Insight

Managing an Environmental Crisis

Practical points for lawyers (and others).

Managing Environmental Crisis
Donald C. Bluedorn II

Donald C. Bluedorn II

June 26, 2017 01:28 PM

The call never seems to come at an ideal time. It is usually late in the workday or over a weekend, and it often starts with a question from an unusually tense client who asks, “Hey, we have a problem. Do you have a few minutes to talk?”

Perhaps none of my prior cases have been as notable or newsworthy as the January 2014 Freedom Industries, Inc., (Freedom) spill into the Elk River in Charleston, West Virginia.1

The Freedom chemical storage and distribution facility was located in Charleston on the banks of the Elk River. On the morning of January 9, 2014, inspectors from the West Virginia Department of Environmental Protection arrived at the facility in response to complaints about a chemical odor. It subsequently was determined that as much as 10,000 gallons of a mixture of crude methylcyclohexanemethanol (MCHM) and polyglycol ethers (PPH, stripped) leaked from an aboveground storage tank at the facility and that some portion of the leaked chemicals flowed into the Elk River. The facility was located approximately 1.5 miles upstream of the intake for the West Virginia American Water drinking water treatment facility. The MCHM/PPH mixture was drawn into the West Virginia American Water intake on the Elk River, thereby contaminating the drinking water system. Later, on the evening of January 9, West Virginia American Water issued a “do not use” order for 93,000 customer accounts (approximately 300,000 residents) across portions of nine counties in West Virginia. After the spill, hospitals reported a noted increase in patient visits, with complaints of a number of symptoms including nausea, rashes, vomiting, abdominal pain, and diarrhea following exposure to the water through inhalation, ingestion, and/or skin contact. Residents affected by the “do not use” order were further advised to restrict their usage of tap water for drinking, cooking, and bathing for up to nine days.

  • The spill created significant issues for many citizens and businesses of West Virginia. Its aftermath was also grim for Freedom and for some of its key personnel. Among other implications of the spill:
  • The United States Bankruptcy Court for the Southern District of West Virginia approved a Liquidating Chapter 11 plan for Freedom in October 2015;
  • The chemical storage and distribution facility was dismantled;
  • Freedom was sentenced to a criminal fine of $900,000;2 and
  • Several Freedom-related individuals pled guilty to criminal charges under federal laws, including:
  • Former plant manager Michael Burdette, former vice president Charles Herzing, and former environmental consultant Robert Reynolds were sentenced to three years’ probation;
  • William Tis, former co-owner and officer of Freedom, was sentenced to probation and ordered to pay a $20,000 fine;
  • Former owner Dennis Farrell was sentenced to 30 days in jail and a $20,000 fine; and
  • Former President Gary Southern was sentenced to 30 days in jail and six months of supervised release and ordered to pay a $20,000

While every crisis and how it unfolds is unique, after handling a variety of environmental crisis matters over the years, there are a number of recurring practical points and themes that apply in most situations, including:

  • Do not accept the representation if you are not prepared to handle it.

This point is axiomatic for any lawyer, but an environmental crisis is no place to be unless you are a very experienced environmental lawyer and are willing to be available 24/7 for the duration of the crisis.

  • Establish clear communication protocols at the outset and stick with them.

Internal and external communication lines need to be established, centralized, and maintained throughout the crisis, therefore attempting to avoid miscommunications or inconsistent messaging during the crisis.

  • Discuss the benefits of phone calls vs. emails with your team.

It is sometimes too easy to dash off a quick email in our busy, digital lives. However, these emails do not always include the proper context and may include what later is determined to be incorrect or partial information (and as such present evidentiary issues in ensuing litigation), so a phone call may be a more prudent form of communication during the crisis.

  • Bear in mind long-term impacts when making short-term decisions.

A crisis often requires quick decision-making without the benefit of detailed deliberation. Regardless, bear in mind (as much as possible) the long-term possible impacts of decisions, such as post-crisis litigation and discovery, stock ownership implications (including accounting implications of cost estimates), company reputation, ongoing relationships with regulatory agencies, and community relations.

  • Be empathetic and truthful when interacting with affected third party stakeholders.

If you are fortunate, you will get one chance (and only one chance) to establish credibility and develop a positive working relationship with affected third party stakeholders.

  • Designate point person(s) for subsequent notices.

If the client has not already done so, establish point person(s) for making required immediate notifications if another reportable incident occurs, ensure that they know what information is required and who to call, and confirm that they will always be available to make the call if needed.

  • Know when to say “I don’t know.”

No one can know everything all of the time. Admit when you do not know the answer to a
question or an issue, and then follow up promptly and appropriately as time allows.

Like trying a large, complex case or handling a major transaction, managing an environmental crisis can be an incredibly challenging and rewarding career experience for an environmental lawyer. These days, most organizations employ a best practices crisis operational/facility response plan and a corresponding crisis communications plan. The best advice is to be prepared for when you get “the call”!

-------------------

1 The exact facts surrounding the spill have been the subject of intense scrutiny and litigation. For purposes of this article, facts regarding the spill are taken from the U.S. Chemical Safety and Hazard Investigation Board’s Investigation Report – Chemical Spill Contaminates Public Water Supply in Charleston, West Virginia – Over 300 Members of the Public Sought Medical Treatment for Potential Exposure – The Spill Restricted Water Use for Nearly 300,000 Residents (Report No. 2014-01-I-WV, September 2016).
2 The criminal sentences were reported by a number of news outlets, including the Associated Press.

Related Articles

California Court Rules Against Westlands Water District


by Gregory Sirico

The Fresno County Superior Court of Appeals filed its ruling over a case involving the Westlands Water District, a major U.S.-based agricultural water company.

Topographical overview of Northern California water system

9 Ways Lawyers Are Addressing Climate Change Through Environmental Law


by Best Lawyers

To combat climate change and protect depleting resources, Best Lawyers assesses how lawyers play a pivotal role in addressing ongoing environmental problems.

Animated sky polluted with smoke

Texas Lawmakers Authorize Initial Framework for Wind and Solar Projects


by Gregory Sirico

As Texas experiences a push for environmental energy alternatives, Best Lawyers weighs in on an initial framework recently passed by state lawmakers.

Man with construction helmet inspecting solar panels with wind turbines in backdrop

A Climate Duty


by Lara Douvartzidis and Samantha Daly

Converging trends in Australia and the Netherlands: reasonable foreseeability in climate change law and other novel developments.

Climate Change Law in Australia

The Generals’ Next War


by Alison Torbitt and Gayatri Joshi

Businesses’ Sense of Corporate Social Responsibility Is Increasingly Driving Long-Term Growth. Here’s How General Counsel Can Best Confront CSR’s Numerous Challenges and Opportunities.

The Generals’ Next War

Outcomes Focus: Environmental Impact Bonds are All About Results


by Jeremy King

Environmental Impact Bonds offer governments, investors and non-government participants the opportunity to focus on outcomes rather than activities.

Environmental Impact Bonds

Water Futures


by John Ettorre

By themselves, desalination, conservation, and system re-engineering won't solve our water puzzle. But together, they just might work.

Water Futures

Trending Articles

Announcing the 2023 The Best Lawyers in America Honorees


by Best Lawyers

Only the top 5.3% of all practicing lawyers in the U.S. were selected by their peers for inclusion in the 29th edition of The Best Lawyers in America®.

Gold strings and dots connecting to form US map

Announcing the 2022 Best Lawyers® in the United States


by Best Lawyers

The results include an elite field of top lawyers listed in the 28th Edition of The Best Lawyers in America® and in the 2nd Edition of Best Lawyers: Ones to Watch in America for 2022.

2022 Best Lawyers Listings for United States

2021 Best Lawyers: The Global Issue


by Best Lawyers

The 2021 Global Issue features top legal talent from the most recent editions of Best Lawyers and Best Lawyers: Ones to Watch worldwide.

2021 Best Lawyers: The Global Issue

The U.S. Best Lawyers Voting Season Is Open


by Best Lawyers

The voting season for the 31st edition of The Best Lawyers in America® and the 5th edition of Best Lawyers: Ones to Watch® in America is officially underway, and we are offering some helpful advice to this year’s voters.

Golden figures of people standing on blue surface connected by white lines

How To Find A Pro Bono Lawyer


by Best Lawyers

Best Lawyers dives into the vital role pro bono lawyers play in ensuring access to justice for all and the transformative impact they have on communities.

Hands joined around a table with phone, paper, pen and glasses

What the Courts Say About Recording in the Classroom


by Christina Henagen Peer and Peter Zawadski

Students and parents are increasingly asking to use audio devices to record what's being said in the classroom. But is it legal? A recent ruling offer gives the answer to a question confusing parents and administrators alike.

Is It Legal for Students to Record Teachers?

How Palworld Is Testing the Limits of Nintendo’s Legal Power


by Gregory Sirico

Many are calling the new game Palworld “Pokémon GO with guns,” noting the games striking similarities. Experts speculate how Nintendo could take legal action.

Animated figures with guns stand on top of creatures

The Best Lawyers in Australia™ 2024 Launch


by Best Lawyers

Best Lawyers is excited to announce The Best Lawyers in Australia™ for 2023, including the top lawyers and law firms from Australia.

Australian Parliament beside water at sunset

Best Lawyers: Ones to Watch in America for 2023


by Best Lawyers

The third edition of Best Lawyers: Ones to Watch in America™ highlights the legal talent of lawyers who have been in practice less than 10 years.

Three arrows made of lines and dots on blue background

Inflation Escalation


by Ashley S. Wagner

Inflation and rising costs are at the forefront of everyone’s mind as we enter 2023. The current volatile market makes it more important than ever to understand the rent escalation clauses in current and future commercial lease agreements.

Suited figure in front of rising market and inflated balloon

A Celebration of Excellence: The Best Lawyers in Canada 2024 Awards


by Best Lawyers

As we embark on the 18th edition of The Best Lawyers in Canada™, we are excited to highlight excellence and top legal talent across the country.

Abstract image of red and white Canada flag in triangles

8 Different Types of Criminal Defenses in Law


by Best Lawyers

Learn about the different types of criminal defenses available in law, including innocence, self-defense, insanity and more. Protect your rights today.

Silver handcuffs laying on finger printed papers

Wage and Overtime Laws for Truck Drivers


by Greg Mansell

For truck drivers nationwide, underpayment and overtime violations are just the beginning of a long list of problems. Below we explore the wages you are entitled to but may not be receiving.

Truck Driver Wage and Overtime Laws in the US

The Upcycle Conundrum


by Karen Kreider Gaunt

Laudable or litigious? What you need to know about potential copyright and trademark infringement when repurposing products.

Repurposed Products and Copyright Infringemen

Choosing a Title Company: What a Seller Should Expect


by Roy D. Oppenheim

When it comes to choosing a title company, how much power exactly does a seller have?

Choosing the Title Company As Seller

The 2024 Best Lawyers in Spain™


by Best Lawyers

Best Lawyers is honored to announce the 16th edition of The Best Lawyers in Spain™ and the third edition of Best Lawyers: Ones to Watch in Spain™ for 2024.

Tall buildings and rushing traffic against clouds and sun in sky