Emergency Response to Environmental Accidents Paul M. Schmidt, Esq.

The biggest differences from trucking accidents: The environment is affected – a more complex situation: The problem is ongoing The problem may keep getting worse Members of the public – many – may be affected Many employees may be affected

Your immediate goals remain the same, with some additional ones: Protect the company and employees Collect and preserve evidence properly But also: Contain the release Clean up the environmental impacts, which may be very complex Address public health issues Address employee concerns

Scope of your team is different: Environmental attorney – ensuring privileges, regulatory compliance, data preservation Environmental consultant/engineer - regulatory compliance, data preservation Environmental contractors – do the work Reconstruction team – may be the same as the environmental consultant/engineer Medical (public health) professional – health threats/responses Public relations firm – dealing with the public and your employees

The 3:00 a.m. call to the dispatcher, facility manager, or environmental officer: Where, what, why? Who was impacted, and how? Where is the spill going? Who is in charge of the location? What notice was provided to government agencies? Who will the attorney be? Who will be coordinating the team?

Team data-gathering is similar to that for trucking: Collect and preserve evidence Collect names of people and companies involved in the incident and responding to it But also: o satisfy regulatory data gathering and reporting requirements

Government agencies responding to the accident: Environmental: DEP and/or EPA broad authority to inspect releases and regulated businesses without a warrant regulated entities have an obligation to provide information penalties incorporate cooperativeness, explicitly and implicitly

Government agencies responding to the accident Occupational: OSHA/DOL Often are deployed to incidents when serious bodily injury or death is involved Broad authority to investigate workplace accidents

governor-jindal-louisiana-c1ef43ff0f158c8f_large.jpg Government agencies responding to the accident Wildlife: PFBC/USFWS Fire: local fire department Code: local code enforcement officer

Protect the employees: The lawyer represents the company, not the individual Separate criminal defense counsel is needed Advise the employee on what to expect

Conflicts between employees and the company Taking the 5 th Amendment not for corporations may draw a negative inference may incite the agency and exacerbate any penalty Pointing fingers

Obtaining a copy of the investigating authorities’ files is critical Documents to be secured include: Any field inspection reports In-office inspection reports s Agency press releases Complaint logs Photographs and samples taken by the authorities

Obtaining a copy of company records is also critical Spill Prevention, Cleanup and Control (SPCC) Plans/ OSHA Emergency Response Plans Environmental Management System/safety program information Accident history/Compliance history Operations and Maintenance records if the accident involves some type of equipment Internal memos, inspection reports, incident reports, etc. Photographs taken by company personnel s Personnel files - Training information, disciplinary activities, drug testing

Many pieces of equipment have computer-generated data For example: Tanks may automatically record fluid levels and pressure. Containers and discharge points may automatically sample their content. Manufacturing equipment control devices may record their rates of production. Pollution control devices may record their input and output.

The Take-away: 1.Consider an audit BEFORE an accident 2.Get the right team in place to capture evidence 3.Get the right team in place to control further loss 4.Evaluate exposure 5.Resolve liability

Paul M. Schmidt, Esq. Chair- Environmental Practice Group (267) Zarwin Baum 24/7 Emergency Spill Line: