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.

Clarity in environmental assessment and approval processes - Essential for risk management

Complex, costly, and confusing.  That's what most organisations feel about planning and assessment processes. And they'd be right. The statutory regime for state and federal assessment and approval is complex and a lack of clarity on key risks, including of merits and judicial review can make for confusion.  

I addressed the Professional Environmental Women's Association (PEWA) this week on the importance of getting clarity and some of my tips for minimising project risk.  Click on the image below to download a copy of my presentation.

 

Getting a development project off the ground and smoothly progressed is a major risk for many organisations. Two critical reasons that projects suffer delays, or aren’t delivered, are a failure to understand the proper planning, development and environmental impact assessment process that should apply and inadequate consultation. “Fast-tracking”; lack of transparency in the legal process; and the rapid assessment of impacts, far from speeding up a project, often result in more agitation (from community, neighbours, and regulators), delay and cost.

Irrespective of the project size, whether your organisation is developing a small building, or a new infrastructure network, understanding the legal process for planning and environmental assessment, and having meaningful consultation on project impacts is critical to eeffectively  managing risk. At a time when communities, individuals and non-governmental organisations are more sophisticated then ever, more aware of their rights and more open to legal avenues of redress, effective project development in 2017 necessitates open and clear project processes underpinned by legal advice.

TIPS FOR HOW TO MANAGE THIS RISK

  • Before starting a development project (or responding to one), ensure that you understand the specific legal process for assessment and approval that will apply. Be clear on the time line, the decision-maker(s), the stages of assessment, and the points in the process that may be open to legal challenge.

  • Ensure that specific legal advice is sought on project risks, as it is not just statutory processes (e.g. merits appeals) that can result in legal action.

  • Identify both the stakeholders likely to be affected and the project impacts. Make consultation your priority. If procurement arrangements allow, provide for a consultation process to shape a better outcome through design change. The best ideas can come from working with, not against, stakeholders.

  • Go to the right experts at the start and use their expertise on the project. Weak experts, or poor consideration of issues may undermine the project in the long run. 

Contractor Management Tips - ALGA

It was a great pleasure to be on the Panel at the recent ALGA (Australasian Land and Groundwater Association) Melbourne session on "Love thy contractor" and to share my tips on contractor management, from an environmental perspective. 

Modern procurement, particularly in the project and infrastructure sectors, means working with contractors during project delivery and ongoing operations. Organisations that engage contractors to undertake works at their sites, on their assets, or on their projects, need to be cognisant of the particular risks associated with environmental liability arising from contractors. Similarly, contracting service providers, need to understand their legal position and obligations. 

All too often, there is a mis-match between the legal position adopted in commercial contracts and the true legal position articulated by environmental statutes and the courts. This can lead to confusion over which party has management of, and liability for, environmental matters, which in turn can lead to possible duplication; or a vacuum of effective management (if neither party undertakes their obligations); or a piecemeal management approach. All of which amounts to an increased risk profile. 

TIPS FOR HOW TO MANAGE THIS RISK

• Seek to understand your commercial agreements. Obtain current copies of contracts and review the clauses relating to management action and environmental obligations. Some contracts contain really useful management tools, such as processes for review and approval of contractors’ policies and procedures. If no contractual processes exist, consider what level of scrutiny and reporting you require from your contractors commensurate with the risk and your liability. 

• If in doubt, seek legal advice on your organisation’s legal position and obligations. 

• Ensure that incident management and regulatory reporting are given special attention when managing contractors. It is important that the parties understand who is responsible for managing an environmental incident and making regulatory notifications. Ideally, put in place an incident response protocol with arrangements for notifying each other of regulatory communications, including things like regulator site visits and spot checks. 

• Be mindful that different states and territories adopt different legal management and control tests. A one-size-fits-all approach won’t work with contractor management.

Gabrielle Guthrie ALGA Contractor Management
Gabrielle Guthrie Proactive Tips Risk Management Contractors

Top tips for managing environmental compliance and legal liability

Directors and senior managers are personally liable for the environmental offences of their organisations under state and territory law. It’s a compelling reason to ensure that your organisation’s environmental management is ship shape.  Add to that the potential cost and inconvenience of being embroiled in a regulatory investigation or prosecution, and the reputational impacts of enforcement and it just makes good sense to focus on environmental compliance and to close out those difficult issues in 2017.

From a legal perspective there are two approaches to avoid.  The first is the “do nothing” approach.  The second, is the well intentioned, but equally problematic, “high investment, low follow through” approach where an organisation starts assessing and documenting its risks, but then for some reason fails to take action to resolve them.  To properly minimise risk you need to develop and follow through on a realistic compliance plan.  

I recently presented at the Australian Environment Business Network's workshop on some of the basic legal compliance steps that businesses need to implement in order to be able to demonstrate compliance to the regulators.  Click on the image below to access an abridged version of my presentation. 

Tips for how to manage this risk

·       Make sure the basics are in place.  Identify your environmental risks and legal obligations, and then implement policies and procedures to manage those risks.  Organisations have a wide variety of options available to them in the development of risk registers and legal registers.  Some will use a DIY approach and develop bespoke registers using an excel spreadsheet, others may prefer an off the shelf product, or an entire EMS software product with a dashboard that tells you when the law has changed and what to do.  If you are unsure where to start, seek some advice from your environmental lawyers or consultants.  Check out my recent presentation for some tips on where to find relevant laws, if you are starting from scratch. 

·       Train your people! It can never be overstated how essential this is. Training for your personnel, from site staff, to executives and board members is an integral component of effective environmental compliance.  It is also likely to be viewed by the EPAs as a key aspect of a legal defence (where one applies) as it contributes to demonstrating that "all reasonable steps" were taken or "all due diligence" was taken to prevent the commission of an environmental offence. In my experience most incidents happen because a site operator didn’t know the rules.  Classic examples are that they didn’t know that they “weren’t supposed to switch off that pump” or "that it was the type of incident that should be reported to management". The environment courts are increasingly making critical commentary about training (or lack of appropriate training) and so this is an area to watch. 

·       Don’t bury your head in the sand.  Tackle non-compliance and risk issues through a sensible compliance strategy. An experienced lawyer can help you minimise risk, especially when you are working through issues which require engagement of outside consultants, under the doctrine of legal professional privilege, or by recommending the use of a statutory voluntary environmental audit process. 

A quick reference illustration of key areas for compliance is shown below. 

Guthrie Legal - Key components of environmental compliance

 

Next steps

If you would like an independent gap analysis of your current compliance, and an opportunity to talk through compliance issues, Guthrie Legal offers fixed fee consultations for organisations of all sizes.  Please contact me to discuss your needs.  I also offer tailored executive briefings and training on a range of compliance and enforcement topics. Get in touch if you'd like more information about a bespoke briefing or internal training session.