The legal implications of a spill

Businesses responsible for storing, using or transporting potentially polluting materials should be aware of the legal, as well as practical implications of a spill. Environmental and health and safety law imposes certain duties on site operators which, if not complied with, can result in legal proceedings, fines and reputational damage.

Reuben Richings, Technical Response Manager, Adler and Allan and Simon Tilling, Partner, Burges Salmon, outline the legal implications of a spill – both financial and reputational, and the importance of having an adequate emergency response plan in place.

A spill of a substance capable of harming the environment could result in a criminal prosecution by the relevant regulator under various regimes, and it could also lead to nuisance or negligence claims from persons affected by the spill.

Under the Environmental Permitting regime if substances are released into controlled waters as a result of a spill, the person or entity responsible for that spill may be required to comply with enforcement notices served by the regulator and/or be prosecuted for the spillage itself. 

Under the Environmental Damage (Prevention and Remediation) Regulations 2015, it is a criminal offence to fail to take all practicable steps to prevent further damage if an activity has caused environmental damage and it is also a criminal offence to fail to comply with a remediation notice requiring certain clean-up steps to be taken.

Specific licences must also be obtained by businesses releasing trade effluent into public sewers. As such, an accidental spill of trade effluent could be an offence under the trade effluent consent obligations of the Water Industry Act 1991.

The Control of Major Accident Hazards (COMAH) regime may also apply to sites handling or storing dangerous substances. 

There has been a push in recent years to ensure that compliance with environmental protection regimes is taken seriously by businesses of all sizes. This has resulted in a marked increase in the level of fines over the last decade, especially for large companies. In certain circumstances, senior officers of offending businesses can be held personally liable.

Finally, the reputational damage from a pollution event and ensuing investigations may be as much a concern for businesses as strictly legal consequences.