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.

Top 10 environmental risk management issues for 2017 and how to manage them

It's here! Environment Express 2017. I’ve reflected upon recent cases, emerging industry challenges and regulatory changes to tease out the most significant risks for organisations this year.  Get clarity on the issues and practical tips to help you with environmental risk management.  Click on the image below to download the publication.

Feel very free to use the issues index as a starting point for assessing which issues are relevant to your organisation.  If any issues resonate with you or you have an “Ah ha” moment and would like some help managing an environmental or planning issue, please get in touch.

Or why not book me in for an executive briefing tailored to the specific issues relevant to your organisation? 

Changes to environmental laws in 2017

It's set to be a busy year for environment managers across Australia, with a raft of changes to environment and planning legislation and policy enacted in late 2016 and proposed for 2017.  I presented a national update to the Australian Environment Business Network on some of the key areas of reform: chemicals, waste, planning and biodiversity.  Recent case law also indicates a renewed focus on liability for management systems and the need to get the basics of compliance right - namely implementation of procedures and training.  Have a look at an abridged version of my presentation for a quick overview of key regulatory developments, and get in touch if you'd like an executive briefing on the issues.

 

 

Waste Law Update

I was delighted to attend the Australian Environment Business Network's Seminar Managing Your Waste Effectively on 1 December 2016 to present an overview of legal developments in VIC, NSW, QLD, SA & WA.  

Key legal developments for generators, transporters and waste facility operators include NSW EPA's proposed abandonment of the proximity principle (which affects how far waste can be transported prior to disposal); changes to the beneficial re-use rules in VIC and QLD; and detailed changes to waste regulations in SA, WA and NSW, particularly around construction and demolition waste. 

 Click on the presentation below to view an abridged version of my talk. 

Training for your personnel, from board level, to executives and site staff 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.  

Guthrie Legal offers fixed fee bespoke training for your organisation, whatever your industry and specific environment and planning concerns.  Please get in touch if you would like further information. 

This blog, any linked presentations 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.