Investigations of Work Place Accidents Environmental Harm & - - PowerPoint PPT Presentation

Investigations of Work Place “Accidents” – Environmental Harm & Employee Injury

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Marc R. Greenberg,

ABA White Collar Crime Conference March 2016 San Diego, CA

Overview of Presentation Topics

• Will Discuss 2 New DOJ Policies
• Yates Memo re: “Individual Accountability”
• Yates Memo re: “Worker Endangerment”

Yates September 2015 Memo

• Focus: pursuit of individuals for corporate

misdeeds

• Corporation must disclose all relevant facts

regarding misconduct of individuals to qualify for cooperation credit

• Coordination between civil and criminal

investigators from the start

• Release of individuals will be very rare, and

require AAG or US Attorney approval

Worker Safety Initiative

– December 2015 Memorandum of Understanding between DOL and DOJ – Memorandum to U.S. Attorneys’ Offices indicating that each office will have a Criminal Coordinator for worker safety cases – Delegation of authority to ECS to enforce worker safety statutes (OSH Act, MSHA, Migrant and Seasonal Worker Protection Act, Atomic Energy Act)

Overview of Presentation Topics

• Various Hypotheticals as a Teaching Vehicle that

involves key factors

• Most Egregious and Extreme Facts
• Worker Death
• Massive Environmental Release
• Less Extreme Facts (but still “serious”)
• “Bread and Butter” Violations

Worker Endangerment Facts also Give Huge Advantages to Government

• Evidentiary:

No Pre-Trial 403 Exclusion

• Strategic:

More Difficult to Defend Jury Appeal/Sympathy

• Sentencing:

Increased Punishment

Foundations of a Strong Environmental Prosecution

Worker Safety

• An Actual and Identifiable Victim
• Emotional and Anger Factor

Process

• Lying, Cheating, Stealing
• Obstruction
• False Statements

Env

• Basic Regulatory Violations
• Clarity of Regs/Law
• Toxicity
• Duration

Scenario One

• An explosion occurs at a wastewater treatment

facility resulting from the mixing of incompatible

• wastes. The facility had no history of violations

and the mixing was the result of operator error.

• The released materials ignite sending a cloud

containing detectable quantities of released materials over a nearby neighborhood.

• One employee is killed, several employees are

transported to the hospital and hundreds of people from the neighborhood seek medical attention.

Major accident . . . now what?

• Emergency response
• Disclosures and notifications
• Preservation of physical evidence and

documents

• Communications
• Assume a criminal investigation

Wide Range of Criminal Statutes

• The underlying event

– CWA/RCRA/CAA . . .

• The response

– False statements – Obstruction of justice – Witness intimidation – Conspiracy to defraud

The On-Scene Response

• Determine which government agencies are on

site

• Establish a protocol and point of contact for

government-company communications

• Track government requests for information/

interviews/documents/physical evidence/ samples

• Coordinate with company counsel

On-Site Interviews

• Government responders will immediately

focus on employees and contractors with first- hand knowledge and first-line supervisors

• Inform employees of their rights and

employer’s expectations

• Interviews and preparation for government

interviews

• Representation issues

Physical Evidence

• Sampling and testing
• Preservation
• Communication and coordination with

government agencies

• Common nor agencies to request agreement

regarding preservation of evidence and changes to incident site

• Consider scope of “exclusion zone”

Document Collection and Production

• Insist all document requests be in writing
• Identify main custodian
• Establish process for collection, review and

production

• Review for privilege and withhold privileged

documents

• Review and label documents for CBI or SSI

Documents

• Operating procedures for plant/unit/

equipment

• Work orders
• Inspection and maintenance logs
• Inspection reports
• Prior incident reports, release reports, NOVs

Communications

• Very limited information, but need to

communicate

• Facts versus speculation/legal conclusions
• Must generally provide:

– General statement of the situation – Number of response personnel involved – Number of fatalities/injuries, if any, and where they were taken – Non-technical description of damaged equipment and the functions performed

Communications

• Identify company’s commitment to cooperate,

investigate and fully understand what happened, and prevent future recurrences

• Express sympathy as appropriate

Company Root Cause Investigation

• Understand methodology and scope
• Identify needed expertise

– When to retain – Privileged versus non-privileged review issues

• Avoid pitfalls of personal agendas and

speaking in hyperbole

Findings

• Series of past incidents involving mixing of

incompatible wastes

• Written procedures out of date
• Facility lacks required planning documents,

including RMP

• Lack of RMP was a causal factor in scope of

incident

Scenario Two

• An explosion occurs at a wastewater treatment

facility resulting from the mixing of incompatible

• wastes. The facility had no history of violations

and the mixing was the result of operator error.

• There is no release to ground or water and fence-

line monitors do not detect the presence of released materials in excess of permit limits.

• One employee is killed, several employees are

transported to the hospital.

Worker Endangerment Initiative

• ECS can prosecute OSH Act 666(e) cases

without an environmental tie-in

Scenario Three

• Same facility
• Written procedures out of date
• Facility lacks required planning documents,

including RMP

• No explosion, fire or release

Query

• Will DOJ investigate “paper” violations for

possible criminal prosecution?

25

Broad Prosecutorial Discretion

What conduct should be prosecuted?

• ---- Higher Standard

Zone of Discretion

• ---- Low Threshold

What conduct can be prosecuted?

Focus of Prosecutor’s Review (Relative to Incident)

During After Before

Influencing the Three Phases of a Prosecutor’s Review

Before/Prevention

“Effective” Compliance & Self- Governance

• What is

Declared?

• What is

Done?

• Funded
• Measured

During Incident

Cooperation ”Responsible Triage” Litigation Hold Internal Investigation

After/Reactive Remediation

• Prompt
• Voluntary

Compliance Improvements

• Prevent

Recurrence

• “Effective Compliance?”
• Be Prepared to “Show” – not just “Tell.”
• Risk Assessments
• Training
• Monitoring & Auditing – Paper Trail
• Past Regulatory History
• Maintaining Constructive Regulatory

Relationships

• What do you Declare / Measure / Fund ?

“Before” Responsible Corporate Citizenship

• Regulatory Triage? Stop the Bleeding
• Cooperation
• Initiate Internal Investigation
• Open Lines of Communication

“During” Responsible Corporate Citizenship

• Remediation?
• Continued Dialogue with Regulators
• Root Cause Analysis
• Corrective Measures to Fill “Gaps” and Improve

Compliance

“After” Responsible Corporate Citizenship

Mens Rea

• Knowing
• Responsible Corporate Officer Doctrine
• Willful blindness/deliberate ignorance
• Corporate collective knowledge applied to willful

standard

– where a corporation has a legal duty to prevent violations, and the knowledge of that corporation’s employees collectively demonstrates a failure to discharge that duty, the corporation can be said to have “willfully” disregarded that duty.– United States

• v. Pac. Gas & Elec. Co., No. 3:14-cr-00175 (N.D. Cal.
• Dec. 23, 2015).