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.
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.