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Rock Law by
Patton Boggs LLP |
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Reducing Risk, Part 1
All levels of management, from foreman to the board chairman, should understand that accidents of all kinds and the resulting government enforcement actions can have a significant impact on them, personally, as well as the company. Government agencies such as the Occupational Safety and Health Administration, the Mine Safety and Health Administration, and the Environmental Protection Agency collect and create evidence. Their enforcement actions, findings of fault and negligence, and reports often become evidence used by plaintiffs’ lawyers to support lawsuits against the company. When the government accuses a company of reckless disregard, high negligence, unwarrantable failure, or a willful violation, plaintiffs’ attorneys “see green.” They use those allegations to support their demands for punitive damages. Moreover, government findings can be used as a basis of potential insurance coverage denials. Of course, government enforcement actions pose risks of criminal charges that, if brought, have overwhelming impacts on both individuals and companies. In this two-part article, we share tips on how to avoid those consequences. Records can be a double-edged sword Records can contain both helpful and harmful information. The Enron scandal taught us that once an incident occurs, it is too late to do anything about those documents even if a formal investigation has not yet begun. Because of that, companies should audit and regularly review records to make sure they can’t be used against them. Where those records exist, documentation of corrective actions should be mandatory. It could be critical to preventing severe liability risks. Management should regularly audit a number of items, such as these, that can both increase or reduce the risk of liability: 1. Notes and enforcement actions from prior inspections. They could reflect repeat problems or “guilty knowledge.” 2. Employee suggestions or complaints and safety committee or union meeting notes. Chronically unanswered complaints or uncorrected problems are a basis for enhanced liability. 3. Contractor warnings and training. Contract documents should be reviewed to ensure that they use language that details compliance responsibilities and provides indemnities and insurance requirements. Make sure responsibility is explicitly assigned to the party to whom it belongs. 4. Training records, safety meeting minutes, notices, signs, and warnings. Strong, well-communicated safety program is a strong defense in cases based on unsafe employee actions. 5. Disciplinary records for safety rule violations. When safety training is backed up by objective, uniform discipline, it becomes an extremely powerful ally in the fight against liability. 6. Accident, injury, illness and incident filings (see e.g. 30 C.F.R. Part 50). 7. Records regarding environment, health, and safety budget requests. Watch out for denied expense requests when the original request was based on safety. 8. Insurance policy retention, coverage, and exclusions. 9. Safety and environment permits and licenses. Routinely correct deficiencies or mismatches. 10. Permits, plans, drawings, and maps related to regulatory mandates (e.g. process plans, piping and instrumentation drawings, ventilation, and HazCom plans). Make sure they reflect your latest modifications. 11. Government identification reports and filings (e.g. operator identification information and ATF permits/licenses). 12. Reports of visits or studies by agencies, corporate management, or insurance representatives. 13. Petitions for modification, variances, and their conditions, if applicable. 14. Be sure to also check electronic data used for recording inspections or complaints, machinery, and equipment work orders and training. Train your management On-site discussions with government compliance personnel or investigators are the most effective and least expensive method of avoiding unwarranted enforcement actions and may assist in improving environmental, safety, and health conditions. Engaging an inspector in a reasoned, polite discussion of the facts and the law can produce favorable results. However, admissions of facts, knowledge of violations, or guilt increase the risk of severe enforcement or liability consequences. But beware: misrepresentations or false statements constitute far worse violations of law with even more significant risks! The “prime directive” for interactions with federal, state, and local government officials is: Always tell the truth when you speak or write, but you need not always speak or write. Telling a lie to a government investigator, falsifying records, or conspiring to mislead an investigation is a felony crime, with a generally higher penalty than a willful violation of an MSHA or OSHA regulation — even one leading to a fatality. Not only are individuals and company’s threatened by these risks, but such allegations by the government support plaintiffs’ lawyer demands for punitive damages and denials of insurance coverage. Learning when not to speak, or when to stop speaking, and how to prevent “admissions” is a critical element of liability and enforcement risk reduction. Management officials who have not learned their rights and duties can significantly increase liability risks because they do not understand how to properly interact with government inspectors and investigators. Moreover, learning how to maintain a cooperative and friendly relationship with government officials, even while not answering questions, is a critical tool for every management official, including all foremen and practically every manager. Voluntary statements made during the course of an inspection or accident investigation do not require government warnings and can be used to incriminate the individual or the company. When in doubt as to the advisability of providing records or answering questions, consult counsel. In situations involving an obvious violation or hazard, management should consider foregoing needless rebuttal or comments. While truthful responses are mandatory to avoid serious criminal prosecution and risks for obstruction of justice, answers to inspector questions need not be provided (e.g. Question: How long have you known about it? Answer: We’ll make sure it doesn’t happen again.).
Stand Up for Your Rights Avoid mistakes by knowing and exercising your rights under the Mine Act. We’re all familiar with the famous phrase, “You have the right to remain silent.” It is the opening of a Miranda warning that precedes a criminal arrest. This warning has become a part of our popular culture. In fact, chances are you won’t make it through a police drama on television or the big screen without hearing a law enforcement officer uttering these words. Miranda warnings, however, are not applicable to Mine Safety and Health Administration investigations, and MSHA is under no obligation to inform miners of their rights. That is why it is crucial for all operators and their employees to be well versed on basic rights under the Mine Safety and Health Act (Mine Act) before an investigation begins. In the heat of the moment following a serious accident, critical mistakes are often made and incriminating information is volunteered to regulators. Such mistakes may lead to serious enforcement actions against the company and potentially against individual employees. While one cannot ever lie to or mislead an investigator, there are ways to handle an investigation in a way that preserves your rights. This article is intended to remind you of the basics. A mine operator’s bill of rights 1 You are never required to talk to an MSHA investigator, unless you have made an uncoerced, voluntary decision to do so. The First and Fifth Amendments to the U.S. Constitution protect your rights. 2 If you consent to be interviewed by an MSHA investigator, you may refuse to answer any question and may terminate the interview at any time. You may also make your willingness to answer questions subject to the participation of any third person of your choosing, including legal counsel. 3 You have the right to refuse that an interview be tape-recorded. You also have the right to refuse to sign any statement or document that is placed before you. 4 An MSHA investigator has a right to inspect, without a warrant, only those records or files that the law requires to be maintained. That means that unless an MSHA regulation or the Mine Act states you have to create a document and make it available upon request, you have discretion as to whether a requested document must be turned over to the government. While you may ultimately choose to produce such records for an investigator, you are under no obligation or time pressure to do so. Particularly in the context of a fatality or a special investigation, records not required to be maintained should only be produced after careful review, consultation with counsel, and thoughtful consideration of the potential legal consequences of any admissions contained in the documents. 5 If you produce records, they must never be altered, falsified, or contain misleading information. It is a serious, criminal offense to engage in such antics. Lying about a violation is much worse than any underlying conduct. As my partner, Mark Savit, says, “The truth does not always set you free, but lying is worse.” 6 The MSHA investigator cannot lie to you or mislead you as to the purpose and scope of his investigation. However, if you do not ask about purpose and scope, the investigator has no obligation to tell you. This may be done in a cooperative, non-confrontational manner. 7 If you talk to an investigator, you must recognize that your statements can be used against the company to prove a violation. In addition, such statements could incriminate you personally and warrant further enforcement under Section 110(c) of the Mine Act. If the only answer to a question is an incriminating one, consult legal counsel first before agreeing to answer the question. Better yet, maybe you should not be interviewed at all until you talk to the company’s lawyer. 8 When faced with an MSHA investigation or enforcement action, management officials (including all supervisors) should never give advice to employees about whether they should talk to an MSHA investigator. Even relatively harmless statements may be misquoted, be taken out of context, and/or spun as “my boss said I shouldn’t talk to you.” This could result in the supervisor and the company being cited for obstruction and interfering with the investigation. This problem can be avoided if employees are educated regarding their rights in training classes that occur prior to and entirely outside the context of an investigation. If questions of this nature still arise during an investigation, make legal counsel available to your employees to resolve any lingering confusion. Educate your work force To reinforce these concepts, a regular refresher on Mine Act rights must be incorporated into miner training, and it must be done well. If you wait until a serious investigation is underway before reminding your supervisors and employees of their rights, you are much more likely to be victimized by an unnecessary mistake. It is not my intent to tell operators that they should be difficult or uncooperative. Quite the opposite, we always advise our clients that they should, whenever possible, work cooperatively with investigators, and they should always respond quickly to safety issues and concerns that are raised by the government. That, however, does not mean that you simply roll over or worse yet, concede violations and incriminate yourself with damaging admissions. You must recognize and respect MSHA’s authority but know and exercise your rights.
Closing
Conferences that Count A closing or post-inspection conference is your second chance (your first opportunity comes during the inspection) to convince an inspector that he or she should not issue a citation, should not classify an alleged violation as significant and substantial (S&S), or possibly worse. Recently, a number of mine operators have complained that inspectors were not willing to give them that chance to discuss the merits of a citation during closing conferences. Instead, some inspectors have just told operators to request an informal conference and “take it up with the district.” Why? In 1994, the Mine Safety and Health Administration rolled out its alternative case resolution initiative, or ACRI, to informally resolve enforcement disputes and created the conference/litigation representative, or CLR, position. CLRs and supervisory mine inspectors handle informal conferences, before the contest proceedings begin. ACRI has been extremely successful, and MSHA resolves many enforcement disputes through informal conferences and through the ACRI process. Inspectors know this and, as a result, some seem to have concluded that it is just not their job to resolve enforcement disputes. Inspectors who refuse to discuss a citation or consider a producer’s concerns during an informal conference are not doing the job that MSHA has assigned to them. Worse, they are depriving you — the mine operator — of an important opportunity to be heard, to explain why you did not violate the standard or regulation, or to state why the violation was not S&S (or worse). As an agency, MSHA would almost certainly agree. MSHA requires all of its inspectors to conduct closing conferences and to permit mine operators to participate and to voice their concerns. You may wonder why you would even bother with a closing conference. By then, the inspector has already decided to issue a citation, and he is not going to change his mind about it at the closing conference, right? Maybe. First, even if you are not able to convince an inspector to modify or vacate a citation, it does not cost you anything to try. Assuming you are able to avoid any damaging admissions, there is virtually no downside to discussing your concerns with the inspector in a calm and professional manner. Second, having participated in a number of closing conferences, I can tell you that some inspectors can and do change their minds at the conference. Inspectors have modified 104(d) citations to 104(a) citations, have modified allegations of high negligence to moderate or low negligence, and have even agreed to vacate citations altogether. How do you convince an inspector to vacate or modify a citation during a closing conference? You present a factual argument that tracks the language of the standard and back it up with hard evidence such as witness statements, photographs, measurements, or sampling results. At a closing conference, the language of the regulation and the facts are almost all that matters. For example, let’s consider a 104(d) citation alleging an unwarrantable failure to take down or support bad ground. In this example, our inspector issued the citation after he noticed a large piece of what appeared to be loose ground — a boulder — sticking out of a relatively unconsolidated, low-angle face. The foreman told the inspector that he knew about it. He also explained that the boulder was not loose, and the face was very stable. The inspector did not believe it, and, because the condition was obvious and the foreman admitted that he knew about it, he decided that the foreman’s failure to take it down was unwarrantable. What the inspector did not know is that the foreman could prove that he had been right. As soon the inspector said he would issue a citation, the foreman assigned a crew to take it down. The crew spent hours working on it, but they could not get it down. Finally, the crew had to drill and blast it down. At the closing conference, the inspector refused to allow the plant manager to explain what it took to get the ground down. If he had, the plant manager would have shown him pictures of the boulder after it came down showing that it had, in fact, been securely attached to the face. Miners on the scaling crew would have explained that the boulder had been securely attached to the face. Finally, the plant manager would have pointed out that the cited standard — 30 C.F.R. § 56.3200 — requires that “ground conditions that create a hazard to persons shall be taken down or supported…” Since the ground in the area clearly did not present any “hazard to persons,” there was no violation. Most inspectors would listen to this kind of argument, and some would vacate or even modify the citation. Unfortunately, the plant manager in our example did not have an opportunity to make this kind of fact-based argument. If you find yourself in this situation, what should you do? The obvious answer is that you should request an informal conference, and you should present the same argument to the CLR or the supervisory mine inspector conducting the informal conference that you would have presented to the inspector at the closing conference. However, you should also make a point of telling the CLR or the supervisory mine inspector — politely, of course — that the inspector refused to conduct a proper closing conference. This should not affect the outcome of the informal conference, but it will serve to remind the CLR or the supervisory mine inspector that the issuing inspector did not do his job and wasted everyone’s time as a result. With some luck, that will make it back to the issuing inspector, and the inspector might be more willing to hold a real opening conference after his next inspection.
The
Light at the End of the X-ray During the last year, this space has been used to talk about the growing epidemic of silicosis claims. This epidemic isn’t an epidemic in the traditional sense — the one where people actually get sick. It’s an epidemic in lawsuits — the result of two factors coming together. First, it is the result of greedy law firms running out of asbestos claims. Secondly, it is the result of plaintiffs who believe that they are able to get extra money just by showing up to a minimal procedure. Everyone familiar with these lawsuits had been puzzled by the fact that, although the number of people diagnosed with silicosis had been dropping steadily through the years (from more than 1,100 deaths in 1968 to less than 200 in 1999), the number of plaintiffs claims had skyrocketed to well more than 30, 000 in the last several years. Most of us had suspected that the primary source of the increased claims was for-profit X-ray screening companies, hired by plaintiffs’ law firms, and a small number of doctors used by those companies to read the X-rays that they took. It turns out we were right. We just didn’t know how right we were. One of the major silica exposure cases underway is actually a consolidation of numerous individual cases, which comprise more than 10,000 individual claims. In this case (referred to as Multi District Litigation No. 1553 or “MDL 1553”), the court recently held a hearing regarding the scientific reliability of the diagnoses on which the claims were based. What came out in that hearing was striking. The plaintiffs’ lawyers paid the screening companies only for positive results. The X-rays in question were turned over to a handful of doctors, who “read” them and offered diagnoses. A small group of doctors was responsible for the vast majority of “positive” reads. One of the doctors reported screening more than 600 X-rays per day and allowing his secretary to prepare the diagnoses based on his notes and stamp his name on the reports. Two other doctors — responsible for more than 4,000 of the 10,000 total cases — recanted their diagnoses entirely. They stated that the diagnostic language relied on by the plaintiffs’ lawyers had been inserted into their reports by, or at the request of, the screening company and that their names had been stamped on the reports after that. But that’s not the worst of it. The hearing also revealed that approximately 60 percent of the plaintiffs claiming that they had silicosis were either already receiving benefits for asbestosis or were in the process of claiming benefits for it. It turns out that the plaintiffs and/or their lawyers simply filled out new “exposure histories” and had the X-rays used for the asbestosis diagnosis “re-read” for evidence of silicosis. However, the x-ray evidence of silicosis is very different from the X-ray evidence of asbestosis. It also turns out that a group of very prominent and well-respected doctors later testified that it was exceedingly rare that the same person would have evidence of both silicosis and asbestosis. But that hardly stopped the doctors. Many of them simply ignored their prior findings regarding asbestosis (which, of course, would have ruled out silicosis) and went on to diagnose silicosis from the same X-rays that had previously been the basis of their asbestosis decision. The judge made no bones about how she felt about this situation. In one case, she warned a doctor not to answer any further questions until he got advice from counsel and, in another situation she said that she couldn’t decide whether the conduct of another doctor was “criminal or quasi criminal.” It is rumored that the hearing has caused at least one grand jury to be convened solely to look into the practices of the screening companies. Why is this important? I know that it is very self-satisfying for many of us, who long felt that that the industry was being victimized by a legal system run amok. But more importantly, the conduct brought to light in MDL 1553 is so blatantly outrageous, so blatantly greedy, and so blatantly wrong, that it just might form the basis for a real attack on both the litigation climate of today and the anti-mining, silica hysteria that we currently face. If the silica mass tort lawsuits are finally exposed for the fraud we now know they are, perhaps it will allow us to reclaim the high ground in our efforts to get folks to take a more reasoned approach to mining and its role in our economy and our environment. You should check facts carefully before going forward, but you should not hesitate to raise these issues the next time you are faced with silica-based opposition to any of your current or planned operations.
Changing the Direction of MSHA? A recent groundbreaking decision from the Federal Mine Safety and Health Review Commission may affect the Mine Safety and Health Administration’s ability to issue citations to operators for independent contractor violations. On March 18, 2005, the Federal Mine Safety and Health Review Commission issued a decision which could greatly affect the traditional scorched earth approach that MSHA has historically taken when issuing citations. In Secretary of Labor v. Twentymile Coal Company, Twentymile hired a contractor to remove clay from a refuse pile. The contractor operated a pan scraper and a service truck to perform its duties. Twentymile did not own, operate, or maintain the equipment used by the contractor to remove the clay. Enter MSHA. The inspector issued six citations to the independent contractor based on an inspection of the service trucks. The inspector then issued same six citations to Twentymile. The inspector testified that he thought it was appropriate to cite Twentymile in order to address a problem he perceived with contractor violations at the mine and because he thought that it would encourage Twentymile to bring more attention to the violations. Twentymile challenged the six citations and the administrative law judge affirmed the six citations based on the inspector’s belief that there was a problem with contractor violations at the mine and that citing Twentymile would bring more attention to the problem. Twentymile then filed a petition, asking the commission to review the judge’s decision. On review, the commission issued a groundbreaking decision affecting MSHA’s ability to issue citations to both owner-operators and independent contractors for violations of the independent contractor. Citation considerations In its decision, the commission noted that since the passage of the Mine Act, the commission and courts have consistently recognized that in instances of multiple operators, the secretary may proceed against both an owner-operator and an independent contractor for violations of independent contractors. However, the commission reviewed the ALJ’s decision regarding the citation of the production operator by considering the following factors:
The commission’s decision Based on these factors, the commission held that there was an insufficient basis for issuing the citations to the production operator in addition to the independent contractor. More specifically, the commission found that the independent contractor was in the best position to prevent the violations in question. This was based largely on the fact that the independent contractor maintained and owned all the equipment that was the subject of the citations. Because the independent contractor was experienced in performing its duties and was performing its duties autonomously, the commission held the factors weighed in favor of holding the independent contractor solely accountable for compliance under the Mine Act. To support its decision to vacate the citations, the commission also found that Twentymile did not have a significant, continuing involvement in the work specifically being performed by the independent contractor. No Twentymile employees worked at or near the area the subject contractor was working in, although Twentymile employees did check on the progress of the work being performed and performed general safety audits. The commission stated that “[p]unishing a production operator for such steps taken to ‘ensure’ contractor compliance is contrary to the intent of the Mine Act . . . ” The commission found that the record established that Twentymile did not directly contribute to the violations that were involved in the citations — by either act or omission. The commission expanded that in order for a production operator to contribute to a violation through an omission, the omission must be a significant one. Without the “significant” threshold, the commission stated, the production operator could be found to have contributed to a violation in virtually every circumstance. In further support of its decision, the commission found that (1) Twentymile took reasonable measures to ensure that the contractor complied with MSHA standards; (2) Twentymile employees were not threatened in any significant way by the hazards posed by the violations at issue; and (3) Twentymile had no significant control over the conditions requiring abatement. Significantly, the commission stated: “If the secretary were found to have met the control criterion with regard to Twentymile in this case based on the contractual right to remove [the contractor’s] violative equipment, then virtually every production operator could automatically be found liable for its independent contractor’s violations . . .” In the Twentymile decision, the commission again gave meaning to the above referenced factors used in determining if owner-operators should be cited for violations of an independent contractor. Past decisions have held owner-operators liable seemingly by virtue of the mere fact that an independent contractor is on a mine site owned or managed by an operator. The Twentymile decision takes a step back from this blanket approach to issuing citations, with an end result being a well thought out and meaningful case-by-case analysis of owner-operator liability. To get a copy of the Twentymile decision, go to www.fmshrc.gov/ and click on Recent Decisions. MSHA appealed the Twentymile decision on April 15. As of press time, that appeal had not been resolved.
Enter the Matrix
Product stewardship concepts in the new millennium are evolving. Once isolated from the executive suite, they are becoming leadership team efforts aimed at company stewardship that integrates corporate growth with value preservation and public expectations of environmental, health, safety, and financial stewardship and disclosures. The asbestos crisis that bankrupted 70 major companies, coupled with expanding litigation regarding an endless list of new targets (silica, welding fumes, mold, and diesel exhaust), and recent financial disclosure mandates and scandals, have changed corporate needs and created new response options for threats to corporate viability. As some in the government occasionally whisper, while the regulatory goals of the ‘60s may not have found continued support, they created new duties that exposed risks and helped foster a plaintiffs’ bar and prosecutors that are increasingly impacting corporate action. During the last half of the 20th Century, insurance, environmental health and safety (or EHS), legal, human resources, public relations, compliance, and financial experts have performed their duties — often thanklessly — in near isolation, without grasping the catastrophic potential of their lack of integration, or even understanding of each other’s worlds. Today’s company stewardship evolution may differ from company to company as it begins to take shape, but generally shares a leadership team that identifies and addresses “nightmare” risks across corporate silos. Nightmare risks are created by the potential for product liability recall, toxic torts, and both physical and financial disasters that can overwhelm resources, management personnel, and lead to the ruin of corporate value built during decades of hard work and contributions to society. Our defense of hundreds of investigations and cases tells us that while there has been massive improvement in all areas of corporate expertise, the “bits and pieces” have only begun to be successfully integrated on a wide scale. Yet, without integration, we see repeated bet-the-company situations that grow harder to contain as plaintiffs’ lawyers gain more resources for new case investment and as government agencies see increased political needs for stricter enforcement and new regulation, which creates free evidence for the plaintiffs’ lawyers. A recent Texas refinery tragedy will undoubtedly result in new attempts to further criminalize the EHS laws or that the resulting enforcement will be used to support punitive damage claims, perhaps in the billions? The insurance industry is responding to the appearance of risk by creating new specific exclusions for the latest craze of plaintiffs’ cases (e.g., the 2004 silica and 2000 mold exclusions). Moreover, coverage denials based on interpretations of old or existing policy exclusions, such as willful acts or pollution, are being used to deny coverage for new cases for which coverage was arguably intended, making insurance law extremely busy. The press also is increasing corporate risk by its tendency to publicize crisis, tragedy, disaster, and failures, often at the cost of reputations, stockholder and retirement plan value, and community employment benefits. Corporate stewardship analyzes these and other risk drivers across company structures to educate and prevent miscommunication that increases risk. For example, insurance exclusions not understood by public relations, operations, or EHS staff can result in well meaning statements about pollutants that can support coverage denials. Similarly, new exclusions (e.g., silica) in 2004-05 renewals may not be understood to create a heightened need to improve warnings and labels to reduce future risks — tasks that normally fall within EHS groups. Nor might such exclusions reach the general counsel’s office for alternative risk reduction strategies, such as old policy collection from acquisitions and company historical files for “archeology and valuation” to create coverage and defense assets for future cases (that occurred — based on first exposure — when the policies were in place). Similarly, in assessing both materiality of financial risks of toxic tort claims for reporting purposes and creating risk transfer mechanisms to address them, cross fertilization of company stewardship teams with a risk-reduction focus can provide extraordinary value. Too often, company EHS and operations personnel do not realize that information such as interviews, findings, and company reports — obtained by government agencies during major disaster and loss investigations — are used by plaintiffs and government agencies to create massive liability risks. Moreover, perceived friendly insurance investigators may become adverse in a coverage denial case and do not share the same privileges and risks of company personnel. A lack of crossover training for disaster responders in dealing with the government and the press may result in significant threats to company value. Risk and safety auditors and operations personnel without crossover training that teaches them the basics of liability risks, and right and duties, can have severe consequences as shown by the recent U.S. Chemical Safety And Hazard Investigation Board (CSHIB) report of the 2003 CTA Acoustics explosion in Kentucky. The CSHIB report on the dust explosion that killed seven and injured 37 ( www.csb.gov/completed_investigations/docs/CSBFinalReportCTA.pdf ) provides a road map for action even beyond the product stewardship effort suggested by the CSHIB. According to the report, company memos and safety committee meeting minutes from 1992 through 1996 showed a concern about creating explosive dust hazards when cleaning the production line, yet management took no protective action. The CSHIB states that the manufacturer of the product from which the explosive dust was created failed to inform customers of the explosion hazard following a catastrophic explosion and fire at another facility where a similar product was used. The manufacturer supposedly drafted a letter to its customers to alert them to the danger, but never sent it. Assuming the accuracy of the CSHIB report, a company stewardship team would have mandated actions far beyond those suggested by the CSHIB. While CEOs naturally worry about product liability and class action litigation risks, their staff may not comprehend the key role and impact of arcane regulations. They may not recognize that regulations create legal duties not only to comply, but that can subject the company to additional liability even as they comply. Examples include Material Safety Data Sheets — that must be brutally accurate, and labels and signs that clearly disclose hazards. These regulatory obligations create duties and may form the basis of cover up or willful conduct allegations to support punitive damage requests. On the other hand, they can create sound defenses when they are proper and justified. When put in the context of millions or billions of dollars in nightmare liability risks, approving resources for audits of facilities, processes, and records, and sampling, lab analysis, and product protections for MSDS and warning improvements, makes good economic and social policy sense. Because a comprehensive company stewardship matrix has yet to be published and bet-the-company crisis are not routinely encountered by management personnel, company stewardship lessons generally are learned by defense counsel during decades of experience. The horror stories that result from a career of investigation and defense work make an excellent matrix from which to assist company stewardship teams appreciate the interaction of risk creation, reduction, and transfer mechanisms, and can be used to facilitate company stewardship efforts. Together with our clients, we have embarked on these efforts and expanded our stewardship resources by calling on varied experts, both inside and outside the firm, to conduct company nightmare risk audits and program improvements. While it is difficult to engineer, embrace, and implement programs that bust turf silos, we believe the effort should begin with an examination of potential nightmare risks by a small leadership team committed to address them with both internal and outside resources. The team should set a timetable for its efforts and the goal should be to provide the CEO with their analysis and prioritized risk reduction, management, and transfer options.
Perishable Goods
Wouldn’t it be nice if at the conclusion of a health and safety agency site inspection or investigation, the agency just sent out a piece of paper with a “sell by...” or “best if used before...” date, like the expiration dates we find on a quart of milk, a loaf of bread, or a dozen eggs? That way, all of us — including the agency — would know exactly when, by law, the agency must issue its citations and proposed penalty assessments. After all, the agencies give us clear deadlines to file our notices of contest. To a certain extent, Congress provided us with such expiration dates in the Occupational Safety and Health Act, but not in the Federal Mine Safety and Health Act. That is not to say, however, that the Mine Safety and Health Administration is unencumbered by time limitations in writing paper. Section 9(c) of the OSH Act explicitly sets out a six-month limitation period in which the Occupational Safety and Health Administration must issue a citation. U.S. Department of Labor administrative decisions have concluded that the six-month period begins to run “following the occurrence of a violation,” not when OSHA decides that its investigation is complete and that a citation should be issued. Stated differently, OSHA must issue a citation no more than six months after OSHA discovers, or reasonably should have discovered, a violation. Because OSHA issues proposed penalties at the same time as the citations themselves, the proposed penalties necessarily fall within the six-month limitation period as well, despite that Section 10(a) of the OSH Act provides that OSHA “shall within a reasonable time after the termination of such inspection or investigation, notify the employer by certified mail of the penalty, if any, proposed to be assessed...” Don’t get carried away, however. OSHA has, in the past, come up with some rather creative ways to calculate its six-month period. So do not assume you’re out of the woods on the first day after your six-month calculation has expired. Nonetheless, OSHA’s chances of going forward diminish with every day past the six-month limit. The Mine Act, on the other hand, is not at all clear on timing of citations and penalty assessments. Section 104(a) of the Mine Act states that “[i]f, upon inspection or investigation, the Secretary or his authorized representative believes that an operator of a coal or other mine subject to this Act has violated this Act, or any mandatory health or safety standard, rule, order, or regulation promulgated pursuant to this Act, he shall, with reasonable promptness, issue a citation to the operator” and that “[t]he requirement for the issuance of a citation with reasonable promptness shall not be a jurisdictional prerequisite to the enforcement of any provision of this Act.” Accordingly, the Mine Act is construed as giving MSHA more time to issue a citation after an agency representative observes a violation than the OSH Act gives OSHA. First, unlike the OSH Act, the timeline in the Mine Act doesn’t start with the date of the violation. The language “has occurred” empowers MSHA to cite a violation that occurred in the past, sometimes years before it is discovered and the citation is actually issued. MSHA often discovers past violations while auditing accident reports. It is not uncommon for MSHA to issue a citation for a violation discovered in a two-year-old accident report. It is from that discovery date, that the “reasonable promptness” requirement begins to run. On top of that, “reasonable promptness” is a vague measure of time, especially when compared to the OSH Act’s clear six-month limitation period. Judicial and administrative decisions interpreting Section 104(a) of the Mine Act have only marginally succeeded in clarifying “reasonable promptness,” which remains a highly subjective standard, addressed on a case-by-case basis. Generally speaking, the Federal Mine Safety and Health Review Commission has stated that 12 to 18 months constitutes “reasonable promptness,” although 22 months is not unheard of if the Administrative Law Judge or the Commission, upon review, concludes that such time is appropriate under the particular circumstances. For example, if MSHA is able to show it was diligent in issuing a citation, an operator contesting a citation on timeliness grounds generally must do more than simply argue that MSHA took too much time to issue a citation. Rather, an operator must specifically show how it was somehow prejudiced by MSHA’s delay. Further, even for delays of 12 to 18 months, MSHA is afforded substantial latitude for its investigators’ heavy caseloads and for the complexity of a given case. The “issued untimely” defense will often arise where MSHA is conducting an investigation for a violation by an agent of a mine under Section 110(c) of the Mine Act. Although neither the Mine Act nor MSHA regulations impose anything more than a “reasonable” time limitation for assessing penalties pursuant to Section 110(c) actions, Section 5 of the Administrative Procedure Act has also been applied to require a “timely” petition for civil penalties in Section 110(c) matters. The applicable time period begins upon MSHA’s completion of its Section 110(c) investigation and ends with service of the proposed penalty assessment. To successfully assert such a defense, an agent again must show that MSHA’s delay resulted in prejudice to the agent. General allegations that investigators’ or witnesses’ memories fade, witnesses become unavailable, and evidence may be lost or destroyed “do not demonstrate actual prejudice,” unless they have “actually happened.” The next time one of the agencies issues your company a citation or proposed penalty assessment that seems stale, compare the dates of the inspection, investigation, citation, and proposed penalty assessment. If OSHA has issued the citation six months after an alleged violation or if MSHA has issued the citation or penalty assessment more than 12 to 18 months after an alleged violation — and your company or agent has been prejudiced by the delay — the paper’s “expiration date” may have passed, giving rise to a possible statute of limitations defense. However, resist the temptation to call the agency to ask about the delay. Finally, remember that once it is issued, your ability to contest the citation and/or proposed penalty assessment expires, too.
Raiders of the Lost Ark
Thousands of plaintiffs’ lawyers and millions of potential plaintiffs create massive liability risks. For the construction, construction materials, and equipment industries, the most recent lawsuit epidemics (after asbestos) have been silica and welding fume related, with reports of more than 50,000 new cases between 2003 and 2004. More new lawsuits are expected to be filed by anxious plaintiffs’ lawyers, whenever asbestos or tort reform makes progress in Congress or in the state legislatures. These new lawsuits are neither evidence of disease (according to Center for Disease Control statistics) nor a recipe for immediate financial ruin. It took 20 years and repeated mistakes to achieve asbestos-related bankruptcies of more than 70 major companies. In contrast, the new threats to the construction, construction materials, and equipment industries are in their infancy and subject to defeat with advance planning based on lessons learned from the asbestos experience. The first step — and perhaps the most important — is “insurance archeology” — a specialty that transforms defense lawyers and insurance consultants into treasure hunters. Step aside Indiana Jones, the defense team is ready to raid the ark. To understand the treasure of insurance archeology, a quick lesson in insurance coverage and toxic tort liability is needed. Most toxic tort lawsuits result from many years of alleged exposures (e.g. silica-related disease generally takes 30 to 40 years of exposure above safe levels). Most old insurance policies are occurrence based, meaning they provide for a defense of, and cover claims that occurred when they were in effect. Most toxic tort claims today (and tomorrow) “occurred” starting many years ago when the first, second, third, fourth, etc., years of exposures took place. Thus, old policies cover old exposures and create valuable assets today from coverage that was in place years ago. Moreover, most of these old policies do not count defense costs (attorney fees) in their limits of coverage, so a $1 million policy from the 1960s can produce multiple millions in needed defense costs. In turn, adequate defense funds help prevent unwarranted settlements that fuel the litigation epidemic by providing financing for plaintiffs lawyers to bring additional cases. Yet, these old polices are likely lost, forgotten, or buried in a storage facility, basement, or attic. Even more challenging than finding these golden treasures are finding old policies of your predecessor companies, from acquisitions or mergers, or those that were reorganized, affiliated, or sold to other entities — all of which can add significant assets to a company’s defense and risk reduction arsenal. Combining corporate archeology and insurance archeology is a complex, but highly rewarding project because every discovery of an applicable old policy (or evidence of a policy) issued by an insurance company whose successor is still in business is a treasure of potential defense and coverage money. Indiana Jones never had so many tantalizing opportunities. Analyzing, categorizing, and summarizing the assets provided by the old policies are part of the service of an insurance archeology expert, working in conjunction with counsel. A single-site company may have 40 key policies to find and examine that were issued over the last 40 years, while a 500-site company that was created by 30 acquisitions during 20 years, may have 1,200-plus policies to find, prioritize by state-based risk, and analyze to secure asset value. The resulting asset summary memorandum and organized, searchable computer database of policy data and provisions permits both negotiations with the insurance companies and best use of the assets to maximize their value in defending and covering current and future claims (e.g. by comparing policy definitions, exclusions, deductibles, etc.) Of course, selecting an expert, experienced archeology team, backed up by counsel, is critical for cost control and project success. After the archeology is complete, how the involved insurance companies split up their defense and coverage costs for their policy year(s) should be their problem and can be a complex matter of law, once they are put on notice of the new claims. And, putting them on timely notice is important to avoid a predictable coverage denial, based on a lack of timely notice of claims. Yet, when the surviving insurance carriers face my insurance coverage litigation partners across the table (who always carry a “bad faith” demand letter in their pocket), along with a respected insurance archeology expert, they generally find an equitable split of defense costs and coverage percentages. While there may not be 100% coverage of today’s and tomorrow’s claims and defense costs, the percentage of coverage resulting from successful archeology can be massive, and far preferable to the alternative of paying the costs directly. For companies that must quantify and/or report new lawsuit liability risks to their stockholders or governmental entities, archeology provides the asset balance earned and deserved by years of prudent investments in insurance coverage. For those in the construction, construction materials, and related equipment businesses, the sooner you “raid the ark” and discover and preserve your hidden treasures, the better prepared you will be to survive the onslaught of the new lawsuits.
Play Offense Instead of Defense
A key component of any health and safety compliance program is a periodic review of the program’s effectiveness. We encourage you to view compliance not as an exercise in playing defense. Instead, operators should take the initiative to find issues before they become a citation or a liability problem. As you undertake a compliance review, we offer the following checklist. 1. Assess management knowledge regarding violations. Operators must act immediately to cure, prevent, or protect against hazards and regulatory violations in order to prevent allegations that management acted willfully or with reckless disregard for employee safety. Records which must be reviewed include: workplace examination records, safety contact reports, accident or near-miss investigation reports, equipment pre-shift inspection cards, and training records. Prompt action to correct any noted violations must be taken and documented. Such documentation is critical to help avoid severe enforcement, to reduce the risk of individual personal civil or criminal penalties, and to reduce the likelihood of punitive damages in civil lawsuits. 2. Review enforcement actions from previous inspections. A review of your compliance history and prior inspectors’ comments regarding work conditions and program deficiencies are a good place to start as you prepare for your next inspection. Use the five leading causes of citations at your facility to create a compliance emphasis program that starts with daily reminders at the beginning of each shift, includes supervisor contacts during the shift, and contains a pre-announced disciplinary emphasis for these leading causes of citations. 3. Review and evaluate employee suggestions or complaints and safety committee or union meeting notes. It is foolish if you provide channels for employees to voice concerns and never take the time to review the complaints, investigate their accuracy, take corrective action, if necessary, and report back to the employees about what you did. Design and implement systems which promote open channels of communication between management and employees regarding safety issues. 4. Ensure that your training records are up to date and filed correctly. One common mistake is keeping training files with personnel records. While MSHA is entitled to review an employee’s training records upon request, providing personnel records to MSHA may violate an employee’s right to privacy. That is particularly the case with confidential medical information and other sensitive material. Keep these files physically separate. Another mistake we see is failure to ensure that a new employee’s training is accurately documented. If you are hiring an experienced miner, make sure that you have a record of such experience and copies of past training records. Finally, we see regular mistakes related to the proper recording of hazard and task training. If your review of training records indicates unfamiliarity with MSHA’s training requirements and/or the proper method of recording training, it might be time for a refresher course on these topics. 5. Review your contractors. A sloppy contractor could land you in trouble with an inspector and create hazards for your own employees. If you have not designed a contractor pre-qualification program, do so. If you have such a program, make sure that it is meeting your needs and is being followed. For contractors already on site, request regular meetings to discuss regulatory citations, safety complaints, and emergency and disaster procedures. Finally, each contractor needs to be familiar with and train its employees on the specifics of your safety program. Provide copies of, or make readily available, your written safety programs. 6. Analyze trends in accident, injury, illness, and incident filings. Examination of injury trends may help you to design more effective training to combat workplace accidents. It is also important to your evaluation of front-line supervisors. If you have a department or crew that is always leading the pack on injury and illness reports, you should be asking why. Are safety rules not being enforced? Are safety violations not being reported? Are employees not receiving discipline for safety violations? 7. Regularly review your insurance coverage and policy exclusions. In many instances, we have seen that the adequacy of insurance coverage is a neglected topic of a risk management review. Work closely with your attorneys and insurance broker, and design periodic coverage reviews into your audit of health and safety compliance. 8. Audit your safety and environmental permits and licenses. Make sure that they are current and up to date. You know the regulators are going to review them, particularly if there is an accident or disaster. 9. Review process plans, drawings, maps, evacuation plans and routes, and emergency contact procedures. While no one wants to think that an emergency, disaster, or crisis may occur at their site, you must plan for this contingency. A regular review of these types of records is critical. Evacuation plans must be available to employees and be incorporated into each refresher training course. Effective planning, regular review, and training provide significant value and promote improved safety and regulatory compliance. Review, challenge, audit, train, and be better prepared for your next inspection or investigation.
Judgment Calls Learning to spot potential problems may mean the difference between an unwarrantable failure citation and no citation. Every day, miners and mine operators must consider a range of difficult, potentially safety-related issues. Does the ground in that new heading need additional support? Are the brakes on that haul truck a little soft, or are they safe? Is there too much play in the steering column on that loader? The list could go on and on. Oftentimes, the answers aren’t obvious — they’re not found in any book and two different, reasonable, and experienced miners may come up with two different and equally reasonable answers to the same question, neither of which is definitely right. Without the exercise of good judgment — which is a complex combination of experience, common sense, instinct, and education — miners and mine operators would be at a loss to answer these questions. The vast majority of the time, miners and mine operators get it right. They make the right call. Unfortunately, the Mine Safety and Health Administration may, and often does, question these judgment calls. When MSHA calls it differently than the miner or mine operator, the result is often an unwarrantable failure citation and, down the road, a special investigation. These judgment-call cases are more common than you think, and they are often the most difficult to defend. Learning to spot these potential problems, long before an MSHA inspection or investigation, can mean the difference between an unwarrantable failure citation and no citation at all. Spotting the problem A piece of mobile equipment is often at the center of these cases. For example, consider a water truck with a little play in the steering column. The miner who drives it has been monitoring the condition during the past few months. It’s not bad, and, in fact, until just recently, it wasn’t even really noticeable. The steering itself was tight and responsive, and he didn’t think it created any safety hazard at all. In the last couple of weeks though, it’s gotten a little worse, though not bad enough to cause any problems with the steering. So, the driver lists it on the pre-shift inspection form. The driver also tells the plant manager and the maintenance foreman about it, and both take a look at it. They agree with the driver that it doesn’t present any kind of safety hazard, but they schedule the truck for maintenance and order the parts necessary to fix it. In other words, they all make a judgment call that the steering is safe. The maintenance foreman thinks he will get to the truck in a couple of weeks, and the driver thinks that will be fine. The plant manager specifically tells the driver to tag the truck out — to shut it down — if it gets any worse or if he thinks it isn’t safe to operate. Just before the truck is scheduled for maintenance, an MSHA inspector arrives for an inspection. The inspector climbs up in the water truck and immediately starts asking questions about the play in the steering column. The inspector also asks to see the pre-shift examination forms for the truck and discovers that there are three weeks of forms with “play in steering column” listed in the repair column of the form. The driver, the mine manager, and the maintenance foreman explain to the inspector that they knew about the condition, didn’t think it was hazardous, and had scheduled the truck for maintenance. Put simply, they all explain to the inspector why they thought the steering was fine and the truck was safe to operate. The inspector disagrees. He thinks the steering is a disaster waiting to happen. He’s never operated a water truck, and he’s never repaired or done any maintenance work on a steering column. He just knows that the column is loose, and he’s sure that the truck is not safe to operate. He also knows that the steering has been loose for weeks, and that the plant manager knew about it; the mine manager actually signed off on all the pre-shift examination forms for the truck. He issues a citation for an unwarrantable failure to comply with 30 C.F.R. § 56.14100, and he recommends a special investigation. At this point, the die has been cast; the mine operator will be playing defense, and the quality of that defense will make a big difference. The mine operator might prevail, but the cost will be high. However, our interest here is learning to avoid this situation altogether. The trouble is that the mine manager in the hypothetical above did not really do anything wrong. The mine manager made a judgment call based on experience, and the driver and the maintenance foremen all agreed with the decision. That being said, there are a couple of things you can do to avoid this situation. Steps to avoiding the situation First, make a record of why the decision was made, at the time it was made. This does not need to be a formal document; a few notes in a day planner or on a calendar will suffice. Include the names of the people you consulted, the time you spent looking into it, your thoughts, etc. Second, put a reminder on your calendar to follow-up on the situation if it isn’t taken care of immediately. Third, your pre-shift examination forms should have a “repair safety-related” column and a “repair” column, and make sure your people know the difference between the two. If the defect or condition is in any way safety related, make sure it is repaired as soon as possible. Finally, remind your people — every miner you supervise — that they are obligated to shut down or tag out a piece of equipment that is unsafe, and they must refuse to work in any unsafe area. An MSHA inspector will be much less likely to second guess a judgment call on a piece of equipment if the call is made by you and the operator of the equipment. This is especially true if the operator tells the inspector that he agreed with the decision and would have tagged the equipment out if he had not agreed.
Mythbusters
Many people think that the law provides hard and fast answers to every question that arises. But that’s not true. If it were, then there would be no need for lawyers. After all, all we really do is help folks navigate through the confusing, unclear messages that come to us from the statutes, the regulations, and those that enforce them. There are a few of these areas of Mine Safety and Health Administration laws that are notoriously fuzzy, or at least notoriously misunderstood, and we would be remiss were we not to use this space, from time to time, to try to clarify them. I thought I might address a few of my favorites in no particular order. Terminated versus vacated When MSHA decides that it has issued a citation in error, it may withdraw the citation, and it is as though the citation was never issued. Sometimes, that happens because MSHA simply changes its mind after initially issuing a citation. However, usually it happens only after someone has convinced MSHA that it has made a mistake. An operator must be notified officially of the fact that a citation has been vacated, otherwise, the operator must act as though the citation is still active. Vacating a citation is not to be confused — although it frequently is — with terminating a citation. Every citation must set a time by which the condition that gave rise to the violation must be corrected. This is known as abatement. The citation is considered to be active until the condition that caused the violation is corrected or abated. Once that has taken place, the citation is considered terminated. Termination is not the end of the story. Once the citation is terminated, civil penalties can be assessed. If the citation is not terminated within the time set for abatement, MSHA has the right to take further enforcement action under Section 104(b) of the Act. Many operators have made the mistake of believing that no further action will ensue once the citation is terminated. The reality, in fact, is quite the opposite. The informal conference stays the contest process We’ve talked more than once about the confusing timetable for contesting MSHA citations. Recently, we’ve had a number of incidents — which raises this issue again — so it seems timely and appropriate to discuss it more. As you probably know, each operator has 10 days in which to request an informal conference to discuss the citation. There is, however, no limit on the time in which MSHA must respond to that request and hold the conference. At the same time, the time is still running in which to abate the condition causing the violation. Also, the 30-day time limit in which to file a formal contest is also running. Many operators believe that either the time to abate the violation or the time to contest the citation, or both, stop running while MSHA decides whether to change or vacate the citation following the conference. That is not true. There is no delay whatsoever in either the time for abatement or the time for filing a formal contest while the informal conference process resolves itself, all three of those periods run concurrently. There is a related myth that goes with this story. The 10-day period in which to request an informal conference is not jurisdictional, which means it is not binding on the government or the operator. You may request an informal conference at any time until the time to pay the penalty has expired and the matter becomes final. Of course, MSHA is not obligated to hold the conference with you or to grant you the relief you want. There is only one miners’ representative per mine At the start of every inspection, the inspector is supposed to ask whether there is a miners’ representative and, if so, who it is. If there is a miners’ representative, it is often the case that no one seems to know how the representative was chosen or simply assumes that in unionized operations, the miners’ representative must be a union officer or chosen through a union procedure. That, however, is not the case. MSHA regulations make it clear that any two miners may elect a miners’ representative. If you do the math, this means that there may actually be more miners’ representatives than there are miners. In other words, there is no reason why there can’t be multiple representatives. While each representative has the right to accompany the inspector on an inspection, the operator is only required to pay representatives for performing that responsibility. If a large number of representatives seek to accompany an inspector, the inspector has the authority to limit the number of representatives that go along on the inspection. There is another myth that goes along with this one. The miners’ representative does not even need to be an employee. However, if miners are on strike, striking miners do not have a right to come into the mine to accompany an inspector. Much of this may seem simple, but the reason I have come back to these issues is because, in the last year or two, we have come across several instances in which mine operators have lost valuable opportunities because they did not understand their rights with regard to these issues. If there are other issues that you think should be addressed in a column such as this one, please let us know.
The Litigation Threat
The airplane ride home from MINExpo 2004 in Las Vegas, Nevada provided an opportunity to reflect on the success of the equipment show and the progress since I attend this show for the first time in 1980. Since I am immediately drawn to the display of haul trucks, the first striking difference was the sheer size of the equipment: the 1980s era 120-ton “giant” trucks have grown to 400+ ton “monster” trucks, perhaps reflecting the U.S. productivity increases driven by technology. Product stewardship and the safety-related features of the trucks have undergone a similar massive growth. In 1980, the addition of seat belts and large mirrors to cover blind spots were the rage, while today, trucks and other equipment are equipped with video monitors, global positioning systems, computer-based equipment monitoring systems, environmental cabs to protect operators from dust and noise, and ergonomically correct seats and controls. Similarly, warnings, training, and operator proficiency programs have advanced from the experienced buddy system to now include interactive computer-based training and testing, strategically located safety labels, voice warnings, reminders and sensors with alarms, electronics shut downs, lock outs, and emergency response systems. While there may have been a three-fold growth in equipment size, the growth in protective factors is even greater and the results better still with record low fatality levels reported by the Mine Safety and Health Administration. Yet, these safety advances have been met with growing insurance costs and even unavailability, driven by litigation, rather than the coverage cost reductions that could otherwise be expected. The growth of product stewardship programs and the resulting protections built into equipment and its use have been accompanied by a growth in government regulation, enforcement and product liability litigation — lawsuits — perhaps leading to the proverbial question (Which came first, the chicken or the egg?), but also leading this defense attorney to reflect on how to reduce the risk of dreaded and very costly lawsuits. Lawsuits are based on an allegation that someone breached a legal duty. In this context, legal duties exist and are created to reduce safety, health, and environmental risks. Understanding legal duties imposed on equipment manufacturers and users is a critical element in limiting future litigation risks. Products manufactured or used without understanding risk factors, both legal and safety related, not only increase the risk of adverse incidents but also the risk of liability lawsuits and significant rewards to plaintiffs. Risk communication duties are continuing in nature and do not cease once the product is sold or put into use after training. A corporate risk reduction policy, implemented by training management to understand their duties is the first critical step in reducing company lawsuit risks. Risk identification, communication, and reduction is the second step in reducing liability and is an ongoing process that requires regular review. Equipment instructions and guides, Material Safety Data Sheets, labels, training programs, or warnings produced a few years ago may need to be revised to address lessons learned through accidents, incidents, research, or by litigation, new regulations, or potential duties imposed by newly adopted “consensus” standards — even if the product has not changed, its use is the same, or if new safety systems have been added. A communication and training program may need to be adapted to reflect its application to contractors now performing tasks that were performed by employees in years past, or the realization that site visitors have risk exposures. A production facility may require a new policy, program, or training initiative to address the results of government inspections or enforcement. Failure to act upon developments not only increases the risk of incidents, losses, and lawsuits, but also creates an argument that corporate “knowledge” of the risk justifies punitive damages if an entity ignores developments that impact risk and a loss occurs. Given the ever-increasing risk of lawsuits, both equipment manufacturers and users should audit risk factors yearly and address developments in risk communication materials, training programs, company policies, equipment design and use, and in overall prevention programs and insurance coverage. Only by implanting an ongoing audit program combining technical and legal reviews can a company keep its technology and safety improvements consistent with its litigation risk reduction strategy.
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Cole
A. Wist is a partner at Patton Boggs Law firm. He
counsels clients in occupational/mine safety and health law,
including MSHA and OSHA inspections, counseling. Wist
can be reached at the firm's Denver office via phone at
(303) 894-6159 or via e-mail at
Brian
Hendrix is an associate with Patton Boggs LLP’s Washington,
D.C. office. Hendrix may be reached via phone at
202-457-6435 or via e-mail at
Donna
Vetrano is an associate in the Denver office of Patton Boggs
LLP. She assists a diverse range of clients in complex
commercial litigation matters in state and federal courts,
as well as during alternative dispute resolutions.
John
Austin is attorney at Patton Boggs law firm. He advises
clients on environmental, health, and safety issues. He
started his legal career as an attorney for the U.S.
Department of the Interior, where mine safety and health
policy was originally set. There he served as an
attorney-advisor in the mine safety and health division of
the solicitor’s office. He also served as vice president for
environment and assistant chief counsel for a trade
association representing the mining industry. He may be
reached via phone at 202-457-6167 or via e-mail at
Peter
S. Gould is an associate at Patton Boggs LLP’s Denver,
Colorado office. He advises clients on environmental,
health and safety administrative matters, as well as complex
litigation in federal and state courts, with a focus on
natural resources. He may be reached via phone at
(303) 894-6176 or via e-mail at
Henry
Chajet is a senior partner at Colorado-based
Cole
Wist is a partner at Patton Boggs law firm.
