Client Services / OSHA, MSHA & Catastrophe Response

OSHA, MSHA & Catastrophe Response

McDermott Will & Emery’s Occupational Safety and Health, Mine Safety and Health, and Catastrophe Response Group is recognized as one of the leading practices of its kind in the United States.   We have more than 25 years of experience managing complex multi-agency investigations following major industrial catastrophes in the petroleum refining, chemical, construction, manufacturing and mining industries.  Our lawyers have substantial hands-on experience with every agency that traditionally responds to industrial catastrophes, including the Occupational Safety and Health Administration (OSHA); U.S. Chemical Safety & Hazard Investigation Board (CSB); Environmental Protection Agency (EPA); U.S. Department of Homeland Security (DHS); National Transportation Safety Board (NTSB); U.S. Coast Guard (USCG); Mine Safety and Health Administration (MSHA); Bureau of Alcohol, Tobacco and Firearms (ATF); and other federal, state and local agencies involved in emergency response and investigation activities.  The group includes former top officials from the Occupational Safety and Health Review Commission and the Federal Mine Safety and Health Review Commission..

Focused, Career-Long Experience

The founding partners of McDermott’s OSHA, MSHA & Catastrophe Response Group have devoted their entire careers (more than 100 combined years) to the practice of safety and health law.   In the early days of the OSHA program, when these partners were in key roles within the federal government, they handled the major cases and drafted many of the decisions that shaped the landscape of occupational safety and health law, and mine safety and health law.  Drawing on this experience, our team offers unique insight into the stories behind the decisions, including why certain words were chosen to express an idea or a position.  Our group knows the "why" behind key decisions, knowledge which proves crucial to successful outcomes.  Moreover, our lawyers maintain close contact with key government officials, giving them access to behind-the-scenes information. 

Experience

Our Firm has unparalleled experience in the arena of safety and health law.   McDermott’s OSHA, MSHA & Catastrophe Response Group pioneered the handling of catastrophe and process safety investigations, from the very first large-scale chemical plant inspection by OSHA in 1985 and the first major CSB refinery investigation in 2001, to some of the most significant refining, chemical, petrochemical, construction and mining cases over the years.  The group handled the early ergonomic cases in the meatpacking industry that are the basis for OSHA’s ergonomic guidelines.  Our lawyers handled major OSHA recordkeeping cases in the 1980s that led to the regulations in effect today.  Group lawyers were heavily involved in the construction cases that established the multi-employer liability rules as well as the limits of liability for engineers and architects.  And our group’s work in the automotive industry set today’s interpretation of OSHA’s lockout/tagout standard. 

The group has also managed major cases involving the U.S. Coast Guard and the NTSB regarding pipeline and barge explosions and other high-profile matters, such as the crash of Comair 5191 in Lexington, Kentucky.   A listing of selected catastrophe matters that the group has handled is included below.

National Reach

McDermott’s OSHA, MSHA & Catastrophe Response Group has managed scores of major investigations and litigation matters U.S.-wide, including refinery and chemical plant explosions and releases, and terminal, barge and pipeline explosions.   Our group has responded to large-scale industrial catastrophes in Alabama, California, Delaware, Illinois, Iowa, Kentucky, Louisiana, Maine, Michigan, Missouri, New Jersey, New York, North Carolina, South Carolina, Texas, Virginia, Washington, Wisconsin, West Virginia and other states.  Group lawyers operate out of the Firm’s Boston, Houston, Los Angeles, New York and Washington, D.C., offices, allowing for speedy and efficient responses to employers’ needs all over the United States.  Likewise, the group has established relationships with OSHA, CSB, EPA, MSHA and other agency investigators and administrators all over the country, as well as teams of forensic engineering experts in all areas of safety, who are ready to respond quickly to emergencies anywhere in the United States.

Innovation

Over the years, our OSHA, MSHA & Catastrophe Response Group has developed new ways to resolve cases faster, more efficiently and with less liability for companies.   For example, in the early years, OSHA citations labeled as “Willful” were a stumbling block to settlements and to a company’s enforcement record.  Our group pioneered the approach of amending the citations from “Willful” to “Unclassified,” which became a useful tool for proactively resolving difficult issues while avoiding unnecessary complication presented by harmful labels.

Our practice was the first to use the concept of early intervention—that is, involvement of counsel during the OSHA inspection itself, when the government collects its evidence and formulates the violations to be alleged, rather than waiting until after OSHA has issued its citations.   Early intervention has enabled our group to handle OSHA and MSHA cases faster and more efficiently, and to achieve better results than other practices.  Our approach to managing catastrophe cases was largely adopted by OSHA in its field instructions for handling fatality and catastrophe inspections.

In the late 1980s, when OSHA was focusing attention on the paper industry, our group did the first “pre-citation settlements” for major paper companies.   A pre-citation settlement ends the case when the OSHA inspection is over (the earliest possible time) with less negative publicity and an overall lower level of potential liability.  Since then, the group has negotiated numerous pre-citation settlements, successfully resolving complex citations.

Hands-On Lawyers, Hands-On Knowledge

The lawyers in our group are just as comfortable in a refinery operating unit, down in a mine, on a plant floor or on a construction site as they are in the courtroom or boardroom.   Not only do our lawyers know OSHA’s Process Safety Management standard, they know chemical processes.  They understand the practical side of running a petroleum refinery or manufacturing facility, and the need for dealing with unions on a day-to-day basis.  Our lawyers know the problems of shift work and the critical relationship between hourly workers and front line supervision.  They speak the language of the engineers and scientists as well as that of operators in a chemical plant or the crane operator on a construction site. 

The lawyers in our group have been down in the deepest mines and on top of on Launch Pad 39-B dealing with issues involving the launch of the Space Shuttle.   They know construction techniques as well as petrochemical production equipment and instrumentation.  Over the last few decades, our group has handled dozens of explosion/catastrophe cases as well as multi-agency investigations.

In short, the members of McDermott’s OSHA, MSHA & Catastrophe Response Group are hands-on lawyers who not only know the law, but also understand industrial workplaces and the practical realities that underlie catastrophe investigations and other important safety and health issues.

Our lawyers regularly represent clients in proceedings before the Occupational Safety and Health Review Commission, the Federal Mine Safety and Health Review Commission, the U.S. courts of appeals, the U.S. Chemical Safety Board and Hazard Investigation, the U.S. Congress, U.S. Department of Labor panels and officials, the National Institute for Occupational Safety and Health (NIOSH), and various state administrative bodies and courts.   Major components of our practice include the following:

Inspections

The team counsels clients during major governmental inspections and investigations, including continuous onsite inspection management during major OSHA, MSHA, NIOSH, CSB and state agency investigations following catastrophic incidents.

Catastrophe Planning

Our lawyers work closely with clients to develop comprehensive corporate and plant-level contingency plans for dealing with catastrophic accidents.

Enforcement Actions

The Firm regularly defends employers against OSHA and MSHA civil and criminal enforcement actions.   We have broad experience in handling all types of OSHA and MSHA litigation, including cases involving allegations of willful and repeated violations and proposed multimillion dollar civil penalties.  We have successfully litigated precedent-setting, complex cases involving issues such as chemical process safety and ergonomics.

Rulemaking

The group represents employers and industry associations in a broad range of rulemaking proceedings on critical OSHA and MSHA standards, including OSHA’s Process Safety Management standard, the per-employee penalty rulemaking, the ergonomics proposal and the proposed crane standard.

Standard Interpretations & Variances

We obtain favorable interpretations of or variances from standards.

Training And Counseling

We counsel clients on occupational safety and health issues, including hazard communication, indoor air quality, ergonomics, recordkeeping, emergency response, lock-out/tag-out and chemical process safety.

Compliance Reviews

Our lawyers conduct OSHA and MSHA compliance reviews, including injury and illness recordkeeping audits, often together with other experts, in order to determine a client’s compliance status, to aid the client in reducing future compliance costs and to minimize liability by developing a plan to address any findings.

Due Diligence Reviews

We conduct OSHA and MSHA due diligence reviews during mergers and acquisitions to assess the target company's compliance status as well as potential significant liabilities arising out of workplace accidents, injuries, illnesses and exposures to toxic substances.

Proposition 65

The group counsels clients regarding understanding of and compliance with California's Hazard Communication Standard.

Selected Matters Handled by McDermott’s OSHA, MSHA & Catastrophe Response Group

McDermott’s OSHA, MSHA & Catastrophe Response Group has managed the response to many of the most high-profile OSHA, CSB and MSHA investigations and other industrial catastrophes over the past 25 years.   The selected matters below represent only a sample of the safety and health matters in which the group has been involved.

2011

  • Currently litigating a $1.6 million OSHA penalty and 23 alleged willful violations following a fatal grain elevator engulfment in South Dakota
  • Successfully resolved a $1.2 million OSHA penalty proposed for 83 alleged willful injury/illness recordkeeping violations.  All willful characterizations and 23 alleged violations were withdrawn and the penalty was reduced by more than 50 percent.
  • Currently representing a company in an important OSHA recordkeeping case in the U.S. Court of Appeals for the DC Circuit.
  • Currently defending a major construction company charged with willful violations following the death of two FDNY firefighters at a demolition project at Ground Zero, NYC
  • Currently handling numerous OSHA whistleblower cases in the construction, manufacturing, mining  and laboratory industries.
  • Successfully resolved several cases involving hexavalent chromium exposure cases in the construction industry.
  • Handled the MSHA due diligence aspects for a buyer in a recent major coal mine acquisition.
  • Representing a major industry group in OSHA’s Combustible Dust Rulemaking.
  • Representing a major construction company in an appeal of CalOSHA citations alleging violations of the asbestos standard.
  • Coordinating privileged safety and health audits at several dozen company locations of a client.
  • Providing counseling regarding an OSHA investigation of legionella contamination in the drinking water system at a manufacturing facility.

2010

  • Successfully represented a major construction company in OSHA recordkeeping case in Florida
  • Successfully represented a major New York electric utility; OSHA citation withdrawn
  • Successfully settled OSHA citations against major petroleum refinery in Washington State
  • Representing a New York construction company in fatal fall from roof
  • Successfully represented a major New York builder in accident case; citation withdrawn
  • Representing a chain of Connecticut nursing home facilities in OSHA inspections
  • Successfully represented a Massachusetts hospital in settlement of OSHA citations
  • Representing an Oklahoma wire manufacturer in large-scale OSHA inspection and citation contest
  • Managed an OSHA inspection of an explosion on an oil and gas drilling rig in West Virginia
  • Conducted a safety and health due diligence review for an acquisition involving a major national food manufacturer
  • Managed Process Safety Management (PSM) and Risk Management Plan (RMP) inspections of an alcohol distributor in Connecticut
  • Representing an industry group in Combustible Dust Rulemaking

2009

  • Counseled chemical companies in preparation for inspections under the Pilot Program of OSHA’s Process Safety Management National Emphasis Program for Chemical Plants
  • Managed an OSHA injury and illness recordkeeping investigation at a major construction project in Florida
  • Handled numerous appeals of OSHA citations issued to a major general contractor/construction manager at various high-rise construction projects in New York City, including crane incidents
  • Represented an employer in an OSHA investigation regarding the release of a potentially hazardous catalyst at a chemical plant in Texas
  • Represented an entity in an NTSB investigation of a catastrophic pipeline explosion in California
  • Litigated MSHA citations, imminent danger orders and discrimination complaints at surface mines in Wyoming and Texas
  • Handled appeals of a series of Cal/OSHA industrial hygiene and safety citations issued to a major tunnel project near San Francisco, California
  • Litigated an appeal of OSHA citations following a fatal fall accident at a construction project near San Antonio, Texas
  • Handled OSHA discrimination complaints for general contractors at power plant construction projects in Pennsylvania and Florida
  • Litigated appeal of OSHA citations issued to a major oil and gas drilling contractor at a well site near Pittsburgh, Pennsylvania

2008

  • Represented a chemical manufacturer in ongoing investigations by OSHA, CSB, EPA, the U.S. Attorney and a congressional subcommittee regarding the August 28, 2008, catastrophic explosion and fire at a chemical plant in Institute, West Virginia
  • Counseled major oil companies in Louisiana, Texas and Washington regarding onsite preparation for inspections under OSHA’s Process Safety Management National Emphasis Program for Refineries, and litigated the Process Safety Management (PSM) citations arising out of the inspections
  • Represented an employer in the high-profile NTSB investigation of the MetroLink Commuter Train crash in Chatsworth, California
  • Litigated industrial hygiene (hexavalent chromium) and safety OSHA citations issued to a construction contractor at a power plant in Florida
  • Managed OSHA inspections on behalf of a major northeastern electrical contractor following multiple fatal electrocution incidents in New Jersey and New York
  • Managed OSHA inspections on behalf of a major construction company following a multi-fatality crane accident in Miami, Florida
  • Handled appeal of OSHA citations involving combustible dust issues at a food processing facility near LaCrosse, Wisconsin
  • Managed an OSHA investigation and appeal of citations following a fatal concrete shoring collapse at a high-rise construction project in Manhattan, New York
  • Handled multiple MSHA discrimination investigations and citation appeals at a surface coal mine in Wyoming
  • Handled appeal of OSHA citations issued to a power plant construction project in New Mexico.

2007

  • Represented a petroleum refiner during an investigation by the CSB and OSHA of a major propane release and fire at a large oil refinery near Duman, Texas
  • Managed a multi-agency investigation of an explosion at a chemical plant in Kansas City
  • Managed an OSHA inspection following a major accident at a Los Angeles refinery
  • Represented a major construction company in multiple investigations by Cal/OSHA, the State Auditor and the Alameda County District Attorney concerning alleged willful OSHA injury and illness recordkeeping violations
  • Litigated appeal of Willful and Repeated citations issued to a major oil and gas drilling contractor following a fatal accident near Syracuse, New York
  • Handled appeal of MSHA unwarrantable failure citation issued to a major blasting contractor following blasting accident in Upstate New York

2006

  • Managed a North Carolina OSHA investigation and enforcement action involving a catastrophic grain explosion at a feed mill in Statesville, North Carolina
  • Represented the employer in a multi-agency investigation by North Carolina OSHA and the CSB of a catastrophic explosion at a North Carolina plant of a specialty chemical company
  • Represented a construction manager involved in the runway/taxiway rehabilitation project at Lexington’s Blue Grass Airport during the NTSB investigation of and subsequent civil litigation involving the crash of COMAIR Flight 5191 in August 2006 resulting in 49 fatalities; the NTSB concluded that the construction activities played no role in the crash, and McDermott secured voluntary dismissals, with prejudice, in all of the federal civil cases
  • Represented a major construction management company in OSHA investigations following the deaths of two FDNY firefighters in a building being demolished at Ground Zero as a result of damage from the 9/11 terrorist attacks

2005

  • Managed the CSB and OSHA investigations of a multi-fatality confined space asphyxiation accident at a petroleum refinery in Delaware City, Delaware
  • Represented a chemical company during an OSHA Process Safety Management inspection at a major chemical plant in Institute, West Virginia
  • Managed an OSHA investigation of chemical exposures at a pesticide plant in Mobile, Alabama
  • Defended a chemical manufacturer in Zachary, Louisiana, against OSHA PSM citations
  • Defended a major petroleum refining company against OSHA citations alleging deficiencies in material safety data sheets (MSDS)
  • Litigated appeal of MSHA citations relating to a fatal electrocution accident at aggregates facility in Texas
  • Handled defense of OSHA citations issued to a general contractor at a federal prison construction project in Butner, North Carolina
  • Managed Cal/OSHA investigation of an accident at a bridge construction project in Benecia, California
  • Managed MSHA special investigations concerning potential knowing/willful violations and alleged discrimination by a mine operator in Ely, Nevada

2004

  • Represented the employer in an OSHA PSM inspection at a major chemical plant in West Virginia
  • Handled an OSHA investigation of a fatal fall accident at an offshore oil and gas equipment fabrication facility in Ingleside, Texas
  • Handled an MSHA investigation of a double fatality at a surface mine in Ruth, Nevada
  • Managed OSHA investigations of fatal construction accidents at Baltimore-Washington International Airport and the Southwest Florida International Airport

2003

  • Represented a pharmaceutical services company in multi-agency investigations following a catastrophic dust explosion that destroyed a manufacturing facility in Kinston, North Carolina, resulting in multiple fatalities and serious injuries
  • Represented the employers in OSHA Process Safety Management program quality verification (PSM-PQV) inspections at a petroleum refinery in Delaware City, Delaware, and a major chemical plant in Pasadena, Texas
  • Managed an OSHA investigation of a multi-fatality confined space explosion at an offshore oil and gas equipment fabrication facility in Ingleside, Texas
  • Managed a multi-agency investigation of an explosion and fatality at a marine oil terminal in Staten Island, New York
  • Managed an OSHA inspection of a fatal confined-space explosion at an offshore equipment fabrication facility in Corpus Christi, Texas

2002

  • Managed an OSHA investigation of a fatal steel erection accident at the Pentagon

2001

  • Managed a multi-agency fatal sulfuric acid tank explosion investigation at a petroleum refinery in Delaware City, Delaware, which was the first major petroleum refinery investigation conducted by the CSB
  • Handled an OSHA PSM inspection at a chemical plant in Moundville, Alabama

2000

  • Managed a multi-agency explosion investigation at a major chemical plant in Pasadena, Texas, that resulted in a fatality and multiple serious injuries
  • Managed a NIOSH Inspection and Health Hazard Evaluation at a chemical plant in Fitchburg, Massachusetts
  • Managed an OSHA investigation of a fatal tunneling accident at the Dulles International Airport
  • Managed an MSHA investigation of a fatal haulage accident at a coal mine in Point of Rocks, Wyoming

1999

  • Managed a multi-agency explosion investigation at a major chemical plant in Pasadena, Texas, that resulted in multiple fatalities and serious injuries
  • Handled a North Carolina OSHA investigation of a catastrophic chemical plant explosion in Shelby, North Carolina
  • Represented an employer in investigations of a fatal chemical plant explosion in Bucks, Alabama
  • Represented the employer in a multi-agency investigation of an explosion and fire at a powerhouse in an automobile manufacturing plant in Dearborn, Michigan, that resulted in multiple fatalities and serious injuries
  • Managed an MSHA investigation of fatal conveyor and drowning accidents at sand and gravel mines in Pinal County, Arizona; Austin, Texas; and McMinnville, Oregon
  • Handled an OSHA investigation of a fatal accident at a general aviation facility at the Dulles International Airport

1998

  • Represented the employer in an OSHA investigation of a fatality at a petroleum refinery in Port Arthur, Texas
  • Managed a multi-agency investigation of a fatal explosion and fire at a petroleum refinery in Anacortes, Washington 
  • Represented the employer in a multi-agency investigation of a fatal explosion and fire at an explosives incineration plant in Joplin, Missouri
  • Handled a multi-agency investigation, including one of the very first investigations by the CSB, of a chemical release and fire at a major dye manufacturing plant in Paterson, New Jersey
  • Represented the employer in an OSHA investigation of a fatality at a petroleum refinery in Baton Rouge, Louisiana

1997

  • Represented the employer in an OSHA investigation of a fatality at a petroleum refinery in Delaware City, Delaware
  • Managed a North Carolina OSHA PSM-PQV inspection at a chemical plant in Fayetteville, North Carolina
  • Handled an OSHA investigation of a fatality at a chemical plant in Sedalia, Missouri
  • Managed an OSHA investigation of a fatal scaffold collapse at a bridge construction project in Queens, New York

1996

  • Represented the employer in an OSHA investigation of a fatality at a major fertilizer manufacturing plant in Woodward, Oklahoma
  • Represented the employer in a multi-agency investigation of a fire and chemical release at a major chemical plant in Institute, West Virginia
  • Managed an OSHA investigation of a fatal tunneling accident in Queens, New York

1995

  • Handled an MSHA investigation of a fatal haulage accident at a gold mine in Fairbanks, Alaska

1994

  • Represented the employer in a multi-agency investigation of a catastrophic explosion at a major fertilizer manufacturing plant in Port Neal, Iowa
  • Managed an MSHA investigation of a fatal accident at a coal mine in Point of Rocks, Wyoming
  • Handled an OSHA investigation of a fatal construction accident in Guam

1993

  • Managed a South Carolina OSHA investigation of multiple fatalities at a chemical plant in Columbia, South Carolina
  • Represented the employer in an OSHA fatality inspection at a Port Arthur, Texas, petroleum refinery
  • Represented the employer in a multi-agency investigation of a fatal explosion at a major chemical plant in Institute, West Virginia
  • Represented the employer in a multi-agency inspection of a fatal fire at a petroleum refinery in Canton, Ohio
  • Managed an OSHA investigation of a fatality at a manufacturing plant in Urbana, Illinois

1992

  • Managed a multi-agency investigation of a fatal explosion at a fertilizer manufacturing plant in Lake Charles, Louisiana
  • Managed an OSHA investigation of a fatal tunneling accident in Houston, Texas

1991

  • Represented the employer in a multi-agency investigation of a fatal explosion at a major chemical plant in Seadrift, Texas
  • Handled an OSHA investigation of a fatal explosion at major chemical plant in South Charleston, West Virginia
  • Managed a multi-agency investigation of an explosion at a chemical plant in Sedalia, Missouri, that resulted in the partial evacuation of the town
  • Handled an OSHA investigation of a release at a major chemical plant in Institute, West Virginia
  • Managed MSHA investigations of fatal accidents at coal mines in North Dakota and Texas

1988

  • Represented the employer in a multi-agency investigation of a chemical release at a paper mill in Androscoggin, Maine
  • Represented the employer in an OSHA and criminal investigation of a fatal explosion at a major tunnel construction project in Milwaukee, Wisconsin

1985

  • Represented the employer in a wall-to-wall OSHA inspection of a major chemical plant in Institute, West Virginia, the first major chemical process safety inspection ever conducted by OSHA

Selected Reported Decisions In Major Industry Cases Handled by McDermott’s OSHA, MSHA & Catastrophe Response Group

  • Summit Contractors, Inc., 21 BNA OSHC 2020 (OSHRC 2007):   Convinced the OSH Review Commission to abolish the decades-long multi-employer doctrine and argued the appeal before the U.S. Court of Appeals for the Eighth Circuit
  • Cagle’s Inc., 21 OSHC 1738 (2006):   Represented a coalition of trade associations in a successful challenge to OSHA’s interpretation of the training provision of the HAZCOM Standard
  • Motiva Enterprises, LLC, OSHRC Dkt. No. 02-2160 (Sept. 22, 2006):   Convinced the OSH Review Commission to reject OSHA’s interpretation that mere proximity of equipment is enough to bring a facility under the coverage of the Process Safety Management Standard
  • American Bus Ass’n v. Slater, 231 F.3d 1 (D.C. Cir. 2000):   Convinced the D.C. Circuit to invalidate U.S. Department of Transportation regulation under the Americans With Disabilities Act as contrary to the sanctions provision of the Administrative Procedure Act
  • CH2M HILL, Inc. v. Herman, 192 F. 3d 711 (7th Cir. 1999):   Served as trial and appellate counsel of record for CH2M HILL in a case in which the court’s decision substantially narrowed the potential liability of all engineers and architects under the Occupational Safety and Health Act
  • IBP, Inc. v. Herman, 144 F .3d 861 (D.C. Cir. 1998):   Served as counsel of record for amicus curiae in a case in which the court’s decision limited the liability of facility owners for OSHA violations committed by independent contractors while working at a facility
  • Reich v. Arcadian Corporation, 110 F.3d 1192 (5th Cir. 1997):   Convinced the U.S. Court of Appeals to invalidate a substantial portion of OSHA’s “egregious case” enforcement policy
  • TWCC v. Ben Robinson, 934 S.W.2d 149 (1996):   Convinced Texas courts to invalidate Texas workplace safety statute as preempted by the federal OSH Act
  • Reich v. General Motors, 89 F. 3d 313 (6th Cir. 1996):   Served as appellate counsel of record and orally argued in a case in which the court’s decision struck down a major interpretation by OSHA involving the Lockout/Tagout standard
  • Computer Sciences Raytheon, 1994 OSAHRC LEXIS 166 (No. 93-232, 1994) (ALJ):   Tried and obtained dismissal of fall protection citations involving the mobile launch platform for the Space Shuttle

Contacts

McDermott Will & Emery

McDermott Will and Emery