Environmental and safety incidents facing increased scrutiny
Companies that experience major environmental and workplace incidents are facing increasing scrutiny, including criminal investigations, according to lawyers who represent corporations involved in crisis situations.
Greg Dillard and Scott Elliott, partners at Baker Botts’s Houston office, say public repercussions for businesses experiencing serious environmental, health and safety issues has expanded significantly, especially those involving workplace deaths.
Dillard and Elliott, both University of Texas law school graduates, recently moved their law practices from Katten Muchin to Baker Botts. The Texas Lawbook recently interviewed the duo about developments in the field.
Q: What trends are you seeing when it comes to workplace incidents/accidents?
Dillard: A significant trend is the increased negative impact on operations and running of the business resulting from customer and brand concerns about partnering with companies that experience incidents. The need to effectively and efficiently manage both the legal and business effects of a crisis have never been more important for our clients.
Elliott: A trend in workplace incidents is a greater criminal enforcement at the state and local level. Harris County, in particular, has become very aggressive in early enforcement and has added budget and resources specifically to focus on environmental incident enforcement.
Q: Are there particular kinds of accidents that you are seeing more often now than in the past?
Elliott: We have not seen a pattern in the type of incidents; however, because of high industry demands and infrastructure growth, the frequency has increased on which we receive calls to provide immediate on-scene legal support for workplace incidents.
Q: What are the most difficult type of cases for you to investigate or defend?
Dillard: Cases that involve a loss of life are always the most challenging. In addition to what you would expect — an immediate barrage of enforcement agencies and plaintiffs’ lawyers — there is a powerful emotional impact on companies and their employees when coworkers and friends are injured or pass away. Having a lot of experience in those traumatic events helps me provide a steady hand for clients when faced with the worst of scenarios.
Q: We are now nearly three years into the Trump administration. How does the Occupational Safety and Health Administration (OSHA) operate differently now than under the Obama administration?
Dillard: OSHA operates essentially the same because the Trump administration has provided almost no political direction to OSHA. OSHA has been without a political leader for the entirety of the Trump administration, and I don’t expect that to change before the 2020 election.
Q: Greg, your bio says you tried a case for 20 days and scored a great success. Are you able to provide the background or facts about it?
Dillard: I have handled several multi-week trials for refineries that were faced with allegations that their facilities were not complying with OSHA’s Process Safety Management (PSM) regulations. The allegations generally involved how the companies test and inspect their equipment, how they document that their equipment complies with recognized and generally accepted good engineering practices, how they manage changes to their equipment and systems and how they mitigate potential releases of highly hazardous chemicals.
The equipment and systems at oil refineries and chemical plants are highly technical, and the companies’ PSM programs are extremely detailed and complex. The art of the defense is explaining these highly technical issues in a way that a judge can not only understand the companies’ safety programs but also how their actions protect their people, the environment and operations.
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