Case Study 1: Industrial Accident Leading to Groundwater Pollution

Anne BrosnanChief Prosecutor

Environment Agency England

Fire out on Day 5 (15/12/05), photo is approx 2 weeks into the incident

Immediate Response

•First consideration - was there terrorist involvement ?

•Regional and National incident rooms opened. Thames Area incident room open for approximately 2 weeks, 24/7.

•Environment Agency (EA) part of Major Incident Response.

•Gold, Silver and Bronze command posts.

•Significant recovery operation once fires were out. Operator led with separate EA Recovery team advising. Dealing with liquids contaminated with oil and fire fighting foam-PFOS. Oil skimming, & Thames Water undertook storage of fire water.

•Site remediation, conducted by oil company contractor, supervised by EA. 10 + boreholes drilled into chalk aquifer.

Investigation

•Joint HSE and EA investigation Team – Joint Competent Authority under COMAH.

•EA had site presence – Incident Room with two officers on site.All routine incident work taken out of Area for one week.

•Severe conditions throughout winter and heat of summer sampling soil. Need for Personal Protective Equipment.

•Investigating and Assessing air quality. Health Protection Agency used Atmospheric Dispersion Models .

•MP’s visits, EA Chief Executive visit, Director Operations, Area and Regional Managers, National Process staff.

•Potential Defendants

• Site operator SO,

•Parent Company of SO was oil Company T,

•Operator of adjacent site, B which was a domino site,

•Manufacturer V of the cut off valve which failed,

•Company M which installed and maintained the cut off valve and the alarm system, both of which failed to function, and

•Directors of all companies were invited to attend formal interview together with individuals responsible for the management of the site and the maintenance of plant and equipment.

Some examples of how the liquids escaped

Evidence Collection

• Established a Primary Investigation Team : 2 years approx .

•Environment Officers/EA consultants undertook sampling.

•156 samples, 99 formal samples (liquids, soil and solid material).

• Photographs of and around site and video evidence.

•Recorded and mapped all drainage features on and off site, and supervised Oil Company appointed drainage investigation contractors. Important to use one map throughout.

•Reviewed 1700 hard copy documents seized .

•Formal interviews with company representatives.

•Pre and post incident environmental monitoring data.

Evidence cont’d

•Undertook taped question and answer statements with oil company employees requiring information;

•Report on the effluent treatment plant ;

•Statements explaining how liquids escaped and entered controlled waters via drainage pathways,

•Statement regarding forensic figure print of oil samples,

•Expert evidence on topography.

•Expert evidence on geology and hydrogeology.

•Expert evidence of analysis.

Evidence Collection – Difficulties

• Legal representatives from oil companies came on site once investigation started, requested all samples taken as formals. This required division and witnessing of samples.

• Documents were removed from company offices under supervision.

• Computer systems interrogated.

• Historical data on pre existing pollution levels had to be considered.

• Issues concerning responsibilities of the different companies on site- defendants and witnesses wished to be legally represented.

• Evidence of environmental impact – flora and fauna.

Impact to groundwaterThe Buncefield incident was reported to Europe as a Major Accident - MATTE significant damage to more than 1 hectare of groundwater. Remediation ongoing and impact may last decades

Disclosure

Legal duty under Criminal Procedure and Investigations Act 1996,

•It applies to material of any kind, including information and objects, obtained (or generated) in the course of a criminal investigation and which, in the opinion of the investigator, officer in charge of the case, or disclosure officer, is relevant to the investigation.

•The investigator must record and retain any relevant information as soon as it is obtained or as soon as practical thereafter. That includes negative material (such as ‘there was nothing there’). They must draw to the attention of the disclosure officer any material which, in their opinion, could undermine the prosecution case. Unused material only needs to be disclosed of it is relevant to the offence and meets the disclosure test.

Officer comments 1:

•Can I read your writing ?

•GOLD, SILVER, BRONZE and Area Incident Room?

•Consider appointing an evidence manager at the earliest opportunity to support the ABV, they can then appoint a disclosure officer and investigator (s).

•Who would you send to investigate?

•Consider the Hollywood effect on incident staff. Provide clear concise instructions.

•Ensure external incident responders know what evidence we need to be preserved. Consider arranging for EA officers to instruct Police or Fire Brigade photographer.

•Disclosure, retain all possible evidence.

•Officer comments cont’d

•Speak to EA prosecuting solicitor at an early stage for advice.

•Make sure staff have the basic equipment to do the job. Sampling equipment and procedures are ready and in place once access can be gained or fires are out.

•Speak to EA laboratories about analysis at an early stage.

•Don’t rely on the emergency services or company employees to provide you with the evidence needed.

•Consult widely, security services had photographs to be disclosed.

•Consider requesting an expert to provide technical advice to the investigation team. Eg bunding

• Strict rules regarding expert witnesses.

Secondary containment – bund upgrades