Select examples of our experience with incident planning and response include:
Before a Crisis or Incident
- Incident readiness. Advising a client on best practices, processes, and procedures for its response to suspected water contamination incidents and suspected public health outbreaks associated with facilities it leases, owns, and operates in multiple states, and assisting with the development of policies and key consultant relationships to facilitate rapid and effective incident response.
- EMS audit. Conducting a detailed evaluation of the worldwide environmental management programs of a Fortune 50 company with various consumer goods manufacturing subsidiaries encompassing over 130 facilities located in almost 50 countries, including detailed regulatory compliance assessments at 25 representative facilities in numerous countries, and providing detailed findings and recommendations covering activities at the parent and subsidiary levels to help the company implement the recommendations.
- Spill response preparation. Joining a company’s “spill drill” to test its incident management system and providing advice on best practices to respond to agency, media, and community requests for information; managing that information in a fast-paced environment; and suggesting protocol improvements.
- Training. Providing targeted training to internal EHS teams in conjunction with client training programs.
During a Crisis or Incident
- Release Reporting
- Advising a major petrochemical company on the development of a company-wide spill release and reporting protocol under various release reporting statutes, including Section 304 of EPCRA.
- Advising clients in the chemicals, telecommunications, pharmaceuticals, and food processing sectors on the submission of voluntary disclosures to EPA that resulted in minimal penalties for past violations of EPCRA reporting requirements.
- Defending a Fortune 100 client in a nationwide enforcement action alleging several hundred violations of EPCRA Section 311-312 chemical inventory reporting requirements.
- Crane collapse. In a significant federal OSHA enforcement case, advising a client on its immediate response to an investigation of a crane collapse at a nuclear power plant. The case incident involved a major energy sector company and three other companies and resulted in a fatality, several injuries, OSHA citations, and related tort and commercial litigation.
After a Crisis or Incident
- Water discharge. On behalf of a cruise line, negotiating an Environmental Compliance Plan with the U.S. Department of Justice (DOJ) as part of a criminal plea agreement arising from alleged CWA violations from oil bilge water discharges.
- Water enforcement defense. Representing the Louisville and Jefferson County Metropolitan Sewer District in connection with the failure of its final effluent pump station and subsequent inundation of its Morris Forman Wastewater Treatment Plant. This work involved enforcement defense and negotiation of a consent decree, as well as extensive claims against design and construction firms involved in upgrading the plant just before the failure.
- Hurricane effects. Representing the Sewerage and Water Board of New Orleans in connection with the flooding and restart of its East Bank Sewage Treatment Plant in the wake of Hurricane Ida.
- Water enforcement defense. Representing a major telecommunications company in a CWA enforcement action by the government of the Virgin Islands arising from the release of drilling mud during the installation of a fiber optic cable. We helped the company reach a settlement for significantly reduced penalties, and the project was completed.
- Chemical spill investigation. Representing a FORTUNE® 50 chemical manufacturer in connection with a grand jury investigation of a 750,000-gallon spill of a toxic chemical. Marshaling the facts in combination with the specific elements of the CWA offense that any prosecution must prove, we were able to secure a no-bill resolution of the matter.
- Water contamination. Representing a hospital owner/operator in multiple high-profile, complex, multi-party personal injury and wrongful death lawsuits alleging Legionella contamination of a regulated public water supply resulting in a community-wide disease outbreak. The plaintiffs seek $100 million in compensatory damages. This work involves developing and executing the defense strategy in coordination with local counsel in sophisticated consolidated litigation involving thousands of claims. The case involves multiple expert disciplines such as microbiology, industrial hygiene, environmental science, epidemiology, toxicology, and environmental engineering.
- Drinking water contamination. For a client involved in the “Flint Water Crisis,” working with the client’s executive team and staff, its media and crisis communications consultants, and its scientific experts to prepare documents, talking points, and testimony for administrative, regulatory, criminal, and civil proceedings.
- Groundwater contamination. For multiple clients that have discovered a current urgency arising out of historic or gradual release or migration of subsurface contaminants, helping clients to assess the use of technical information, evaluate regulatory requirements, and develop a risk mitigation strategy.
- Respiratory disease outbreak. Overseeing and coordinating a response to state and federal public health investigations of suspected respiratory disease outbreaks allegedly associated with an environmental pathogen identified at industrial and commercial properties owned, operated, and managed by our clients.
- Chemical release. Working with a publicly held industrial manufacturing and chemical company to evaluate and improve its Emergency Management System as part of its response to a plea agreement resolving environmental criminal allegations.
- Pipeline rupture. Designing and overseeing a four-month internal investigation in the aftermath of a significant pipeline rupture. This investigation involved managing complex parallel proceedings in both the criminal and civil/regulatory arenas.
- Worker safety incident. In the aftermath of a significant workplace and environmental incident assisting a client in designing and overseeing an internal investigation into the incident, representing the client in inspection and enforcement proceedings involving multiple regulatory agencies, and advising on the development of corrective steps necessary to prevent recurrence and improve overall compliance.
- Oil spill. Assisting a prominent plastic film manufacturing company respond to an EPA SPCC enforcement action arising out of a post-spill EPA inspection, develop and implement a compliant SPCC plan, and leverage necessary improvements to offset potential enforcement penalties.
- Hazardous chemical releases. Helping clients to effectively develop and explain the facts surrounding accidental releases (e.g., during horizontal drilling frac-out, or during equipment failure during transfer or storage of hazardous chemicals) for successful State penalty mitigation, and coordinating with clients on next steps, such as further preventative measures and cost recovery from insurance or other parties.
- Coal ash spill. B&D served as Court-Appointed Monitor in the Duke Energy (Duke) coal ash spill remediation as a condition of a criminal plea agreement under the CWA (United States v. Duke Energy Business Services, LLC, et al.). Among other monitoring tasks, the B&D team oversaw Duke’s development of coal ash-related environmental compliance plans (as well as a $3.4 billion ash pond cleanup across multiple facilities in multiple states) and conducted a programmatic evaluation of Duke’s root cause analysis and corrective and preventive action processes. The monitorship was completed successfully in May 2020.
- Air releases. Advising clients on incident responses, root cause analyses, and follow-up reporting, all as they relate to potential liability under the CAA general duty clause and the Risk Management Plan Rule (RMP). Our work has included numerous real-time incident-specific responses and follow-up cold-eye reviews of response efforts to identify vulnerabilities and offer advice on strengthening areas of review.