It's not just the big oil companies who need to worry about polluting the environment. Pollution can arise from the most innocuous of situations and strike without any warning. The consequences can be severe, not just for the environment and any creatures or habitat affected by the pollution, but also for those found to be responsible.

It is a criminal offence to "cause or knowingly permit" any "polluting material" to enter any "controlled water". Unsurprisingly, all these terms are very widely defined to cover a myriad of potential polluting events. Controlled waters, for example, include not only rivers and lakes but ponds, streams, canals and aquifers among others. There are significant sanctions for both organisations and directors if things go wrong. Consider the following to help prevent, or deal with, any spills that may occur.

The key to managing pollution risk is to identify the risks in the first place

It is a recurring theme in safety, health, environmental and regulatory matters that prevention and risk management start with risk assessment. To produce an effective environmental damage risk assessment you will need to think carefully about what the risk might be:

  • what are the sources of any polluting material bearing in mind its wide definition? There are some examples below of what can go wrong
  • what pathway could that pollution take?
  • where might that pollution be received?
  • what procedures are in place to minimise the impact of any spillage that does occur? The efficacy of this last point is often key in informing a decision whether or not to prosecute.

Pollution incidents come in any number of different forms. Rainwater washing clay into a stream, sewage pumping stations failing overnight, fluid leaking from skips, vehicles colliding with fuel tanks, bund walls failing and groundwater washing historic chemical contamination into a canal, top soil, clay, orange juice, powdered dye, diesel, chemicals and sewage seepage into fresh water are all examples of pollution incidents upon which we have advised.

Liability can arise even if equipment is damaged by vandals and a leak results. Do not assume therefore that just because you do not handle anything obviously nasty, there is no risk of a pollution incident.

Have several lines of defence to the "what if" scenario including the following:

  • make sure, for example, that not only are pumps regularly serviced, but that they are also fitted with 24-hour alarms
  • ensure storage tanks have effective volume measurers and also that they are properly bunded
  • take steps to ensure that effluent discharge is within the parameters allowed and also that pipes and sewers are in good condition
  • think widely about what could go wrong and have a series of safety nets to prevent escape
  • if you are unable to eliminate the risk, consider retaining emergency environmental consultants on call 24-hours a day to contain and then begin to remediate any pollution.

What if the worst happens and there is a leak or spill?

Make sure you have a comprehensive contingency plan to minimise the problem should something go wrong. A clear written plan should be in place to deal immediately with any leak or spill occurring. This should involve a fast and effective escalation procedure both internally and also to the Environment Agency as soon as a leak is suspected. The sooner the plan is put into action the better. It is far easier to catch the plume of pollution if the plan is implemented close (both physically and in time) to the source. Make sure relevant staff know of the plan and how to implement it. Evidence and proof of the plan and the systems used to try and minimise the consequences should be retained as they could be useful in any subsequent prosecution.

If possible, train your own staff to contain as much of the spill as possible on site and provide them with sufficient and effective spill kits. Remember that employees engaged in the clean up need to be able to do it safely. The Environment Agency has the ability to charge a polluter for clean up works they undertake and you may prefer to retain control of the clean up operation by using your own specialist contractors.

If the incident is serious, consider obtaining an Environmental Impact Assessment Report as soon as possible. Make sure that this covers areas upstream of the spill in addition to the area of the spill itself. This is a very effective way of establishing first the size and scale of the environmental impact and when followed up, the speed with which the environment recovered.

Best practice

Engage with the Environment Agency both before and after the event. They have a long-term duty to protect the environment and their enforcement policy requires them to consider the environmental outcome. Work with them before the event to lessen risk, during the incident to minimise its impact and afterwards to achieve a long term solution. There is no doubt that this will affect their decision on the appropriate enforcement action to take.