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
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
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
#1: How did the Agent Bypass
Security??
• Showed his badge but not ID or warrant
• Unescorted
• Kept his weapon
4
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
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
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
#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
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
#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
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
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
Meanwhile….
• Plan and begin your investigation
• Identify your team
• Meet with management
– Resources and commitment
– Liability
– Insurance notice
• Outside counsel
13
#4: Interviewing Employees
• The agent says he wants to start interviewing
employees next week.
• What is counsel’s role?
14
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
#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
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
*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
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