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

Investigations of Work Place “Accidents” – Environmental Harm & Employee Injury ABA White Collar Crime Conference Marc R. Greenberg,  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 • An Actual and Identifiable Victim Worker • Emotional and Anger Factor Safety • Lying, Cheating, Stealing • Obstruction Process • False Statements • Basic Regulatory Violations • Clarity of Regs/Law • Toxicity Env • 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?

Broad Prosecutorial Discretion What conduct should be prosecuted? ----- Higher Standard Zone of Discretion ----- Low Threshold What conduct can be prosecuted? 25

Focus of Prosecutor’s Review (Relative to Incident) Before During After

Influencing the Three Phases of a Prosecutor’s Review Remediation “Effective” Cooperation Compliance & • Prompt Self- • Voluntary Before/Prevention During Incident After/Reactive ”Responsible Governance Triage” • What is Compliance Declared? Improvements • What is Litigation Hold • Prevent Done? Recurrence • Funded Internal • Measured Investigation

“Before” Responsible Corporate Citizenship • “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 ?

“During” Responsible Corporate Citizenship • Regulatory Triage? Stop the Bleeding • Cooperation • Initiate Internal Investigation • Open Lines of Communication

“After” Responsible Corporate Citizenship • Remediation? • Continued Dialogue with Regulators • Root Cause Analysis • Corrective Measures to Fill “Gaps” and Improve Compliance

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).