IMO based on experience the cleanup would be down to you the owner of the plant. You would have been hired under CPA terms and conditions for plant hire. It is a minefield but the PC has every right to clean it up and Bill you unless you want to clean it up to his satisfaction. This is a common occurrence and if you can find a way round it or if anyone else reading this can come up with a different answer please share. TaAlex

For starters I don't think CDM comes into the equation. Oil spills from plant (normally hydraulic oil) is a common occurrence. Who pays the bill for cleaning it up? Well, I doubt the client cares having worked in rail for many years. So unless it's in the T&Cs of the contract (which I doubt) the PC will normally clean up and curse a bit. Whether the PC can then pass on costs to the plant supplier is a matter of conjecture...coffee and bacon rolls all round me thinks.

Question that has to be asked really, is why was this not picked up. By your explanation it seems that this oil leak happened on the first day of work. As you stated the Banksman, Plant Operator did not notice the oil spill and it was noted by the Site Manager. Before arguing over costs, would undertake a review of the incident, as questions must be raised: • Was the Item of Plant Inspected on Delivery, Before Use and Recorded. • What was the Banksman / Controller doing, as he should have noticed it throughout the day? • Was the spillage around the site, the main cause of this item of Plant or is there others that could have contributed • What type of ground is contaminated and what was the mass of contamination? • Did the PC have any control measures in place for cleaning up spillage, as it was a foreseen risk with Plant working on site. • Machine was stabled up until the next day, so when did the operator notice the oil leak • When the machine parked up did it have puddle beneath it, ideally in the drip tray • Where was the leak coming from on the plant? • When was it last serviced? Just a few questions that would need to be answered before you start arguing about payments of clean up. Of course an investigation would establish all the facts, as pointed out earlier, the clean all depends what is in the contract / agreement. The PC is responsible for the management / control of the Project. Majority of the time they will have the emergency response procedures in place and clean it up, depending on the price involved in clean up, depends, whether they transfer the cost to the contractor.

In short: The Contractor is liable, but there are also failings by both, the Contractor and PC (Principal Contractor). CDM 2015 regulations cover the management of health, safety and welfare when carrying out construction projects. I think you will struggle to find “oil spillage” mentioned in CDM 2015, as you would also struggle to find the mention of “hard hats” or “Wellington boots”. The contractor states that he is a “Plant Hire Company” but then discloses that he has also supplied an Operator and a Banksman. The contractor has now taken the role of an employer and has then supplied an excavator (work equipment) to his employees (or to persons under his control) and perhaps he is unaware of the legislation applicable to his undertaking. The contractor can find an accurate description of himself and his undertaking in Regulation 3, paragraphs (2) to (4) of PUWER and is therefore required to apply the safeguards and requirements of those regulations relevant to his undertaking as stated. PUWER require that work equipment is suitable, maintained, inspected, physical proof of inspections and reports are available, training and supervision of personnel but the one regulation that addresses this particular situation is: Regulation 12 (Protection against specified hazards) where it is required to address the specified hazards and in this instance “unintentional discharge” (paragraph (3)(d). PUWER (ACOP’s and guidance) 152 states that your risk assessment should identify if any of the hazards in regulation 12(3) are present in your workplace and assesses the risks associated with them. If the contractor’s risk assessment was sufficient in addressing the likelihood of an oil spillage occurring and was received and accepted by the PC prior to the work commencing then both parties should have been aware of the preventative controls/plans of action and equally aware of the duties and responsibilities of both parties regarding this occurrence. Therefore the responsibility and liability of each party, in the event of an oil spillage should have been agreed long before the plant moved an inch and not being argued long after the occurrence of soil contamination. (See CDM regulations 8 (1), (2) and (3) and 13 (1) and (3)(b). Before we build the gallows there are many things to consider and here are a few: If the plant were pouring oil it would have stopped in its tracks. If it were a drip, then can we determine the size and frequency of a drip required as so as not to register on the oil level controls or to prevent the plant from breakdown over the length of that working day Would that drip be easily visible The condition of the ground at the time of the spillage The weather conditions of that day. The positioning of the Banksman, was he there to direct the plant (looking to it), or preventing people from entering the working area (often looking away from it) I could make this list a quarter of a mile long (slight exaggeration)!

Not sure if this is helpful but, this is not a CDM issue. From a strictly legal standpoint the first port of call is the contract between the hire company and the PC. If the contract is silent then contractual implied terms come into play, which the PC can rely on in court. One such term is that any equipment must be of satisfactory quality and fit for purpose and the hire company is liable for losses that result from its equipment not meeting that standard. The implied requirement is subject to the 'reasonableness' test and so taking Ray's point, was it reasonable (in all the circumstances) that the hire company should envisage the possibility of a leak and take reasonable precautions (i.e. putting drip trays under machines standing for long periods, or regularly examining them for oil leaks). In essence, the client will seek repair or redress from the PC, who will in turn seek the same (together with its own costs) from the hire company. The best (and cheapest) course of action would be for the hire company to pay for the clean-up. As I said at the start not sure if this helps. Regards. DJ

James People who are super users just have too much time on their hands ;-) They become SU due to the number of posts, no other criteria required. Yes I am aware I am one!

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