It is often thought that the existence of an operating procedure, and the provision of training, is sufficient to establish the general environmental defence contained in the Environment Protection Act 1993 (SA) (EP Act). However, the Supreme Court of South Australia has recently provided guidance on application of the general defence in the event of a pollution incident.

The judgment in the case of Ashton Valley Fresh Pty Ltd v Dolan [2021] SASC 44 establishes that these factors alone may not be sufficient. Whilst the judgment considered a number of issues, it did not provide a thorough check list of steps required for an organisation to satisfy the defence.

We have drawn some valuable insights from which will assist you to ensure your business is protected in the event of environmental incident.

Background

Ashton Valley Fresh Pty Ltd (AVF) were found guilty in the Environment Resources and Development Court of two offences under the EP Act. These offences related to contravening mandatory provisions of an environment protection policy, as a result of discharging an organic pollutant into a waterway by means of a tap that was erroneously turned on.

A PVC pipe was used to pump raw wastewater to a wastewater treatment plant on AVF's property. The pipe contained a tap, and when it was 'opened', the wastewater would divert into an open drain leading to Deep Creek, rather than into the wastewater treatment plant.

South Australian Environment Protection Authority (EPA SA) officers identified a pollutant in the waterway and that it had originated from the opened tap. AVF submitted that the Standard Operating Procedure (SOP) it had in place, and the training provided to the employee with responsibility for operating the wastewater treatment plan, was sufficient to establish the general defence. The Court did not agree.

A general defence for both criminal prosecutions and civil enforcement is available in the EP Act, where a contravention did not result from any failure on the defendant's part to take 'all reasonable and practicable measures to prevent the contravention of the same or similar nature'. The phrase 'reasonable and practicable measures' has not been the subject of previous comment by the Court.

Why is this important?

It is critical for businesses to have very specific operating procedures and risk assessments for all operations, and to provide a high level of training, supervision and instruction to all staff, operators and contractors. This includes ensuring that those responsible for conducting the training are themselves appropriately trained.

Without this, reliance on the general defence of having taken 'reasonable and practicable measures' in the event of a potential breach of the EP Act will be very difficult. These measures need to be specific to the types of operation being conducted, and the specific procedures for all operations and training required, including ongoing training.

This is even more important because the onus of proving the defence rests with the business.

What should you do?

Now that we have some guidance from the Court, it is an appropriate time to review your operating procedures, risk assessments and training provided to your staff, operators and contractors.

Our team is available to discuss your operations to ensure that appropriate measures are being adopted, which will maximise the chances of relying on the defence in the event that a potential breach occurs.

We suggest that this is a timely opportunity to review your operations to ensure that:

• steps are taken to identify risks, produced in a written risk assessment, and reasonable measures are taken to alleviate the risks identified. For example, a tap leading to an open drain may need to be bunded, diverted elsewhere, or locked, boxed, tagged or alarmed;
• written operating procedures are prepared and provided to all staff, operators and contractors who may be on site. These should be regularly reviewed and updated;
• operating procedures relate to all functions undertaken, no matter how minor or regularly used. This is particularly important where there is a potential impact from improper use. In this case, the SOP provided for operation of the wastewater treatment plant, but did not mention the particular tap;
• operating procedures envisage things that may go wrong, and provide clear direction and responses to operators in the event something does go wrong. They should also provide for prompt reporting to management, including identification of a risk of contravention;
• training is provided to all staff, operators and contractors, and ensure that those responsible for conducting the training are themselves appropriately trained; and
• there is active promotion and enforcement of compliance with the EP Act, including relevant systems and procedures, and that appropriate supervision and instruction is provided.

This is of course not an exhaustive list to ensure the defence can be established, as each matter will depend on its individual circumstances. However, this may provide an appropriate starting point for a review of your operations.

If you would like more advice on this matter, please contact our team to discuss how you can ensure your business is protected in the event of an environmental incident.