Overview
Our experience includes:
NTSB
- Industry leading NTSB experience (30+ investigations)
- Prompt & sophisticated response to NTSB investigations to minimize exposure and support continued operations
- Accident preparedness training and best practices for response procedures
PHMSA
- Respond to corrective action orders and obtain approval of restart plans
- Respond to notices of potential violations (NOPVs) and negotiate civil penalties
- Assist with administrative and judicial challenges to NOPVs and proposed penalties
- Coordinate/negotiate state and local investigations and enforcement, remediation requirements and civil penalties
EPA
- Respond to information requests and assist in dealings with federal on-scene coordinator
- Develop long-term remediation plans
- Assist with monitoring/sampling and no further action sign-offs
- Address fingerprinting, quantification and historical contamination issues
DOJ
- DOJ natural resources experience to assist with DOJ information requests and negotiate penalties, injunctive relief and consent decree
- Defend criminal (grand jury) investigations, including prosecutions of company officials and personnel, if needed
US Coast Guard
- Experience with Oil Spill Liability Trust Fund claims process administered by USCG
- Contest public and private claim amounts USCG will seek to recoup from pipeline operator
Natural Resource Damages
- Experience with complex natural resource damage process
- Identification of federal, state, and tribal trustees and challenging candidates
- Natural resource damage assessments to quantify potential injury
- Negotiation of damages settlements and advice on other issues arising under Oil Pollution Act
Civil Litigation
- Decades of civil trial experience in class actions, individual property owner actions and other environmental lawsuits arising from releases of hazardous substances
- Track record of defeating and deterring commercial claims by shippers and third parties for breach of contract, business torts and business interruption
- Attuned to potential conflicts between civil liability and federally approved tariffs that can give rise to filed rate and preemption defenses
- Design strategies to manage reputational, financial, legal, regulatory and operational risks
Crisis Response
- Deal effectively with critical first 48 hours, internal messaging, media response, and inter-agency coordination
- Deep roots in House and Senate to address Congressional hearings/inquiries after a significant pipeline spill or explosion
Pipeline Release Checklist
Take Immediate Steps to Protect People and Property
Protection of people and property takes precedence over all other post-accident concerns.
Preserve Evidence at Accident Site
While protection of people and property comes first, a pipeline operator must also take steps to preserve physical evidence at the accident site to avoid spoliation of evidence claims.
Initiate Emergency Response Plan
The pipeline operator’s emergency response plan should be initiated, including the establishment of an Incident Command Structure.
Notify National Response Center
You must notify the National Response Center (800-424-8802) at the earliest possible moment following discovery of the release, usually within 1-2 hours. See 49 C.F.R. § 191.5. Other reporting requirements may exist under state law and for discharge of oil, discharge of hazardous substances regulated under the Superfund Law, or release of designated extremely hazardous substances under the Emergency Planning and Community Right to Know Act of 1986.
Schedule Drug and Alcohol Testing
Drug tests must be accomplished as soon as possible, but no later than 32 hours after the accident on each employee whose performance either contributed to the accident or cannot be completely discounted as a contributing factor to the accident. See 49 C.F.R. § 199.105.
Alcohol tests must be accomplished as soon as possible. If not done within two hours, reasons for the failure to test must be documented. If not done within eight hours, attempts at testing must cease. See 49 C.F.R. § 199.221-225.
Notify In-House and Outside Counsel
If the NTSB has, or is likely to respond, outside NTSB counsel should be dispatched to the scene as interviews and data requests will likely move forward within 24 hours. A representative from the company's general counsel's office should also be dispatched to address legal issues and coordinate with outside counsel
Select and Brief Company Participants in NTSB investigation
The NTSB uses a "party process" of investigation and will request the company to provide personnel who will work with the NTSB inside the investigation. Ideally these employees will be selected in advance of an accident and trained on the NTSB accident response process. These employees should be briefed on their role in the accident investigation.
Coordinate with Public Relations and Corporate Communications
All internal and external communications take on added significance following a release and should be reviewed in advance by counsel. If the NTSB investigates the accident, applicable regulations severely restrict a company's ability to communicate about the accident internally and with the press or other outside parties.
Collect and Preserve Key Documents
Key documents should be collected and preserved, with a special focus on documents and communications that might be destroyed under the company's document retention policies.
Pipeline Accident Response Analyses & Insights
- "NTSB Issues Accident Brief on Keystone Amherst, SD Release" (July 9, 2018)
- "Are you Prepared for an NTSB Pipeline Accident Investigation?" (November 17, 2018)
Pipeline & Gas Journal - "Pipeline Operators, Are you Prepared for NTSB Accident Investigations?" (April 12, 2017)
Pipeline & Gas Journal - "Real World Accident Response: The NTSB" (February 28, 2017)
- "PHMSA Toughens Pipeline Safety Rules" (January 25, 2017)
Pipeline Accidents: Are You Prepared? Webinar Series
- Part One: The First 48 Hours (December 1, 2016)
- Part Two: Criminal Enforcement and Cleanup (January 12, 2017)
- Part Three: Private Enforcement and Civil Litigation Considerations (April 5, 2017)
- Part Four: Negotiating the Most Favorable Outcome and Calculation of Penalties (September 26, 2017)