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:
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;
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;
- 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;
- 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);
- 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.