Source: EHS Today, July 3, 2019
Posted on: https://www.advisen.com
Any kind of environmental release at one of your facilities creates the potential for distracting regulatory investigations, stinging fines and costly litigation. Some of that can be ameliorated by conducting the right kind of internal investigation of a leak immediately after it occurs.
Internal investigations may be driven by a company’s desire to identify the root cause of an incident, verify an unconfirmed allegation, be a responsible corporate citizen, address liability concerns, or take remedial measures to prevent similar incidents from reoccurring, among many other reasons.
“These incidents can result in governmental enforcement actions, third-party civil suits, individual liability and significant reputational damage, so another key purpose of an internal investigation is often for the company to obtain legal advice based on the investigation findings,” says attorney Paul Drucker of the law firm of Barnes & Thornburg LLP.
Although you want to conduct such an investigation as swiftly as is practical, it is necessary that you know all of the steps that need to be taken and bases touched to avoid many of the pitfalls that can result from not taking sufficient care, Drucker cautions.
Keep in mind that an environmental release is broadly defined as any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, disposing or migration of pollutants or hazardous material into the environment, and can include abandonment or discarding of barrels and containers.
Before any incident occurs, Drucker recommends creating a written policy governing these kinds of internal investigations. These policies often describe what type of incident or level of risk triggers an investigation, how the investigation will be performed, and how the investigation team should be selected, among other things.
“Even if a policy is in place, it may not definitively address the particular situation, in which case decisions will have to be made about whether the written policy should be rigidly followed or simply considered as one factor in structuring the investigation,” he says.
After an incident occurs, Drucker also urges companies take certain essential steps to reduce stress and avoid the potential pitfalls that can arise. These are embedded in a carefully-wrought plan for everyone from corporate leadership to lower level staff to follow.

Early Decisions Critical

Decisions made at the start of an internal investigation into an incident or allegation of noncompliance are critical for performing a thorough, high-quality investigation that addresses salient issues while ensuring appropriate protections are in place, he argues. “Taking time to ask the right questions—and understanding the answers—is essential in this complex area of environmental law.”
Prepare a written investigation plan that includes a summary of the incident being investigated, the purposes of the investigation, the identity of who is managing and directing the investigation, and other members of the investigation team. The plan also should cover the components of the investigation (such as employee interviews, records review and technical testing), the timeline of the investigation, and how the findings will be reported.
This plan will likely need to be approved by the control group of executives at the company to whom the findings will be reported. You also need to be prepared to make updates to the plan during the investigation if necessary.
Hold a kickoff meeting with the investigation team to discuss the investigation plan, address issues of legal privilege and make decisions regarding the schedule and path forward. Drucker adds that periodic team meetings also may be beneficial during the course of the investigation.
Prior to witness interviews by legal counsel, determine if the “Upjohn warning” will be provided to these employees. This warning language clarifies that counsel is representing the company and not the individual employees, and that the company can waive the attorney-client privilege.
Also consider whether it is appropriate to retain “pool counsel” for employees being interviewed. Pool counsel attends the investigatory interviews, answers employees’ questions about the process, and identifies circumstances where employees may need to retain separate counsel based on their involvement in the incident.
Master the available facts and data at the outset of the investigation, Drucker advises. Often, the investigation team will conduct a preliminary inquiry to identify information sources and witnesses the team will want to interview. Similar to preparing for a deposition, the investigation team may want to develop an outline interview addressing the most important issues, questions and documents to review with witnesses as well as allowing free-form discussions about the incident.

Should Privilege Apply?

Should it be a legally privileged investigation, a non-privileged investigation, or should both types of investigations be conducted to cover different subjects related to the incident? Drucker says a privileged internal investigation may be preferable because the privilege can later be released if desired.
But that does not cut both ways; a clearly non-privileged internal investigation cannot be made privileged later. In addition, to establish and protect a legally privileged investigation, the investigation must be structured, performed and reported in a certain manner throughout its course, he explains.
If the intent is to protect the internal investigation as privileged, even if the privilege is later released, you will require the use of the right kind of qualified legal counsel. “The strongest case for maintaining privilege is where outside counsel manages and directs the investigation,” Drucker points out.
He says the options to consider when deciding who will manage and direct an internal investigation include:
● Outside counsel who is not consistently retained by the company for ongoing legal work.
● Outside counsel who does perform regular legal work for the company but can nevertheless remain objective and independent.
● In-house counsel who makes it clear they are acting in the role of the company’s attorney and will not make business or management decisions.
● An investigator or technical expert, from either inside or outside the company, retained by counsel to perform the investigation for the purpose of providing legal advice to the company.
“Internal investigations, however, are often urgent, sensitive and distressing for the affected company and its employees. Experienced counsel can help address these concerns through a properly managed investigation which seeks the truth while being cognizant of the practical and legal issues involved,” Drucker stresses.
“A properly performed internal investigation can help businesses mitigate the negative consequences of an environmental incident or allegation of wrongdoing as well as prevent reoccurrence,” he adds. “It should be no surprise that many sophisticated business entities require internal investigations when an incident or allegation with environmental implications arises, even if not mandated by law or agency order.”