Spill Not My Company’s Fault; Why Are We Still Liable for It?

Environmental liability laws relating to pollution events that require cleanup and reporting can be confusing. Your company could be held responsible for an environmental release, even if it was not your fault! That means you would be legally responsible for the spill cleanup, reporting, disposal of contaminated material and site remediation. Your company’s exposure can be significant when you have a spill – whether at a facility or on the road as the result of an accident in transportation.

The laws defining strict liability hold that you are legally responsible because of who you are, not what you do. A transporter activity creates a legal responsibility, as does a shipper activity. The law states that the party with the care, custody and control of the spilled material is responsible for the cleanup and site restoration. Costs can be significant.

For example, in an accident where your truck is involved and it was not your driver’s fault (maybe a drunk driver collides with the truck and ruptures the saddle tank, causing diesel fuel to spill out), the liability for the spill is still yours. As owner of the truck, the police at the scene will look to you to respond to the release. Of course, you can later seek reimbursement from the drunk driver, who had a duty not to drive drunk and breached his duty. But strict liability laws make the trucking company responsible for the response.

To minimize your liability, document all activities after a spill, including efforts taken to contain and stop leaking materials and all regulatory reporting activities, to avoid being drawn into a pre-existing contamination problem as a responsible party. For a vehicle fuel spill, the driver should write down everything he does after a spill to contain the leak and the actions taken by emergency responders, plus the number of responders, time on scene and other details related to the response. The driver should also record the quantity spilled, based on last fueling and miles driven, plus times and phone numbers of calls that he made to report the incident.

That driver’s log can be used to place the company in a legally defensible position against third-party claimants. Documenting that a release was separate in time, separate in nature, and was the subject of a separate and complete response and remediation will go a long way toward a successful defense.

It is in your company’s best interest to respond and handle the release as quickly as possible, because faster is better in spill response to minimize damage to the environment. It is easier to claim over and successfully recover a small amount of money that you spend on the cleanup than to pay hundreds of thousands of dollars for failure to comply with the environmental regulations. Even if the damages are ultimately not going to be paid by your company, you want to control those costs so you have a better chance of getting reimbursement.

The state police and environmental authorities at the scene understand strict liability very well and are not going to look to the drunk driver to report, respond and contain the release. They expect the spill generator to do those things. And, as I mentioned, spills come with significant exposure. By law, your company is responsible to pay the following:

  • All damages and costs related to environmental impairment and waste disposal
  • Property damage and bodily injury arising from the spill
  • Fines and penalties for failing to report a spill as required by regulatory agencies

Remember, local and state enforcement and environmental agencies have the authority to demand from the spill generator not only fines and penalties for failure to comply with reporting regulations but reimbursement of direct costs and damages, as well.

After an environmental release involving a Spill Center client, our Compliance Associates coordinate the emergency response and prepare documentation to place the client in a legally defensible position after a spill in the event of third-party liability claims. That is especially important in the case of any pre-existing contamination at the site to protect against being linked to prior incidents. In addition, our clients avoid the cost of document preparation, which has risen significantly in recent years due to increasing government paperwork requirements related to hazmat releases.

People often ask me why they should sign up with Spill Center or another organization providing spill support services when they are already covered by insurance. The answer is simple. Insurance companies do not pay fines and penalties arising from failure to report spills or for late reporting. For that reason, insurance companies do not train people to understand reporting documentation or controlling cost and limiting liability related to spills.

Spill Center compliance associates, who include legal, technical and environmental specialists, coordinate spill response and complete telephone and written reports for clients. They fill out more than 300 US DOT Incident Report Forms each month as part of Spill Center’s program of spill-related services for clients – more incident reports for clients than any other organization in the country. As such, we were recognized with a seat on the US DOT Task Force on proposed rulemaking for the DOT 5800.1 Incident Report.

We have developed a highly sophisticated spill reporting and documentation program, which is applied to the management of every incident that we handle for clients. We maintain a database of current regulations for nearly 30,000 federal, state, provincial and local jurisdictions throughout North America. We are experts at NRC, EPA, DOT, state, and local reports, and we can ensure that reports are completed accurately and filed on time. Even if you’re comfortable filing your own reports, we are working every day to add new online report generation tools to cut down on your paperwork.

This information is provided by Tom Moses, president of Spill Center®, a leading nationwide spill-support specialist and environmental claims management company. Tom is a former U.S. EPA toxicologist who holds a Juris Doctorate degree and a certificate in Hazardous Materials Handling and Control. With more than 20 years experience assessing and managing environmental spills, Spill Center offers expertise in emergency response, investigation and remediation of accidental releases of hazmat and other regulated materials.

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By Tom Moses, Spill Center President

A comprehensive program, which includes assistance with spill reporting, is available to help clients deal with environmental releases swiftly and thoroughly to avoid trouble with the authorities. To learn more about Spill Center spill support and environmental claims management services, visit www.spillcenter.com; call Tom Moses directly at 978-568-1922, X222; or e-mail him at tmoses@spillcenter.com.

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