What to do if you have an Environmental Spill

In the past, spills and accidents were left to dilute with time, not to mention that the government didn’t force many clean ups. The reality is that today, there are much stricter regulations and diligent enforcement is increasing to protect the environment. This now requires trucking firms to have policies and procedures to comply with all the legislation which governs spill reporting and clean up. If this is not done, a trucking company can face severe fines, which can reach or surpass $100,000 (not covered by insurance), bad publicity and significant financial exposures. 

In addition, there is a NEW LIABILITY RISK on the horizon which is represented by TOXIC TORT LAWYERS who are now presenting class action law suits for multiple claimant environmental incidents, which sometimes exceed millions of dollars. The reality is that this is not a question of IF but rather a question of WHEN an environmental matter will face a trucking company and whether it is properly prepared for it!

Specifically, the law identifies the party who released the contaminant as the party responsible for ALL associated remediation costs, for the environmental reports and possibly for punitive fines, regardless of fault for the accident. So, even in accidents where the carrier is not at fault for the release of the contaminant, they are required to pay for the cleanup and then attempt to subrogate (collect) against the liable party.

So, what can be done to tackle this potential exposure?

It is important that all trucking companies have policies which have checks and balances to ensure the immediate notification to the Environmental Regulator if a spill meets the reportable quantities for that jurisdiction. Education, written policies and basic staff spill response techniques are critical for legal compliance, exhibiting due diligence, mitigation and control of the spill and expenses. Trucking companies without such policies for dealing with environmental spills are at critical risk for spiralling costs, bad publicity and huge punitive fines (again, not paid by insurance). 

• The safety of both drivers and others is the first priority. Trying to contain the release should only be undertaken if there is absolutely no risk to anyone. Immediate mitigation should only be attempted if the driver has been trained in general safety techniques/practices for these situations regarding controlling or stopping the spill. Other notable hazards for a driver to confirm include that the scene is safe, that there is no risk of fire, vehicle or load shift, other moving traffic and of course, hazardous materials. Drivers should not undertake dealing with leaking explosive fuel such as gasoline, aviation fuel, propane etc. if they are not suitably trained.

If the area is safe, drivers can use relatively inexpensive spill kits in the price range of $60.00 – $350.00 (if these are onboard the truck). These kits can contain fuel tank repair putty, absorbent material, safety glasses, sterile gloves and containment bags. Depending on the size of the spill, a small shovel can be used to make small dams to hold liquids or prevent these from entering catch basins.

Creative drivers have used items commonly available in or around a truck to control, slow or stop spills such as:

• A rag or tree branch to plug up a leaking diesel fuel tank or container.

• Bedding, clothing or mattresses put under the spill to absorb the contaminant.

There are many steps and factors to consider and follow once a spill site has been contained to prevent further contamination of an area. The trucking company will send an environmental consultant to inspect the spill site, conduct an assessment and then provide a recommendation to the trucking firm / adjuster and/or insurer as to the preferred approach of site correction. 

This is all a matter of training staff and drivers on what to do and having the necessary policies in place. These policies need to be in writing; staff and drivers need to acknowledge that the procedures are understood and this acknowledgment needs to be signed, dated and kept on file. As a well-known, Toxic Tort lawyer recently stated: “If it is not signed, if it is not dated or if you cannot find it… it did not happen”. 

This article has been written as general information only and not as legal advice for any specific incident or matter.

This article was written courtesy of:

Rick Kosowan, CIP, CRM, TEC
Director Western Canada, ClaimsPro’s Transportation Equipment Cargo
(TEC) Division
e-mail: richard.kosowan@scm.ca
mobile: 204-451-4850

And Mark Samis, M.Sc., M.B.A.,
Vice-President, Pario Environmental Sciences
e-mail: mark.samis@pario.ca
mobile: 416-300-5219