Knowing how to respond to an environmental incident is crucial for all businesses. We have done it many times before and can guide you through the first critical 48 hours.
Environmental incidents may relate to pollution, waste, contamination, biodiversity, heritage or Aboriginal cultural heritage. These incidents can have significant consequences and reputational impacts for business.
KWM has a truly national (east and west coast) team with local expertise and team depth. Utilising our strong expertise in environmental investigations, incident response, management strategies and defending regulator enforcement action, we guide clients on responding to environmental incidents which require urgent response and risk management.
Most environmental laws include a broad range of environmental duties to take proactive action on protecting the environment and human health. This can include the preparation of environmental management plans and systems and pollution monitoring and incident response plans. For declared / prescribed mines under work health and safety (WHS) and mining laws, these requirements are particularly specialised and onerous.
In the event of a pollution incident (pollution of the atmosphere, land or water), there are strict statutory requirements and procedures for notifying and reporting the incident to the environmental regulators (EPAs) and other agencies. The EPAs have a range of investigation and enforcement powers including remedial notices and prosecutions for offences (including powers to prosecute directors, officers and persons concerned in the management of a company). Most of these investigation and enforcement powers are similar, but there are important differences in each jurisdiction.
Community concerns are growing, and regulators are becoming increasingly active and well-resourced in areas such as biodiversity, native vegetation, Aboriginal cultural heritage, listed heritage, making enforcement action and prosecutions more common. KWM has extensive experience dealing with complex investigations in all these areas in multiple States, including under the Commonwealth Environment Protection and Biodiversity Conservation Act 1999 (Cth). Through the Nature Positive reforms at the Commonwealth level, Australia will soon have a well-resourced Environment Protection Australia with a range of new contemporary power to enforce the new federal Nature Positive legislation.
Penalties for contravention of environmental legislation can be significant with large fines, alternative sentencing provisions (including publication orders, remediation and restoration orders and contributions to environmental and community projects) and imprisonment in very serious cases.
The venue in which environmental prosecutions can be brought also vary significantly from Local and Magistrates’ Courts, to specialist Environmental Courts, to higher Courts in relevant State and Federal jurisdictions.
