Full opinion text
MEMORANDUM AND ORDER LEE H. ROSENTHAL, District Judge. I. Introduction.............................................................660 II. Background..............................................................662 A. The Clean Air Act....................................................662 B. The Explosion at the Texas City Refinery...............................664 C. The Regulatory and Internal Investigations..............................666 1. The CSB Report and the Baker Report..............................666 2. The OSHA Settlement Agreement..................................667 3. The TCEQ Agreed Order..........................................668 D. The Criminal Investigation and Plea Agreement..........................668 III. The Legal Standard for Accepting or Rejecting a Rule 11(c)(1)(C) Plea..........674 IV. The Objections to the Proposed Plea........................................678 A. Objections that the Victims No Longer Assert or Press...................678 B. The Present Objections...............................................680 V. The Fine................................................................681 A. The Applicable Statutory Provisions....................................681 B. Disputed Issues Relating to § 3571(d) ..................................682 1. The Loss or Gain To Be Measured..................................682 2. The Apprendi Issue...............................................684 3. Causation........................................................687 4. Whether Calculating Gain or Loss Under § 3571(d) Would “Unduly Complicate or Prolong the Sentencing Process”.....................690 a. Multiple Victims..............................................691 b. Disputed Causation and Other Issues ...........................692 c. Future Losses................................................694 C. Analysis of the Victims’ Objections to the $50 Million Fine.................695 1. Calculation Based on Gain.........................................695 a. The Information and Charged Offense...........................696 i. The Scope of the Information..............................696 ii. The Charged Offense and Other Offense Conduct.............697 b. The Victims’ Proposed Bases for Determining Gain...............699 i. Fine Based on Profits.....................................699 ii. Fine Based on Cost Savings ...............................700 iii. Fine Based on the Cost-Saving Estimate that Forms the Basis for the Proposed Plea..............................701 2. Calculation Based on Loss.........................................702 a. The Victims’ Submissions......................................703 b. Worker’s Compensation Records ...............................707 D. Conclusion as to the Victims’ Objections to the Fine ......................707 VI. The Victims’ Objections to the Terms of Probation............................707 A. The OSHA Settlement Agreement and the Sawyer Report.................709 1. Whether BP Products Improperly Controlled the Audit................711 2. Whether the Audit’s Sampling Practices Were Improper...............712 3. Whether the Time Frame Is Acceptable.............................716 4. Whether BP Products’s Remediation Response Has Been Adequate.....718 5. Whether BP Products’s Provision of Data for Follow-Up Reports Is Proper......................................................719 B. The TCEQ Agreed Order.............................................720 C. Whether an Independent Monitor Is Necessary..........................720 D. Conclusion as to the Objections to the Proposed Probation Terms ..........722 VII. Whether This Court Should Order a Presentence Investigation and Report.....723 VIII. Whether the CVRA Violation Provides a Basis for Rejecting the Plea............725 IX. Whether To Accept or Reject the Proposed Plea..............................727 X. Conclusion...............................................................730 I. Introduction BP Products North America, Inc. entered a plea of guilty to an information charging a felony violation of the federal Clean Air Act. The charge arises from the March 23, 2005 explosion at the Texas City, Texas plant that killed 15 and injured scores. The plea agreement stipulates the sentence: a $50 million fine and three years of probation with the conditions that BP Products comply with a Settlement Agreement reached with the Occupational Safety and Health Administration (“OSHA”) and an Agreed Order imposed by the Texas Commission on Environmental Quality (“TCEQ”). The United States asks this court to accept BP Products’s guilty plea under Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure. Under Rule 11(c)(1)(C), if this court accepts the plea, it must impose the stipulated sentence. This court has the responsibility of deciding whether to accept or reject the proposed plea. Victims of the explosion have objected. The victims have been given the opportunity to participate in court hearings. The victims and their lawyers have spoken at these hearings and many victims have submitted written impact statements. Through their lawyers, the victims have also filed numerous briefs and voluminous information, including a report on environmental and safety compliance prepared for the civil cases filed after the explosion. The victims have been heard and their views fully considered. The victims’ arguments include that the fine is too low and the probation conditions are too lenient. The government responds that it aggressively prosecuted BP Products. When BP Products signed the plea agreement, it would have been the first company criminally convicted of knowing violations of the Risk Management Plan regulations of the Clean Air Act. The $50 million fíne will be the largest criminal fine imposed against a single corporation under the Clean Air Act and the largest criminal fíne imposed for a fatal industrial accident. The proposed probation conditions include compliance with requirements imposed after the explosion for extensive process safety and environmental improvements at the Texas City refinery. The government states that it required BP Products to plead to the highest offense that could have been charged based on the evidence, despite the fact that lesser charges were available. (Docket Entry No. 18 at 4, 10-11). The victims are not asking this court to reject the plea because of the offenses charged. (Docket Entry No. 66 at 100-01). BP Products points out, and the victims have not disputed, that the fine is not the only financial consequence that BP Products will bear as a result of the explosion. In addition to paying over $1.6 billion to the victims to settle approximately 4,000 civil cases, BP Products has also paid almost $21.7 million in fines to OSHA and to the TCEQ and will pay over $265 million to do the work required under the OSHA Settlement Agreement and the TCEQ Agreed Order. (Docket Entry No. 8 at 10-11). A fíne is just that. It is not intended to be compensation to the victims or payment for safety improvements. The victims have not objected to the proposed plea on the basis that restitution is not part of the stipulated sentence. In deciding whether to accept or reject the proposed plea, this court’s task is to make an individualized assessment of the stipulated sentence based on the facts and circumstances specific to this case. A court may not reject a plea proposed under Rule 11(c)(1)(C) based on broad policy grounds or on a categorical basis. A court’s discretion to reject a plea is also limited by the constraints of the judicial, as opposed to the prosecutorial, role. A court may not reject a proposed plea because it believes that additional crimes or additional defendants should have been charged; such decisions are up to the prosecutor. Nor may a court insert itself into the plea-bargaining process by modifying or rewriting the proposed plea and sentence. A court may only evaluate the plea that the parties have proposed, not a hypothetical plea that the court might prefer but the parties have not presented. A court must accept or reject the proposed plea and explain why, but may not modify or change its terms. A disciplined and careful analysis of the facts and circumstances, under the applicable law and statutes, is required. Based on the pleadings, the briefs, the statements, the submissions, the arguments, and the applicable law, this court finds that the proposed plea satisfies the purposes that the law recognizes as controlling. The victims’ arguments that the plea agreement is too lenient fail to recognize the statutory constraints that apply and the risks to the government if the plea were rejected. The court must take into account “the exigencies of plea bargaining from the government’s point of view,” including “limited resources and uncertainty of result.” United States v. Bundy, 359 F.Supp.2d 535, 538 (W.D.Va.2005). The issues in this case, one of the few in which the government has successfully applied a felony criminal statute to an industrial accident, present significant risks that absent the plea, the government would not be able to prevail or would only obtain a $500,000 fine. These risks have been considered in weighing the adequacy and reasonableness of the proposed plea terms. Considering the specific facts and circumstances presented in this voluminous record, including the victims’ objections, this court finds that the proposed plea is a reasonable disposition given the available alternatives, the risks they present, and the limits inherent in the statutes that the government can use to obtain a felony conviction to punish conduct leading to an industrial accident. Accordingly, this court accepts the proposed plea. The reasons are stated in detail below. II. Background A. The Clean Air Act BP Products pleaded guilty to a criminal information charging it with a felony violation of the Clean Air Act, 42 U.S.C. § 7413(e)(1), which imposes criminal penalties for knowing violations of certain provisions of the Clean Air Act, including violations of regulations enacted under 42 U.S.C. § 7412(r)(7). Section 7412(r)(7) was enacted in 1990, in the wake of the disaster at the Union Carbide plant in Bhopal, India, to “prevent accidental releases of regulated substances.” 42 U.S.C. § 7412(r)(7). The Environmental Protection Agency acted under § 7412(r)(7) to promulgate the Risk Management Plan (RMP) regulations set forth in 40 C.F.R. § 68.1 et seq. The RMP regulations codify requirements for Process Safety Information systems, which companies are required to implement to prevent chemical and petrochemical plant releases. Substantially similar regulations known as Process Safety Management (PSM) regulations are promulgated and enforced by OSHA. See 29 C.F.R. § 1910.119. The government decided to prosecute BP Products under the RMP regulations because the PSM regulations do not allow a felony penalty and contain a lower default maximum fine. (Docket Entry No. 96 at 4 n. 7). BP Products pleaded guilty to violating two of the regulations promulgated under § 7412(r)(7): 40 C.F.R. § 68.73(b), which requires the owner or operator of a plant such as the Texas City refinery to establish and implement written procedures to maintain the ongoing integrity of process equipment; and 40 C.F.R. § 68.87(b) (2), which requires the owner or operator of such a plant to warn contractors working on or adjacent to a “covered process” of the known potential fire, explosion, or toxic-release hazards related to the contractor’s work and the process. BP Products and the government jointly moved the court to waive the presentence investigation and accept the proposed plea. (Docket Entry No. 8). B. The Explosion at the Texas City Refinery The facts set out in this section include those that BP Products admitted in the Statement of Facts that accompanied the joint motion for waiver of the presentence report. (Id., Ex. A; Docket Entry No. 96, Ex. 6). Other sources of information about the explosion include a report by the United States Chemical Safety and Hazard Investigation Board (“CSB”) after an extensive two-year investigation, see U.S. Chem. Safety & Hazard Investigation Bd., BP Texas City: Final Investigation Report (Mar. 20, 2007) (Docket Entry No. 8 at 3, Ex. 2), and a report published after an internal investigation led by former Secretary of State James Baker, see James A. Baker et al., Report of the BP U.S. Refineries Independent Safety Review Panel (January 2007) (the “Baker Report”). The Texas City refinery is the largest BP Products refinery in the United States. When BP Products acquired the refinery in 1999, it was an aging facility. Parts of the process unit involved in the March 2005 explosion were nearly fifty years old. The refinery covers more than 1,200 acres and in March 2005 employed approximately 1,800 permanent staff and 2,000 contract workers. The plant included twenty-nine different refining units and four chemical units and had the capacity to process approximately 460,000 barrels of crude oil a day. (Docket Entry No. 8, Ex. A at 3; Ex. 2 at 194, 218-19; Docket Entry No. 96, Ex. 6 at 3). The explosion occurred in the plant’s isomerization unit (“ISOM unit”). The ISOM unit’s main function was to increase the octane in a chemical component of gasoline. The ISOM unit had several process components, including a pressure vessel known as a “raffinate splitter.” The raffinate splitter was a 164-foot tall tower that could hold approximately 3,700 barrels. The explosion occurred as the raffinate splitter was restarted following a shutdown for maintenance and repairs. “Raffinate” describes gasoline components that are being or have been refined. The raffinate splitter separated the components into “heavy” and “light” raffinate. Heavy raffinate emerged from the splitter as a hydrocarbon liquid that could be blended into jet fuel or unleaded gasoline. Light raffinate emerged as hydrocarbon vapor. The process involved high pressures and temperatures. The resulting vapor was highly volatile and could easily ignite. (Docket Entry No. 8, Ex. A at 4; Docket Entry No. 96, Ex. 6 at 4). The raffinate splitter had a set of pressure-relief valves and headers intended to prevent excess pressure build-up from hydrocarbon vapors. There were different options in the ISOM unit for using the relief valves to direct the release of the hydrocarbon vapors. Written procedures required that during a normal startup of the raffinate splitter, a flare system was to be used to burn off the hydrocarbon vapors before they were released into the open air. Although no written procedures authorized the practice, another option was to direct the hydrocarbons to a “blowdown stack.” The blowdown stack used water to cool some of the hydrocarbon vapors into liquid and released the remaining vapors through the stack into the open air. Under its written procedures, BP Products was permitted to release hydrocarbons from the blowdown stack to the open air in the case of an emergency or process upset, after providing advance notice to the TCEQ. (Docket Entry No. 8, Ex. A at 2-5; Docket Entry No. 96, Ex. 6 at 2-5). BP Products had not performed a study since at least 1999 to determine whether the blowdown stack had the capacity to release hydrocarbons safely. The blowdown stack in the ISOM unit had been in poor operating condition since at least April 2003. (Docket Entry No. 8, Ex. A at 8, 10-11; Docket Entry No. 96, Ex. 6 at 8, ,10 — 11). During the month before the explosion, the ISOM unit was shut down for maintenance and repairs. Around March 21, 2005, BP Products maintenance personnel informed ISOM unit personnel that critical alarms for that unit had not been properly inspected. Nevertheless, on March 23, the raffinate splitter was restarted. (Docket Entry No. 8, Ex. A at 11-12; Docket Entry No. 96, Ex. 6 at 11-12). Restarting the splitter was the most dangerous phase of operating the ISOM unit because of the reintroduction of hydrocarbons in the presence of elevated temperatures and pressure. Although federal regulations required BP Products to establish and implement specific written instructions for operators and supervisors and to ensure that alarm systems and process safety components in the ISOM unit were operating correctly, see 40 C.F.R. §§ 68.69(a), 68.73(b), on the morning of March 23, 2005, safeguards important to the safe startup of the raffinate splitter either had not been established through written procedures or the written procedures that did exist were not being followed. The acts that BP Products has admitted as knowing violations of the RMP regulations include the following: • BP Products failed to notify nonessential employees and nonessential contractors located in temporary office trailers close to the raffinate splitter that the startup was going to occur. • The bottom of the raffinate splitter was filled above the level permitted under the written procedures for start-ups. This had become a common practice for raffinate splitter startups. • The ISOM unit’s control board operator had filled the tower with raffinate feed but heavy and light raffinate were not being emptied. A control instrument showed that the level of feed in the tower was decreasing when in fact it was increasing, and the operator did not see the increase. The required instrument checks were not performed before the startup, despite knowledge that there was a question about whether the sight glass on the tower used for visually checking the product level in the tower was functioning properly. • Alarms failed to function or were ignored. BP Products knew that the alarms had not been inspected but allowed the startup to proceed. • The blowdown stack rather than a flare was being used to release excess hydrocarbon vapors, an unauthorized but common practice. There was no emergency that required sending the hydrocarbons to the blowdown stack rather than the flare. The TCEQ had not been notified in advance. • BP Products had not treated the overfill of the raffinate splitter as a credible threat and had chosen not to perform a “what-if” scenario to study what would occur if the splitter overfilled. • BP Products had failed since 1999 to perform a relief-valve study on the ISOM unit blowdown stack to determine whether it had adequate capacity to release excess hydrocarbons safely. • An April 2003 inspection showed deficiencies in the blowdown drum and stack, including that the quench system did not operate and baffles used to reduce the amount of released vapors were corroded and did not operate as designed. BP Products nonetheless continued to use the blowdown drum and stack. (Docket Entry No 8, Ex. A at 8-12; Docket Entry No. 96, Ex. 6 at 8-12). At 1:15 p.m., on March 23, 2005, excess liquid pressure and temperature had been building up inside the raffinate splitter for several hours. Hydrocarbon vapors and liquids were released from the raffinate splitter into the blowdown stack. The volume of the hydrocarbon liquid exceeded the blowdown stack’s capacity. Hydrocarbon liquid was released out of the top of the stack and flowed down, reaching the ground. A vapor cloud formed and migrated away from the blowdown stack. An ignition source, believed to be the running engine of a truck parked nearby, caused the hydrocarbon vapor cloud to explode. Fifteen people working in two temporary trailers approximately 150 feet away from the stack died. At least 170 other workers in the plant were injured. (Docket Entry No. 8, Ex. A at 7-8; Docket Entry No. 96, Ex. 6 at 7-8). BP Products has admitted that it knowingly violated the RMP regulation requiring it to “establish and implement written procedures to maintain the on-going integrity of process equipment.” 40 C.F.R. § 68.73(b). BP Products has also admitted that it knowingly violated the RMP regulation requiring it to inform contractors in the vicinity of the raffinate splitter of the risks posed by the restart. 40 C.F.R. § 68.87(b)(2). C. The Regulatory and Internal Investigations After the explosion, investigations were conducted by federal agencies, including the CSB, OSHA, and the Department of Justice; by Texas agencies, including the TCEQ; and internally by BP Products through the Baker panel. 1. The CSB Report and the Baker Report The CSB Report on the explosion issued on March 20, 2007. The Baker Report issued in January 2007. The CSB Report examined “immediate causes,” “possible root causes,” “cultural issues,” and “corrective actions.” The Baker Report focused on the role of BP Products’s corporate hierarchy and culture, studying “the effectiveness of BP’s corporate oversight of safety management systems at its five U.S. refineries and its corporate safety culture.” (Baker Report at ix). Both reports emphasized that BP Products’s parent company, headquartered in London, had implemented budget cuts that adversely affected the Texas City refinery, including its process safety management systems. (Docket Entry No. 8, Ex. 2 at 157-59; Baker Report at 59). The plant was aging when BP Products acquired it in 1999, with equipment and infrastructure in decline. But rather than committing resources to repair equipment and address safety problems that had been identified in audits and investigations — problems that included a lack of proper process safety management — BP Products’s parent company implemented budget cuts. The CSB concluded that a “lack of investment compromised safety” and that budget cuts by BP Products’s parent company “did not consider the specific maintenance needs of the Texas City refinery.” (Docket Entry No. 8, Ex. 2 at 157-58). The Baker Report concluded that “BP has not always ensured that it identified and provided the resources required for strong process safety performance at its U.S. refineries.” (Baker Report at xii). The CSB Report summarized by stating that “[c]ost-cutting, failure to invest and production pressures from BP Group executive managers impaired process safety performance at Texas City.” (Docket Entry No. 8, Ex. 2 at 25). The CSB Report identified various decisions affected by budget cuts and pressures: reduction in maintenance spending for a decade; “impaired training, operations staffing levels, and mechanical integrity”; and the decision on several occasions “not to replace the ISOM blowdown system” with a flare system. (Id., Ex. 2 at 188). The reports acknowledged that although BP Products had focused on “personal safety,” it had not focused on “process safety.” (Id., Ex. 2 at 210; Baker Report at x). The victims argue that the “root causes” of the explosion were the parent company’s budget cuts and refusal to provide the resources necessary to achieve process safety compliance at the Texas City refinery. (Docket Entry No. 16 at 7-10; Docket Entry No. 28 at 5). 2. The OSHA Settlement Agreement On September 22, 2005, BP Products and OSHA signed a Settlement Agreement under which BP Products paid a $21,361,500 penalty and “agreed to perform extensive upgrades and improvements to equipment and process safety management (‘PSM’) systems at the Refinery.” (Docket Entry No. 94 at 3; Docket Entry No. 96, Ex. 2). BP Products was required to retain an external expert, subject to OSHA’s approval, “to conduct a comprehensive audit and analysis of the PSM systems at BP Products’ Refinery and assess the robustness of the PSM systems.” (Docket Entry No. 96, Ex. 2 at 2). The audit, which was to be “conducted in accordance with best practices in the industry,” was to include, but was not to be limited to, the following: (1) the safe location of personnel in relation to hazardous processes; (2) the safe movement of vehicles into process areas; (3) the construction of fired and unfired pressure vessels, particularly the relief of overpressures to a safe location, in accordance with 29 C.F.R.1910.106(i)(3) and the referenced ASME codes; (4) the classification of hazardous locations as defined in 29 C.F.R.1910.399; (5) the notification of contractors and employees regarding potential hazards; (6) the inspection and maintenance of alarms providing personnel with notification of hazardous conditions that may be developing; (7) the standard operating procedures (particularly start-up and emergency shutdown procedures); (8) the adequacy of pressure relief for individual pieces of equipment; (9) the adequacy of safety instrumented systems; (10) human factor analysis; and (11) lock ouV tag out programs, procedures, and applications. (Id., Ex. 2 ¶ l(b)(l)-(ll)). The auditor was to complete, and BP Products was to forward to OSHA for review, an initial report, two biannual progress reports, and one final report detailing deficiencies found and recommendations for correction. (Id., Ex. 2 at 3-4). BP Products was required to implement “all feasible recommendations” in these reports. Within thirty days of each audit report, BP Products was required to file a statement of action, informing OSHA which recommendations it would implement and the steps taken toward implementation. If BP Products chose not to implement certain recommendations, it was required to provide detailed reasons for that decision. (Id., Ex. 2 at 4). Other requirements of the OSHA Settlement Agreement included that BP Products would: retain an organizational expert, subject to OSHA’s approval, to conduct an organizational systems audit, (id:, Ex. 2 at 5-7); conduct safety and health training to ensure that all employees and contractors understood the hazards to which they might be exposed, and how to prevent harm from those hazards, (id., Ex. 2 at 7-8); submit logs of occupational injuries and illnesses to OSHA every six months for three years, (id., Ex. 2 at 8-9); abate the specific conditions identified during OSHA’s investigation, (id., Ex. 2 at 9-13); and permit OSHA to verify and monitor the abatement, (id., Ex. 2 at 13-14). In addition to the $21.3 million fine that it has already paid, BP Products estimates that compliance with the OSHA Settlement Agreement will cost $15 million. (Docket Entry No. 8 at 10-11). The Settlement Agreement explicitly gives “OSHA (including its experts) access to the Texas City Refinery to determine progress and compliance with this Agreement.” (Docket Entry No. 96, Ex. 2 at 14). It also permits OSHA, through an enforcement order entered by the Fifth Circuit under 29 U.S.C. § 660(b), to pursue civil contempt remedies against BP Products. (Id., Ex. 4). 3. The TCEQ Agreed Order BP Products was already under investigation by the TCEQ before the March 23, 2005 explosion for exceeding emissions limits in several of its Texas City facility process units. On May 31, 2006, BP Products and the TCEQ signed an Agreed Order that assessed a penalty of $336,556 and “requirefd] BP Products to undertake a substantial program of improvements to control and reduce emissions from its flares.” (Docket Entry No. 94 at 18; Docket Entry No. 96, Ex. 3). A number of the compliance items in the Agreed Order are not scheduled for completion until 2011. (Docket Entry No. 96, Ex. 3-A § 7). BP Products states that compliance with this Order will cost $250 million. (Docket Entry No. 8 at 10-11). D. The Criminal Investigation and Plea Agreement The DOJ also investigated the explosion at the Texas City refinery. As part of its investigation, the government communicated with many affected by the explosion, including those pursuing civil litigation against BP Products. (Docket Entry No. 26 at 31-32; Docket Entry No. 63 at 5). Lawyers representing many of the victims in civil cases “worked very close[ly] with the Department of Justice to try to get them the information that [they] were deriving from the civil litigation.” (Docket Entry No. 120 at 149-150). One of the lawyers representing the victims in this case was also liaison counsel for the plaintiffs’ steering committee in the victims’ state-court civil litigation. At a hearing before this court, that lawyer explained the nature and extent of his work with the DOJ before the plea was negotiated: On a regular basis, [DOJ] attorneys would come in, first from Houston, later from Washington. We were closer to the documents that were being produced in the [civil] discovery.... [A]s we evolved more into the litigation, we understood better the regulatory compliance issues ... and the emissions problems they were having there.... [W]e shared that information [with the DOJ], (Id. at 150). At another hearing in this court, another lawyer who represented both plaintiffs in civil cases against BP Products and victims in this criminal case confirmed that he had been subpoenaed by the DOJ before the plea agreement was executed and that he “provided very important documents to them.” (Docket Entry No. 26 at 31). Before the proposed plea was announced, counsel for some of the victims had also shared with the government the opinions of Michael Sawyer, a regulatory expert who worked on behalf of the civil plaintiffs, about BP Products’s regulatory compliance issues. (Docket Entry No. 120 at 150-51). The government “remained in contact with counsel for the victims through the investigation [and] benefitted from their cooperation with the investigation.” (Docket Entry No. 63 at 5). Not all victims had this degree of contact or communication with the government before the plea agreement was executed. (Docket Entry No. 117 at 2 n. 1). On October 18, 2007, before any charging instrument was filed, the government filed a sealed ex parte motion seeking “an order outlining the procedures to be followed under the Crime Victims’ Rights Act.” (Docket Entry No. 54, Ex. 1 at 3). In that motion, the government stated that it was engaged in plea negotiations with BP Products; a plea agreement was anticipated to be signed by October 25, 2007; and the plea was expected to be entered in late November 2007. (Id., Ex. 1 at 2). The motion stated that due to the large number of victims in the case, “consulting the victims prior to reaching a plea agreement would not be practicable.” (Id.). The government recognized in the motion that the Crime Victims’ Rights Act (CVRA) provides victims a “reasonable right to confer with the attorney for the Government in the case.” The government invoked the CVRA section stating that “in a case where the court finds that the number of crime victims makes it impracticable to accord all of the crime victims the rights described in subsection (a), the court shall fashion a reasonable procedure to give effect to this chapter that does not unduly complicate or prolong the proceedings.” 18 U.S.C. § 3771(d)(2). The government asserted that “a reasonable procedure to give effect to the Crime Victims’ Rights Act” was to provide prompt notice to victims and their families of their rights under the CVRA after the plea agreement was signed and to have an extended period before entry of the plea. During that period, the government would send victims notice of their CVRA rights, including information on any hearings; a contact telephone number with updates on the case status; points of contact at the U.S. Attorney’s Office and/or the Department of Justice; and “updates and case information” on a website and/or the Victim Notification System. (Docket Entry No. 54, Ex. 1 at 3). The plea hearing would be delayed to ensure that victims could receive notice and fully exercise their rights to attend and be heard. On the same day the ex parte motion was filed on the miscellaneous docket, October 18, 2007, a district court judge issued a sealed order approving this arrangement. (Id., Ex. 2 at 1). On October 22, 2007, the government filed the criminal information, under seal. The information charged a single count: the knowing violation, under 42 U.S.C. § 7413(c)(1), of two regulations under 42 U.S.C. § 7412(r)(7). The information stated: Knowing Violations of Risk Management Practices 20. Between in or about January 1999 and on or about March 23, 2005, in Texas City, Texas, within the Southern District of Texas, the defendant, BP PRODUCTS NORTH AMERICA INC., did knowingly violate a requirement promulgated pursuant to the Clean Air Act, Title 42, United States Code, Section 7412(r)(7); specifically, defendant BP PRODUCTS NORTH AMERICA INC. knowingly failed to do the following: a. Establish and implement written procedures to maintain the ongoing mechanical integrity of process equipment, in violation of Title 40, Code of Federal Regulations, Section 68.73(b). b. Inform contract owners and operators of the known potential fire, explosion, or toxic release hazards related to the contractors!!] occupation of temporary trailers in the vicinity of the ISOM Unit, in violation of Title 40, Code of Federal Regulations, Section 68.87(b)(2). (Docket Entry No. 1 at 7-8). Two days later, on October 24, 2007, the government and BP Products signed a plea agreement under which BP Products agreed to plead guilty to the information. As part of the plea agreement, BP Products conceded that it knowingly failed to establish and implement written procedures to maintain the ongoing integrity of the raffinate splitter in the ISOM unit and related process equipment, in violation of 40 C.F.R. § 68.73(b), and that it failed to inform its contractors of the risks associated with the restart of the raffinate splitter and the risks of siting contractor trailers in the near vicinity of the ISOM unit blow-down stacks, in violation of 40 C.F.R. § 68.87(b)(2). (Docket Entry No. 8 at 6-7). Under the proposed plea, BP Products agreed to pay a $50 million fine within three days of sentencing and a $400 special assessment immediately upon sentencing, and to serve a three-year probation term. During probation, BP Products would be required to comply fully with the OSHA Settlement Agreement and the TCEQ Agreed Order. The plea agreement provided that if BP Products is unable to comply with its obligations under the TCEQ Agreed Order within the three-year probation term, the probation term will be extended to the statutory maximum of five years, with “compliance with and completion of the TCEQ order as the only term[s] of the extended probation period.” (Docket Entry No. 96, Ex. 1 at 2). The plea agreement required BP Products to cooperate with the government in its ongoing investigation of other possible criminal violations related to the explosion, including making its employees available to participate in judicial proceedings; making documents, records, and other technical information relating to the explosion available to the government; and providing the government access to the Texas City refinery. (Id., Ex. 1 at 2-3). On October 25, 2007, the day after the United States and BP Products signed the plea agreement, a magistrate judge signed an order unsealing the criminal information. The proposed plea was announced at a press conference that received extensive coverage. But the ex parte order was not unsealed at that time. After the criminal information was unsealed and the plea agreement filed and announced, the government mailed written notices to victims in compliance with § 3771(a) of the CVRA. The notices advised the victims of the proposed plea and the plea agreement, the dates and times of court proceedings, and that the victims had a right to attend and be heard at those proceedings. On the day the plea agreement was announced, the government set up a telephone number and website that provided current information about the criminal case, established a procedure for submitting victim-impact statements, and made the victim-witness coordinator for the U.S. Attorney’s Office for the Southern District of Texas available to answer victims’ questions. These notices by the government were reinforced by extensive media coverage and by the fact that most of the victims had counsel representing them in civil lawsuits. On November 16, 2007, BP Products and the United States jointly moved under Rule 32(c)(1)(A)(ii) of the Federal Rules of Criminal Procedure for a waiver of the presentence investigation and report and acceptance of the plea agreement. (Docket Entry No. 8). On November 20, 2007, a week before a hearing set for November 27, 2007, twelve victims — Alisa Dean, Ralph Dean, Tracy Donaie, Tyrone Smith, Ronald Duhan, Mary Ann Duhan, Michael Jordan, Sandra Thomas, Kelly Porter, Calvin Thomas, Henry Rivera, and Maria Rivera — moved through counsel for leave to appear and be heard under the CVRA and asked the court to reject the proposed plea agreement or at least defer decision and require a presentence investigation. (Docket Entry No. 9). Nine other victims — Kenneth Grant, George Hardin, Lee Dusek, Jason Wimberly, Liberato Solis, Jorge Patino, Rodolfo Mendoza, Luis Villazana, and Jerett Pahkala — filed a similar motion through counsel on November 23, 2007. (Docket Entry No. 14). On November 27, 2007, the case was reassigned to this court. At a status conference held on November 28, 2007, lawyers for numerous victims appeared and urged that they and their clients be heard in opposition to the proposed plea agreement. This court granted the requests. The victims submitted extensive information supporting their opposition to the proposed plea agreement. At the hearing, liaison counsel for the plaintiffs’ steering committee in the state-court civil litigation also agreed to communicate with the other plaintiffs’ counsel to be sure that the plaintiffs in those cases were informed of their rights under the CVRA, including the right to attend hearings and to be heard on the proposed plea and sentence. (Docket Entry No. 26 at 44). The government worked with counsel handling the many civil cases relating to the explosion to ensure that the victims received notice of their CVRA rights. At a February 4, 2008 hearing, BP Products entered its guilty plea under Rule 11(c)(1)(C). Lawyers for the victims filed motions and extensive briefs with supporting materials in opposition to the proposed plea. One hundred and thirty-four individuals filed victim-impact statements. At the hearing, the court allowed all those present who wanted to speak to do so. Ten individuals spoke in open court. The lawyers representing the victims presented arguments on their request that this court reject the proposed plea. One of the asserted grounds for rejecting the plea was the government’s failure to respond to two letters — one sent on December 21, 2007 and one sent on January 11, 2008 — asking for an explanation of how the $50 million fine was calculated. The day after the victims filed a motion asserting that the government had violated the victims’ “reasonable right to confer” by failing to respond to the letters, the government moved to unseal the October 2007 ex parte motion and order. On February 5, 2008, the victims moved to reject the proposed plea on the ground that the October 18, 2007 ex parte motion and order granting it, as well as the government’s failure to answer the two letters later sent by one of the lawyers representing the victims, violated the victims’ “reasonable right to confer” with the prosecutors and to be treated with fairness. On February 21, 2008, this court issued an opinion holding that these asserted CVRA violations were not in themselves a basis for rejecting the proposed plea. (Docket Entry No. 72). The victims petitioned the Fifth Circuit for a writ of mandamus. On May 7, 2008, the Fifth Circuit denied the petition. The Fifth Circuit held that the ex parte procedure had violated the CVRA, concluding that because “there were fewer than two hundred victims ... it [wa]s not reasonable to say that notification itself’ would have been too difficult or that the government could not confer “in some reasonable way with the victims before ultimately exercising its broad discretion” to execute a plea. (Docket Entry No. 79 at 6-7). The court concluded that: [t]he Act gives the right to confer. The number of victims here did not render notice to, or conferring with, the victims to be impracticable, so the victims should have been notified of the ongoing plea discussions and should have been allowed to communicate meaningfully with the government, personally or through counsel, before a deal was struck. (Id. at 7). But the Fifth Circuit agreed with this court that the alleged CVRA violations were not grounds for the relief sought. Observing that 134 victims had filed impact statements, and that ten had spoken in open court at the February 4, 2008 hearing, the court concluded that the victims had been “allowed substantial and meaningful participation.” (Id.). The Fifth Circuit concluded that “the better course” was to “deny relief, confident that the district court will take heed that the victims have not been accorded their full rights under the CVRA and will carefully consider their objections and briefs” “in deciding whether the plea agreement should be accepted.” (Id. at 8). After the Fifth Circuit’s opinion, the victims — most through counsel — and the parties appeared at a July 16, 2008 hearing before this court. At the hearing, this court invited the victims to submit additional briefing and exhibits on the adequacy of the proposed fine and of the proposed terms of probation. The court specifically invited the victims to submit information about their losses and, over the parties’ objections, allowed the victims to provide their expert’s report on BP Products’s compliance with the OSHA Settlement Agreement. (Docket Entry No. 84 at 9, 43^14). The parties were given the opportunity to respond. The victims and the parties appeared at another hearing before this court on October 7, 2008, to present argument on the victims’ submissions and the parties’ responses. (Docket Entry No. 120). Four fatalities associated with the Texas City refinery have occurred since the March 2005 explosion. Three of these deaths — all to employees of contractors— were unrelated to the type of conduct that led up to the March 2005 explosion. BP Products apparently has not been implicated in these deaths. The fourth death, of BP Products employee William J. Gracia, occurred when a 500-pound lid blew off of a water-filtration unit with defective bolts in the plant’s Ultracracker unit during startup on January 14, 2008. BP Products entered a settlement with OSHA, agreeing to correct six regulatory violations and to pay a $28,000 fine. (Docket Entry No. 110, Ex. 1; Docket Entry No. 111). A member of Gracia’s family spoke in court to object to the proposed plea in this case. (Docket Entry No. 66 at 50-54). III. The Legal Standard for Accepting or Rejecting a Rule 11(c)(1)(C) Plea Federal Rule of Criminal Procedure 11(c)(1)(C) states that the government may enter into a plea agreement in which it “agree[s] that a specific sentence or sentencing range is the appropriate disposition of the case, or that a particular provision of the Sentencing Guidelines, or policy statement, or sentencing factor does or does not apply.” Such an agreement under Rule 11(c)(1) (C) “binds the court once the court accepts the plea agreement.” Fed. R.Crim. P. 11(c)(1)(C); see also United States v. Shepard, 88 Fed.Appx. 44, 45 (5th Cir.2004) (unpublished); McClure v. Ashcroft, 335 F.3d 404, 413 (5th Cir.2003); United States v. Rhodes, 253 F.3d 800, 804 (5th Cir.2001). “If the court accepts a plea agreement containing a Rule 11(e)(1)(C) stipulation, it must notify the defendant that ‘the agreed disposition will be included in the judgment.’ ” In re Morgan, 506 F.3d 705, 709 (9th Cir.2007) (quoting Fed. R.Crim. P. 11(c)(4)). “Conversely, if the court rejects such a plea agreement, it must (1) inform the parties, (2) advise the defendant that the court is not bound by the plea agreement and give the defendant an opportunity to withdraw the guilty plea, and (3) advise the defendant that if the plea is not withdrawn, ‘the court may dispose of the case less favorably toward the defendant than the plea agreement contemplated.’ ” Id. (quoting Fed. R.Crim. P. 11(c)(5)). Federal Rule of Criminal Procedure 11(c)(5) “allows the judge to reject [a Rule 11(c)(1)(C) ] bargain if the agreed sentence would be one the judge deems inappropriate.” In re United States, 503 F.3d 638, 641 (7th Cir.2007). “A district court may properly reject a plea agreement based on the court’s belief that the defendant would receive too light of a sentence.” United States v. Smith, 417 F.3d 483, 487 (5th Cir.2005), cert. denied, 546 U.S. 1025, 126 S.Ct. 713, 163 L.Ed.2d 543 (2005) (citing United States v. Crowell, 60 F.3d 199, 205-06 (5th Cir.1995); United States v. Foy, 28 F.3d 464, 472 (5th Cir.1994); United States v. Bean, 564 F.2d 700, 704 (5th Cir.1977)). A district court has broad discretion to accept or reject a plea agreement under Rule 11(c)(1)(C). See United States v. Vega-Nieto, 239 Fed.Appx. 74, 74 (5th Cir.2007) (unpublished); Smith, 417 F.3d at 487 (“Rule 11 does not limit a district court’s discretion in rejecting a plea agreement.”). The text of Rule 11(c)(1)(C) does not “define the criteria by which a district court should exercise the discretion the rule confers, or explain how a district court should determine whether to accept a plea agreement.” Morgan, 506 F.3d at 710. “This conspicuous omission ... appears to be intentional, as the drafters stated that the decision to accept or reject a plea agreement should be ‘left to the discretion of the individual trial judge,’ rather than governed by any bright-line test.” Id. at 710 n. 2 (quoting Fed. R.Crim. P. 11, advisory committee note). In exercising its discretion, a court should take into account “the exigencies of plea bargaining from the government’s point of view,” including “limited resources and uncertainty of result.” United States v. Bundy, 359 F.Supp.2d at 538. A court may not apply categorical rules in deciding whether to accept or reject a plea agreement under Rule 11(c)(1)(C) because “the existence of discretion requires its exercise.” United States v. Miller, 722 F.2d 562, 565 (9th Cir.1983). “When a court establishes a broad policy based on events unrelated to the individual case before it, no discretion has been exercised.” Id. The court must make an “individualized assessment” of the plea agreement. Morgan, 506 F.3d at 712 (“[D]istrict courts must consider individually every sentence bargain presented to them and must set forth, on the record, the court’s reasons in light of the specific circumstances of the case for rejecting the bargain.”). There are limits on a court’s discretion. A court may not reject a plea proposed under Rule 11(c)(1)(C) on the grounds that it fails to charge a sufficiently severe crime, provided that the government has not made its decision not to charge a higher offense contingent on the defendant’s acceptance of the plea bargain. The government has wide prosecutorial discretion to bring appropriate charges, and the court must “defer to the government’s position except under extraordinary circumstances.” Thomas W. Hutchinson et al„ Federal Sentencing Law and Practice § 6B1.2 (2009). A court may not “intrude upon the charging discretion of the prosecutor.” U.S.S.G. § 6B1.2 cmt. A court may not use its discretion to accept or reject a Rule 11(c)(1)(C) plea to intrude into the plea-bargaining process. “[T]he district court has a limited role regarding [Rule 11(c)(1)(C) ] plea agreements.... [It] may accept or reject a plea agreement after one is reached; but, generally once the court has accepted the agreement, it may not subsequently reject or modify it.” McClure, 335 F.3d at 413. A court may not accept or reject such a plea agreement on a piecemeal basis. Morgan, 506 F.3d at 709; see also 1A Charles A. Wright & Andrew D. Leipold, Federal Practice and Procedure—Criminal § 180 (4th ed. 2008) (“Once a court accepts a Type C agreement, it may not unilaterally modify the agreement and impose either a higher or lower sentence than the one negotiated by the parties.”). A court may not condition acceptance of a Rule 11(c)(1)(C) plea on the modification of its terms. See Smith, 417 F.3d at 488 (“A district court is absolutely prohibited from participating in plea negotiations.”); Crowell, 60 F.3d at 203 (“When a court goes beyond providing reasons for rejecting the agreement presented and comments on the hypothetical agreements it would or would not accept, it crosses over the line established by Rule 11 and becomes involved in the negotiations.”); United States v. Miles, 10 F.3d 1135, 1140 (5th Cir.1993) (“Rule 11 requires that a district court explore a plea agreement once disclosed in open court; however, it does not license discussion of a hypothetical agreement that it may prefer.”). A court generally does not have the discretion to accept a Rule 11(c)(1)(C) plea agreement that provides for a sentence above a statutory maximum or below a statutory minimum. See United States v. Cieslowski, 410 F.3d 353, 363 (7th Cir. 2005), cert. denied, 546 U.S. 1097, 126 S.Ct. 1021, 163 L.Ed.2d 866 (2006) (holding that the sentence imposed under a Rule 11(c)(1)(C) plea agreement “must comply with the maximum (and minimum, if there is one) provided by the statute of conviction”); see also United States v. Greatwalker, 285 F.3d 727, 730 (8th Cir.2002) (“Even when a defendant, prosecutor, and court agree on a sentence, the court cannot give the sentence effect if it is not authorized by law.”); United States v. Gibson, 356 F.3d 761, 766 (7th Cir.2004) (quoting Greatwalker). A court also does not have discretion to accept a plea bargain that lacks a factual basis. Fed. R.Crim. P. 11(b)(3) (“Before entering judgment on a guilty plea, the court must determine that there is a factual basis for the plea.”). “The quantum of evidence needed to supply a factual basis is not specified in the rule, but it is clear that it takes less evidence than would be needed to sustain a conviction at trial.” 1A Charles A. Wright et al„ Federal Practice And Procedure-Criminal § 179 (4th ed.2008). “[A] district judge satisfies th[is] requirement ... when he ‘determine^] that the conduct which the defendant admits constitutes the offense charged in the indictment or information or an offense included therein to which the defendant has pleaded guilty.’ ” Libretti v. United States, 516 U.S. 29, 38, 116 S.Ct. 356, 133 L.Ed.2d 271 (1995); see also United States v. Marek, 238 F.3d 310, 315 (5th Cir.2001), cert, denied, 534 U.S. 813, 122 S.Ct. 37, 151 L.Ed.2d 11 (2001) (the factual basis requirement is satisfied by the district court’s determination that the defendant’s admitted conduct satisfies every legal element of the offense). One ground for rejecting a plea under Rule 11(c)(1)(C) does not apply here. “[A] court is well-advised to reject a plea agreement that dismisses a charge if it finds that the remaining charges do not adequately reflect the seriousness of a defendant’s actual offense behavior.” Smith, 417 F.3d at 487 (citing U.S.S.G. § 6B1.2(a); United States v. Mizell, 88 F.3d 288, 291 (5th Cir.1996), cert. denied, 519 U.S. 1046, 117 S.Ct. 620, 136 L.Ed.2d 543 (1996); Crowell, 60 F.3d at 206; Foy, 28 F.3d at 473). BP Products is pleading to the only charge in the information. The victims do not ask this court to reject the plea because of the offense charged. (Docket Entry No. 66 at 100-01). Most of the cases that reject a Rule 11(c)(1)(C) plea do so for reasons that do not bear on this case, such as a proposed term of imprisonment that falls below the Sentencing Guidelines range. Few cases discuss the adequacy of a fine or of probation terms, the components of the sentence at issue in this case. In United States v. Samueli, 575 F.Supp.2d 1154, 1163-64 (C.D.Cal.2008), the court rejected as “not reflecting] the seriousness of’ the crime a plea bargain that would have sentenced the defendant, who had been involved in a $2.2 billion options backdating scandal, to a five-year probation term. The indictment charged the defendant with “falsifying] dozens of corporate records to further and disguise the fraud,” “selecting] the date to which options should be backdated,” and “advocating] the creation and use of fraudulent employment records to compensate recruits with backdated grants through acquired, companies.” Id. at 1163. The court concluded that the sentence did not adequately punish this conduct. The sentence was “vastly disproportionate” to the sentences faced by the defendant’s coworkers, two of whom were eligible for life in prison. Id. at 1164. In United States v. Munroe, 493 F.Supp. 134, 136 (D.Tenn.1980), the court rejected as “too light a sentence under the circumstances of the case” a plea bargain that would have sentenced a defendant, who defrauded the factor for his company out of more than $1 million over a four-month period, to a $3,000 fine and three years’ probation. Id. at 135. The court noted that “54% of the persons convicted of the offense of which [the defendant] says he is guilty were sentenced to terms of incarceration which averaged 51 months in the year ended in mid-1978.” Id. at 136 n. 1. As in Samueli, the concern over disparity is evident. The victims and the parties have brought to this court’s attention the plea agreement entered in the 1989 Exxon Valdez oil spill disaster. The plea was to violations of the Clean Water Act, 33 U.S.C. §§ 1311(a), 1319(c)(1)(A); the Refuse Act, 33 U.S.C. § 407; and the Migratory Bird Treaty Act, 16 U.S.C. §§ 703, 707(a). In April 1991, the Alaska federal district court rejected a plea bargain that provided for a $100 million criminal fíne in addition to criminal restitution as too low, commenting that the fine did not “adequately achieve deterrence” and “sen[t] the wrong message, suggesting that spills are a cost of business that can be absorbed.” See Keith Schneider, Judge Rejects $100 Million Fine for Exxon in Oil Spill as Too Low, N.Y. Times, Apr. 25, 1991. In October 1991, the same court accepted a plea to the same charged offense with a stipulated sentence of a $25 million fine and $100 million in criminal restitution. The restitution was to be applied to environmental cleanup. The fíne portion of the sentence was technically $150 million, but $125 million was forgiven in recognition of Exxon’s cleanup efforts. (Docket Entry No. 33, Ex. A); see also Exxon Shipping Co. v. Baker, — U.S. —, 128 S.Ct. 2605, 2613, 171 L.Ed.2d 570 (2008); Keith Schneider, Exxon to Pay Higher Criminal Fines in New Pact to Settle Valdez Claims, N.Y. Times, Oct. 1, 1991. The Alaska district court judge later stated, in an opinion that examined the legitimacy of a civil jury’s punitive damages verdict against Exxon in connection with that accident, that he had accepted the criminal plea bargain to “avoid[ ] a difficult and expensive trial”; because, at the time of the plea, the “court did not have the benefit of the more robust development of actual damages which took place later in the civil proceedings”; and because it was “far preferable for Exxon to be sanctioned by means of a restitution obligation which would be employed for restoration of the environment than by a larger fine which would not be so employed.” In re the Exxon Valdez, 296 F.Supp.2d 1071, 1079 n. 111 (D.Alaska 2004), vacated and remanded on other grounds, In re Exxon Valdez, 472 F.3d 600 (9th Cir.2006). Besides the $100 million fíne, the court also noted that Exxon had agreed to pay almost $1 billion to settle related civil and regulatory cases. In the present case, BP Products has paid over $1.6 billion to settle related civil cases. BP Products estimates that it will pay an additional amount of over $265 million to comply with the regulatory requirements imposed by OSHA and the TCEQ. BP Products has recently entered a civil settlement agreement with the Environmental Protection Agency to pay almost $180 million more to update pollution control, maintenance and monitoring, and internal management systems at the plant. If a court rejects a plea agreement under Rule 11(c)(1)(C), the defendant must be given the option of withdrawing the plea. Fed. R.Crim. P. 11(c)(5). If the plea is withdrawn, any admissions that the defendant may have made for purposes of the plea agreement have no preclusive effect. Instead, the parties are “returned to their pre-plea posture.” United States v. Cervantes-Valencia, 322 F.3d 1060, 1062 (9th Cir.2003) (citing United States v. Mukai, 26 F.3d 953, 955-56 (9th Cir.1994)); see also United States v. Agosto-Vega, No. 05-0157, 2007 WL 4116847, at *2 (D.P.R. Nov.16, 2007). The fact of, and the contents of, the guilty plea, and “any statement made in the course of any proceedings” concerning the negotiation or acceptance of that plea, are inadmissible in any future civil or criminal proceedings. Fed.R.Evid. 410; see also Fed. R.Crim. P. 11(f) (“The admissibility or inadmissibility of a plea, a plea discussion, and any related statement is governed by Federal Rule of Evidence 410.”). “Rule 410 excludes any evidence of a withdrawn plea of guilty; it does not distinguish between direct and circumstantial evidence. Hence, any evidence that would permit the jury to infer that the defendant had once pleaded guilty would be within the scope of the rule.” 23 Charles A. Wright & Kenneth W. Graham, Jr., Federal Practice & Procedure § 5343 (1980). IV. The Objections to the Proposed Plea The victims have submitted extensive filings, posing numerous — and evolving— objections to the proposed plea agreement. Each objection is examined and analyzed under the applicable legal standard. A. Objections that the Victims No Longer Assert or Press In initial briefs objecting to the proposed plea, the victims raised several arguments that they have since abandoned or no longer press. These arguments show the evolving nature of the objections the victims have raised. The victims initially urged this court to reject the proposed plea because only BP Products, and not the parent company, BP p.l.c. (referred to as “BP Global”), was criminally charged. The victims later withdrew this objection, recognizing that it had no support in the law: The Victims realize that the prosecutor has the exclusive discretion to select whom to charge. We concede that failure or refusal to charge the party which supervised, controlled, and directed the crime, however lenient or unwise, is within the prosecutor’s prerogative. We do not, because we cannot, ask the Court to reject the Plea Agreement for failing to charge BP Global. (Docket Entry No. 28 at 21-22; see also Docket Entry No. 66 at 88-89 (affirming that the victims are not asking for rejection of the plea because the parent company and affiliates were not charged)). The victims are not asking this court to reject the proposed plea because a higher or more severe criminal offense could have been charged. (Id. at 100-01). The victims initially urged this court to reject the proposed plea because it improperly “immunized” BP Global and its subsidiaries from prosecution for future misconduct. This argument lacks a basis in the facts and the law. The plea agreement immunizes BP Products and its affiliates, including its parent, BP Global, from federal prosecution for any additional offenses “known to the Government at the time of this [plea] Agreement that are based upon evidence in the Government’s possession at this time and that arose out of the conduct giving rise to the criminal investigation of the March 28, 2005 explosion.” (Docket Entry No. 96, Ex. 1 at 4) (emphasis added). BP Products and the government have both clarified that this language does not prevent the prosecution of individuals for their role in the March 23, 2005 explosion. Nor does the language prevent the prosecution of BP Products, its parent, or its affiliates for their role in the explosion based on evidence that was not in the government’s possession in October 2007. Nor does the language immunize any individual, BP Products, its parent, or