COVID-19: Environmental obligations
Ensuring compliance with environmental obligations
Licence conditions and statutory clean-up notices often require regular on-the-ground testing, lab analysis and time-based reporting - all of which may be hindered or delayed during this period of social distancing and shutdown restrictions. Approvals for urgent works and changes to waste streams or discharges may be difficult to obtain where fast-track approval pathways are unavailable and while regulator resources are stretched. This poses compliance risks for businesses.
So far, regulator responses to COVID-19 have varied. So, too, the willingness of regulators to take a pragmatic, risk-based approach to enforcement of environmental obligations. Some regulators have made clear statements that continued compliance is expected, while others have foreshadowed a more pragmatic approach.
In this context, it is critical to understand the options available to support continued compliance, particularly in circumstances where many environmental offences are strict liability.
GENERALLY SPEAKING, NO
Planning and environmental laws and approval conditions are typically framed as absolute compliance requirements linked to quantitative limits, targets or timeframes. These may include deadlines for reporting requirements, maximum allowable emissions to air or water, or obligations to cease or modify operations where environmental outcomes are not met. Associated offence provisions in legislation for failing to comply with these requirements (eg breach of conditions, or pollution of land or water) tend to be strict liability offences, with a business exposed to enforcement action for non-compliance where a condition is breached, an unauthorised discharge occurs or environmental harm is caused.
Unless the relevant legislation contains an applicable exemption, or one is granted by the regulator, the COVID-19 pandemic and associated interruptions to business operations are not, of themselves, justifications to cease or defer compliance with environmental requirements. If a business causes environmental harm or breaches an approval condition, it may be exposed to regulatory action notwithstanding the circumstances that led to the breach.
Increasingly, environmental regimes across Australia are moving towards harm prevention models that require businesses to take all reasonably practicable steps to minimise risks of harm to human health and the environment. The question of what steps are 'reasonably practicable' for a business to take during a time of significant business disruption should be front of mind for businesses. The anticipated decrease in available resources and restrictions on site access during COVID-19 might impede your ability to take the steps usually available to mitigate environmental impacts. In contrast to strict liability-type offences, businesses subject to these types of duties will need to carefully consider, and document, how they plan to minimise environmental and human health impacts now, and as their operations continue to evolve over the coming months.
As discussed below, paying close attention to the guidance being issued by regulators will be key to assessing compliance risks for your business during the COVID-19 outbreak. It is promising that some regulators are signalling plans to relax enforcement activity, in recognition of the significant difficulties businesses may have meeting their environmental obligations and approval requirements over the coming months.
Finally, actions to maintain compliance with environmental requirements should not be taken at the expense of workforce health and safety. The duty of care to workers is paramount, and businesses cannot put their workers at risk even to meet other legal obligations. Duties of employers are discussed further in the 'Issues in the Workplace' section of this COVID-19 update.
Regulators responsible for overseeing compliance with environmental, planning and resources regimes are beginning to issue guidance on their approach to administration, approvals and enforcement during the COVID-19 pandemic. So far, we are seeing diverse approaches, ranging from suggestions that compliance requirements may be relaxed, through to clear statements that ongoing compliance is expected. There are three broad approaches emerging:
- Some regulators (eg the NSW, Victorian and Tasmanian EPAs and the federal Department of Agriculture, Water and Environment) have made it clear that compliance with licence conditions will still be expected.
- Some regulators (eg the Queensland Department of Environment and Science, the NSW Department of Planning, Industry and Environment, the NSW Resources Regulator, the Western Australian Department of Water and Environmental Regulation, the Northern Territory EPA and WorkSafe Tasmania) have indicated that a flexible and pragmatic approach will be taken to enforcement and compliance action.
- Some regulators (eg the Western Australian and South Australian EPAs) have not yet taken a firm position.
Some regulators have also encouraged businesses to self-report any actual or anticipated failures to comply with the terms of their environmental or planning approvals at an early stage. For example, the Queensland Department of Environment and Science has urged holders of environmental authorisations to self-report actual or anticipated non-compliances because of conflicting requirements imposed by the Chief Health Officer due to COVID-19. Doing so does not provide statutory relief from compliance action, but the Department has indicated that it will not take enforcement action where an authority holder can demonstrate that the non-compliance is because of a direction of the Chief Health Officer and they will otherwise take all reasonable and practicable measures to prevent environmental impacts. A number of state environmental regulators have also urged businesses to put in place business continuity plans to ensure, as far as possible, that they meet their environmental obligations.
We expect regulators will continue to update their advice as the impact of COVID-19 on key industries keeps evolving. It will be important for businesses to check regularly for updates on the latest advice from regulators concerning their approach to COVID-19.
Where it will be difficult to comply with existing requirements under licences or approvals as a result of COVID-19, one option is to seek a variation to conditions. COVID-19 may also require a ramp-up in production for some businesses, with associated increases in emissions that require variations to existing approvals or secondary consents / separate approvals.
In most cases, the timeframes for the grant of new licences and approvals or variations will not be short enough to avoid the risk of a significant period of non-compliance. However, some states' statutory regimes do provide fast-tracked pathways for new approvals for 'emergency works', and streamlined variations processes for urgent changes. For example:
- Queensland's Department of Environment and Science can grant a temporary emissions licence to permit the temporary relaxation or modification of conditions of an environmental authority. While this power has not previously been employed in the context of a health emergency, the Department has issued these licences in response to weather emergencies such as unanticipated extreme flooding.
- The EPAs in Victoria, South Australia and Tasmania can issue emergency authorisations in place of standard approvals (including for the discharge or storage of waste) in specified circumstances. Businesses are encouraged to contact the EPA to discuss these approvals as early as possible, and they will be assessed on a case-by-case basis.
Some states also have powers to suspend regulatory requirements or grant exemptions. For example:
- The NSW EPA can grant exemptions to provisions of the Protection of the Environment Operations Act 1997 (NSW) or the regulations in the case of an emergency.
- In WA, the Department of Water and Environmental Regulation can grant exemptions to emissions limits during a temporary emergency.
- The NT EPA allows proponents to enter into 'compliance plans' with the EPA. These provide for staged implementation of improvements to operations where a proponent is unable to comply with regulations or an environmental protection objective under the Waste Management and Pollution Control Act 1998 (NT).
Where there are no existing statutory powers that enable relaxation of environmental or planning requirements, legislative amendments will be required for states wanting to provide some relief to businesses. For example, the NSW Government has passed emergency legislation under which the Minister for Planning has made orders to relax delivery hours restrictions for supermarkets; to allow building work to take place on Saturdays, Sundays and public holidays, including for infrastructure projects; to allow certain premises to be used for the preparation of food or beverages to be consumed off the premises; and for certain essential types of developments, such as COVID-19 clinics, to be carried out without any form of planning approval.
Businesses with complex operations and potential environmental impacts are used to anticipating and responding to regulatory changes imposed by multiple regulators at state, territory and federal level. Usually, there is a relatively long lead time between reforms being mooted and implemented, giving businesses time to digest, plan for and adapt to reforms in advance.
We can expect some reform work in its early stages (eg inquiries and public consultation) to be deferred over the coming months. However, some governments appear to be pushing ahead with fairly significant reforms, such as the proposed amendments to the Environmental Protection Act 1986 (WA) and the NSW Government's proposed changes to the infrastructure contributions system.
A number of industry groups have contacted governments, requesting regulatory relief and delays to reforms that could impact their sector. However, businesses should be aware that reforms that have already been legislated are usually subject to commencement deadlines in amending statutes, which cannot be shifted without further legislative amendments passed by Parliament.
For example, significant reforms to Victoria's environmental protection regime were set to commence from July 2020, and no later than December 2020. However, commencement of the reforms has now been delayed by at least twelve months. The COVID-19 Omnibus (Emergency Measures) Act 2020 (Vic) passed into law on 24 April 2020, introducing a suite of emergency measures during the COVID-19 pandemic, including deferring the mandatory commencement of all provisions of the new Environment Protection Amendment Act 2018 (Vic) which have not yet come into operation, and changing the 'long-stop- date' for commencement of the reforms from 1 December 2020 to 1 December 2021. It does not make any changes to the content of the new laws.
Businesses should continue to monitor for any announcements regarding whether reforms which could impact their operations will proceed during COVID-19, and what regulator attitudes will be to enforcing compliance with new laws.
COVID-19 is presenting new daily challenges, including reducing site-based workforces and forcing businesses to focus on business-critical activities only. With resources diverted and site access restricted, we expect managing regulatory compliance to pose a further challenge for our clients. We suggest taking these steps now to stay on top of your obligations.
- Audit your business's compliance obligations – what are your key approval conditions? Do you have any upcoming reporting deadlines?
- Identify specific compliance obligations that require external consultants / auditors / laboratory analysis to facilitate compliance. Reach out to those contacts now, to identify anticipated interruptions or delays in response times.
- Consider if compliance can be achieved another way: eg remote monitoring using equipment, rather than attendance on site by your team.
- Consider whether it is wise to contact key regulators for a discussion about your business-critical activities and anticipated challenges.
- Incorporate compliance work into your workforce planning. Can key staff / resources be reallocated to focus on higher-risk obligations or those linked to your business-critical activities?
If, having done the above, there is still a risk that you might not be able to comply with approval requirements or environmental laws in the coming months, organisations might look to:
- identify (and document) what reasonable steps you consider can or cannot be implemented to mitigate any harm that may occur as a result of not being able to achieve compliance; and
- consider whether it is appropriate to discuss this with the regulator.
The NSW EPA has specifically called for businesses to notify it if they anticipate any significant risk to their ability to comply with their licence. This suggests that the EPA is willing to take a flexible approach to compliance where businesses are proactive in identifying and self-reporting potential non-compliances. In our experience, self-reporting is likely to positively influence the exercise of the regulator's discretion whether to take regulatory action in response to a non-compliance. It also creates an opportunity to discuss potential exemptions or variations to obligations, where the regulator has power to do this.
A number of industry associations have written to regulators, calling for a flexible approach to compliance during the COVID-19 crisis. For example, the National Waste and Recycling Industry Council has urged state and local governments to be more flexible on certain facility licence conditions, so that social distancing to protect staff can be maintained and collection-time curfews can be lifted.
We are also here to provide support if you are facing potential compliance issues, and would be happy to assist you to write to regulators, advocating for a pragmatic approach to enforcement; to review your compliance and/or regulator engagement strategies; or provide advice on your specific statutory and licence obligations, and any avenues to have these varied, if necessary.