Legally water-tight delegation – Is it possible?

By Sylvia Häfeli, Umco

The absence of corporate criminal law, e.g. in Germany, means that a criminal investigation there can only be conducted against a natural person who has intentionally or negligently caused the accident. Where it is not entirely clear who caused the accident or should that person even be a victim of the accident, the question of responsibility within the organisation will soon be raised. Legally water tight delegation – is there such a thing?

Usually, the first question to follow an accident is, “How did it happen?” while the second is, “Who was responsible for … monitoring, training, maintenance, etc.?” The division of responsibilities within organisations is an unpopular but important issue across Europe. Last year, for example, the Association of the Chemical Industry in Germany published a guide entitled “Delegation of Operator Obligations in the Chemical Industry”. And increasing numbers of exhibitors at trade-fairs are offering software solutions that promise legally water-tight delegation. Consider the situation in Germany as an example. German law does not expressly regulate how the operator obligations of a company are to be organised: under Section 52b (1) of the Federal Immission Control Act (BImSchG), companies which require permits and which have more than one board member are required to assign responsibility for ensuring compliance with operator obligations to one of those members. In addition, Subsection (2) states that the authorities must be informed of the manner in which the discharging of the operator obligations by this board member can be safeguarded. How the responsibility is subsequently delegated down the various operational levels is then left up to the board.

Sections in German law

The awkwardly formulated Section 9 (2) of the German Administrative Offences Act (OWiG) and the equivalent Section 14 (2) of the Criminal Code (StGB) transfer liability for violations of operator obligations to the plant manager or to any other person appointed to perform autonomous duties, i.e. to the delegate. It is immaterial whether or not this appointment is made in writing.  On the other hand, Section 130 OWiG states that liability rests with the plant owner when a violation of supervisory obligations occurs which in itself facilitates a criminal or administrative violation of operator obligations by employees. In the area of occupational health and safety, Section 13 (2) of the Occupational Health and Safety Act (Arbeitsschutzgesetz) proceeds from the assumption that the employer appoints persons to discharge his statutory obligations; these persons are then responsible – along with the employer(!). To assist with this appointment, DGUV Rule 100-001 (formerly BG I 508) of the statutory accident insurance scheme provides a model ‘transfer of company obligations form’. Many companies use this occupational safety delegation form to also delegate the plant-related operator obligations in parallel. The wording is correspondingly couched in general terms. This delegation of obligations requires, however, that the obligations (whether they are occupational safety or operator obligations) have already been defined beforehand and, just as important, that these are updated to reflect amendments.

Software solutions

More and more software solutions on this topic are coming onto the market. Typically, these formulate the obligations from defined lists of legal provisions so that they can be forwarded at the click of a mouse to the corresponding delegate with a set deadline. The programme offers the delegating person various options for monitoring the progress of execution. Any amendments to legislation are examined by the software provider for their relevance to the defined list of legal provisions and then incorporated. These software solutions are aimed especially at companies whose occupational safety and environment departments have insufficient staff to handle this.

However, when one considers that the most important environmental regulations on plant operation are contained not first and foremost in EU, federal or state law, but rather in any given company’s own permit, other, more specific aspects emerge: Which riders apply? Which existing regulations are still in force? Frequently, the current permit is an updated version of an older one, not a replacement. Which requirements are imposed by the manufacturer and which by the insurer? Who really is responsible for the plant? Spatial and functional demarcation from other plants or plant parts, e.g. incoming pipes or electrical cables? Time demarcation in the case of shift operations? Which areas and which activities pose a threat to the surrounding environmental compartments (water, soil, air)? What is the distinction between maintenance and operation?

Only after these questions have been resolved can a decision be taken as to the appropriate level – plant manager, divisional manager, shift manager – at which responsibility should be anchored. In this connection, it can be of great advantage to consult with the various levels and to ask: Which regulations might prove helpful? Knowledge of legal regulations is no substitute for knowledge of one’s own plant. And best of all: as a rule, a company will already have divided up a large number of its responsibilities, as reflected in the job descriptions, budget rules and the organisational chart. The real task is to clarify this from the point of view of operator responsibility and/or occupational health and safety, and thus to also give the delegate certainty about the limits of his or her liability.

Delegation of operator obligations

First, ask yourself the following questions:

• What are the requirements imposed by the permit on my plant operations?
• Do I know all the riders?
• How do I demarcate the individual plants and plant sections within the facility? Spatially, functionally, temporally?
• What is the relationship between maintenance and operation?
• In which specific areas is there a risk to surrounding environmental media (air, water, soil)?