1. 211 – What to Do When You’re The Lawyer in the Room: Responding to Spills, Product Recalls and Facility Emergencies The Government At and Inside Your Plant Gate Carol Deck Senior Counsel CalPortland Company Glendora, CA October 19, 2015

2. A Special Agent Drives Through Your Plant Gate….... Your boss the GC is out and you’re eating lunch at your desk when you get a call from the head of security.... He says a special agent with a badge drove through the plant gate five minutes ago. The gate attendant waved him through. The agent is headed for the waste water treatment plant.... You grab your boots and hard hat and drive over. 2

3. At the Scene There you see the agent standing at the edge of an open, uncovered, concrete treatment tank. In the tank you see hundreds of dead birds floating on the water or sunk to the bottom. It smells bad. You notice the agent’s holster with a gun. He shows you his badge and says he’s there because of an anonymous call. – He is from the U.S. Fish and Wildlife Service. 3

4. #1: How did the Agent Bypass Security?? Showed his badge but not ID or warrant Unescorted Kept his weapon 4

5. Plant Access and Security Prepare and train gate security officers: follow procedures – Show identification / visitor procedures – Ask for warrant – Call Legal and Security – Escort – Weapons 5

6. Back at the Scene…. The special agent is talking to the treatment plant operators – (They are represented by a union.) Operators have been processing ethylene glycol in the tank. – (You remember your neighbor’s dog died after drinking antifreeze.) 6

7. You remember the Migratory Bird Treaty Act is a strict liability law with criminal penalties Migratory Bird Treaty Act (16 U.S.C. 703-712) § 703. Taking, killing, or possessing migratory birds unlawful Unless and except as permitted by regulations made as hereinafter provided in this subchapter, it shall be unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, kill, attempt to take, capture, or kill, possess, offer for sale, sell... any migratory bird, any part, nest, or eggs of any such bird... (You also remember other laws, e.g., Endangered Species Act, Bald and Golden Eagle Protection Act) 7

8. #2: Search Warrants You ask the special agent if he has a search warrant or has consent to be on the property. He says no. Does he need a warrant? 8

9. How/Why can Gov’t Enter the Plant? Consent to search – Granted in real time – Granted in a permit Administrative warrants or order – Lower standard of probable cause than criminal warrants Warrant-less administrative searches of ‘pervasively regulated’ industries – Probably does not apply to environmental 9

10. #3: Split Samples The special agent says he wants to remove all of the birds and take them to the agency lab for analysis. You ask for split samples. The agent says no. Are you entitled to split samples? 10

11. Sampling and Evidence Negotiate sampling – Request samples if taken under CERCLA 104(e) – And results Ask for a copy of the warrant (scope?) Evidence – Chain of custody – Labels, marking & descriptions – Inventory and receipts for evidence – Preservation of evidence 11

12. Back at the Scene…. The birds are taken out one by one by an employee in PPE, and handed to an agent. The agent identifies the bird by species and general condition. There are 220 individuals, but no endangered or protected species. It takes all day. You get one-third of the samples. 12

13. Meanwhile…. Plan and begin your investigation Identify your team Meet with management – Resources and commitment – Liability – Insurance notice Outside counsel 13

14. #4: Interviewing Employees The agent says he wants to start interviewing employees next week. What is counsel’s role? 14

15. Counsel’s Role During Employee Interviews Tell employee it is voluntary – During a crisis, consider sending non-essential employees home May the company lawyer attend interviews? Upjohn warning to employee Recording the interview Union shop: special considerations 15

16. #5: Gov’t Request for Documents & Info The agent emails you a set of questions and request for documents. It’s not from an agency lawyer or the Department of Justice – Can you communicate directly with the agent? 16

17. Gov’t Request for Documents & Info Requests and responses must be in writing Give copies, not originals – Keep an identical set for company Supplement Mark/protect/separate CBI Frequent communication Strategy – Only one point of contact – Your company has more resources than gov’t Data gathering & analysis Control 17

18. *Why this Scenario with Migratory Birds? Covers situations where no permits are in place or government inspections are routine. Possible rulemaking in the near future on bird deaths that will affect the oil & gas, wind, solar, and electric power (and other) industries. Also, the circuits are split on the issue. 18

19. Additional cases and references Reeves Brothers, Inc. v. United States, 956 F.Supp. 665 (W.D. Va. 1995) (property owner had legitimate expectation of privacy in soil). United States v. Hajduk, 396 F.Supp. 1216 (D. Colo. 2005) (company had no expectation of privacy in wastewater in sewer line; a business treating hazardous waste is not “pervasively regulated” so exception to warrant requirement did not apply). United States v. Citgo Petroleum Corp., 893 F.Supp.2d 841 (S.D. Texas 2012) (discussion of split circuits for enforcement of unintentional takes under Migratory Bird Treaty Act). Utility Company Sentenced in Wyoming for Killing Protected Birds at Wind Projects, Department of Justice News Release, DOJ 13-1253 (Nov. 22, 2013) ($1 million fine and plea agreement by Duke Energy subsidiary for bird deaths at wind projects). 19