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