Australian companies should plan now to ensure environmental compliance as the COVID-19 pandemic unfolds. This is particularly the case for licensed facilities and businesses with the potential for material environmental impacts or other obligations in respect of emission, discharges and waste management.
Looking forward, there is a real risk of staff absences within businesses and their environmental supply chains, with employees at risk of falling ill, or needing to take time off work to care for family members, among other potential factors. There may also be the need for operations to cease temporarily, and at short notice. Business will need to be mindful of the threat this may pose to their capacity to meet environmental compliance obligations, and to avoid causing harm to human health or the environment as a result of their operations. COVID-19 will not excuse businesses from complying with regulatory requirements.
Steps you can be taking now
Business continuity planning will obviously be critical in allowing businesses to navigate the pandemic over the coming period. While businesses will need to adapt to the circumstances as they evolve, some steps that can be taken now include:
- Risk assessment and contingency planning – You are no doubt doing this already across a number of areas of your business. However, it will be important to ensure that your environmental contingency plans address potential risks if staffing levels and other disruptions become critical. You will need to understand the base level of staffing required to maintain compliance with your environmental obligations, including the need for particular expertise in managing or operating particular systems and processes. Your contingency plan should include managing staffing now to minimise risk to key staff and address how you will respond if staffing levels are significantly impacted. This is particularly the case in respect of staff required for ongoing maintenance and operation of pollution control equipment, and waste storage and disposal.
- Check your approvals – Carefully check the terms of your licences and approvals, and identify conditions that raise the potential for non-compliance where availability of staff is severely impacted. This should be taken into account in your broader risk assessment and contingency planning.
- Maintain communication with staff and supply chain – Ensure you have strong communication channels with staff, contractors and other parts of your supply chain for environmental services, to enable you to anticipate potential disruptions, and to adapt your operations accordingly.
- Engage with regulators, and consider regulatory contingencies – If there are potential pinch points in your operations, carefully consider whether you have a need to engage with regulators. There are provisions in environmental legislation in some Australian jurisdictions which provide for emergency exemptions / authorisations in respect of compliance obligations in emergency circumstances1 – if you are expecting a non-compliance, you should seek urgent legal advice about next steps. Environmental regulators may be willing to grant such exemptions if the COVID-19 outbreak results in critical and unavoidable impacts on the capacity of a business to comply with its environmental obligations. The Victorian EPA earmarked this as a potential approach in a media release on 15 March 2020. However, it is clear that regulators will otherwise continue to expect businesses to comply with their approvals and environmental obligations.
We hope the above is of use to you in planning for what will be a difficult period for the community and industry more broadly. Please do not hesitate to get in touch with a member of our team if there is any way we can assist.
- Environment Protection Act 1970 (Vic) s 30A; Protection of the Environment Operations Act 1997 (NSW) Pt 9.1; Environment Protection Act 1993 (SA) s 105; Environmental Protection Act 1986 (WA) s 75; Environmental Management and Pollution Control Act 1994 (Tas) s 34; Environmental Protection Act 1994 (Qld) s 467.
The contents of this publication are for reference purposes only and may not be current as at the date of accessing this publication. They do not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking any action based on this publication.
© Herbert Smith Freehills 2020