Despite an organisation's best efforts, environmental incidents can and do occur. Sometimes environmental harm is detected soon after an incident. At other times, environmental harm may only be uncovered after an audit or investigation is undertaken.
In both instances, to ensure you minimise your legal and reputational risk, it is essential to be aware of the different incident notification requirements that apply wherever you do business.
Mid-year is an opportune time to review the policies and procedures that your organisation has in place to ensure it can respond to an incident and to consider whether staff ought to receive refresher training on their obligations.
In this eBulletin, we provide you with information on incident notification obligations as they arise in each state and territory and conclude with a series of practical considerations that should be borne in mind if an environmental incident arises.
In all states and territories apart from Victoria, there is a statutory regime for the notification of pollution incidents to environmental regulators:
- in the Australian Capital Territory, Northern Territory, South Australia, Tasmania and Western Australia, the notification obligation applies "as soon as reasonably practicable" after the event or becoming aware of the event;
- in Queensland, notification must be made "not less than 24 hours after becoming aware of the event"; and
- in New South Wales, immediate notification is required.
The type of notification (written or verbal), timeframe for reporting and the authorities which must be notified varies in each state and territory. Generally, notification must be made to the relevant Environment Protection Authority (EPA).
In New South Wales, notification must also be made to WorkCover, Fire and Rescue New South Wales, the local Council and the Ministry of Health.
In Queensland, notification must be made to the "administering authority" which may include the local Council, Department of Environment and Heritage Protection as well as the Department of Agriculture, Fisheries and Forestry.
In addition to your statutory obligations, if your site holds an environmental licence, approval or permit, this may also impose duties for notifying pollution incidents. The penalties for organisations and senior managers for failing to comply can be severe, so it is imperative that your organisation has a policy in place to meet its legislative obligations and ensure that staff are appropriately trained.
Coming changes in Victoria - consider your risks and prepare
Sites that hold an environmental licence in Victoria are bound by a condition requiring notification to the Victorian EPA of any non-compliance with licence conditions. The Environment Protection Act 1970 (Vic), however, does not presently impose a general duty to notify the EPA of pollution incidents.1 Despite the lack of a specific statutory notification regime, organisations should not be under the impression that it is acceptable or advisable to avoid reporting pollution incidents.
Prompt notification is an important part of effective mitigation and the EPA has become more proactive, particularly in compliance and enforcement. From July 2012 to March 2013,2 the EPA conducted over 880 inspections in response to emergency incidents and pollution reports - giving weight to predictions of a steady increase in EPA prosecutions in the future.
The EPA's Compliance and Enforcement Policy3 (Policy) provides the framework through which the EPA has pledged to exercise discretion around compliance and enforcement. Its main approach to enforcement involves an assessment of the likelihood of non-compliance against the risk of harm to health and the environment. According to the Policy, the EPA's response will be commensurate with the likelihood of harm and the severity of the risk to the environment.
With these considerations in mind, organisations should seek early legal advice on the strategy for reporting incidents to the EPA.
Bottom line for environment managers
The penalties for failing to notify can be high for an organisation, as well as personally for its directors and senior managers. As soon as an environment incident occurs, your personnel must know what to do and ensure that they take prompt action, including notifying all relevant authorities.
If a pollution incident occurs:
- In the case of an emergency, always call 000 first.
- Take immediate steps to eliminate or reduce any harm to people, the environment and damage to property.
- Notify the relevant authorities.
- Never speculate - only provide the regulator with information of known facts and then continue to liaise with them as more information comes to light.
- Establish legal professional privilege over pertinent documents (such as internal investigation reports following an incident) by seeking legal advice.
- Implement your media / community communications plan.
- Ensure your staff are trained in incident response and notification obligations.