ENVIRONMENTAL LIABILITY
Understanding Your Legal Responsibilities
(Reprinted from Fleet Equipment magazine 9/98)

By Tom Moses
Spill Center President

Environmental releases of hazardous materials require a prompt
response to limit the spill generator's legal responsibility or liability.
Understanding the potential liability associated with your company's
activity and being adequately prepared to respond to environmental
spills arising from that activity will help minimize any liability.

The laws defining liability typically provide that a person who does
a thing -- transports, stores, or ships goods, for example -- shall be
legally responsible for damages resulting from doing that thing. It is
the business activity and not the hazardous material spilled that gives
rise to environmental liability.

Your are legally responsible because of who you are not what you do.
A transporter activity creates legal responsibility, as does a shipper
activity. If you meet the statutory definition of a legally responsible
party, then it doesn't matter that a hazardous chemical spill was the
result of an accident, even if the accident wasn't your fault. The
liability for the release is yours, all the same.

Contingency Planning

A written contingency plan that details the who, what, where, when
and how your company will respond to spill emergencies is the best
way to assure you are in compliance with environmental regulations
and avoid liability. Communicating the plan to managers and employees
is just as important as having a plan. Keeping it up-to-date, with
names and phone numbers of emergency responders, is also key to its
effectiveness.

When writing your contingency plan, consider all activities with which
you are involved that have the potential to generate a spill. Lay out
the most appropriate response option for each activity. All too often,
spill generators try to utilize a single spill response option for a number
of activities. That can give rise to spill liability.

An example is the manufacturer who can effectively respond to spills
at his facilities, yet is unprepared to handle over-the-road spills. Highly
trained personnel and specialized equipment can work safely and
effectively within the familiar confines of the company facility. But what
happens when the same people are asked to travel two hours to
respond to a truck accident. Adverse weather, unfamiliar site conditions
and different regulatory authorities are some variables that can affect
their effectiveness.

Carriers are required to report hazardous materials incidents that occur
during loading, unloading, transporting and storage. Make sure your
contingency plan contains current spill reporting requirements for every
jurisdiction through which your equipment travels. It should also include
the names and numbers of clean-up contractors who are equipped to
quickly handle over-the-road spills. This preparedness can help limit your
company's costs and liability as a spill generator.

Activity-based Liability

Let's examine the environmental liability associated with typical activities.
Storm drains are especially sensitive areas. Eliminate any possibility that
hazardous chemicals, waste oil, solvents or other pollutants -- even wash
water -- can reach waterways or storm drains, which ultimately lead to
groundwater. If that does happen, report the incident immediately to
federal, state and all local authorities that have reportingrequirements.
Don't try to cover it up.

A locomotive cleaning operator near St. Louis was fined a total of
$500,000 for failure to report such an incident. The company unsuspect-
ingly had been discharging waste oil and solvents from a poorly main-
tained oil-water separator into a ditch that drains into the Mississippi
River. The company stopped the discharges once it realized what was
happening, but it did not report the incident, as required by law. The
Illinois Environmental Protection Agency, which discovered the violation
after an anonymous tip, ordered the firm to pay an additional $26,000
in restitution.

Management of regulated liquids is one of the biggest challenges facing
fleet managers today. Contingency planning should include having the
means in place to contain any spills that may occur. Disposal of used oil
and other liquid waste carries environmental liability, so you should
ensure that your waste it is going to an authorized site. Your company
still has legal responsibility for it even after a disposal company hauls it
away.

If you are unsure of the environmental liability risks associated with your
activity, you might consider working with regulatory authorities or a
consulting firm that specializes in compliance and regulatory reporting.
Specialists who are experienced in writing contingency plans for trucking-
related activities can help position your company to respond better to
unintentional environmental releases and minimize your liability.

Tom Moses, an environmental attorney and former EPA toxicologist, is
president of the Spill Center, an environmental claims management com-
pany based in Acton, Mass. Contact him at 978-897-6461. Or visit the
Spill Center's website at www.spillcenter.com.