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Workplace Safety

Contact

Tom Van Wyngarden
Partner, Los Angeles
T: +1.213.488.3615
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Areas of Focus

Our Workplace Safety practice group can handle any matter involving personnel safety, process safety, employee injuries or fatalities, and related enforcement and litigation.

Not all workplace safety matters involve highly publicized accidents and explosions. Most arise out of incident, complaint and process quality verification inspections and investigations; regulatory, recordkeeping, and illness and injury reporting compliance; and process safety management requirements unique to specific industries. Alleged violations can occur anywhere, from an avocado grove to the set of a Hollywood film. The Pillsbury team has the incomparable experience and reputation to deftly represent its clients in all aspects of workplace safety.

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Pillsbury represents clients in a wide range of industries, such as energy, construction, manufacturing, hospitality and retail, transportation, agriculture, food processing, maritime and entertainment. Our experience is broad, ranging from compliance counseling to rapid deployment to the facility in question immediately following a significant incident—from matters involving serious injuries and fatalities, to alleged “outside the fence” community and environmental impacts. The team is often the first “boots on the ground” at the employer’s facility and stays on the enforcement case through every stage of litigation, including administrative hearings and appeals.

Residing in California, Pillsbury’s workplace safety attorneys have handled matters and associated litigation across the country, including Texas, New York, New Jersey, Colorado, Louisiana, Mississippi, New Mexico, Virginia, Ohio and, of course, California. They have established a long record of success in high-stakes, high-profile and highly publicized workplace safety matters—particularly those on behalf of the energy industry—including some of the largest citation appeals to ever come before the California Occupational Safety and Health (Cal/OSHA) Appeals Board. Due to our frequent interaction with regulators in the field and in court, we have gained a cooperative rapport with regulators that often allows us to resolve matters informally without significant expense.

The Pillsbury team supports clients during inspections, investigations and enforcement by Occupational Safety and Health Administration (OSHA), Cal/OSHA, the U.S. Environmental Protection Agency (EPA), the California EPA, the U.S. Chemical Safety Board and other federal and state regulatory agencies. When we are not responding to an incident or in litigation, the team provides counsel on process safety management, program quality verification inspections, workplace injury and illness prevention programs, emergency response plans and regulatory application and compliance.

The Significance of Workplace Safety Representation

The effect of OSHA enforcement matters can have significant repercussions well beyond the payment of penalties. OSHA investigations are often followed by and can influence related civil litigation and/or criminal prosecution. Because OSHA has only six months to issue citations, OSHA cases move swiftly, and as a result, evidence collected is often used in subsequent, related matters (e.g., government agency enforcement action, wrongful death suits). For example, depositions of witnesses and written discovery in an OSHA proceeding may be relied on in related matters. Accordingly, it is important to coordinate workplace safety representation with anticipated civil and/or criminal investigations and litigation.

In addition, abatement required by OSHA can have significant financial impact on the company, beyond the civil penalties. For example, OSHA may require a company to replace certain valves at multiple locations, rather than simply replacing wearing parts and gaskets. When such abatement is considered excessive and cost-prohibitive, the company may choose to challenge the abatement in an administrative trial.

OSHA citations can also affect bidding for government contracts. It is important to appeal citations as necessary and work with OSHA to reduce the number of citations and citation classifications, if possible, to improve the company’s safety record.

Finally, as we experienced during the COVID-19 pandemic, workplace safety emerges front and center when OSHA issues new regulations to address never-before-seen hazards, prompting companies to reconsider how they operate. Workplace safety counsel navigates the ever-changing regulatory landscape and guides companies to compliance.

Representative Experience

  • Represented Rust Movie Productions LLC in connection with the investigation conducted by the New Mexico Occupational Health and Safety Bureau, including the appeal of citations issued in connection with the accidental shooting on the set of the Alec Baldwin movie “Rust.” Less than a year after the incident, we secured a favorable settlement with the State of New Mexico Environment Department’s Occupational Health and Safety Review Bureau.
  • Represented Chevron USA in connection with the environmental, health and safety responses to a highly publicized fire at its Richmond, California refinery. Cal/OSHA issued 17 citations, heralded in the media as the largest penalty it had ever imposed. All but one of the citations were designated “serious willful” or “serious,” and all were appealed. These citations—with significant penalties and process safety implications for the energy industry—were resolved after years of litigation. The settlement was highly publicized after being approved by the Governor of the State of California. Cal/OSHA withdrew nine of the 17 citations, and significantly downgraded the classification of the remaining accepted citations.
  • Oversaw investigation of a June 2019 explosion and fire at the Kinder Morgan Carson Terminal, including evidence preservation, working with the fire department, HazMat and others in connection with the post-fire cleanup, and rebuild of portions of the terminal’s truck rack. Retained and worked with experts to determine the cause of the explosion of a tanker truck during fueling operations, which caused over $6.5 million in damage.

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Energy

  • Chevron Richmond Refinery (California)
    • Represented the company in connection with the investigation, conducted by the Department of Justice (DOJ) and EPA, of the Richmond Refinery, as well as all national refineries arising out of alleged violations of (1) fitness-for-service and emergency response training; (2) requirements applicable to maintenance, inspections, and material replacement; and (3) other safety and material enhancement issues. Initiated by the Richmond Refinery fire, the EPA and DOJ conducted investigations at all company refineries, including refineries at Richmond, El Segundo, Pascagoula, Hawaii, and Salt Lake City. After four years, numerous technical presentations to the DOJ, EPA and Mississippi Department of Environmental Quality, the parties reached a noteworthy settlement memorialized by a Consent Decree entered in United States of America and the State of Mississippi v. Chevron U.S.A. Inc. (N.D. Cal), Civ. No. 4:18-cv-06506.
    • In connection with the investigation associated with the fire at the Richmond Refinery, Cal/OSHA issued a separate, distinct set of citations against the company. These citations were appealed and, because Cal/OSHA adopted the position that the regulations required pipe valves be replaced instead of refurbished and placed back into service, the matter presented significant process safety implications for the energy industry. The case was tried in a nine-day hearing over the span of several months before an Administrative Law Judge (ALJ). The Judge dismissed all but one of the eight citations, reduced the classification of that citation to general, and reduced the penalties by 99%, from $180,000 to $560.
    • This decision was overruled by the Occupational Safety & Health Appeals Board (OSHAB). And, after a subsequent hearing on a writ of mandate seeking to compel OSHAB to reinstate the ALJ’s decision, a favorable settlement was negotiated on behalf of Chevron USA, which significantly narrowed California’s prior interpretation of a regulation that would have required wasteful, unnecessary, and costly valve replacements. In addition, the settlement reinstated the fact that fugitive emissions from packing material and flanges are environmental issues governed by local air quality management districts and are not workplace safety hazards.Represented Chevron USA in connection with the highly publicized February 2021 diesel and water release into the San Francisco Bay. The resulting oil sheen prompted investigations by Cal/OSHA, Bay Area Air Quality Management District and others and resulted in a health advisory for nearby residents and the temporary closure of a local beach. No citations were issued.
    • Represented Chevron USA in connection with numerous citations, investigations and inspections, including myriad appeals of alleged violations of process safety management standards.
  • Chevron El Segundo Refinery (California)
    • Counseled Chevron USA in connection with multiple investigations/inspections undertaken by Cal/OSHA of its El Segundo Refinery in California and represented the company in over at least twenty distinct appeals of citations alleging violations of process safety management standards.
    • Advising Chevron USA in connection with a process safety Program Quality Verification inspection at its El Segundo Refinery in California.
  • ExxonMobil Torrance Refinery (California)
    • Represented ExxonMobil in its appeal of 19 alleged violations of California’s workplace safety regulations, including six serious willful citations issued by Cal/OSHA following the highly publicized February 2015 Torrance refinery explosion. Negotiated very favorable settlement—all willful designations were withdrawn, 11 of the 19 citations were vacated, and the classification of the majority of the remaining eight citations were downgraded.
  • Kinder Morgan Carson Terminal (California)
    • Represented Kinder Morgan in connection with litigation filed against the trucking company that caused damage to the Carson Terminal in California, resulting in the recovery of approximately $4 million.
    • Represented the company in connection with Cal/OSHA’s investigation of the Carson Terminal incident, which ultimately resolved through the state’s issuing a Notice of No Violations.
  • Marathon Carson Refinery (California)
    • Served as litigation counsel for Marathon in the appeal of 12 alleged violations of California’s workplace safety regulations, which included three serious citations, one repeat serious citation, and one willful serious citation issued by Cal/OSHA following a February 2020 Carson refinery fire. After months of negotiations and technical presentations by subject matter experts, a settlement was reached favorable to Marathon—seven citations were withdrawn, and the remaining citations were classified general, with one serious citation.
  • PBF Energy Torrance Refinery (California)
    • Assisted Torrance Refining Company (TORC) with its response to Cal/OSHA’s notice of intent to issue two serious citations alleging violations of Process Safety Management (PSM) regulations in connection with an accidental release. Analyzed cited regulatory standards, developed defenses, and prepared client for informal conference with regulators.  As a result of our analysis, Cal/OSHA decided to issue only one serious citation and one general citation.
    • Led an internal investigation of a whistleblower complaint alleging process safety violations at TORC.
    • Participated in initial response and investigation of a contractor fatality at TORC, which occurred during vessel entry and associated maintenance. Cal/OSHA ultimately issued a Notice of No Violation.
    • Regularly provide counsel to TORC in connection with investigations/inspections undertaken by Cal/OSHA, the application of regulations to the refinery and its contractors, auditing and updating process safety advisories and training materials, and human factors analyses.
  • Valero Wilmington and Benicia Refineries (California), 2017-2019
    • Represented Valero’s California refineries in investigations and enforcement by Cal/OSHA, the EPA and local agencies, in relation to a power outage, contractor fatality and flaring event. Participated in witness interviews and drafted responses to document requests from agencies. Also advised the company in connection with depositions of Cal/OSHA inspectors relating to electrical safety citations.
    • Represented Valero in appeals of citations arising out of Cal/OSHA’s PSM Standard for Petroleum Refineries (Section 5189.1), which sets forth refinery-specific requirements for process safety information, hazard analyses, operating procedures, training, mechanical integrity, management of change, employee participation, and human factors.

Construction

  • Westfield LLC (California), 2018
    • Represented Westfield LLC and expeditiously settled matter involving two citations issued by Cal/OSHA arising out of allegations that gas lines were improperly cut and capped during construction activities. One citation was withdrawn, and the other “serious” citation was re-classified general. Within six months of settlement, the Santa Clara District Attorney, based on the same underlying event, alleged violations of the Dig Safe Act of 2016 and California’s unfair competition law. Negotiated a very favorable and expeditious settlement of all claims asserted.
  • Construction Equipment Company, dba LT Farms (California), 2022
    • Pillsbury led the internal investigation for Construction Equipment Company in connection with an employee leg amputation injury, conducted a workplace safety audit, and represented the company in connection with OSHA’s investigation of the incident and appeal of five citations. The parties settled the matter and OSHA agreed to reduce penalties, withdraw a serious citation and revised alleged violation description language.
  • Golden 1 Center (California), 2017
    • Counseled Sacramento’s Golden 1 Center in connection with Cal/OSHA citations alleging violations of guardrail and camera platform requirements following the completion of the new stadium.

Manufacturing

  • Nippon PGM America (New Jersey), 2020
    • Represented Nippon PGM America in connection with OSHA’s investigation of an employee amputation incident in New Jersey, including the company’s investigation, evidence preservation, safety enhancements, and defense of workplace safety alleged violations. OSHA issued five serious citations, and within two months, we negotiated a favorable settlement reclassifying three citations as other-than-serious and reduced total penalties by 20%. We continue to provide counsel in connection with the insurer’s investigation and litigation initiated by the injured employee.
  • Mattson Technology (California), 2021
    • Represented Mattson Technology in the appeal of four Cal/OSHA citations issued in connection with a partial finger amputation incident in Fremont, California. Pillsbury assisted with abatement and negotiated a favorable settlement of the four citations issued. One of the two serious citations was withdrawn, and OSHA agreed to the reduction in total penalties by almost 50%.
  • Occidental Chemical Corporation (Texas), 2019
    • Defended Occidental Chemical Corporation against alleged EPA Risk Management Program violations. Analyzed cited regulatory standards, developed defenses, and prepared client for informal conference with regulators.
  • Packaging Corporation of America (Louisiana), 2017
    • Assisted Packaging Corporation of America in investigations and enforcement by the Chemical Safety Board, OSHA and the EPA related to a multi-fatality incident at a paper mill in Deridder, Louisiana. Participated in witness interviews and drafted responses to document requests from agencies.

Hospitality and Retail

  • Ralphs Grocery, Food 4 Less
    • Advising Food 4 Less regarding obligations under both Cal/OSHA regulations and Proposition 65 in connection with vapor intrusion of dry-cleaning contaminants at a market located in San Diego, California.
  • Culmen International LLC (Texas), 2021
    • Advised Culmen International LLC (U.S. Department of Health and Human Services prime contractor responsible for housing unaccompanied children at Dallas convention center) regarding investigation and response to OSHA in connection with alleged hazards of employees standing for 12-hour shifts and COVID-19 preparedness and response plan.
  • Chateau Marmont Hotel (California)
    • Advised Chateau Marmont Hotel regarding compliance with Cal/OSHA’s COVID-19 temporary emergency regulations. Specifically, Pillsbury advised the hotel regarding employee daily screening, administrative controls (e.g., social distancing markers), cleaning/disinfection logs, safety training, recordkeeping, and outbreak reporting.
  • King Taco (California)
    • Advised King Taco regarding COVID-19 ever-changing policies regarding vaccination; specifically, what employee inquiries are permissible, alternatives to vaccination inquiries, masking requirements and paid time off for vaccinations under the California 2021 COVID-19 Supplemental Sick Leave Law.
  • BJ’s Restaurants (California)
    • Advised BJ’s Restaurants regarding screening of visibly ill customers during COVID-19 pandemic and OSHA regulations regarding employee safety, requirement to provide a safe workplace, assessment of hazards, evaluation of risks and implementation of controls in order to reduce employee exposure.

Entertainment

  • Rust Movie Productions LLC (New Mexico), 2021
    • Pillsbury represented Rust Movie Productions LLC in connection with the investigation conducted by the New Mexico Occupational Health and Safety Bureau, including the appeal of citations issued in connection with the accidental shooting on the set of the Alec Baldwin movie “Rust.” Pillsbury was engaged to act as workplace safety and crisis management counsel in connection with the incident, and our team represented the production company against claims made by the Bureau.
    • Led the OSHA response, including taking depositions of witnesses and written discovery relating to citations issued by the Bureau. Because the OSHA matter moved swiftly, the deposition testimony obtained was relied on by other defendants in related matters as exculpatory evidence and to correct misinformation circulating within various media platforms.
    • Less than a year after the incident, the Pillsbury team secured a favourable settlement with the State of New Mexico Environment Department’s Occupational Health and Safety Review Bureau. The Bureau withdrew the willful designation, reduced penalties, and revised alleged violation description language, which removed largely unnecessary, inflammatory language.
  • Starz TV (New York), 2017
    • Provided workplace safety counseling to Starz in connection with the production of a music video to be filmed within an abandoned space containing lead paint. Because a minor was involved in the production, special workplace safety measures were implemented to comply with OSHA regulations, satisfy concerns of the Screen Actors Guild and protect the safety and welfare of the minor actor. Advice was provided on an urgent basis so filming could proceed without costly delays.

Transportation

  • ENSCO (Colorado)
    • Representing the company in connection with a July 2023 high voltage electrical subcontractor fatality including, but not limited to, overseeing the internal investigation, witness interview and preparation, coordinating document production and meetings with the County Coroner. OSHA is currently investigating the incident.

Food Processing

  • Shenandoah Valley Organics (Virginia)
    • Represented the company in connection with Virginia’s adoption of the nation’s first COVID-19 workplace safety rules. Assisted the company in determining the nature and scope of compliance with the proposed emergency rules and preparing and coordinating comments with the Virginia Poultry Federation on the proposed Virginia Board of Safety and Health Codes.

Practice Area HIghlights

  • We are a full-range, one-stop shop, from regulatory counseling to development of written programs and procedures, to assistance with agency inspections/investigations, to administrative trials.
  • Resolved over 100 workplace safety matters for clients in a cross-section of industries, from energy to entertainment.
  • Our team is entrusted by clients to handle their most important and challenging mandates and has handled big-ticket matters and associated litigation across the country, including Texas, New York, New Jersey, Colorado, Louisiana, Mississippi, New Mexico, Virginia, Ohio and California. We have handled some of the largest, most high-profile workplace safety matters in California.

Awards & Rankings

  • Pillsbury’s Environmental practice was ranked by Chambers USA in the national, California and Washington, DC, categories.
  • The Legal 500 U.S. recognized Pillsbury for excellence in Environment: Litigation and Environment: Regulatory.

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