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The McWane Prosecutions

A summary of the legal actions taken against McWane, its plants and its employees.

Federal and state agencies have levied fines and brought charges against McWane foundries across the country for a wide range of environmental and worker-safety violations. The vast majority of the citations and charges have been issued against six McWane foundries. McWane points out that other foundries and factories, including its Clow Valve foundry in Iowa and its Manchester Tank and Equipment facility in Petersburg, Va., have been recognized as maintaining "exemplary occupational safety and health" standards, according to the Occupational Safety and Health Administration (OSHA).

The six McWane operations that have been the focus of government action are Atlantic States Cast Iron Pipe, Tyler Pipe, Pacific States Cast Iron Pipe, Union Foundry, McWane Cast Iron Pipe and Kennedy Valve. The violations, primarily of OSHA and Environmental Protection Agency (EPA) regulations, have led to both civil penalties and criminal convictions. State agencies have also levied civil fines, and in at least one case, in New York, there have been state criminal prosecutions.

Atlantic States Cast Iron Pipe, Phillipsburg, N.J.

On March 24, 2000, Alfred E. Coxe, 47, was killed when he was struck by a forklift at McWane's Atlantic States facility in Phillipsburg, N.J. OSHA initially levied civil fines of $28,000, but the incident later became part of a far-reaching criminal investigation by the Department of Justice. By December 2003, a federal grand jury had returned a 35-count indictment against Atlantic States and five of its managers.

The defendants faced a host of allegations, including conspiring to cover up the circumstances of Coxe's death. The indictments and subsequent trial resulted in convictions for violations of environmental laws, as well as making false statements to the government during investigations of burns and amputations, and creating an "atmosphere of fear, intimidation and retaliation" against employees as part of a broad conspiracy to violate various federal laws.

McWane and several of its managers at Atlantic States were also accused of violating the Clean Air Act and the Clean Water Act, and of obstructing OSHA. Because the defendants were each charged with several crimes, the jury eventually found the group guilty on 70 counts, including 52 felonies. Only one defendant, Atlantic States' engineering manager Daniel Yadzinski, was acquitted. Sentencing is scheduled for April 2008.

Tyler Pipe, Tyler, Texas

On June 29, 2000, Rolan Hoskin, 48, was alone doing routine maintenance on an unguarded conveyor belt. Hoskin was crushed to death when he became caught in the machine. In 2002, Tyler Pipe pleaded guilty to a misdemeanor: willfully violating safety rules that led to Hoskin's death. The company paid $1.25 million in civil and criminal penalties. No one was sent to jail.

In March 2005, federal prosecutors charged Tyler Pipe with two felony counts: concealing a material fact from the EPA and knowingly violating the Clean Air Act. The company pleaded guilty to both charges, and was ordered to pay a fine of $4.5 million and serve five years probation.

Pacific States Cast Iron Pipe, South Provo, Utah

In November 2005, a federal grand jury in Utah indicted McWane's Pacific States plant on six charges including conspiracy, violating the Clean Air Act and making false statements to government regulators. As part of a deal with prosecutors, McWane pleaded guilty on two counts and was ordered to pay a fine of $3 million and serve three years probation.

Two company executives were also charged in the case. Charles "Barry" Robison, McWane's vice president of environmental affairs, was initially indicted, but prosecutors agreed to drop charges in Utah so he could stand trial in another McWane case in Alabama. As part of that deal, Robison agreed not to appeal his conviction in the Alabama case. Charles Matlock, Pacific States' vice president and general manager, pleaded guilty to one count of violating the Clean Air Act. He was sentenced to serve one year and one day at a federal prison camp in Englewood, Colo., and to pay a $20,000 fine.

Union Foundry, Anniston, Ala.

On Aug. 22, 2000, Reginald Elston, 27, was caught in an unguarded conveyor belt and crushed to death at McWane's Union Foundry in Anniston, Ala. OSHA initially fined the company $107,700, but in 2005 federal prosecutors brought criminal charges against the plant for causing Elston's death by willfully violating safety rules, a misdemeanor under federal law. The company was also charged with violating the federal Resource Conservation and Recovery Act, an environmental charge unrelated to Elston's death. Union Foundry pleaded guilty to both charges and was fined $4.25 million. They were also ordered to serve three years probation.

McWane Cast Iron Pipe, Brimingham, Ala.

In May 2004, after a joint FBI/Environmental Protection Agency (EPA) investigation at McWane's flagship plant in Birmingham, Ala., federal prosecutors charged the company and four managers and executives in a multi-count indictment. The government accused McWane and these employees of conspiracy, making false statements to investigators and violations of the Clean Water Act.

A jury convicted McWane and three of the individuals on 48 counts. One defendant, plant engineer Donald Bills, was acquitted of the single charge against him. At the sentencing hearing, McWane's chairman, Phillip McWane, who was not charged in the case, read a statement in which he apologized to the community for his company's conduct. "In a way, I was found guilty, also," he said.

The judge in this case ordered McWane to pay the government $5 million and complete a $2.7 million park restoration project, as well as serve five years probation. The individual defendants were given fines and probation.

In 2007, however, the 11th Circuit Court of Appeals reversed the convictions after considering a Supreme Court decision regarding the interpretation of the Clean Water Act. (One defendant, Charles "Barry" Robison, agreed not to appeal his conviction as part of a deal with prosecutors in the Pacific States case.) The appeals court also ordered that McWane be acquitted of one count of making a false statement to the EPA and ordered a new trial on all other charges. Both sides, hoping to avoid a new trial, have asked the appeals court to review the case again. The court is currently considering those requests.

Kennedy Valve, Elmira, N.Y.

On Jan. 13, 1995, Frank J. Wagner, 40, a worker at McWane's Kennedy Valve plant in Elmira, N.Y., was killed when an oven near where he was standing exploded. The oven was being used improperly to incinerate highly flammable paint. Kennedy Valve eventually pleaded guilty to a state hazardous waste felony. The company agreed to pay $500,000 in donations and fines.

In May 2007, the plant pleaded guilty in state court to two felony counts of violating environmental law; New York's attorney general had accused the plant of illegally dumping toxic waste. Kennedy Valve was fined $300,000, the maximum allowed under state law, and McWane was ordered to pay $1.5 million to implement a community project to reduce exposure to lead. A plant engineer, Ronald Wagner, also pleaded guilty to a related crime.

Debarment of McWane, Inc.

In February 2006, the EPA recommended McWane be "debarred," prohibiting the company from doing business with the federal government. In its recommendation, the EPA said McWane had a "dreadful history of environmental and worker safety crimes" and that "no taxpayer dollars should be spent at a company with a history as scandalous as that of McWane."

After examining evidence the company presented of its improved operations, the EPA agreed to a "voluntary exclusion agreement," meaning McWane, along with several plants and employees, was forbidden from doing business with the federal government for a specific period of time.

In order to get the ban lifted, McWane was required to install new environmental tracking systems, make improvements to plant operations and pay for a third-party review of its plants, including a survey of its employees and managers. In 2007, the EPA lifted the exclusion agreement. However, some individual managers who oversaw the violations at McWane are still on the federal exclusions list. The company remains on probation with the EPA until 2009.

New Deaths

Timothy Blow

Timothy Blow had worked at Kennedy Valve for less than a year when, in February 2004, he fell into a sand-sifting machine and was decapitated. In a recent letter to FRONTLINE, McWane said no one saw the accident, but they speculated it was Blow's fault, writing he "decided to take a shortcut" and fell onto a conveyor belt that "carried him into a machine designed to separate sand."

Following a subsequent OSHA inspection, the government fined Kennedy Valve $17,000, but for violations, the company says, that were not directly related to Blow's accident.

In November 2007, nearly four years after Blow's death, an inspection found conditions at Kennedy Valve that "expose employees to the dangers of fire, lacerations, amputation, chemical burns, crushing, falls, and eye, face and hand injuries," according to an OSHA press release. The inspection led to 30 "serious" health and safety violations, and $68,000 in proposed fines. McWane is disputing many of those violations.

Thomas Lawlor

Thomas Lawlor worked for six years at the Atlantic States foundry in Phillipsburg, N.J. In January 2005, a pipe weighing nearly 700 pounds rolled off an area used to inspect pipe, above where Lawlor was working. The pipe landed on Lawlor's chest, crushing him to death. OSHA investigators cited Atlantic States with a single "serious" violation and fined the company $7,000, the maximum allowed under federal law.

Last year, Lawlor's estate filed a wrongful death suit against McWane. The company has denied the allegations, and the case is pending.

Environmental Violations

Since 2003, McWane has been ordered to pay nearly $3 million in civil penalties by environmental authorities across six states. These are the most significant civil penalties handed to McWane in the last five years:

  • In 2003, the New Jersey Department of Environmental Protection signed an administrative consent order demanding McWane pay $1 million for air pollution violations at its Atlantic States plant in Phillipsburg, N.J.

  • In 2005, the Texas Commission on Environmental Quality ordered McWane's Tyler Pipe plant to pay $1.5 million in fines and contributions to environmental projects after discovering a "wide variety of air and water quality violations" during investigations in 2002 and in 2005. This was in addition to the $4.5 million federal criminal fine assessed to Tyler Pipe in 2005 for violations of the Clean Air Act.

  • Since 2003, environmental authorities in Alabama, California, Ohio and Utah have fined McWane subsidiaries more than $300,000 for various violations of the Clean Air Act and the Resource Conservation and Recovery Act, under which companies are penalized for spills and incorrect waste disposal.

Worker Health and Safety Violations

Between Jan. 1, 2003 and Nov. 30, 2007, McWane plants across the U.S. have amassed at least 221 OSHA violations with proposed fines totaling $1,063,450. (Proposed fines and citations can be reduced or eliminated on appeal.) By comparison, between Jan. 1, 2003 and Nov. 30, 2007, McWane competitors U.S. Pipe, Griffin Pipe, Mueller, Charlotte Pipe, ACIPCO and AB&I (before it was acquired by McWane in late 2006) have collectively amassed 170 OSHA violations and $580,106 in proposed fines.

In interviews with FRONTLINE, McWane has stressed that criminal prosecutions and extensive media coverage have resulted in increased government scrutiny of its operations, which it says has led to additional inspections.

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posted february 5, 2008

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