Pollution Incident Response & the new Environment Protection Act in Victoria

Effective environmental incident response is critical for all organisations. Whether arising from fire, a classic pollution incident such as a leak or spill, or an unauthorised emission, there are high penalties for failures to notify environmental regulators of pollution incidents and licence breaches.

The regime is fragmented nationally, with each state and territory having its own regime governing what to report, when to report, and who to report to.

On 1 July 2020, Victoria joins all the other states and territories in implementing mandatory pollution incident notification.

As soon as the Regulations come out in late July 2019, it will be necessary for all organisations either to update their plans or to prepare for the first time, specific pollution incident management plans covering Victoria. Victoria’s new laws set a reasonably low threshold for notifiable incident reporting and require reporting as soon as practicable.

If you would like assistance developing or updating your pollution/environmental response plan, please contact me. I offer fixed fee briefings on the new Environment Protection Act requirements and can offer fixed fee legal advice on pollution incident notification preparedness.

In the meantime, here is a copy of my presentation to the Australian Environment Business Network on 7 July 2019, which includes a review of current legal requirements in several jurisdictions. Click on the image to download. Happy reading!

This presentation and Environment Express bulletins are intended only to provide a summary and general overview on matters of interest. It is not intended to be comprehensive nor does it constitute legal advice. Whilst attempts have been made to ensure that the content is current, Guthrie Legal does not guarantee its currency. You should always seek legal or other professional advice on specific cases and before acting or relying on any of the content.


Environmental advice in M&A - getting due diligence right

I had the pleasure of addressing fellow practitioners today at a Legalwise Seminar on the topic of Environmental due diligence in corporate and project transactions.

Environmental lawyers are frequently called upon to assist with due diligence projects, but the law and risk landscape for environmental liability in Australia is fast-changing and complex. I loved sharing my insight and practical perspective on the key issues that are emerging in transactions.

My presentation provides a conceptual framework for tackling legal due diligence projects, including some of the key considerations on which to seek initial instructions, such as briefing environmental consultants.

Forewarned is forearmed. Knowledge is power.

Key trends and complex issues

Key trends include continued M&A in the renewables and waste sector, including resource recovery and energy from waste.

There is a greater need and willingness of practitioners to focus on a triple bottom line approach, and ensure that clients get the best possible advice by engaging expert environmental consultants to advise on risks.

UPSS/USTs remain a complex area, both as a potential source for compliance risk and contamination risk and also frequently due to complex arrangements of ownership and management of assets. Grid connections and transmission corridors remain a big consideration in solar and wind generation development, and can lead to complex approvals dd being necessary over large areas of land. Other land-related issues include questions of concurrent mining or exploration titles over generation sites and how to reconcile competing interests. NGER compliance is one to watch, in the context of market consolidations and aggregation of emissions and energy data in the group structure post-acquisition.

Need help?

If you or your firm or a client needs assistance with due diligence, please contact me and I can provide support on your deal. Please refer to my service model for some of the options for on-boarding me into your advisory team.

The detail

To download an abridged version of the presentation click on the image below.

Happy reading!


This presentation and Environment Express bulletins are intended only to provide a summary and general overview on matters of interest. It is not intended to be comprehensive nor does it constitute legal advice. Whilst attempts have been made to ensure that the content is current, Guthrie Legal does not guarantee its currency. You should always seek legal or other professional advice on specific cases and before acting or relying on any of the content.



2019: Waste, climate change, water and environmental enforcement

I addressed the the Australian Environment Business Network’s National Conference this week, and to prepare I’ve immersed myself in 7 Australian jurisdictions (NSW, QLD, WA, TAS, ACT, NT and CTH) to see what’s on the agenda for environmental law reform in 2019 and reviewed the notable recent changes. 

My conclusion? Most reform is in 4 key areas: waste, climate, water and environmental enforcement.* 

Waste … and energy from waste

Almost every jurisdiction is changing laws and developing policy in the waste space. Significant policies include the National Waste Policy of December 2018; NSW’s 20 Year Waste Strategy; and WA’s Waste Avoidance and Resource Recovery Strategy 2030. There is also a raft of notable changes to technical requirements, for example, the 25 January 2019 changes brought about by Protection of the Environment Operations Amendment (Asbestos Waste) Act2018 in NSW, or QLD’s new waste classifications, end of waste codes, ERA and amended waste levy. 

Waste to energy / energy from waste is also a key theme, with a report from the Clean Energy Finance Corporation finding NSW, VIC, SA, ACT and WA among the most favourable jurisdictions for such facilities, and WA having 4 approved waste to energy facilities already. 

Climate change

New climate policy is planned in WA in 2019 and Tasmania’s Climate Change (State Action) Act 2008 is to be amended. But the big news in the legal world is the recent 2019 NSW case of Gloucester Resources Limited v Minister for Planning [2019] NSWLEC 9.  Among the reasons for refusal of a new open cut coal mine, CJ Preston of the NSW Land and Environment Court found that “the GHG emissions of the coal mine and its coal product will increase global total concentrations of GHGs at a time when what is now urgently needed, in order to meet generally agreed climate targets, is a rapid and deep decrease in GHG emissions. These dire consequences should be avoided. The Project should be refused.”  Legal commentators speculate that the approach in Gloucester could be adopted in other jurisdictions.

Water

On water, WA proposes a new Water Resources Management Act to consolidate 6 current Acts, the NT proposes a Water Amendment Bill 2019 – under consultation until 11 March 2019, and in NSW we have seen the passage of the Water Management Amendment Act 2018.

Environmental enforcement

Whatever the nature of your organisation and the relevance of waste, climate and water reform, one topic is inescapable: the continuing trend in environmental enforcement.  Penalties are increasing in 2019** and regulators are consistently reporting on enforcement action that grows in sophistication. 

Environmental regulators that may have been pre-occupied with administrative changes to their departments (such as the change from DEHP to DES, or DER to DEWR in 2017 and 2018) are now externally focussed. DES in QLD recorded its highest ever fine in a prosecution of Linc Energy Limited ($4.5 million) for five offences of wilfully and unlawfully causing serious environmental harm, over a period of seven years, in contravention of the Environmental Protection Act1994. Convictions were also recorded against the company.

2018 also saw the adoption by EPA NSW of a new policy on Monetary Benefit Orders. Monetary benefits are the financial advantage an offender gains over their compliant competitors who have done the right thing. It signifies that EPA NSW are likely to commence seeking such orders during environmental enforcement.

Action for directors and managers

The key governance requirement for directors and senior environmental managers is to exercise due diligence.  In a nutshell, this means understanding the organisation’s legal compliance requirements and putting in place systems that ensure compliance.  

Understanding legal changes is important. But I also know from my January 2019 client survey that many of the priority issues for clients arise from complex ongoing issues such as contamination liability, underground storage tanks, licence requirements and vegetation management.  These are not necessarily matters for reform in 2019 (depending on jurisdiction) but they are of fundamental importance. 

Take time to have a conversation with your team and advisers about the status of your environmental registers, whether 2019 reform will impact you, and how existing sites and operations are being managed. 

Please get in touch or book me for a tailored fixed fee briefing if you would like a more detailed perspective on the changes or how they may affect you.

For an abridged version of the presentation, which provides a summary of the changes, see below



*reform of environmental laws in Australia occurs frequently and across multiple Acts and Regulations in each State and Territory. I have distilled the significant changes from the last 6 months and looked at consultation and legal changes proposed in 2019. There are several changes that don’t fall into these 4 themes, so always make sure you monitor applicable legislation.

**e.g. see NSW Protection of the Environment Operations Amendment (Asbestos Waste) Act2018 in NSW

This presentation and Environment Express bulletins are intended only to provide a summary and general overview on matters of interest. It is not intended to be comprehensive nor does it constitute legal advice. Whilst attempts have been made to ensure that the content is current, Guthrie Legal does not guarantee its currency. You should always seek legal or other professional advice on specific cases and before acting or relying on any of the content.

Environmental Incidents: Key Issues

Environmental incidents, and specifically pollution incidents, are always a key issue for environmental managers in terms of compliance focus.  The national regime is highly fragmented, with each State and Territory having different pollution incident notification regimes.  Earlier today I addressed the Australian Environment Business Network on some of the trickier aspects of legal notification requirements and incident management, alongside Paul Kennedy from Qenos, Frank Bessanko from the MFB and Greg Oldfield.  Below, I share some of my insight of contemporary challenges:

  1. Knowing when to push the button: one of the key issues for organisations is knowing when to make regulatory notifications.  Not only are the timescales different in all jurisdictions (Immediate: NSW; not later than 24 hours: QLD; and as soon as reasonably practicable: several jurisdictions including SA and TAS); there is the fraught question of determining what actually needs to be notified (in terms of the nature of the incident).  Making sure that your environmental managers are trained and supported in "triaging" incident reports and that your incident response procedure has provision for seeking legal advice is critical;

  2. Protecting your people: several jurisdictions have direct requirements for employees to personally notify of pollution incidents, particularly in circumstances where the employer (e.g. head office) cannot be reached.  In order to discharge those duties, it is clearly necessary for site personnel to be well versed on what to do in an incident and have sufficient information (in terms of telephone numbers, forms and requirements) to make those notifications to avoid personal liability.  Even in jurisdictions which don't explicitly require employee notification, given that acts of the organisation's employees effectively bind the corporation through agency principles, it is necessary that personnel are sufficiently aware of obligations to avoid placing the organisation in non-compliance;

  3. True costs: much is made of the fact that pollution incident notification laws carry the highest penalties on conviction, but true costs often go way beyond that and may include the costs of immediate response from attending fire services, costs of immediate clean up, costs associated with any civil claims, costs of long-term clean up and remediation.  Indirect costs include reputational costs, particularly for household names as well as loss of production and management time. Put in this light, investment in tailored incident response systems and training is well worth it to prevent and minimise the impact of an incident;
  4. Communication is key: making sure that employees, contractors and management all know their specific roles in preventing and responding to an environmental incident is vital.  Overly complex, document-rich, or out-of-date policies don't assist.  Clear and concise communication of policies is important as is regular training (including drills);
  5. Scope: whilst pollution incident response is the critical piece from a compliance perspective, there are other environmental laws requiring self-reporting of breaches on the statute books, notably in the petroleum, gas, and mining space, but also in relation to biodiversity and heritage matters.  Determining an appropriate scope for your environmental incident notification protocol is essential to ensure that personnel report issues within your organisation appropriately, given your activities. 
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Get in touch if you would like to discuss environmental incident management for your organisation. 

This presentation and Environment Express bulletins are intended only to provide a summary and general overview on matters of interest. It is not intended to be comprehensive nor does it constitute legal advice. Whilst attempts have been made to ensure that the content is current, Guthrie Legal does not guarantee its currency. You should always seek legal or other professional advice on specific cases and before acting or relying on any of the content.

Linear infrastructure and biodiversity - key changes in VIC and NSW

What's happened?

In August 2017, NSW enacted a new Land Management Framework.  We said goodbye to the former Native Vegetation Act 2013 and Threatened Species Conservation Act 1995.  In their place, we now have a complex regime for vegetation clearing and biodiversity regulation comprising the Local Land Services Act; Biodiversity Conservation Act; Environmental Planning and Assessment Act and the raft of state environment planning policies that govern various aspects of vegetation, environment, infrastructure and state significant infrastructure.  

In Victoria, we also had some changes in December 2017, to our planning schemes, which changed several SPPF clauses and particular provisions in relation to assessment and approvals consistent with the Government's new policy "Protecting Victoria's Environment - Biodiversity 2037". There are also new "Guidelines for the removal, destruction or lopping of native vegetation" which replace the former guidelines “Permitted clearing of native vegetation – Biodiversity Assessment Guidelines”, which were incorporated into the Victoria Planning Provisions and all planning schemes in Victoria.

Thoughts from the Australasian Network for Ecology and Transportation Conference 

It was a great pleasure to address the 2018 Australasian Network for Ecology and Transportation Conference today on the key changes and their implications for linear transport projects. 

It was almost universally agreed that the new regime is tough for linear infrastructure managers and proponents to navigate, particularly given that linear infrastructure necessarily traverses different land types. There are so many challenges: development obligations versus operational clearing requirements; lack of clarity on offsets and assessment requirements. I love to share my insight, so get in touch if you would like to pick my brains or have a briefing to your organisation on the new approvals regimes or operational requirements. 

For an abridged copy of my presentation, click on the link below. 

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If you have questions, get in touch!

Gabrielle

Due diligence: Environmental and planning risks are headline risks

Environmental and planning issues are arguably the headline risk in many transactions in agribusiness, manufacturing, renewables, waste and transport transactions. 

I addressed fellow legal practitioners this morning on contemporary trends in due diligence and practical tips for managing a due diligence from a legal perspective. 

Check out my tips in the abridged presentation below and if you would like help on an upcoming deal, or an expert briefing for your team on current best practice, please contact me. 

2018 Changes to environmental laws and policies around Australia

Clarity and confidence in environmental legal risk management is so important.  

It was a great pleasure to co-host, with Lotte Hoekstra from AECOM, the Australian Environment Business Network's 2018 update on changes to environmental and planning laws around Australia.  I spoke about some key risk management trends for 2018 and highlighted recent and upcoming areas for reform across the States and Territories. 

Key topics for 2018 

  • responding to the National Environmental Management Plan for PFAS;
  • helping environmental managers stay on top of the raft of environmental legal and policy changes and actively contribute to consultations to shape new laws;
  • understanding emerging trends in climate change risk, sustainability and relevantly liability;
  • navigating developments in planning law and environmental impact assessment legislation including how these dovetail with reformed native vegetation conservation laws; 
  • getting up to speed with recent and upcoming reform to heritage protection laws; 
  • responding to Australia's infrastructure boom (as proponent, or affected party) and preparedness for the upswing in commercial transactions, such as mergers and aquisitions, and new ventures;
  • supporting the growing renewables sector and the importance of HSE in development of new infrastructure and in operations; and 
  • site decommissioning and mine rehabilitation. 

For an abridged version of my talk, click on the image below.  

If you missed today's session and would like a tailored briefing for your organisation, please contact me. 


This presentation and Environment Express bulletins are intended only to provide a summary and general overview on matters of interest. It is not intended to be comprehensive nor does it constitute legal advice. Whilst attempts have been made to ensure that the content is current, Guthrie Legal does not guarantee its currency. You should always seek legal or other professional advice on specific cases and before acting or relying on any of the content.

Steps for success: managing contamination risk

Whilst contamination risks for buyers and developers of contaminated land attract a lot of attention,* the general position of land owners and occupiers can be overlooked.

Owners and occupiers, particularly councils and those with several properties in their portfolio, are often unsure about what they could and should be doing to minimise their risk and cost exposure with regard to contamination.  No development may be planned. No imminent sale proposition may exist. The lease may have years to run.  

Should we be comfortable?  In short, no.  

Top tips: back to basics

Here are my three top tips for owners and occupiers***

  1. Get a grip on the basics – what is known about contamination risk and in which jurisdiction are your sites located? If you are unsure, consider engaging an environmental consultant and lawyer to help you develop a sensible plan for investigating any contamination risk at your site (including risks from surrounds). Such a plan will take into account considerations such as the invocation of legal professional privilege and/or use of voluntary environmental audits and legal notification requirements relating to notifying contamination to the environment regulators.  
  2. Understand where your legal risk is coming from: regulatory requirements and civil liability.  Exercise due diligence. Although perhaps not immediately apparent, environmental law may impose legal requirements (and offences) in relation to pollution and contamination management and liability (on-site and off-site).  You may also be at risk from civil claims for damages by people affected by contamination, and your handling of it.  Claims arising from negligence, nuisance and trespass are, in my opinion, becoming “live” issues for many clients.  Don't be fooled by the lack of case law - such cases are often settled out of court. Finally, what is your contractual exposure to liability, under leases, licences and other commercial contracts (e.g. for the supply or storage of a potentially contaminating product)?
  3. Create a smart plan to manage your risk, prioritise sites and budget for any investigation or remediation works, given the risks identified.  Keep a watching brief on factors that could affect your risk profile, such as residential encroachment, delineation of areas for investigation of emerging contaminants, and of course, any sales and purchases of land in your portfolio. 

I recently addressed industry landowners and occupiers, councils, and regulators at the Australian Environment Business Network’s Managing Contaminated Land Workshop.   In October, I also presented to contamination professionals at the Australasian Land and Groundwater Association’s “When things go legal” session.  The contemporary risk landscape for dealing with contamination is changing (not least the long-mooted changes to the mandatory contaminated land notification regime in Victoria and the risks created by emerging contaminants such as PFAS/PFOS/PFOA)  and those who take prudential steps to understand and manage their risk, will in my view, fair better than those who adopt a business as usual or “do nothing” approach.  

Aside from any upcoming regulatory changes (which would be reason enough to warrant reviewing contamination risk), there are often solid practical reasons to take early action.  First, contamination dealt with at an early stage may be cheaper than attempting to investigate and remediate contamination down the track (depending of course on the type of contamination). Second, if you were not the original polluter of the land, there may be recourse to recover damages from the original polluter (or another party), but such cases are often time-limited, so delay may not assist you. 

Strategic thinking and a comprehensive understanding of your risks may significantly help to minimise cost and legal exposure.  For an abridged version of my recent presentation on this topic click on the presentation below. 

*That’s no surprise, given that the key regulatory drivers for identification of contamination, and the task of remediation, often arise in the context of a change of land use and/or on an acquisition.

**absent a transaction or development – in which case, you will probably need some more specific legal help

Next steps

If you would like an opportunity to discuss your organisation's approach to contaminated land management, please get in touch.  I will work with you to develop a sophisticated pathway forwards.  

If you would like a tailored briefing on risks applicable to your organisation in 2018, please contact me to book in for a fixed fee briefing. 

This presentation and Environment Express bulletins are intended only to provide a summary and general overview on matters of interest. It is not intended to be comprehensive nor does it constitute legal advice. Whilst attempts have been made to ensure that the content is current, Guthrie Legal does not guarantee its currency. You should always seek legal or other professional advice on specific cases and before acting or relying on any of the content.

What's the status of your organisation's compliance right now?

Earlier this month, I addressed the Governance Institute of Australia on the essentials of environmental management and governance. It got me thinking about how my network would feel if asked about the status of their organisation’s environmental compliance right now.  It’s a big question and there are a range of scenarios that might apply:

  • some may feel quietly confident, others might describe their organisation as being on a compliance “journey”,
  • some might feel a little uncomfortable, perhaps issues have been identified, but in today’s  pressurised environment, they don’t have the time or headspace to address them, or
  • some may be new to an organisation or their role, or have inherited a legacy, or have been the subject of M&A changes.  

Whatever your position, let’s get clarity and confidence on what's needed.

First off, compliance should be prioritised. Right now matters because if you are unlucky enough to experience an incident or non-compliance or regulatory enforcement, the law will look at what is in place right now

There is nothing like hindsight to help identify the defects in your EMS. But nobody actually wants to read an account of their failings in a court’s judgment.

The best approach is to evaluate your compliance approach with an expert and taking prompt, efficient compliance actions to immediately improve your risk profile.

Second, caselaw and regulatory guidance place paramount importance on the identification of risk and legal requirements and actual implementation of risk management strategies, particularly training. 
 
The judgement in the influential 1999 case of Environment Protection Authority v Great Southern Energy from the NSW Land and Environment Court remains relevant nearly 20 years on. There’s been numerous cases since then, but it still offers a cautionary lesson in the need to address both compliance and sustainability in a meaningful way.  Specific not general or “off the shelf” compliance approaches are needed. Reliance purely on accredited systems is not sufficient if the compliance actions aren’t tailored: 

Despite the defendant’s enormous expenditure on accreditation, there were numerous failings in the system or practices adopted by the defendant at the time of the incident. Whilst obviously directing attention to its general concern for the environment the defendant appears to have overlooked the most basic and elementary requirements, namely of ensuring that its employees were adequately trained
— Environment Protection Authority v Great Southern Energy

Some of the basic components that I talk to all my clients about (from small organisations to large corporations) are shown in my conceptual model below.  These critical areas seem obvious but court cases and regulatory guidance on due diligence tell us that it’s often the basics that let people down.

Governance and compliance essentials

Environmental laws and their interpretation by the courts change periodically.  If your legal requirements and/or risk register hasn’t been updated for a while, get in touch and I will work with you on an update.  For a tailored briefing on 2018 laws applicable to your business, check out my fixed fee legal briefings. For more information, download an abridged copy of my recent presentation by clicking on the image below. 

If you would like an opportunity to discuss whether or not your organisation’s environmental compliance and governance actions are meeting the contemporary expectations of Australia’s environment regulators, book me in for a fixed fee gap analysis. 
 
If you think you have risks that could be managed better, or environmental issues you’d like to close out before EOFY, give me a call.  I will work with you to develop a sophisticated pathway forwards.

Environmental Incident Response

Environmental incidents such as pollution events and unlicensed discharges are major regulatory risk creators.  On 11 May 2017, I shared some of my first-hand experience dealing with the legal issues arising from environmental incidents to Australian Environment Business Network members at the AEBN Emergency Planning and Response to Incidents Workshop.  

If your organisation's operations have any activities that could give rise to a pollution incident, it is essential to have an emergency response protocol tailored to the things that might go wrong in your specific operations. It won’t turn back time.  But it will ensure that you deal with incidents in the best possible way.  Swiftly, lawfully, and minimising your liability and reputational risk.  

Click on the below image for an abridged summary of my presentation outlining the various incident notification requirements across Australia and check out my tips below. Note: the summary is content-rich, but don't be put off! I offer fixed fee tailored briefings on this and other topics, so you can be guaranteed of a clear understanding of your risks.  Get in touch for more information. 

Tips for how to manage this risk

  • Create, update and implement an incident response protocol (legal requirement in NSW, ACT and SA) but essential in all jurisdictions for effective risk management. Make sure that relevant personnel understand what constitutes an “incident”, who is to be notified internally and identify who is responsible for making any external notifications to regulators.
  • Seek legal advice promptly after an incident comes to your attention in order to manage liability (including the identification of offences and any relevant defences) and make legal notifications as necessary.
  • Be mindful that some legal defences, such as emergency defences, are only available for a short time after an incident.  You might not be able to invoke a defence if you delay in seeking advice.  Note that environmental incidents can lead to criminal offences and licence breaches, and will often trigger legal notification requirements.  Some of the highest fines under environmental laws in Australia (up to $2 million in NSW) are for failing to report pollution incidents to regulators.
  • Don’t get too caught up in “classifying” an incident internally.  Whilst it might be helpful in some cases to direct internal reporting and management, the bottom line is that a legal assessment needs to be made about the nature of the incident, any potential offences, and specific notification requirements.
  • Communication is key. Make sure your team understands the incident response protocol and their important role in identifying and reporting incidents.  Consider whether contractors need to be briefed on your incident response protocol

Want to know more about key risk issues in 2017? Read Environment Express 2017 on my Ideas & Events page.

For more information about the detailed compliance requirements for incident notification; practical insight based on first-hand experience; preparation of pollution incident response plans; and applicable penalties, please don't hesitate to contact me.