25 October 2018

More needed legally to prepare for accident investigations

Executives, employees and contractors should know the specifics of accident invesitgations cautions ex-NTSB general counsel.

LeClairRyan attorneys highlight that the National Transportation Safety Board (NTSB), well known for investigating plane crashes, should get more attention from oil and gas executives, and offers salutary advice for general counsel.

Investigation process

The catastrophic gas explosions that destroyed dozens of homes in Massachusetts recently have called attention to the NTSB’s role in investigating such incidents, noted Mark A Dombroff, an Alexandria-based member of LeClairRyan and co-leader of its transportation industry practice. Mr Dombroff explains, ‘most, but not all, in the pipeline business are aware that something like this will immediately trigger a federally mandated and led investigation’ but ‘their counterparts in aviation tend to be far better prepared to contend with the highly specific, and high-stakes, investigative process relied upon by NTSB.’ In a given year, the agency typically investigates about 2,000 aviation accidents as opposed to just a few pipeline cases, noted David K Tochen, a transportation attorney in LeClairRyan’s Washington DC office.

Experience lacking

Mr Tochen, who served as general counsel of the NTSB from 2011 to 2017, explains ‘because pipeline accidents are relatively rare, in quite a few cases we find that executives at pipeline companies lack any prior experience with NTSB investigations,’ and so ‘they often feel pulled in a thousand different directions and are unsure of how to respond after an accident occurs.’ LeClairRyan has published a 10-page primer on NTSB investigations to help decision-makers in the aviation, maritime, rail, pipeline and surface transportation sectors. Companies can easily make missteps that hinder their ability to fully participate in the process, and this can increase civil or criminal liability risk later on, Mr Dombroff added. He explains, ‘from the evidence-gathering and analysis phases, to a possible public hearing, to the NTSB’s preparation of its final report, you need to be at the table’ Yet, he adds ‘you could suddenly find the company frozen out due to a simple misstep such as violating the NTSB’s rules on what you can and can’t say to the media.’ Pipeline companies should consider working with a legal team to guarantee that their employees, contractors and subcontractors are fully trained on such considerations, Mr Tochen advised. The primer can be found here.