Emergency response planning essential for crisis management

by Jon M. Casey

Attorney Patrick Dennison, belongs to the Occupational Safety and Health Practice Group as well as the Coal and Oil and Gas Industry Group at Jackson Kelly, PLLC, in Pittsburgh, PA, was a featured speaker at the 2017 Northeast Mine Safety and Health Conference in Columbus, Ohio in early April. There, Dennison provided ideas on planning for a potential future workplace emergency and dealing with all that goes on once the emergency happens. He said that while risk management looks at how to prevent a problem or situation, successful crisis management involves dealing with the threats before, during and after they have occurred. He noted that when developing a crisis management plan it is critically important to design a working plan that addresses as many of the issues that could occur as an event unfolds.

Dennison said that the effectiveness of the plan is determined within the first 24 hours of an event or incident. Calling in early responders to a workplace, to help familiarize them with the physical plant layout would be an excellent first step. Emergency response planning includes facility and process assessment, an evaluation of where and how local, state and federal laws and regulations might apply. It also includes a facility audit to determine current compliance with regulations in advance of any crisis.

Other areas of concern include having a company representative who is trained to interact with the regulators and who can communicate effectively with them. There needs to be someone to work with the rescue and recovery people. Someone to oversee document control that can work with the regulatory agencies and who can help produce the requested documents at the appropriate time and in an appropriate way is also recommended. Miscommunication can cause problems. “Is there a place for representatives from OSHA, MSHA, Dept. of Labor or other technical advisors to setup a work center,” he said.

Dennison emphasized involving as many employees as possible in the training and preparation for an emergency would go a long way to having conditions go more smoothly if and when an emergency arises. Having a backup plan in place is helpful. It is valuable in case key people are on vacation or not at work on the day of the event. This creates a working “chain of command.” Having a person designated to work with the media is essential. The responsibility for knowing how to handle the crisis is on the operator.

As another part of the overall planning process, Dennison recommends a liability assessment to determine what needs to take place to comply with the various agencies and the appropriate record keeping that goes along with their requirements. He reminded producers that the MSHA requirement for notification of an accident is 15 minutes to avoid any penalty. He said facility operators need to assess direct liability issues with respect to the directors and officers of the company as well as the operator and its agents. Knowing how to handle workman’s compensation issues, liabilities for non-employees and other statutory employer issues, need to be addressed in the planning process.

Dennison reminded producers that there are specific types of accidents for which immediate notification of MSHA is required. These include a death at a mine, an injury which has a reasonable potential to cause death, an unplanned inundation of a mine by liquid or gas and an unplanned mine fire that is not extinguished within 30 minutes. “These are the top four items,” he said. “There are actually twelve guidelines in all. They have been referred to as ‘The Dirty Dozen’. Individual states may also have similar requirements.”
The Investigation
When an emergency does happen, Dennison recommends company officials should notify MSHA, company management, the company’s legal counsel and the immediate families of the affected employee(s). The Mine Act requires a company investigation of all accidents and occupational injuries. He said that more recently, there has been “a letter of understanding,” that involves increased scrutiny for workplace injuries on the part of the Department of Labor and the Department of Justice. Worker safety is critical.

An internal investigation and family/survivor assistance is to be considered as well. “In West Virginia for example, the family is heavily involved in the emergency when there is a fatality,” he said. “Having a person in place to work with them is important.”

He said it is important to protect some aspects of the investigation through the product doctrine and attorney-client privilege. He reminded listeners that MSHA investigators are not required to give interviewees a Miranda warning. The accident scene should be preserved. Keeping good notes and watching what is said is critical. MSHA inspectors are allowed to use casual utterances by employees as factual information as part of the investigation.

“The Mine Act grants MSHA broad authority to enter upon mine property to investigate the cause of accidents, determine appropriate remedial measures and to determine whether any willful or knowing violations occurred,” he added. “MHSA personnel may include specialists in ventilation, electrical, ground control and other fields. If a serious accident or fatality is involved, an MSHA special investigator may accompany the team.”

Agencies may request documents not required to be maintained under the Mine Act and other regulations. “Employer representative may need to make an on the spot decision as whether to voluntarily produce non-required records,” he said.
During an MSHA employee interview, the employees have certain rights. These include the right to counsel or the presence of management or other person. They have the right to discontinue the interview at any time. They may refuse to answer any question, they have the right to refuse to permit taping of the interview and they are not required to sign a statement or a summary of the interview. Attorney-Client privilege is also in place when an attorney is representing a worker.

Dennison elaborated on a number of other issues surrounding an investigation that are too numerous to list here, however they involve the legal ramifications surrounding documentation and how they might be produced as part of an investigation. Document control and managing E-documents is critical. Losing or “spoiling” evidential documents is cause for legal action.

Finally, Dennison touched on media coverage and how to avoid “The Blame Game” and the public’s fascination with tragedy. It’s important to interact with the families and to be sensitive to the situation when communicating with the media.

“Don’t blame people,” he said. “The timeliness and effectiveness of the response to a crisis is key.” For more information, contact Patrick Dennison at pwdennison@jacksonkelly.com.

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