1

CBIA E2 Conference: May 18, 2018

SPILL RESPONSE & PREPARATIONWhat’s Not in Your Plan

Rachel Rosen, LEPDepartment Manager, Burns & McDonnell

Your Panel

Richard M. Fil, Esq.Partner, Robinson & Cole LLP

Vincent M. Falcigno, CLU, CICCommercial & Environmental Specialist, Gowrie Group

2

Today’s Discussion

• Why Practical Considerations?• Planning Ahead• Immediate Actions• Post-Incident• Insurance Considerations

[Not an SPCC Plan “How-To” Class]

3

Spill Prevention, Countermeasure & Control Plans

Required by Regulation (EPA &

State

Costly

$$$

Highly 

Prescriptive

Very Thorough

GREAT IDEA

STANDARD STARTING POINT

Sometimes a Sad & Lonely Destiny

4

Practical Solutions – One Page

Practical Solutions & The Team

• Laminated

• Phone NUMBERS & NAMES

• With ALTERNATES

• Assignments

– Announcer (makes calls)– Responders (contain spill/cut off discharge pathways)– Counter

• Quantifies the release

• Quantifies the recovery

– Public Talker (media: print, tv & social)

5

Relationships to Think About…

• On-call spill response contractor – Confirm you have a current contract/agreement

• Fire department – Confirm current relationship with fire department

• Consultants– Lawyer

– Environmental Consultant

– Provide strategic support

What to Think About…• Catch Basins

• Discharge Points

• Sloped Driveways/Sidewalks

• Neighbors

6

What to Think About…

• Equipment not covered in the Plan

• Equipment that doesn’t routinely contain oil– Chillers– Circulators– Pumps– Relief valves– Secondary containment (check its integrity)

• Other unexpected sources– Delivery trucks– Sabotage

Making the Call

• Information you will need:– Name, location, organization, and telephone number– Deadlines for reporting– Responsible Party name, address, vessel, railcar/truck

number, or other identifying information– Date and time– Location– Source / cause– Material(s) involved– Quantity– Medium affected

7

Making the Call

• More Information you will need:– Danger or threat posed– Injuries or fatalities– Weather conditions– Evacuation occurred– Other agencies notified or about to be notified– Any other helpful information

Other Reporting Considerations

• Corporate reporting

• Insurance notifications – failure to notify may affect coverage

• Contractual reporting triggers (Landlord? Lender? Parent Company?)

• “Plan” triggered records – SWPPP, SPCC, FRP, HWCP

• Facility or regional area examples – Airports and areas near sensitive habitats

8

Other Considerations• Use dedicated equipment (i.e., camera, not your cell

phone)

• Control site access

• Watch the weather

• Communicate with your team

Quantify Release & Recovery

Absorbents

Soil

Free Liquids

9

Lessons Learned

Prepare/Plan Ahead

Spill: A good time to call your lawyer & insurance company

Communication

If in doubt, report the spill.

10

Overview

• Planning for spill response

• Responding to a spill / incident

• Recovering from a spill / incident

• Improvements and fine-tuning based on:– Drills / practice– Lessons learned from incident response– Changing standards and practices

Why Plan?

Bad & unexpected things happen

Risk management & limiting impacts• Safety/health & environmental impacts• Facility/operation disruption• Supply/sale disruption & contract issues

Community & governmental relations

Evolving Standards of Care

11

Planning Before the Incident

• What could happen / go wrong?

– Types of incidents (“unthinkables” and “what-ifs”)– Consequences and impacts of an incident– Avoid thinking “this can’t (or won’t) happen to me”

• What are your needs & resources?

– In-house legal / technical / communications resources– Governmental and third-party reporting requirements– Internal and external communications– Core and secondary response teams / members

Important Elements of a Plan• Identify Incident Management Team

• Establish Clear / Appropriate Threshold to Activate Plan

• Establish Relationships Supporting Response and Business Continuity

• Include Agency Contact Information and Protocols for Reporting and Related Follow-Up

• Drill / Practice if Possible

• Develop a Simplified Version for Broader Internal Distribution

• Incorporate Schedule / Standards / Triggers for Improving and Updating Plan

12

Why is a Response Communications Process Needed?

• Challenging and Heightened Need for / Balancing of:– Completeness– Speed– Coordination– Clarity– Accuracy

• Typical Challenges Include: – Incomplete / inaccurate information– Reactive vs. proactive focus– Timely vs. highly-vetted communications– Audience priorities – media, elected officials, regulators,

employees, community, etc.

Immediate Efforts

• Understand dimensions of the incident

• Account for and assist anyone injured

• Secure area and stop or limit further impacts

• Trigger incident response plan(s)

• Make initial reporting to agencies

• Notify internal / external first responders

• Notify legal counsel

• Commence information collection and execution of Master Task List

13

Further Efforts

• Confirm implementation of “Control Group”

• Protect consultant / attorney communications

• Ensure appropriate and consistent theme

• Implement and reinforce communication protocols

• Establish script for interviewing witnesses– Considerations of union / employees who may want counsel

• Preserve evidence and scene information

• Confirm accuracy of, or correct, initial notifications

Further Efforts (continued)

• Notification to Insurers

• Agency Contacts Protocol: Manage On-Site Governmental Investigations

• Schedule Briefings – Management, Government Officials, Media

• Express Appropriate Interest, Concern, and Purpose, Without Undue Admission of Responsibility

• Avoid Gratuitous Statements

• Be Forward Looking

• Establish Timeline Checkpoints

14

Short-Term/Post Incident• Evaluate and follow up with communications to

employees, victims and family members

• Assess responsiveness to government / media questions and investigations

• Plan for continuing community outreach

• Communications to other constituents

• Coordinate, align, and taskcorporate teams

• Update and review task list

Short-Term/Post Incident (continued)

• Repeat as Necessary / Stay the Course

• Be Mindful of the Impacts of Stress or Fatigue on Performance

• Know When and How to Transition From Emergency Response to Business Continuity

• Prepare for and Manage Subsequent Inspections by Insurers, Government Officials, or Others

• Positioning for Defense Work

• Positioning as Plaintiff (e.g. Allocation/Reallocation of Responsibility and Liability)

• Consult with Other Facilities to Update Best Practices

15

Common Law … e.g.

Negligence (“Reasonable Person”)

Statutory and Regulatory Standards

… e.g.

General Duty Clauses

Industry Standards and Company Policies

Governmental Guidelines

Incident Planning & Response

Standards of Care

Longer-Term Considerations Evolving Standard of Care

16

Know Your “Pollution” Coverage

• Common, but not standard “Environmental

Impairment Liability” policies

• Site-Specific

• Multi-Year

Independent Coverage Parts• Bodily Injury & Property Damage

– Mental anguish

– Natural resource damages

• Cleanup or Remediation Costs

– Voluntary Cleanup

– Third Party Mandate

• “New Pollution” Conditions & “Pre-Existing” Pollution Conditions

– New=Newly Created Pollution Conditions

– A release into the environment which occurs AFTER the policy inception

• Pre-Existing Conditions

– A release or releases into the environment which occurred BEFORE the policy inception

– Known Pre-Existing Conditions

• Cleanup and Cleanup Related Costs often excluded

– Unknown Pre-Existing Conditions

• Cleanup and Cleanup Related Costs may be covered

17

Policy Terms & Conditions• Definitions

– Remediation Expense

• What is included

• What is NOT included

• Exclusions

– Non-Compliance

• Intentional / deliberate / willful

• Insured v. Responsible Insured

• CONDITIONS – Burden is on Insured

• Reporting Duties: When? What? How?

• Cooperation

– Defense & Investigation

– Subrogation

• Settlement

• NO COSTS CHARGES OR EXPENSES SHALL BE INCURRED, NOR PAYMENTS MADE, WITHOUT THE COMPANY’S WRITTEN CONSENT

Emergency Response Costs• Structure

– “Exception” to other policy language

– Endorsement

– A separate, independent coverage grant

• Coverage Triggers

– Imminent Threat of Harm or Damage

– Immediate Action Required

• Notice of Claim & Insurer’s Consent

– Inform company emergency costs are being incurred

– Immediately thereafter

– As soon as “practical”

– As soon as “practicable”

– Avoid “Notice & Approval”

– Watch for “Prior Written Consent” and potential conflicts

18

Emergency Response Costs (cont.)• Time Limitations for Incurring Expense

– The length of time the insured can incur expense without the approval of the company• 72 hours • 96 hours• No Limitation

– When the clock starts• Commencement of Pollution Conditions• Discovery of pollution conditions

– Responsible Insured– Insured

– Insured has Burdon of Proof of when pollutions conditions began

• Limits– $250,000– Full Policy Limits

• Defense & Investigation Costs– Necessary to determine extend of cleanup required

Questions?

Richard M. Fil

Robinson & Cole LLP

One Financial PlazaSuite 1430Providence, RI 02903401.709.3329

280 Trumbull StreetHartford, CT 06103Direct: 860.275.8248

rfil@rc.com

Rachel Rosen, LEP

Burns & McDonnell

108 Leigus Road

Wallingford, CT 06492Direct 203.294.2357

rmrosen@burnsmcd.com

Vincent Falcigno, CLU, CIC

Gowrie Group

70 Essex Road

Westbrook, CT 06498

p: 203.745-0078

p: 800.262.8911

vincentf@gowrie.com

www.gowrie.com/environmental