malpractice in California. Expert witnesses may testify for the plaintiff or the defense. In either event, the party who hired the expert gets to ask the expert questions on direct examination, and ask the opponent's expert questions on cross-examination.

Mr. Sowell had an opportunity as an engineer to interact with a very senior engineer who was truly an expert in refining. The man was a genius, a registered professional engineer, and knew virtually everything about each refinery unit's design, chemical reactions, catalysts, process conditions, process control, startup, shutdown, optimization, simulation and data analysis, the list seemed endless. There was truly no end to the man's knowledge. His experience spanned more than 40 years.

The only problem was that he was so brilliant, most people could not understand him. As is fairly common with geniuses, he had a tendency to only verbalize the high points, and skipped over the mundane points. Mr. Sowell was assigned to work with the genius, and try to decipher what he said and wrote. There was some urgency, because if the genius left the company, his knowledge would depart, too.

After getting over his awe and feelings of inadequacy, Mr. Sowell learned how to draw the genius out and get good explanations for what he was trying to communicate. Everyone was pleased, and from then on Mr. Sowell was assigned as the interpreter for the genius.

This successful experience in dealing with a difficult expert serves Mr. Sowell well in his law practice. With that, and his own experience gained in 20 years of working in refineries with all manner of engineers and technicians, Mr. Sowell knows how refineries and chemical plants are designed and operate. He also knows what questions to ask when an expert witness is brought in. Mr. Sowell also can detect wrong answers, and inconsistent testimonies.

For more information on how Mr. Sowell can assist other counsel when dealing with expert witnesses, please see his website at, and the tab For Attorneys.

Trade Secrets and Refineries

Disclaimer: the facts of this incident are somewhat modified to protect the companies and the trade secrets. They are based on an actual incident.

A chemical company had difficulty meeting the required separation of a solids-liquid mixture when using separation equipment that had been specified and installed in the plant. The problem was a common one in separations of liquids and solids, that is, too much liquid remained in the solids. The solids were a waste product, but the liquid was valuable. If the liquid in the reject solids could be reduced, less would be wasted and more product would be sold. A high-priority project to study the problem and modify the equipment was successful.

Following the equipment modifications, several new engineers were hired. As part of their orientation to the plant, they were given a thorough tour of each operating area and an explanation of each part of the process. The modifications to the separation equipment were described, along with the problem that the modifications solved. However, no one mentioned to the new engineers that this problem was common among all such plants, and that the solution was to be kept a secret. The new engineers were told that this solution increased the plant's profits.

The new engineers went to an industry convention and were drawn into a conversation with engineers from a competitor. The competitor managed to learn what the new engineers knew about the separation equipment, and what parameters were changed to obtain the desired performance.

A few days later, one of the senior engineers learned what one of the new engineers had said. He chastised the new engineers for giving away a competitive advantage.

There were no grounds for a trade secret lawsuit, because the technical information had not been properly protected. No one had told the new engineers this information was secret, nor that it could assist a competitor. The new engineers were right out of university and had no industry experience.

The lessons to be taken from this true incident include:

1) Recognize what could be a competitive advantage,

2) Take the necessary steps to protect the information, either as trade secret or possibly a patent,

3) Communicate with all employees that this information is important, perhaps vital, to your company, and it is not to be disclosed outside the company. This should be done in writing.

Many companies do not believe they have anything that could possibly be a trade secret, or information that could be used to a competitor's advantage. Even in process plants that have been running for decades, like refineries in the U.S., this is just not true. Situations similar to the one described above occur often, and should be protected. Often it is the case that process improvements, especially in process control, may deserve trade secret protection.

When employees change companies and go to work for a competitor, the information they take with them could be used by the competitor to their advantage. Trade secret protection can prevent this.

Mr. Sowell is particularly well-suited to provide legal advice in this area, with his training in trade secret law, background in chemical engineering, and 20 years experience in refineries and other process plants. For more information, please see his website at

New Refinery Cancelled

Shell today announced it will no longer design and build a new refinery that was to be sited in Ontario, Canada near its existing refinery in Sarnia.

The company stated that uncertainty as to the product market, and escalating construction costs figured heavily in their decision not to proceed.

Recent decreases in demand for gasoline, diesel, and jet fuel, compared to year-ago demand, may have had an impact. In the United States, the weekly petroleum inventory report from Energy Information Agency, EIA, shows a significant decline in petroleum demand for the past several weeks. This is largely due to the unprecedented high prices for petroleum products. Product demand has declined by approximately two percent, when in previous years the demand has increased by one to two percent.

It remains to be seen if this is a temporary drop in demand, or if U.S. consumers have changed their habits for the long term. Domestic factors that support a decrease in petroleum demand include poor sales of gas-guzzling vehicles such as SUVs and pickups, robust sales of small cars and especially hybrid vehicles, and an increase in ridership on mass transit systems. Also, U.S. airlines are cutting their fleets and grounding airplanes. The sale of subsidized ethanol may also contribute to the decrease in petroleum product demand. Certainly, the recent increase in the CAFE standards to 35 miles per gallon by 2020 will decrease demand.

Contrary factors that will increase demand include the ever-growing population, sprawling suburbs that increase commuting distances, and an increasing economy, although it is increasing slowly at this time.

Beyond the U.S. borders, other factors are at work. First, sales of the Tata Motors car in India are reported to be brisk. This will increase global demand for refined products. Second, a very large refinery is being commissioned in India near Mombai, owned by Reliance Industries. At 580,000 barrels per day, it is one of the largest refineries in the world. It is due on-line in September 2008. The Reliance Industries refinery will export products initially, until domestic demand in India absorbs the output.

It is likely that the end of the U.S. summer driving season, and the export of petroleum products from India will combine to reduce gasoline prices.

Mr. Sowell is an attorney who represents refining companies and other operating companies in the process industries. Mr. Sowell holds a B.S. in chemical engineering and worked for more than 20 years in refineries and other process plants world-wide. His website is

Wednesday, June 18, 2008

Observations on the Refining Industry

The conversations at the Southern California Section of AIChE meeting on June 17, 2008 were very interesting. One of the most discussed topics was the high price of gasoline and the direction in which the refining industry is heading. The average price of unleaded regular gasoline in the Los Angeles area is $4.65 at this time.

I believe it is crucial to note that, first, gasoline demand is decreasing in the U.S., second, the price of crude oil is much higher than supply and demand would indicate it should be, and third, a new energy technology is looming on the horizon. I will explain each of these.

First, the U.S. Energy Information Agency, EIA, publishes each week on Wednesday a summary of the previous week's petroleum activity. One of the items tracked by EIA is the rolling four-week demand for gasoline. The gasoline demand is compared to the same period from one year ago.

For the past few weeks, the current demand is somewhat less than the year-ago demand. This is significant, because in the past the current demand has increased by a few percent. The four-week average reported today (June 18, 2008) was 1.9 percent below that of a year ago. This indicates that American drivers are taking action to decrease gasoline usage, even though the population continues to grow. I expect this trend to continue, as Americans purchase more fuel-efficient cars such as hybrids, plug-in hybrids, and pure electric vehicles. It is instructive to note that several auto manufacturers are closing plants that make vehicles with low miles per gallon, such as pickup trucks and SUVs. At the same time, the sale of hybrids is booming. Plug-in hybrids will also zoom off the showroom lots when they are available, probably in 2009.

Second, the high price of crude oil. Today's price was $136 per barrel for light sweet crude oil. Oil producers are either not able, or not willing, to meet the world demand, and the difference is made up by drawing down stored oil inventories. This is not much on a percentage basis, but it is nonetheless significant. However, in light of the first point, and especially the third point to follow, this makes a lot of sense. Basic economics predicts that prices rise during a shortage, whether actual or perceived. This is happening with crude oil.

Third, there is an incredible new energy technology that is looming. What went virtually un-noticed four years ago was a breakthrough in basic research by scientists at Imperial College London. As reported here in the journal Science, these researchers found the precise atomic structure of the protein in plants that splits water into hydrogen and oxygen during photosynthesis. The structure is a cube with an appendage at one corner. This discovery will allow, after a period of more research and development, the production of vast quantities of hydrogen from sunlight and water, at ambient temperature and pressure. The only question, I believe, is how long it will be from laboratory discovery to commercialization.

The availability of virtually free hydrogen as a fuel source, and within the next 15 years or so, has serious implications for oil-rich countries around the world. The demand for oil will be reduced by a factor of approximately four or five. Thus, if total world oil demand remains as it is today at roughly 80 million barrels per day, I predict that the demand will drop to 16 to 20 million barrels per day. The crude oil will be used primarily to make petrochemical feedstocks, lubricating oils, and asphalts.

The implications are huge for oil refineries, power plants, automobile manufacturers, those in the oil exploration, development, and production industry, and even the natural gas industry. There will no longer be a need for power plants that burn coal, natural gas, and especially nuclear power. Instead, clean-burning hydrogen will be burned in electric power plants. And, if done properly, the water vapor that is produced can be condensed, collected, and recycled to the solar-powered synthetic photosynthesis plants that produce the hydrogen.

Given all the above, it is little wonder that oil-rich nations are pressing to keep the price of oil as high as possible. Their days in the sun, so to speak, are coming to an end.

Roger Sowell is an attorney who represents and defends oil and petrochemical companies. His website is

Wednesday, June 4, 2008


RAGAGEP is defined as: Recognized and Generally Accepted Good Engineering Practice.

RAGAGEP are "engineering, operation, or maintenance activities based on established codes, standards, published technical reports or recommended practices (RP) or a similar document." They "detail generally approved ways to perform specific engineering, inspection or mechanical integrity activities such as fabricating a vessel, inspecting a storage tank, or servicing a relief valve." (source: OSHA NEP for refineries, 2007)

Sources of RAGAGEP are many. Examples are the API Standards (American Petroleum Institute), ASME Code, CCPS (AIChE's Center for Chemical Process Safety), OSHA, NEC (National Electric Code), NFPA (National Fire Protection Association), and other engineering disciplines such as ASCE (American Society of Civil Engineers).

The intent of RAGAGEP is to ensure that process plants, manufacturing plants, structures, civil works, electrical works, and other things designed and built are as safe as possible. This extends to ongoing repairs and maintenance, alterations and changes, inspection and testing.

Disclaimer: The information above is not intended to be, nor is it, legal advice. The content above is for informational purposes only. For legal advice, please contact a qualified attorney.

For more information, please see Mr. Sowell's website at

Engineer Liability

Under California Code of Civil Procedure 337.1, and 337.15, an engineer's liability for his or her "design, specifications, surveying, planning, supervision or observation of construction or construction of an improvement to real property" is divided into two categories: patent deficiencies and latent deficiencies.

A Patent deficiency is a deficiency that is apparent by reasonable inspection. In California, a plaintiff has four years from the substantial completion of the project to bring an action for patent deficiencies. California Code of Civil Procedure 337.1.

A Latent deficiency is a deficiency that is not apparent by reasonable inspection. Under California law, a plaintiff has ten years from the substantial completion of the project to bring an action for latent deficiencies. California Code of Civil Procedure 337.15.

These statutes may seem clear, however, disputes arise and have been settled in the courts over the exact meanings of "deficiency," "inspection," what is "reasonable inspection," and when "substantial completion" occurs. An attorney knowledgeable in engineering law can evaluate a particular situation and provide advice. There may also be issues that extend the four-year and ten-year terms above.

Disclaimer: Nothing contained on this blog is to be construed as legal advice. Instead, the content of this blog is for general information purposes, and may or may not fit a particular situation. For specific legal advice pertaining to a particular situation, please contact a qualified attorney.

Please see Mr. Sowell's website for more information:

Mr. Roger Sowell is the attorney responsible for the content of this blog.

Speech to AIChE - Southern California June 17, 2008

Mr. Sowell was the speaker at the June 17, 2008 dinner meeting of the Southern California Section of American Institute of Chemical Engineers (AIChE) in Montebello, California. Presentation slides and a transcript will be posted on this blog afterward.


Legal Aspects of the March 23, 2005 Explosion at BP's Texas City Refinery
by Roger E. Sowell, Esq.

The deadly explosion of March 23, 2005 killed 15 and injured 170 others. This explosion has reportedly cost BP more than $2.1 billion in legal settlements. Additional millions will be or have been spent to repair the damaged refinery units.

The explosion was caused by a series of errors while starting up a distillation tower at the C5/C6 Isomerization Unit following a scheduled shutdown for maintenance. The presentation reviews the events of the startup, and other factors that contributed to the deaths and injuries.

Next, the legal setting at this refinery is outlined, including several legal theories of liability. These include the torts of negligence and wrongful death, violations of Texas and Federal environmental laws, and criminal violations of the Clean Air Act. The important differences in Texas laws and California are presented.

Next, the presentation covers important actions taken by Federal agencies as a result of this explosion, and that affect refineries.

To conclude, several do's and don'ts are given. Designers and operators of refineries and chemical plants should be aware of these, to enhance process safety.

(Most information presented is taken from public domain sources. Any copyrighted material is used under a fair use exemption to the copyright laws. )

Post-speech comments by Mr. Sowell:

I was delighted to speak at the AIChE meeting in Montebello. The audience was wonderful! They were very attentive for the entire one hour of the presentation, and asked excellent questions afterward for almost forty-five minutes.

The topic of criminal liability under the Clean Air Act is of great interest not only to engineers, but also to attorneys such as myself who are involved with oil refineries and petrochemical plants. This is a new development in the law, as the prosecution of BP under Section 112 of the Clean Air Act is the first such criminal prosecution. This case should serve as a clear signal to all those in the petroleum industry.

I have made presentations throughout my 30-year career both as an engineer and an attorney, in such far-flung places as Beijing, China, to Gelsenkirchen, Germany, and closer to home in Ponca City, Oklahoma.

In Beijing, I was on Chinese national television as a consulting engineer for their oil refineries. My presentation in Gelsenkirchen was to an audience of PhDs in chemistry and chemical engineering, each of whom had deep experience in ethylene production from steam cracking of naphtha and distillates. In Ponca City, the large audience was comprised of refining process engineers, unit superintendents, and upper management from the U.S. refineries of a major integrated oil company.

see Mr. Sowell's website at

Sunday, April 6, 2008

Attorney and Expert Witnesses

From California's Fourth District Court of Appeal, a 2005 case laid out the requirement that an attorney must understand the substantive details of an expert's testimony, and the field of the expert's expertise. The attorney must also educate the expert as to the governing legal principles and elements that each party to the lawsuit must prove in order to prevail. To not do these makes the attorney liable for a malpractice lawsuit from his client.

This case involved a suit by the estate (family) of a man killed at work by a forklift. The expert was called by plaintiff's attorney to show the forklift was defective, that it was designed improperly. However, at his deposition, the expert did not mention to what standard the forklift was designed. Later, in a declaration opposing defendant's Motion for Summary Judgment, the expert wrote that the forklift was was not designed to a safety standard from the Society of Automotive Engineers, SAE. The inconsistency between the deposition and later declaration was fatal to the plaintiff's case.

Plaintiff sued his attorney for malpractice. As to the duty of the attorney to his client where an expert witness is called, the court said the following.

Forensis Group, Inc. v. Frantz, Townsend & Foldenauer (2005), 130 Cal.App.4th 14

p. 34, “In the California Expert Witness Guide (Cont.Ed.Bar 2d ed. 2005) ("CEB treatise"), section 8.28, page 290, the authors outline the duty of an attorney who hires an expert witness, that is, to "make sure that the expert, particularly the inexperienced expert, understands the governing legal principles and elements that each party to the litigation must prove in order to prevail." The authors continue:

"An expert is not a mechanical toy that can simply be wound up and turned loose. Regardless of the expert's skill, it is the lawyer's responsibility to make sure that his or her expertise is presented to the trier of fact in an admissible and persuasive way. To accomplish this task, the lawyer needs to understand the substantive details of the expert's testimony and field of expertise." (CEB treatise, supra , § 8.29, p. 291.)

The authors of the CEB treatise recommend that counsel who hires an expert ask many questions in order to ensure that the expert's testimony is presented in a form that can be understood by the trial judge and jury. (CEB treatise, supra , § 8.30, p. 292.) The attorney is also required to ensure that an expert's declaration offered in support of or in opposition to a summary judgment makes an adequate showing concerning the expert's qualifications and expertise, as would be required if the expert were testifying at trial. ( Id. at § 16.2, pp. 596-597. . .”

Mr. Sowell is an attorney with more than 20 years world-wide experience in the process industries, including refineries, chemical plants, and petrochemical plants. Mr. Sowell interacts easily with technical experts, engineers as lay witnesses, and technicians involved in legal matters. For more information, please see his website at

Sunday, March 16, 2008

OSHA Increases Refinery Inspections

OSHA is stepping up their inspections of the oil refineries in the U.S.

Click here for a link to testimony from May, 2007, presented by Richard Fairfax, OSHA's Director of Enforcement Programs.

OSHA is conducting more detailed inspections of oil refineries under their NEP plan, before the end of 2008.

Fairfax stated, "The refinery industry is a major focus for this agency. Last year, OSHA and its state partners conducted 98 inspections in refineries. Comprehensive refinery inspections are complex and lengthy, often taking hundreds and, in some cases thousands, of hours of inspector time for OSHA's multi-member inspection teams to complete."

He added, "When OSHA encounters a company that repeatedly ignores its legal obligations and places workers at risk, the agency employs its Enhanced Enforcement Program (EEP). This program targets employers, such as BP Products, with serious violations related to a worker fatality or multiple, willful or repeated violations of the law. Since the EEP was launched in FY 2004, OSHA has identified 1844 establishments meeting the criteria defined by the EEP. These establishments were targeted for additional enforcement action. For these employers, OSHA schedules enhanced follow-up inspections, negotiates comprehensive settlement provisions to protect the site's workforce and may conduct inspections of other workplaces of the same employer, as well."

Also, "As a result of the Texas City accident (At BP's refinery in 2005), OSHA began evaluating its data on fatalities and catastrophes and determined that refineries experienced more of these problems than the next three industry sectors combined. Accordingly, OSHA is preparing to launch a National Emphasis Program (NEP) for petroleum refineries focusing on the PSM standard. NEPs target establishments or industries based upon hazardous conditions such as employee exposures to trench cave-ins, lead exposure, or hazards of amputations. The NEP will use a new inspection strategy that we believe will yield more effective results than the current approach to enforcing PSM. OSHA's compliance officers will enter each facility with a list of items on which they will focus their attention during the visit. These items will represent the conditions most likely to be significant hazards to workers in the facility. Before the end of 2008, our agency will conduct enforcement inspections at all 81 refineries under federal jurisdiction. In addition, OSHA will encourage its state partners to implement our NEP or create their own emphasis program.After the 81 refinery NEP inspections have been completed, OSHA will continue to address low-probability/high consequence events in refineries and high risk chemical operations."

For more information on the legal aspects of oil refineries and chemical plants, visit my website at


Welcome to Roger Sowell's blog on engineering law.

This blog will have articles, news items, and my commentary on legal issues for engineers, refineries and other process plants, and the myriad of laws that affect them.

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