Pollution incidents and environmental damage
Your business could cause pollution by accidentally or deliberately releasing a substance that may damage the water environment, cause air pollution and land contamination and harm wildlife or people.
Pollutants are not just hazardous substances like chemicals. Substances such as food and drink products like milk, and surface water run-off containing oil and fuel or suspended solids could cause pollution.
If you handle or store hazardous or polluting substances you should take precautions to prevent accidents and reduce the effects of potential pollution.
If there is a risk that your site may cause a pollution incident you can be forced to take action to remove the risk. If you do cause serious pollution you may have to pay to remedy the damage.
This guide gives an overview of what environmental damage is and how the Environmental Liability Regulations could affect you and your business. It covers what action can be taken if you fail to remove a risk of pollution, or actually cause a pollution incident. It also introduces pollution incident response plans and how you can help prevent pollution from your business activities.
Pollution incident response planning
A pollution incident is when any substance is released to land, air or water that could harm people or the environment.
Accidental spills or leaks from poorly maintained plant, equipment or containers, which can enter your surface water drainage, are common causes of pollution incidents.
Reduce the risk of incidents by storing and handling polluting substances carefully.
A pollution incident response plan (PIRP) outlines the actions you should take to reduce the chances that your business causes pollution from an incident or accident at your site. Your plan doesn't have to be complicated. The level of risk should influence the size, complexity and details of your plan.
Why you should have a pollution incident response plan
Most businesses aren't legally required to have a PIRP, but it will help you prevent a pollution incident occurring at your site.
Cleaning up pollution incidents can be expensive, particularly if you contaminate groundwater. You could be committing a criminal offence, may have to pay compensation and your reputation may suffer.
You must have a PIRP if you have a pollution prevention and control permit or are regulated by the Control of Major Accident Hazards (COMAH) Regulations.
What your pollution incident response plan should contain
Details about your business, including:
- the name of your business
- your main business address and all site addresses
- a description of the surrounding area
- the number of employees present at different times of the day
- your site activities and operations
Emergency and out-of-hours contact details for key people and organisations that may need to be involved during or after a pollution incident. For example:
- staff responsible for making decisions and taking action in the event of a spill or leak
- the most senior responsible person
- the emergency services, the Northern Ireland Environment Agency (NIEA), the Health and Safety Executive for Northern Ireland (HSENI) and the NIEA Water Pollution Hotline on Tel 0800 80 70 60
- Northern Ireland Water
- local GP surgeries and hospitals with accident and emergency departments
- specialist clean up contractors
- the person responsible for keeping the plan up to date
A detailed site plan showing your drainage layout and areas where the chances of causing pollution are high, such as storage and delivery facilities, and areas that drain to nearby waterways or culverts.
Details about the fuel, oils, gases and chemicals you store at your site and how much of these you normally keep. This information will help the emergency services in an incident. Attach product data sheets and control of substances hazardous to health (COSHH) assessments for any substances that pose a risk to people or the environment.
Once you have identified what you store at your site, you should carry out an environmental risk assessment that will help you decide what action you need to take to prevent a pollution incident.
Your plan should describe the actions you and your staff will take in the event of an incident. Your plan should contain details of how you will:
- stop incidents occurring eg prevent leaks
- contain incidents eg how to use spill kits to prevent spilled materials entering drains or waterways - and include a list of all materials and equipment held on site to deal with pollution
- notify relevant contacts when an incident occurs
- clean up after any incident eg how you will store and dispose of contaminated materials
Keep your pollution incident response plan up to date
Make sure that your PIRP is up to date, and review it regularly. You should keep a record of the date the plan was last reviewed and when your workforce was last briefed on the plan.
Good practice to prevent pollution
You should take steps to reduce the risk of pollution from your site. If you follow good environmental practices you can avoid most pollution incidents.
You should carry out an environmental risk assessment to help you understand what pollution hazards there are on your site. This will help you plan for emergencies and decide what action you need to take to control your activities and prevent a pollution incident.
Store and handle hazardous substances safely
You should store hazardous materials, fuel, oil and chemicals safely and in an area where you can contain spills, eg a bund or other suitable secondary containment system.
Your bund and any bunded pallets should be able to contain at least 110 per cent of the volume of the largest tank or 25 per cent of the total volume you are likely to store, whichever is greater. This may be a legal requirement if you store oil.
You should review storage areas and check containers regularly. Avoid locating storage areas near waterways, drains and unsurfaced areas.
Prevent water pollution from site drainage
Uncontrolled releases or leaks can enter your surface water drainage system and cause water pollution. You should mark areas used to store or deliver hazardous or polluting substances and refuelling areas. Isolate them from the surface water drainage system by using bunds, drainage gullies, raised kerbs or appropriate falls.
Have procedures to prevent pollution from your drainage system, eg keep an updated drainage plan and colour code your drains.
Be prepared to deal with spills
You should ensure accidental spills and leaks can be contained and keep spill kits or other pollution control equipment at your site. Keep portable spill kits in vehicles used to transport hazardous substances and waste.
Make sure you can access your spill kit easily when you need it. This can include:
- absorbent materials
- drain sealing mats
- gully seals
- sealing putty
- earth or sand
Prepare a pollution incident response plan for dealing with spills. Make sure that your staff are familiar with the procedure and know how to implement it.
If a spill does occur, act immediately and try to prevent it from entering drains or surface waters. For example, use absorbent materials to help contain the spread of oil and soak it up, and drain blockers to protect surface water drains.
Use the NIEA Water Pollution Hotline on Tel 0800 80 70 60 to report an incident and ask for help and advice about what to do.
Store and transport waste to prevent pollution
You are responsible for storing and transporting your waste safely and legally. You must ensure that your waste does not harm the environment.
- store and transport waste in suitable containers such as skips
- label containers clearly with their contents
- separate hazardous waste from other waste types
- ensure materials cannot leak into the ground, waterways and drains
- ensure your site and storage facilities are secure and check this regularly
You should store your waste on impermeable surfaces (such as concrete), ideally with a bund to prevent run-off from your waste causing pollution.
Avoid causing a nuisance
Dust, fumes or noise emissions from your site can cause a nuisance to your neighbours. If your local district council receives a complaint, they may request that you reduce or stop the nuisance, or ask you to carry out work to reduce or stop it.
Use an environmental management system
Your business can reduce its environmental impact and the risk of harming the environment by using an environmental management system (EMS). An EMS will help you to manage and control your activities, including emissions and discharges, resource use, and waste in a planned way.
Preventing pollution from firefighting
Fire is a serious risk to the environment. You should always try to reduce the risk of fire and the damage that fire and firefighting could cause.
To prevent pollution from firefighting you should:
- discuss how to manage contaminated firefighting waste (firewater) and your firefighting response options with the Northern Ireland Fire and Rescue Service
- prevent firewater from escaping eg by temporarily blocking drains or using a containment barrier or firewater containment facilities on your site
- ensure that your fire protection systems and fire extinguishing equipment comply with ozone-depleting substance and fluorinated gas regulations
- check if you need a major accident prevention policy for storing large quantities of dangerous substances - see control of major accident hazards (COMAH)
- create an incident response plan which assesses firefighting response options
Deal with polluting foams safely
Perfluorooctane sulfonate (PFOS) is a chemical used in aqueous film forming foam (AFFF) which is highly polluting if it escapes into the environment. AFFF foams were used to fight fires involving flammable liquids like fuel (Class B fires).
PFOS has been phased out and is no longer available on the market. Alternative products are available.
Due to their potential to harm the environment it is good practice to return foams containing PFOS or PFOS related substances to the manufacturer for disposal by incineration.
When you test fire extinguishers or carry out firefighting exercises you must not allow used foams to enter drains, surface waters or groundwater. You must contain them for disposal off site or you may be able to get approval from Northern Ireland Water (NIW) to discharge foam into the public foul sewer.
How to control firewater
Firewater is polluting and you may need to deal with it as hazardous waste.
You must not discharge firewater into the environment. Ensure you have a plan and equipment in place to collect or contain it in the event of an emergency.
Store firewater correctly and ensure that it is treated and disposed of by a permitted or licensed waste management business. You may also be able to get permission from NIW to discharge it into the foul sewer.
To prevent firewater from running into surface drains, polluting nearby waterways (rivers, streams and groundwater), foul drainage systems, and land, you should:
- construct containment lagoons, tanks or systems on impermeable surfaces to hold firewater
- isolate containment systems from surface drains, waterways, land or sewers
NIFRS may consider a controlled burn to minimise water and air pollution.
What is environmental damage?
Environmental damage is classed as very serious cases of:
- water pollution
- land contamination
- damage to biodiversity
These incidents are dealt with through the Environmental Liability Regulations.
Most cases of pollution and damage will be covered by other legislation. For example, if you cause a less serious water pollution incident, you may be issued with a notice to remedy the pollution or be prosecuted.
Environmental Liability Regulations
The Environmental Liability Regulations force businesses to take action to prevent environmental damage and to clean up any damage that they cause, known as remediation.
If you carry out any of the strict liability activities listed in the regulations and you cause environmental damage, you will have to prevent further damage and/or remedy the damage even if you were not at fault or negligent. Strict liability activities include:
- waste management operations needing a permit or registration such as collecting, transporting, recovering and disposing of waste and hazardous waste
- operating landfill sites
- managing extractive mining waste
- making discharges to surface water and groundwater that require an authorisation
- abstracting and storing water in a way that requires a licence
- activities involving dangerous substances, pesticides and biocides
- transporting dangerous and polluting goods
- activities involving genetically modified organisms
- activities requiring a pollution prevention and control permit
- importing and exporting waste
You are liable if your activity has caused or is likely to cause environmental damage. You must prevent or remediate the damage. The regulations do not apply to any environmental damage that occurred before 24 July 2009.
Environmental damage to water
Pollution of the water environment is classed as environmental damage if it is serious enough to lower the status of the water body in terms set by the European Union (EU) Water Framework Directive, eg changing the ecological status of surface water from good to moderate or poor - find more information on the EU Water Framework Directive definition of ecological status.
If you pollute the water environment in a way which isn't serious enough to be classed as environmental damage, you can still be prosecuted if you:
- cause harm to human health
- damage natural ecosystems
- interfere with drinking water, recreational activities and any other use of the water environment
For more information, see preventing water pollution.
Environmental damage to land
Land contamination may be classed as environmental damage if there is a significant risk that it could cause harm to human health - eg contamination by benzene, polychlorinated biphenyls and other toxic chemicals - see contaminated land.
Environmental damage to biodiversity
Biodiversity damage is classed as environmental damage if it causes:
- a significant harmful effect on the conservation status of an EU protected species or natural habitat
- a harmful effect on the ecological structure and function of an area of special scientific interest, eg manure spreading on protected grassland
Find out if your business activities take place in or near Special Areas of Conservation in Northern Ireland.
Exemptions from the Environmental Liability Regulations
The regulations do not apply to:
- any environmental damage that occurred before 24 July 2009
- damage caused by exceptional natural events, such as flooding which causes pollution from your site
The regulations may not apply to damage caused by modifications or alterations based on a River Basin Management Plan.
If you cause environmental damage that is exempt from the Environmental Liability Regulations you can still be prosecuted under other legislation.
Prevent environmental damage from your business activities
If your activities cause an imminent threat of environmental damage under the environmental liability regime you will be committing an offence if you do not:
- take all practical steps to prevent damage
- report the details to the enforcing body if the threat remains
To find out who your enforcing body is, see remediating environmental damage.
For example, if you become aware of poorly maintained storage equipment that is at risk of leaking, or is already leaking, and could cause environmental damage, you must take action immediately to stop environmental damage. If your action does not succeed in reducing the risk, you must report it immediately to the Northern Ireland Environment Agency (NIEA).
You are committing an offence if you do not report environmental damage or remaining threats of environmental damage. It is also an offence if you do not take action to prevent further damage.
People who may be affected by possible damage may also report the risk to the enforcing body, and ask them to take action.
Your enforcing body may require you to take necessary action to prevent environmental damage, or to prevent further damage. If you do not comply you will be committing an offence.
The enforcing body will issue you with a prevention notice describing the work you need to carry out.
You may need to ask the permission of any other landowners if you need access to their property to carry out the work. The enforcing body can make other landowners provide access.
The enforcing body can do the prevention work themselves and charge you for this if:
- there is an imminent threat of environmental damage that is considered an emergency and you don't take steps to prevent it
- you don't comply with a prevention notice
- the site operator cannot be found
How to clean up environmental damage
If you cause environmental damage under the environmental liability regime you may be responsible for remedying the damage.
If environmental damage is caused by your business activities you must:
- take all practical steps to prevent further damage
- report details of the damage to the Northern Ireland Environment Agency (NIEA)
- remediate or clean up the environmental damage
People who may be affected by possible damage can also report damage to NIEA.
Steps to resolving environmental damage
Remediation of environmental damage means returning the environment as a whole to the condition it would have been in if the damage had not occurred.
There are three main steps to cleaning up environmental damage:
- Primary remediation is work to repair the damaged site itself. If this does not fully restore the damaged site then you may also need to carry out compensatory and complementary remediation.
- Compensatory remediation is work to offset the loss of natural resources from the time you caused the damage to the time you fully remediate the damaged site.
- Complementary remediation is additional work, possibly at another site, if the site you damaged cannot be completely restored. It is carried out to compensate for when primary remediation does not fully restore the damaged site.
Notices for remediation of environmental damage
If NIEA decides you have caused environmental damage, you must draw up remediation proposals and submit them for approval. If you don't do this NIEA can issue a remediation notice requiring you to submit remediation proposals. Once NIEA has decided which remediation proposals should be implemented you must implement them.
Appeals against liability for environmental damage
You can appeal against a notice requiring you to submit remediation proposals within 28 days of it being served to you.
You can appeal if, for example:
- the damage occurred when you were complying with an instruction from an authority, unless the instruction was in response to an incident you caused
- you were complying with a permit or authorisation that allowed you to take the action that led to the damage - this appeal does not apply to damage caused by genetically modified organisms
- you can demonstrate that the damage was caused by an activity or product not known to be damaging
- the damage was caused by someone else and you had taken all appropriate safety measures to prevent it eg someone damaged your equipment after you had taken all possible measures to secure it
You can also appeal against a remediation notice, but only if the contents of the notice are unreasonable.
Environmental damage enforcing bodies
The Environmental Liability Regulations can be enforced by a number of organisations:
- Your local district council is the enforcing body for damage, or risk of damage, to land. It is also the enforcing body for damage you cause carrying out activities covered by a pollution prevention and control permit it issued.
- NIEA is the enforcing body for damage, or risk of damage, to land, water and biodiversity.