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Mark Farley Featured in Law360's Environmental Disaster Survival Guide

Firm News | April 6, 2016

Mark Farley, co-head of the Environmental practice and head of the Workplace Safety practice, offered insight to Law360 for its three-part series on the best practices for planning and responding to major accidents, including environmental incidents.

In part one on preparedness, Mark noted that that interviewing employees from all levels regarding a past incident could reveal significant information for developing new strategies to reduce the risk of future incidents. It also is important to evaluate management systems as part of a compliance program. He noted the role audits play in effective crisis prevention and to carefully review that information, stating, "We'll also periodically come in and help them audit their process—we almost audit the audit. Are they getting to the right depth? Are they using the right auditors? Do they have the right perspective? And then, most importantly, are they fixing the problems they find?" A toolkit and other training programs can help ensure the client can properly respond to a major accident. Mark stated, "Often, the initial lawyers who might be responding to an event may not even be environmental or safety attorneys. They could just be the closest in-house lawyer that they can get there. And so we'll develop these toolkits, which are really issue spotting reference guides for law functions, that talk about the issues they're going to encounter in the first 96 hours. . . . And we'll actually practice with those companies. Companies will have crisis management drills where they will work through a hypothetical scenario, a fire or a pipeline release. And in effect, drill or practice what the response is." ("Law360's Environmental Disaster Survival Guide: Preparation," April 1, 2016)

Part two of the series highlighted best practices while in the moment of crisis, with Mark noting the importance of deploying attorneys for on-site support, stating, "These situations present the perfect storm of legal issues that can overwhelm even the most sophisticated organizations. Although these companies are pervasively regulated, they're not accustomed to managing multiple inspections and multiple investigations simultaneously." He also indicated that diligence in preserving evidence and documentation as part of the internal investigation can help better position the company to handle potential legal issues after the event. Mark stated, "If you don't set up your internal investigations the right way, you might end up having to confront issues of privilege waiver or you might be making what are legal admissions that are now going to compromise your ability to defend." ("Law360’s Environmental Disaster Survival Guide: The Crisis," April 4, 2016)

The aftermath is covered in part three, where Mark stressed the importance of considering company and employee liability. He stated, "It is not unusual that the first investigator on the scene may be from the [US Environmental Protection Agency's] criminal investigations division. You ultimately have in the back of your mind that you could be facing a grand jury." Mark also noted the role the attorneys play in helping to repair the company's reputation with various stakeholders. "How you react to the crisis is really an important part of rebuilding that trust: committing to be transparent, making certain that you're going to communicate openly with the public and regulators and making certain that people understand that you're prepared to fix problems that you identify and take steps to make certain that this never happens again." ("Law360's Environmental Disaster Survival Guide: Aftermath," April 5, 2016)